The Issue Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges. If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against her. If so, what specific disciplinary action should be taken
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: The Parties The School Board The School Board is responsible for the operation, control and supervision of all public schools (grades K through 12) in Dade County, Florida. Respondent Respondent has been employed by the School Board since May of 1984. She is currently under suspension pending the outcome of this disciplinary proceeding. For the duration of her employment with the School Board, Respondent has held a school bus aide position and been assigned to the School Board's South Regional Transportation Center (Center), the director of which, since May of 1994, has been Patricia Snell. At all times material to the instant case, Respondent was scheduled to work a total of six hours a day: three hours in the morning (morning shift) and three hours in the afternoon (afternoon shift). (In between the morning and afternoon shifts, she was off duty for several hours.) The Collective Bargaining Agreement As a school bus aide employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME (AFSCME Contract). Article II, Section 3, of the AFSCME Contract provides as follows: ARTICLE II- RECOGNITION SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system. It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: selection and promotion of employees; separation, suspension, dismissal, and termination of employees for just cause; the designation of the organizational structure of the DCPS and the lines of administrative authority of DCPS. It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; Direct the work force; Hire, assign, and transfer employees; Determine the missions of the Board agencies; Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions; Introduce new or improved methods or facilities; Change existing methods or facilities; Relieve employees because of lack of work; Contract out for goods or services; and, Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment. Article IX, Section 13, of the AFSCME Contract addresses the School Board's Employee Assistance Program. It provides as follows: AFSCME and the Board recognize that a wide range of problems not directly associated with an employee's job function can have an effect on an employee's job performance and/or attendance. AFSCME and the Board agree that assistance will be provided to all employees through the establishment of an Employee Assistance Program. The Employee Assistance Program is intended to help employees and their families who are suffering from such persistent problems as may tend to jeopardize an employee's health and continued employment. The program goal is to help individuals who develop such problems by providing for consultation, treatment, and rehabilitation to prevent their condition from progressing to a degree which will prevent them from working effectively. Appropriate measures will be taken to ensure the confidentiality of records for any person admitted to the program, according to established personnel guidelines and federal regulations. The Guidelines for the Employee Assistance Program, by reference, are made a part of this Contract. Employee Rights: Job security will not be jeopardized by referral to the Employee Assistance Program, whether the referral is considered a voluntary referral in which an employee elects to participate in the program, or a supervisory referral in which a supervisor uses adopted guidelines to refer an employee into the program. An employee has the right to refuse referral into the program and may discontinue participation at any time. Failure by an employee to accept referral or continue treatment will be considered in the same manner as any factor that continues to affect job performance adversely. Article IX, Section 14F, of the AFSCME Contract essentially recites the provisions of School Board Rule 6Gx13-4- 1.05, which is the School Board's "Drug Free Work Place General Policy Statement." It provides, in pertinent part, as follows: DCPS [Dade County Public Schools] and AFSCME recognize that substance abuse in our nation and our community exacts staggering costs in both human and economic terms. Substance abuse can be reasonably expected to produce impaired job performance, lost productivity, absenteeism, accidents, wasted materials, lowered morale, rising health care costs, and diminished interpersonal relationship skills. DCPS and AFSCME share a commitment to solve this problem and to create and maintain a drug-free work place. DCPS is responsible for the instruction and well-being of the students entrusted to its care. A consistent message needs to be communicated to DCPS students: the use of illegal drugs, the abuse of alcohol, and the misuse of prescription drugs is unacceptable. Policy Objectives To promote a healthy, safe working and learning environment; To seek the rehabilitation of employees with a self-admitted or detected substance abuse problem; To eliminate substance abuse problems in the work place; To provide a consistent model of substance-free behavior for students; To provide a clear standard of conduct for DCPS employees; and To hire drug-free employees. Policy Statement- Illegal Drugs Drug abuse by employees interferes with the educational and work process and compromises the safety and well-being of staff and students. Employees are expected to conduct themselves in a manner consistent with the following provisions: a. Employees on duty or on School Board property will not manufacture, distribute, dispense, possess, or use illegal drugs, nor will they be under the influence of such drugs. . . . Policy Statement- Alcohol and Prescription Drugs Alcohol, prescription, and over-the-counter drugs are legal and readily available. Generally safe and acceptable, these drugs, when abused over time or used in combination with one another, can result in chemical dependency or poly-drug addiction. Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will be free of intoxication from alcohol. Employees in safety-sensitive positions, as defined herein, will be free of measurable alcohol concentrations. Further, employees will not manufacture or use alcoholic beverages while on School Board property or on duty. . . . Policy Statement- Employee Physical Examination/Screening Health Services Drug screening will be included in all physical examinations; existing employees and contracted persons in covered positions will be screened under the Omnibus Transportation Employee Testing Act (OTETA) of 1991, and as required under existing labor contracts, statutes, State Board Rules, and Dade County Public Schools Board Rules. Circumstances under which testing may be considered include, but are not limited to, the following: observed use of illegal drugs and/or abuse of alcohol during work hours; apparent physical state of impairment of motor functions; marked changes in personal behavior on the job not attributable to other factors; . . . Drug and/or alcohol screening shall be conducted by Board approved, independent, certified laboratories utilizing recognized techniques and procedures as described in the DCPS Drug-Free Work Place Technical Guide, which is incorporated by reference into this Contract, and made a part thereof. The protocol for drug screening shall include a split sample and chemical immunoassay screening procedure. In the event initial test results are screened positive, such results will be confirmed and verified by the Gas Chromatography Mass Spectrometry (GC/MS) Test. Medical records and information relating directly thereto will be maintained in strict confidentiality. Any laboratory contract shall provide that the contractor's records are to be kept confidential under provisions of Florida laws. DCPS shall establish a system of maintaining records to include both the district's and the contractor's record of applicant and employee urinalysis and blood alcohol results. The contract and the record maintenance system must have specific provisions that require that employee records are maintained and used with the highest regard for employee privacy consistent with Florida's Public Records Act and the purpose of achieving a drug-free work place. DCPS recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of DCPS, where possible, to seek rehabilitation of employees with a self-admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education Rules, Omnibus Transportation Employee Testing Act (OTETA) of 1991, and applicable provisions of collective bargaining agreements. Article XI of the AFSCME Contract addresses the subject of "disciplinary action." Section 1 of Article XI is entitled "Due Process." It provides as follows: A. Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed: verbal warning; written warning (acknowledged); and, Conference-for-the-Record. Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation. The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record). The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated. The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency. The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit. Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows: Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in-grade. Dismissal, suspension, reduction-in-grade, and non-reappointments are not subject to the grievance/arbitration procedures. Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows: In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent. Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows: Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. . . . Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of up to 10 working days after the first day of notification of the unauthorized absence. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. . . . According to Article V, Section 18, of the AFSCME Contract, the term "workday," as used in the agreement, means "the total number of hours an employee is expected to be present and performing assigned duties." The definition of "unauthorized absence," as used in the AFSCME Contract, is found in Article V, Section 27, thereof, which provides as follows: Unauthorized Absence-- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accrued sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there were extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. The School Board's Rules As a School Board employee, Respondent is obligated to act in accordance with School Board rules and regulations,1 including the aforementioned School Board Rule 6Gx13-4-1.05, as well as School Board Rules 6Gx13-3E-1.10, 6Gx13-4-1.06 , 6Gx13- 4A-1.21, and 6Gx13-4E-1.011.2 School Board Rule 6Gx13-3E-1.10 School Board Rule 6Gx13-3E-1.10 incorporates by reference the provisions of the School Board's Transportation Rules and Policies Manual (Manual), including those set forth below, of which Respondent was timely made aware. Section 4 of the Manual describes "school bus aide responsibilities" and provides as follows: There is no requirement in either the law or the regulations that require the assignment of school bus aides to school buses. Dade County however, has elected to assign aides to some but not all of its school bus routes. Aides are not automatically placed on a bus because it is carrying exceptional education students. School bus aides are assigned to act as attendants on the school bus with the primary duty of maintaining order on the bus to allow the driver to give full attention to driving. Under the direction of