STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs.

ROBERT EVANS,

Respondent.

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) Case No. 11-1090

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on April 28, 2011, in Largo, Florida, before Administrative Law Judge R. Bruce McKibben 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

449 Central Avenue, Suite 104 St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to terminate Respondent, Robert A. Evans', employment with Petitioner, Pinellas County School Board (the "Board"), based on Evans' history of violations of employee policies, most recently

and specifically, using his position to seek a personal relationship with the parent of a student. Evans is accused of violating the following Board policies:

4140-A (10)--Using position for personal gain/conflict of interest;

4140-A (21)--Conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district;

3140-A (22)--Misconduct or Misconduct in Office;

4140-A (24)--Failure to comply with board policy, State law, or appropriate contractual agreement; and

4362--Anti-Harassment.

PRELIMINARY STATEMENT

On November 15, 2010, Dr. Julie M. Janssen, superintendent of Pinellas County Schools, issued a letter to Evans indicating that she would recommend to the Board at its upcoming meeting that Evans' employment be terminated. That letter was followed up by a Request for Approval dated December 7, 2011, from Dr.

Janssen to the Board, recommending termination of Evans' employment. The Superintendent's Request for Approval is deemed an Administrative Complaint for purposes of this matter. Evans requested a formal administrative hearing on the issues stated in the Administrative Complaint.

At the final hearing, Talmadge Andrews made his first appearance on behalf of Evans in this matter. Andrews stated under oath that he was familiar with the administrative hearing process, understood the rules of procedure and evidence, and that he was competent to represent the interests of Evans in this proceeding. Over objection of counsel for the Board, Andrews was accepted as a qualified representative for purposes of this case.1/ During the final hearing, the Board called the following witnesses: Robert A. Evans, Respondent; A.E., mother of a student; Daniel Brennan, assistant principal at Mount Vernon Elementary School (the "School"); T. Mark Hagewood, manager of Transportation; and James Lott, administrator of the Office of Professional Standards. Petitioner's Exhibits 1,

3 through 8, and 10 through 13 were admitted into evidence.

Evans testified on his own behalf, but called no other witnesses. Evans' did not offer any exhibits into evidence. (All hearsay evidence was admitted subject to corroboration by competent, non-hearsay evidence or as a supplement to other admissible evidence. To the extent such hearsay was not corroborated or did not supplement other evidence, it will not be used as a basis for any finding herein.)

The parties advised the undersigned that a transcript of the final hearing would be ordered. They were given ten days from the date the transcript was filed at the Division of the

Administrative Hearings to submit proposed recommended orders. The Transcript was filed on May 31, 2011. Evans submitted a Proposed Recommended Order on May 9, 2011, i.e., prior to the Transcript being filed at the Division. Evans' Proposed Recommended Order did not cite to the record in this case. The Board filed its Proposed Recommended Order on May 23, 2011.

Both parties' submissions were given due consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Board is the governing body responsible for hiring, firing and overseeing all employees in the Pinellas County School District. Specifically, the Board has responsibility for employees at the School, including educational support employees who provide services to the School.

2. At all times relevant hereto, Evans was an educational support employee of the Board. Evans had worked as a school bus driver for the Board for 14 years. At the time of the incident, which is the primary focus of this administrative hearing, Evans was serving as a relief driver. That is, Evans would drive a bus route when the regular driver was sick or otherwise unavailable. Relief drivers are paid a higher hourly wage than regular drivers.

3. On September 21, 2010, Evans had been assigned Route 879, relieving David Levering, the regular driver. The

   
   

   route included a number of stops before terminating at the School. The first stop on the route was at Anastasia Way and Cordova Way (the "Bus Stop").

4. When Evans arrived at the Bus Stop, a child, identified herein as "M.P.C.," got on the bus. M.P.C. had been escorted to the Bus Stop by her mother, A.E. Evans engaged in some sort of idle chat with A.E., including questions which she considered frivolous. For example, Evans asked A.E. if a nearby truck was for sale. A.E. thought Evans was acting oddly and had no further conversations with him. Evans did not drive

   Route 879 on the after-school run.

   
   

5. On the following day, September 22, 2010, Evans was assigned to a different bus. That bus also terminated at the School. When Evans was at the school on September 22, 2010, he asked the assistant principal, Brennan, to do him a favor.

   Evans handed Brennan a small sealed envelope. He asked Brennan to give the note to an assistant on the bus for Route 879 and to ask the assistant to give it to a student, M.P.C. Brennan made some quick written comments on the envelope and then delivered it to the bus assistant as requested. Brennan did not know what the envelope contained. He believed it must have been something the student left on the bus.

   
   

6. The note was dutifully transferred to the bus assistant and then to M.P.C., who gave the note to her mother, A.E. The note said in its entirety:

   9-22/10

   Hello I'm the bus driver. I picked up at your daughter's bus stop. We meet [sic]

   I would like to talk to you [telephone number]

   Mt. Vernon Elementary School Robert Anytime

   
   

7. Evans contends that the purpose of the note was to make sure that M.P.C. got on the correct bus, at the correct bus stop, at the proper time. According to Evans, A.E. had complained to him on the morning of September 21, 2010, that the bus frequently arrived late or early at the Bus Stop. Evans says that he felt a duty to help M.P.C., notwithstanding the fact that he had never met her before and was only doing relief duty on September 21, 2010. According to the Transportation Department records, however, A.E. had only called a couple of times about the bus being late. Evans' explanation about the purpose of the note is not consistent with the facts and is not credible.

