STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs.

YAISA D. FORD,

Respondent.

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) Case No. 10-8244

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 19, 2010, in Largo, Florida, 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 violated Pinellas County School Board Policy 4140A(21) and Section 2.02A of the Pinellas County Schools Transportation Department Bus

Driver Handbook, and, if so, should Petitioner suspend Respondent for one day without pay.

PRELIMINARY STATEMENT

By letter dated August 24, 2010, Petitioner, Pinellas County School Board (School Board), advised Respondent, Yaisa D. Ford (Ms. Ford), that she was being suspended for one day without pay for violating School Board Policy 4140A(21), which prohibits conduct unbecoming a School Board employee, and for violating Section 2.02A of the Pinellas County Schools Transportation Department Bus Driver Handbook (Handbook), which requires school bus drivers to operate their school buses in accordance with the Florida Traffic Laws, requirements of the State Board of Education, and the Handbook. The School Board also alleged Ms. Ford violated Section 2.02E of the Handbook.1

Ms. Ford requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment of an Administrative Law Judge to conduct the final hearing. The case was originally assigned to Administrative Law Judge William F. Quattlebaum, but was transferred to Administrative Law Judge Susan B. Harrell to conduct the final hearing.

On October 14, 2010, Talmadge Andrews filed a request to be accepted as a qualified representative for Ms. Ford. The request was granted by Order dated October 18, 2010.

At the final hearing, the School Board called the following witnesses: Ms. Ford, Patricia Raphel, James McBride, and James Lott. Petitioner's Exhibits 1 through 10 were admitted in evidence.

At the final hearing, Ms. Ford testified on her own behalf.

Respondent's Composite Exhibit 1 was admitted in evidence.

The one-volume Transcript was filed on November 4, 2010. The parties agreed at the final hearing to file their proposed recommended orders within ten days of the filing of the Transcript. The School Board filed its Proposed Recommended Order on November 15, 2010. As of the date of this Recommended Order, Ms. Ford has not filed any post-hearing submittal.

FINDINGS OF FACT

1. Ms. Ford started her employment with the School Board as a teacher's assistant in January 1999 and became a full-time bus driver in August 1999. During the 2009-2010 school year, Ms. Ford drove Route 875, on which students are transported in the afternoons from Dixie Hollis to their destinations in

   St. Petersburg.

   
   

2. The bus which Ms. Ford drives on Route 875 is equipped with a video camera which records the activities on the bus during the route. A portion of the activities outside the bus are recorded by the video camera.

   
   

3. On January 26, 2010, Ms. Ford was proceeding south on Third Street while on Route 875. At approximately 2:50 p.m., Ms. Ford stopped at the intersection of Third Street and Twenty- second Avenue, South, and turned right. Third Street is a two- lane street located in a residential area, with signs designating bike paths throughout the area.

4. The next intersection on Twenty-second Avenue, South, after Third Street is Fourth Street. Twenty-second Avenue, South, is a two-lane road, except at the Fourth Street intersection where there is a left-turn lane, a center lane with an arrow pointing straight, and a right-turn-only lane. There is a flat median on Twenty-second Avenue, South, which begins a few feet southward of Third Street. The median is delineated by double yellow lines on each side. The median ends at the beginning of the left-turn lane on Twenty-second Avenue, South, at the intersection of Twenty-second Avenue, South, and Fourth Street.

5. Once on Twenty-second Avenue, South, Ms. Ford moved into the left-turn lane and stopped to make a left turn onto Fourth Street. The video recording shows that, as Ms. Ford was traveling in the left-turn lane, there was a bicyclist on the left side of the bus either in the median or very near the yellow center-lines of the road. The bus passed the bicyclist and proceeded to stop in the left-turn lane. While Ms. Ford was

   
   

   stopped in the left-turn lane, the bicyclist rode her bike past the left side of the bus on or over the yellow line. As the bicyclist came along side the bus, she made a gesture with her middle finger and shouted at Ms. Ford.

6. After the bicyclist gestured and made comments to

   
   

   Ms. Ford, Ms. Ford shouted at the bicyclist and said: "What you mean. No, you ain't even in the road. I bet you won't look back. Look back. No, you better get out of the road."

   Ms. Ford also blew her horn at the bicyclist several times. The bicyclist stopped a few inches in front of the bus in the turn lane.

7. Ms. Ford turned onto Fourth Street, closely following the bicyclist. The bus was so close to the bicycle that one of the students in the bus said: "Don't hit her [the bicyclist], miss." Ms. Ford replied: "I might. She done made me mad." As the bus was traveling on Fourth Street, a student said: "Slow down, miss. Please slow down." The bicyclist felt that the bus was traveling so closely to her as they were making the turn from Twenty-second Avenue, South, to Fourth Street that she feared for her life.

8. Ms. Ford claims that the bicyclist had not been in front of the bus on Third Street; that the bicyclist had been going south on Twenty-second Avenue, South, and was traveling in

   
   

   the median; and that she thought that the bicyclist had turned left onto Florida Avenue.