the driver the aide works with children, school staff and parents in loading and unloading operations and in seeing to the needs of exceptional education students. The work of the aide must allow the driver to devote full time and attention to the safe operation of the vehicle. The aide must understand that the driver is in charge of the bus and is responsible for its safe operation. School Bus Aide responsibilities are: Bus aides must be clean and neat in appearance at all times (in prescribed uniform while on duty), must not use profane language, nor be under the influence of drugs or alcohol, nor use tobacco in the presence of students. Bus aides must abide by all safety rules and regulations which pertain to drivers but which do not relate specifically to driving tasks. Bus aides must be familiar with the rules of student conduct in order to assist in student behavior management and should have a working knowledge of the capabilities and limitations of the various categories of exceptional children. The aide shall prepare and maintain an accurate seating plan. Bus aides should be familiar with the use and location of all safety or emergency equipment (e.g., first aid kit, fire extinguisher, reflector) and should assist the driver in using this equipment should the need arise. The school bus aide must understand and learn how to assist the driver should it become necessary to evacuate the bus in an emergency. In dealing with physically handicapped students, bus aides will assume primary responsibility for loading and unloading students, must be familiar with the operation of wheelchair lifts and use of restraining devices and other equipment used in the transportation of the handicapped. Additionally, bus aides must ensure that wheelchairs are properly attached to their tie-down devices, and that use of such devices is consistent with the specification requirements as determined by the year of the school bus. The school bus aide should assist the driver in preparing reports, checking the working condition of safety equipment, and performing routine cleaning jobs. The bus aide and driver must have a good working relationship. The school bus aide should become familiar with the route, with the loading and unloading procedures, and be attentive to the location of the bus at all times along the route. The aide should be able to guide a substitute driver when this becomes necessary. The school bus aide shall render first aid, if necessary, to the limits of his/her training and abilities, and seek prompt aid by the best possible means available. This assistance shall be limited to that which may be normally expected of a reasonably prudent person. The school bus aide shall check under every bus bench at the end of every run. The school bus aide shall sit with or behind the last student on the bus in order to observe and monitor all the students on the bus. As a reading of Section 4 of the Manual reveals, the duties of a school bus aide are safety-sensitive and involve direct contact with students. Section 9 of the Manual describes the Department's "attendance policy" and provides as follows: ATTENDANCE RESPONSIBILITES School bus driver/aides are expected to be prompt and punctual in their attendance on all work days in accordance with the current calendar and their assigned schedule or contract. ABSENCES, AUTHORIZED For absences to be authorized, they must be reported to the driver's/aide's Transportation Center Dispatch Office in advance. This notice shall be made at the earliest possible time but not later than prior to the next scheduled report time. Even in an emergency every possible effort must be made to inform the Dispatcher. The supervisory staff evaluates the driver's adherence to this rule. Intent to return should be treated in the same manner. Proper forms shall be completed promptly for payroll purposes. ABSENCES, UNAUTHORIZED Unauthorized absences are subject to disciplinary action as prescribed under existing labor contracts. If a driver/aide does not report to work fifteen (15) minutes after the scheduled report time, or does not call in absent before their report time, the absence will be considered unauthorized. If time off is taken during a regular working school day without a supervisor's approval, this absence may also be considered unauthorized. NOTIFICATION OF ABSENCE Drivers/aides must notify their Transportation Center's Dispatch Office as soon as they have determined they cannot report to work. Do not make arrangements on your own for a substitute! All arrangements must be made by the Dispatch Office. If you will not be reporting for work on regular school days, call in immediately. Speak with the Dispatcher, or your Field Operations Specialist. If you cannot report to work because of an emergency situation, contact the Dispatch office as soon as you possibly can. If the situation requires you to leave the area, have a relative or friend contact the office in your place. If your absence will occur sometime in the future, give the Dispatch Office as much advance notification as possible. When you contact the dispatch office, explain the reason for your absence, how long you will be off, and the estimated date of your return. If you will be off work for more than one (1) day, you must contact the office each day, prior to your report time, with a complete update of the situation. The only times you do not have to contact the office on a daily basis are as follows: Admission to a hospital as a patient. Maternity leave A doctor's work release for a specified number of days Extended sick leave Approved leave of absence If you are out of town CHECK-IN POLICY All employees are expected to arrive at work on or before their scheduled report time. Drivers/aides will be given a five (5) minute grace period to report to work, during which no