8. When A.E. received the note, she was somewhat upset.

   
   

   1. felt as though Evans was coming on to her or making an improper proposition. She discussed the note with her boyfriend, but did not do anything about it initially. She just thought Evans was acting weird or inappropriate, because she had

      
      

      never asked him for assistance or discussed any problems with him. But she was not sufficiently upset to take further action at that time.

9. On the following Monday, A.E. remembers the school bus coming toward the Bus Stop, but when the driver looked at her, he turned the bus down another street as if he were avoiding her. A.E. thought the driver, who she believed was Evans, was intentionally trying to punish her daughter because she (A.E.) did not respond to his advances. However, there was no evidence presented at final hearing that Evans was driving Route 879 on that Monday. According to the Board's manager of Transportation, Evans only drove Route 879 one time,

   September 21, 2010, so A.E. is obviously mistaken as to that

   
   

   fact.

   
   

10. Nonetheless, A.E. decided to contact the School about

    
    

    Evans' actions, i.e., sending her a note and skipping her daughter's bus stop on Monday.2/ She called the School to complain; Brennan took the call. Brennan described A.E.'s attitude and demeanor during the phone call as extremely irate. It was at that time that Brennan discovered the content of the note he had helped deliver. Brennan was embarrassed at his inadvertent involvement in the matter.

11. Brennan then called the county Transportation Office to report the incident. The Transportation Office's written

    
    

    report concerning the incident is fraught with errors and cannot be relied upon to make a finding of fact, but it is clear Evans' behavior was deemed inappropriate. In fact, Evans admitted under oath that it was against the rules for him to give either a note or his cell phone number to A.E.

12. Based upon the nature of the infraction, the School contacted its Office of Professional Standards to inquire as to what sanction should be imposed on Evans for his behavior. It was decided that termination of employment was the proper discipline based on Evans' history of problems. Taken into consideration by the Board were the following disciplinary actions against Evans during the two years preceding the incident:

    • November 14, 2008--warning for using school bus for personal use;

      
      

    • December 5, 2008--conference summary for not using most direct path to return to compound;

      
      

    • May 4, 2009--letter of caution for excessive absences;

      
      

    • October 20, 2009--conference summary for tampering with the bus camera and failing to properly compound the bus after use;

      
      

    • December 16, 2009--letter of warning for failing to operate a shuttle in a timely fashion;

      
      

    • January 29, 2010--letter of reprimand for not arriving at bus stops timely and improper, dangerous discharge of students from the bus;

      
      

    • May 26, 2010--letter imposing a 15-day suspension without pay based upon failing to drop a student off at the appropriate stop, then failing to follow proper procedures to correct the situation; and

      
      

    • October 26, 2010--conference summary failing to properly and completely cover his assigned route.

      
      

13. At the time the Board discussed and considered this latest transgression, Evans had not completed his 15-day suspension from May 2010. Evans had been allowed to serve the suspension over a period of time, rather than all at once, and he had not completed the suspension as of the December 7, 2010, Board meeting. He had not completed the suspension at the time of the incident at issue in this proceeding.

14. Evans is aware of and has been trained as to the requirements set forth in the School Bus Driver Handbook. As part of the training relating to the handbook, drivers are frequently told they should not contact parents of children on their bus. There is a protocol for putting parents in contact with the School or the Board. If a parent has a complaint, the bus driver is supposed to give them a card that contains contact information on it. The card has a line for the driver to write his or her name and the bus route. The driver is not expected to have, and is prohibited from having, further conversation with the parent. Rather, the driver is supposed to fill out a card, give it to the parent, and direct the parent to contact the School or Board directly. Evans contends that he provided a

    
    

    card to A.E.; she says she never received a card from Evans or from any other bus driver. It seems incongruent that Evans would give A.E. a card and also a personal note. His testimony in that regard is not credible.

15. The Board has enacted bylaws and policies addressing, inter alia, action which can be deemed harassing in nature. Policy 4362 includes a prohibition against "[u]nwelcome sexual propositions, invitations, solicitations, and flirtations." Policy 4140 prohibits an employee from using their position for personal gain. The same policy also establishes a penalty for an employee's failure to correct substandard performance of their duties. An employee may also be dismissed for conduct unbecoming a Board employee or which brings the school district into disrepute. Employees also face disciplinary action for misconduct or failing to comply with Board policies, state law, or a contractual agreement.

16. Under the Collective Bargaining Agreement between the Board and the employees' union, employees go through a system of progressive discipline. Under this standard, discipline may, but need not, follow the following progression:

    • Verbal or written counseling or warnings;

      
      

    • Written reprimands;

      
      

    • Suspension without pay; and

      
      

    • Dismissal.