9. The bicyclist claims that she had been riding south on Third Street and that no bus was near her; that she turned left onto Twentieth Avenue, South; that she had intended to turn left onto Fourth Street; that, as she was getting into the turn lane, the bus came along her right side with no warning; and that she had to veer to the left into oncoming traffic to avoid being hit by the bus. She claims that she had not traveled in the median.

10. Whether Ms. Ford's claims are correct or whether the bicyclist's claims are correct concerning whether the bicyclist was in the traveling lane of Twenty-second Avenue, South, is irrelevant based on the charging document. Additionally, the claims of Ms. Ford and the bicyclist are equally credible.

    CONCLUSIONS OF LAW

    
    

11. 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).

12. Ms. Ford 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).2 The Superintendent of the Pinellas County 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.

13. The School Board has alleged that Ms. Ford has violated School Board Policy 4140A(21) 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).

14. School Board Policy 4140A(21) provides that an employee may be disciplined for "[c]onduct unbecoming a Board employee that brings the District into disrepute or that disrupts the orderly processes of the District."

15. Section 2.02A of the Handbook provides:

    
    

    1. 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 the procedures detailed in this Handbook.

       
       

16. The charging document lists the following factual allegations as the basis for the alleged violation:

    On January 26, 2010, a citizen reported to the call center that a bus driven by

    Ms. Ford tried to force her off the road while she was riding her bicycle. The caller stated that she said something to the driver (and she may have gestured with her finger) and the driver retaliated by following closely and blowing the horn at her as she made a turn.

    
    

    An Office of Professional Standards (OPS) administrator and the Director of Transportation met with the complainant and reviewed the Digital Video Recorder (DVR). The DVR shows the following:

    
    

    • The bus passing the bicyclist.

      
      

    • The bicyclist riding near the center of the street on or near the yellow line.

      
      

    • The bus stopping at a traffic light and the bicyclist then passing the bus on the left.

      
      

    • As the bicyclist passes the bus she says something to the driver (inaudible) and then pulls directly in front of the bus as they wait for the light to change to green.

      
      

    • The driver then begins to blow the horn several times and says "I bet you won't look back. You better get out of the road."

      
      

    • The light turns green and Ms. Ford follows the bicyclist around the corner. As the bus turns the corner, a student can be heard saying to the driver "Don't hit her Miss."

    
    

    * * *

    
    

    Although the DVR did not record the bicyclist hand gesture and her comment to the driver was inaudible, Ms. Ford demonstrated poor judgment in front of students by her response to the bicyclist. Her actions are a violation of the policies listed above and constitute her one (1) day suspension without pay.

    
    

17. The conduct for which the School Board seeks to discipline Ms. Ford is Ms. Ford's responses to the bicyclist's comments and hand gesture. The responses included blowing the

    
    

    horn at the bicyclist, shouting inappropriate comments to the bicyclist, and following the bicyclist too closely as they made the turn onto Fourth Street.

18. The School Board has established by a preponderance of the evidence that Ms. Ford made inappropriate comments to the bicyclist and blew her horn at the bicyclist several times, including while both the bus and bicycle were stopped in the turning lane. Ms. Ford's actions were in violation of School Board Policy 4140A(21). She was not an appropriate role model for the students and demonstrated to any passing motorist that an employee of the School Board was not acting professionally.

19. The School Board has established by a preponderance of the evidence that Ms. Ford violated Section 2.02A of the Handbook by violating Section 316.271, Florida Statutes, which provides:

    The driver of a motor vehicle shall, when reasonably necessary to ensure safe operation, give audible warning with his or her horn, but shall not otherwise use such horn when upon a highway.

    
    

    It was not necessary for Ms. Ford to blow her horn at the bicyclist to ensure operation of the bus.

20. The School Board also established that Ms. Ford violated Section 2.02A of the Handbook by violating Section 316.0895, Florida Statutes, which provides:

    
    

    The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon, and the condition of, the highway.

    
    

    Based on the comments of the student on the bus and the bicyclist's fear for her life, it is concluded that Ms. Ford was following the bicyclist too closely as they were making the turn onto Fourth Street.

21. In its Proposed Recommended Order, the School Board proposes that Ms. Ford also violated Sections 316.0895, 316.083, and 316.084, Florida Statutes. However, the charging document does not charge that Ms. Ford improperly passed the bicyclist. The conclusion of the investigation, which is the factual basis for the suspension, states that Ms. Ford's violations were related to her actions after the bicyclist made comments to

Ms. Ford and made an inappropriate gesture with her middle finger.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Ford violated School Board Policy 4140A(21) and

Section 2.02A of the Handbook and suspending her without pay for one day.

DONE AND ENTERED this 17th 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 17th day of December, 2010.

ENDNOTES

1/ Section 2.02E of the Handbook deals with protection of the school bus drivers from students who pose a danger to the safety of the bus driver. Based on the language of the section, it is clear that it is not applicable to the instant case, and the School Board has not addressed the section in its Proposed Recommended Order. Thus, that allegation is considered abandoned.

2/ 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: 10-008244TTS

Orders for Case No: 10-008244TTS