disciplinary or financial action will be taken. For example, if you are scheduled to report for work at 6:00 a.m., as long as you sign-in by 6:05 a.m. you will be allowed to go out on your assigned route, with no repercussions. Drivers/aides who report to work 6-15 minutes after their scheduled report time will be considered "tardy." Tardy drivers/aides will be permitted to work. However, the Dispatch Office may assign a stand-by or substitute driver/aide to the route of the tardy driver/aide. Driver/Aides more than 10 minutes late, but less than 16 minutes late, will be used as substitute drivers/aides and not allowed to drive their route. A record will be kept of the amount of time the employee was late. Lost time will be accumulated, and employees will be docked pay in 1/2 day increments. Drivers/aides who report to work 16 or more minutes after their scheduled report time will be considered "absent without leave" (AWOL). These persons will not be permitted to work. They will be placed on unauthorized leave-without pay (ULWOP) and shall be subject to disciplinary action in accordance with the AFSCME Contract. Extenuating circumstances will be evaluated by the Center Director, and upon proper documentation, may not be held against the employee. Repeated occurrences, such as "car broke down for the third time this week," will not be considered extenuating. PAPERWORK It is the driver's/aide's responsibility to report to the supervisor to complete and/or produce all required paperwork related to their absence on the first workday upon their return to work. Failure to comply with this procedure may result in an unauthorized absence regardless of extenuating circumstances. School Board Rule 6Gx13-4-1.06 School Board Rule 6Gx13-4-1.06 is the School Board's "tobacco-free work place" rule. It provides, in pertinent part, that, as of September 1, 1989, the "[u]se of tobacco products is not permitted . . . on school buses." School Board Rule 6Gx13-4A-1.21 School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows: Permanent Personnel RESPONSIBILITIES AND DUTIES I. EMPLOYEE CONDUCT All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited. School Board Rule 6Gx13-4E-1.011 School Board Rule 6Gx13-4E-1.011 addresses the subject of "absences and leaves" and provides as follows: No leave shall be granted for any reason without prior approval of the Superintendent of Schools except leave occasioned by sudden illness or emergency. Any employee who is absent for other than reasons of sudden illness, emergency, or without prior approval shall be deemed to have been willfully absent without leave. The Center's Check-In Procedures In August of 1994, a few months after she assumed her position as the director of the Center, Patricia Snell sent the following memorandum concerning "check-in procedures" to all of the school bus drivers and school aides assigned to the Center: All drivers and aides must pick-up their bus keys or tag from the key board in the Dispatch office. This is the method of checking in for your shift. If you do not check in, your route will be given to a substitute driver and you will be considered NO CALL/NO SHOW for that shift. All drivers and aides must return their keys and tags to the key board immediately after each shift. Dispatch will have a list of field trips and those drivers and aides will then turn their keys and tags in the slot in the dispatch office if after hours. If there is a problem with your bus, turn in bus keys with the D.R.R. to Dispatch. If you are assigned a spare, then the spare bus keys will be placed on your assigned key hook prior to your shift. Your regularly assigned bus will not be returned until your assigned spare bus is fueled, swept, trash is emptied, windows up and parked in the proper parking space. You need not sign in. The Office Helpers and Dispatchers will keep track of your arrival times by use of the key board. The Tardy Policy will be strictly enforced. Employees who are 6-15 minutes late These employees are "late" or "tardy" and appropriate progressive discipline will be initiated. Such employees will be permitted to work their shift. Employees who are 16 or more minutes late These employees are recorded as "unauthorized leave without pay" and are not permitted to work that shift. Appropriate disciplinary action will be initiated. Respondent received her copy of this memorandum on August 25, 1994. Previous (Pre 1994-1995 School Year) Warnings Given Respondent Regarding Attendance and Leave Unauthorized leave was a subject with which Respondent should have been familiar at the time she received Snell's memorandum inasmuch as Respondent had received disciplinary warnings from her supervisors concerning the matter in the past. For instance, on February 11, 1988, she had received a memorandum (dated February 3, 1988) from Jack Schee, the then- director of the Center, which read as follows: While signing the payroll on January 29, 1988, I became very disappointed to discover that you had already started the new fiscal year with unauthorized leave without pay. This carefree, unresponsible attitude has got to change. The department, and more specifically your co-workers, count on your presence daily to accomplish our mission to provide the students of the Dade County schools with whatever is necessary to enhance their education. All employees in the Department of Transportation are being monitored for poor attendance and unauthorized leave without pay. In order to improve attendance, I am prepared to follow-through with any necessary action, such as conferences or suspensions, as the situation merits. Our records indicate that this is your 1[st] unauthorized absence. Per AFSCME Contract, Article XII, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totaling ten or more work days