    
    

17. Evans had received verbal and written counseling, as evidenced by the conference summaries. He had received written letters of reprimand for his performance. Evans had been suspended without pay for 15 days. Dismissal, i.e., termination of his employment contract, was the next step in the progressive discipline rules.

18. Evans' testimony that he was simply trying to ensure the M.P.C. got on the correct bus is not credible. It does not make sense that a relief driver would immediately become concerned about and attempt to intervene in a bus stop issue for an unknown student. Further, his own admission that he knew it was wrong to contact a student's parent makes his position even less plausible.

19. Evans did not have the ability to do anything for A.E. about the bus schedule; the bus schedule is beyond Evans' scope of authority.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to a contract with the School District of Pinellas County. The proceedings are governed by sections

    1. and 120.569, Florida Statutes (2010).3/

       
       

21. The superintendent of schools for Pinellas County, Florida, has the authority to recommend to the School Board that

    
    

    an employee be suspended or dismissed from employment.

    
    

    § 1012.27(5), Fla. Stat.

    
    

22. The Board has the authority to terminate the employment of and/or to suspend instructional personnel without pay and benefits. See § 1012.22(1)(f).

23. The burden of proof in this proceeding is on the Board to prove, by a preponderance of the evidence, just cause exists to suspend or terminate the employment of Evans. McNeil v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996). Preponderance of the evidence is evidence that more likely than not tends to prove the proposition set forth by a proponent. Gross v. Lyons, 763 So. 2d 276 (Fla. 2000).

24. Just cause for purposes of discipline is discussed in section 1012.33, viz:

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted and found guilty of, or entering a plea of guilty to, regardless of adjudication of

    guilt, any crime involving moral turpitude."

    
    

25. Evans attempted to use his position as a bus driver for personal gain. He attempted to have A.E. call him directly on his cell phone in derogation of Board policies.

26. Evans' action vis-à-vis A.E. had the effect of bringing the Board into disrepute. It is clear that A.E. became

    
    

    irate about the conduct of Evans and complained to the School about the conduct. Brennan also became an unwilling participant in the event, making the School appear to be complicit in the event.

27. Evans is guilty of misconduct in office--by his own admission, it was wrong to send a note to A.E.--and willful neglect of duty. Further, his prior shortcomings are well documented by way of letters of reprimand, conference summaries, and warnings.

28. The fact that Evans improperly tried to contact the parent of a student is wrongful behavior. It may not, in and of itself, constitute a basis for dismissal. However, it is unnecessary to make that determination in this matter, because the totality of the circumstances clearly warrants termination of his employment contract.

29. The Board did not prove violation of the Anti- Harassment policy.

30. When there is a range of penalties for offenses cited in School Board policies, Policy 4140-C provides for consideration of mitigating or aggravating circumstances. Evans did not raise any mitigating circumstances. The Board relies upon the following aggravating circumstances in the imposition of its proposed penalty:

    
    

    • The severity of the offense;

      
      

    • The number of times the employee has been previously disciplined by the district, as well as the type of discipline;

      
      

    • The actual damage, physical or otherwise, caused by the misconduct;

      
      

    • The actual knowledge of the employee pertaining to the misconduct; and

      
      

    • Degree of physical and mental harm to a student, co-worker, or member of the public.

    
    

31. Evans' conduct was deemed severe in nature and caused mental distress to A.E. and to Brennan. Evans knew his conduct was wrong and violated Board policies. Evans had been disciplined numerous times within the past two years. All these aggravating factors are relevant to the penalty imposed in this case.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by Petitioner, Pinellas County School Board, upholding the termination of Respondent, Robert Evans', employment for the reasons set forth above.

DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 31st day of May, 2011.

ENDNOTES

1/ Talmadge stated that he had represented Evans throughout the entirety of this proceeding. However, he also said that he was unaware of any pending discovery and had only been recently informed by Evans as to what the charges against him were.

Talmadge then acted as Evans' representative during the formal hearing and filed a "Respondent Proposed Recommened Order" [sic] on Evans' behalf. It is unclear what Talmadge's intent was on the day of final hearing. He was dressed in short pants and seemed to have little knowledge of prehearing events. He had filed no witness list or exhibit list on Evans' behalf and offered no exhibits into evidence.

2/ A.E. is obviously wrong about the issue of Evans refusing to pick up M.P.C. on that Monday morning. However, that part of her complaint is not material to the primary issue in this case, i.e., Evans' improper attempt to engage in a personal relationship with A.E. Her mistaken identification of Evans on that day was her impetus for contacting the School, even if she erroneously identified Evans as the driver.

3/ Unless specifically stated otherwise, all references to Florida Statutes shall be to the 2010 version.

COPIES FURNISHED:

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

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Julie M. Janssen Superintendent of Schools Pinellas County School Board

301 Fourth Street, Southwest Largo, Florida 33770-2942

Laurie A. Dart, Esquire Pinellas County Schools

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779-2942

Robert Evans

4234 Fairfield Avenue South

St. Petersburg, Florida 33711-203

Talmadge Andrews, Qualified Representative

449 Central Avenue, Suite 104 St. Petersburg, Florida 33701

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: 11-001090TTS

Orders for Case No: 11-001090TTS