during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." In addition, Respondent had received written Operational Reminders for unauthorized absences on July 6, 1988, and September 5 and 7, 1989. Furthermore, on May 10, 1990, Schee had held a conference-for-the-record with Respondent to discuss Respondent's attendance record. Schee subsequently prepared and furnished to Respondent a memorandum in which he summarized what had transpired at the conference. Schee's memorandum read as follows: A conference-for-the-record was held in my office on May 10, 1990 to discuss the attendance record of Ms. Jennifer Gardner, bus aide. In attendance at this conference were Ms. Gardner, Ms. Karen Crapps, route manager, and myself. Ms. Gardner stated that she did not want to have a representative present at the conference after I explained that she had the right to representation. I explained that on numerous occasions, the most recent being May 4, 1990, Ms. Gardner had failed to report to work and did not call the office to inform us of her absence. In addition, on May 4, 1990 Ms. Gardner reported to work thirty-five minutes late and missed her work assignment. On May 8, 1990, her assigned driver, Ms. Helen Spence, informed the office that Ms. Gardner reported to work on May 7, 1990[,] but that she fell asleep during most of her Southwood run. Ms. Gardner then stated that she had no comment to make concerning her attendance record. She stated that she did fall asleep on the bus but did not sleep the entire Southwood run. I concluded the conference by stating that her attendance record would be closely monitored and that if improvement was not made stronger disciplinary action would follow. I also informed Ms. Gardner that she would receive a memorandum of understanding concerning her attendance. The "memorandum of understanding" to which Schee referred was received by Respondent on May 16, 1990. It read as follows: On May 10, 1990 we held a conference-for-the- record concerning your attendance on the job and your failure to inform the office when you are not coming to work. I expressed the fact that I was extremely disappointed that your attendance has not improved since we have discussed this problem many times before. I then explained to you that if you continue to fail to report to work and do not inform the office then I would forced to request more serious disciplinary action. By way of this memorandum I am instructing you to inform the office at least 30 minutes before your reporting time on any occasion in which you cannot come to work. I am also instructing you that you will not be allowed to report to work late and expect to be paid for that time. If your performance does not improve I cannot guarantee your employment for summer school session. As acknowledgment that you have received this memorandum, and understand it, please sign below and return to me. A copy is provided for your purpose. Respondent had also received written Operational Reminders for unauthorized absences on May 6, 7 and 8, 1991. On May 15, 1991, she received a memorandum (dated May 9, 1991) from Schee concerning these unauthorized absences. The memorandum read as follows: During the payroll period ending May 9, 1991, you chose to take Unauthorized Leave Without Pay on May 6, 7 and 8th. You are professionally accountable to report to work on time and/or call the operations office no less than one-half hour prior to your check- in time, to inform them of your absence. Failure to call within the prescribed time constitutes Unauthorized Leave Without Pay. The attendance of all employees in our department is monitored daily. In order to improve attendance, I am prepared to follow through with any necessary action, such as a conference-for-the-record or suspension, as the situation merits. Our records indicate that this is your 3rd unauthorized absence. Per AFSCME Contract: Article XI, Section I, item D, states: "An unauthorized absence for three consecutive work days shall be evidence of abandonment of position. Unauthorized absences totalling ten or more working days during the previous twelve-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination." Warnings Given Respondent Regarding Attendance and Leave During the 1994-1995 School Year On November 16, 1994, Respondent received a written Contact Report from the Center's coordinator, Wynona Sleeth, concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: Six half days NCNS [No Call/No Show]. One whole [day] unauthorized. Any day you do not have time available is unauthorized. Any time you call in after due time is NCNS. Sleeth subsequently, on or about December 21, 1994, provided Respondent with the following Letter of Deficiency: This is to inform you that you have accumulated 17 Absences Tardies NC/NS 9 ULWP [unauthorized leave without pay] since 8-29-94. I am reminding you that 3 consecutive days of ULWP constitutes abandonment of position and may be subject to a recommendation for disciplinary action not excluding suspension and/or termination. An accumulation of 10 or more days of ULWP may warrant a recommendation for termination. Your job performance is important to us and we would like to assist you to improve. If you need assistance, please come to the operations office to discuss this matter. On May 11, 1995, Snell and Sleeth held a conference- for-the-record with Respondent concerning Respondent's attendance record. Snell prepared and provided to Respondent on May 17, 1995, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: A Conference-for-the-Record was held in my office on May 11, 1995. Yourself, Ms. Wynona Sleeth, Coordinator and this administrator were present. The conference was held to discuss your attendance to date. You had notification of [your] right to union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed by the District since May 2, 1984. You were reminded of memos you had received and signed notifying you of this school year's absenteeism. A calendar highlighting the days you were absent was explained to you and you were given a copy of Article XI, Section 1(D) of the union contract. You were asked if you needed the Employee Assistance Program. You replied that you did not need it. I then read the [written absence from] worksite directive to you and what you were required to do from this point on and that non-compliance could lead to further disciplinary measures up to and including suspensions or termination. Respondent had received a copy of the "[written absence from] worksite directive" the day of the conference-for-the- record. It read as follows: Please be advised that you have been absent forty-four days (44) days from the worksite during the 1994/95 school year. Since your absence from duties adversely affects the effective operation of this worksite, you are apprised of the following procedures concerning future absences: Intent to be absent must be communicated directly to this administrator or the administrator on duty before your assigned shift. Absence for illness must be documented by your treating physician and a written medical note presented to this administrator upon your return to the site. These directives are in effect upon receipt of this notice and are necessary to maintain effective worksite operations. Please be assured that assistance will continue to be provided to facilitate your regular attendance. Non-compliance with the directives will be considered a violation of professional responsibilities and could lead to further disciplinary action up to and including suspensions or termination. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1994-1995 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 26 days: August 30, 1994; September 28, 1994; October 19, 20, 26 and 31, 1994; November 2, 10 and 28, 1994; December 22, 1994; January 25, 1995; February 8, 9, 14 and 16, 1995; March 7, 10 and 22, 1995; April 17, 26 and 28, 1995; May 1, 3, 17 and 26, 1995; and June 5, 1995.3 Respondent was offered a contract for the following school year and she accepted the offer. The 1995-1996 School Year On October 2, 1995, Respondent received a written Contact Report from Sleeth concerning Respondent's unauthorized absences, in which the following "reason for contact" was given: You had 9 hours of unauthorized absences for the pay period 8/25-9/7/95. You need to work on having a good attendance record. On October 18, 1995, Snell observed Respondent smoking a cigarette on a school bus. Respondent knew or should have known that such conduct was prohibited. Snell confronted Respondent and reminded her that smoking tobacco products on a school bus was forbidden. On December 12, 1995, Respondent received a written Transportation Operations Procedures Reminder from Sleeth concerning unauthorized absences on August 28 and 30, 1995; September 14, 1995; October 6 and 26, 1995; and November 6 and 29, 1995. On March 5, 1996, Snell held a conference-for-the- record with Respondent at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 14, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On March 5, 1996, at 10:15 a.m. a Conference- for-the-Record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not want union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of Unauthorized leave. Since August 28, 1995, you have accumulated 15 unauthorized absences; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19 and 1/23/96. Your absence from your duties directly impacts the effective operation of this worksite. You received a copy of Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract and these documents were reviewed with you. District Support Programs are available for you to contact at 995-7111 if you so desire. You stated that you understand the seriousness of the problem and will try to improve your attendance. Any further instances of Unauthorized Absences may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. Respondent also received from Snell on March 14, 1996, the following written warning (dated March 11, 1996): As of January 23, 1996, you have been absent on 15 occurrences without authorization. As per the AFSCME contract, Article XI, Section 4-B[:] "Excessive Absenteeism/Abandonment of Position-- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be excessive absenteeism. Either of the foregoing shall constitute grounds for termination. An employee recommended for termination under these provisions shall have the right to request of the Deputy Superintendent for Personnel Management and Services a review of the facts concerning the unauthorized leave. Such right shall exist for a period of 10 working days after the first day of notification of the unauthorized absence." You are hereby officially warned that if you continue to have unauthorized absences disciplinary action my result, up to and including suspension, termination, or non- reappointment. On April 30, 1996, Respondent received a written directive from Snell to report for another conference-for-the- record in Snell's office at 9:15 a.m. on May 7, 1996, to discuss her "unauthorized leave and job performance." Respondent failed to report as directed. The conference-for-the-record was rescheduled for May 17, 1996,and ultimately held on that date. Snell prepared and provided to Respondent on May 28, 1996, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Friday, May 17, 1996, at 9:15 a.m. a conference-for-the-record was held with you in the Office of the Director, South Regional Transportation Center. In attendance were Mr. Keith White, Administrative Assistant, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since February [sic] 5, 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave. Since August 28, 1995, you have accumulated 23 occurrences of unauthorized leave which total 12 1/2 days; they are as follows: 8/28, 8/31, 9/14, 10/6, 10/26, 11/6, 11/29, 12/4/95, 1/5/96, 1/8, 1/10, 1/12, 1/18, 1/19, 1/23/96, 4/2, 4/4, 4/17, 4/26, 4/29, 5/3, 5/13, and 5/16/96. Your absence from your duties directly impacts the effective operation of this worksite. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract were reviewed. The District Support Agency was offered and is available for you and may be contacted at 995-7111 if you so desire. You agreed to call in as soon as you know you are going to be out and to bring documentation in the next working day. Your record of unauthorized absences will be reviewed and this review may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. No "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) was taken against Respondent during the 1995-1996 school year notwithstanding her poor attendance record that year, which included unauthorized absences on the following 30 days during the regular school year: August 28 and 31, 1995; September 14, 1995; October 6 and 26, 1995; November 6 and 29, 1995; December 4, 1995; January 5, 8, 10, 12, 18, 19 and 23 1996; February 16, 1996; March 19, 21, 26 and 28, 1996; April 2, 4, 17, 26, and 29, 1996; May 3, 13, 16 and 17, 1996; and June 4, 1996.4 Respondent was offered a contract for the following school year and she accepted the offer. The 1996-1997 School Year On September 4, 1996, and October 2, 1996, respectively, Respondent reported to work six and ten minutes after the scheduled starting time (6:00 a.m.) of her morning shift. On both of these occasions she received a written Transportation Operations Procedures Reminder regarding her obligation to report to work on time. Respondent also received written Transportation Operations Procedures Reminders for unauthorized absences in November of 1996, on the 5th (afternoon shift), 13th (afternoon and morning shifts), 14th (afternoon and morning shifts), 15th (afternoon shift), 20th (afternoon and morning shifts) and 26th (afternoon shift) of that month, and for reporting eight minutes late to work for her afternoon shift on November 25, 1996. Along with the written Transportation Operations Procedures Reminders concerning her November 5 and 13, 1996, unauthorized absences, Respondent was given an explanation of the provisions of Section 9 of the School Board's Transportation Rules and Policies Manual and Article V, Section 27, of the AFSCME Contract, as well as copies of these provisions. The written Transportation Operations Procedures Reminders concerning Respondent's November 14, 15, 20, and 26, 1996, unauthorized absences, and her tardiness on November 25, 1996, were each accompanied by the following "verbal warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On December 6, 1996, Respondent was referred by Keith White, an administrative assistant at the Center, to the School Board's Employee Assistance Program because of his "concerns" regarding Respondent's unauthorized absences. Respondent was advised of this supervisory referral on December 9, 1996. Respondent declined to participate in the School Board's Employee Assistance Program and continued to have erratic attendance. Respondent received, on January 5, 1997, and March 6, 1997, written Transportation Operations Procedures Reminders concerning her unauthorized absences and tardiness, each of which contained the following "written warning" (as that term is used in Article XI, Section 1A, of the AFSCME Contract): "Must adhere to attendance requirements per AFSCME Contract and Drivers Handbook." On March 11, 1997, Snell held a conference-for-the- record with Respondent, at which Respondent's attendance record was discussed. Snell prepared and provided to Respondent on March 20, 1997, a memorandum in which she summarized what had transpired at the conference. Snell's memorandum read as follows: On Tuesday, March 11, 1997, at 10:00 a.m. a conference-for-the-record was held with you in the office of the Director, South Regional Transportation Center. In attendance were Ms. Willie McKinney, Coordinator, South Regional Transportation Center, and this administrator. You stated that you did not desire union representation. You are currently an active school bus aide for Dade County Public Schools and have been employed as such since 5/2 1984. You verified your current address and phone number as: . . . . The conference was held to review your record of unauthorized leave and job performance. Since March 19, 1996 you have accumulated 28 whole days of unauthorized leave from 42 occurrences. Your absence from your duties directly impacts the effective operation of this work site. Section 7 of the Drivers Handbook and Article XI, Section 4 of the AFSCME contract, along with all attached warnings were reviewed. A referral to the District Support Agency [Employee Assistance Program] was made on December 6, 1996. The case was closed due to the fact that you declined to participate. You agreed to call in as soon as possible when you must be absent and to bring documentation in the next working day. You also agreed that you would not be absent unless absolutely necessary. Your record of unauthorized absences will be reviewed with Transportation Administration and the Office of Professional Standards and may result in disciplinary action, up to and including suspension or termination. You may clarify, explain and/or respond to any information recorded in this conference by this summary and request to have any such response appended to your record. By memorandum dated March 27, 1997, Snell brought the matter of Respondent's "attendance problems" to the attention of Jerry Klein, the senior executive director of the School Board's Transportation Department, and inquired of Klein if he "would like to move forward with [the] dismissal of Ms. Gardner." Klein, on April 1, 1997, sent the following memorandum to Barbara Moss, an executive director in the School Board's Office of Professional Standards: Ms. Jennifer M. Gardner, School Bus Aide, South Transportation Center, employee #145489, has accumulated 28 days of Unauthorized Leave Without Pay (ULWP) in the last 12 months. Attached please find supportive documentation from Ms. Pat Snell, Director, South Transportation Center. It is requested that Ms. Gardner be recommended for dismissal for violation of Article XI, Section 4(B) of the Collective Bargaining Agreement, excessive absenteeism. Your assistance in obtaining Board approval is appreciated. After reviewing the matter, Moss (by memorandum received by Respondent on April 17, 1997) directed Respondent to appear at a conference-for-the-record on April 30, 1997, in the Office of Professional Standards to discuss Respondent's "attendance to date, and [her] future employment status with the Dade County Public Schools." The conference-for-the-record was held on April 30, 1997, as scheduled. Moss subsequently prepared and later, on June 3, 1997, provided to Respondent a memorandum in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "action taken" and the "action to be taken," Moss wrote the following: Action Taken You were offered an opportunity to resign your position with Dade County Public Schools. The following directives are herein delineated which were issued to you during the conference concerning future absences: Intent to be absent must be communicated directly to the designated supervisor. Absences for illness must be documented by your treating physician and a written medical note presented to the designated supervisor upon your return to the site. If it is determined that future absences are imminent, leave must be considered and procedures for Board approved leave implemented if eligible to apply for leave. These directives are in effect as of the date of the conference and will be implemented to prevent adverse impact to the operation of the work unit, to the services provided to students, and to insure continuity of the educational program. Noncompliance with these directives will necessitate review [by] the Office of Professional Standards for the imposition of disciplinary measures. During the conference, you were provided with a copy of School Board Rule 6Gx13-4A-1.21, Employee Conduct, and School Board Rule 6Gx13-4C-1.02, Non-instructional Personnel. You were advised of the high esteem in which employees are held and of the District's concern for any behavior which adversely affects performance. You were reminded of the prime directive to maintain a safe working environment for all students and that your actions violated this directive. Action To Be Taken You were advised that the information presented in this conference, as well as subsequent documentation, would be reviewed with the Senior Executive Director in the Office of Professional Standards and the Associate Superintendent in the Office of Labor Relations and Personnel Management. Upon completion of the conference summary, a legal review by the School Board attorneys would be requested. Receipt of their recommendations will compel formal notification of the recommended action or disciplinary measures to include: a letter of reprimand, suspension, demotion, or dismissal. You were apprised of your right to clarify, explain, and/or respond to any information recorded in this conference by summary, and to have any such response appended to your record. On June 5, 1997, Respondent reported for work with the smell of alcohol on her breath. Furthermore, she was unsteady on her feet and her speech was slurred. After conferring with Klein and Moss, Snell directed Respondent to submit to alcohol and drug testing at the Baptist Medical Group's facility in Homestead, Florida. Respondent went to the facility that same day5 and submitted to breath-alcohol testing, which revealed that Respondent had a breath-alcohol level of .191 and that she was under the influence of alcohol to the extent that her normal faculties were impaired. At the facility that day (June 5, 1997), Respondent also provided a urine specimen for testing. The bottle containing the specimen was labeled and sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. It was then sent, along with a partially filled out (by the collector and donor) D.O.T. Custody and Control Form, to LabCorp's laboratory in North Carolina for analysis and testing. The labeled and sealed container with the specimen and accompanying form were received by LabCorp on June 7, 1997. Adequate procedures were employed to ensure that the specimen was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the specimen. An initial immunoassay screening of Respondent's urine specimen indicated the presumptive presence of the unique metabolites produced when cocaine and marijuana are ingested and metabolized in the body. Additional laboratory testing of the specimen was then performed to verify the results of the immunoassay screen previously performed. Gas chromatography-mass spectrometry, a reliable and accurate method of confirmatory testing, was utilized. The gas chromatography-mass spectrometry analysis of Respondent's urine specimen was positive for the presence of the cocaine and marijuana metabolites in concentrations consistent with, and indicative of, Respondent's ingestion of cocaine and marijuana prior to the collection of her urine specimen. The drug test results were reported to the School Board and the Medical Review Officer (at the National Medical Review Offices, Inc., in Los Angles, California). On June 10, 1997, Respondent received a memorandum from Snell directing Respondent to contact the Medical Review Officer "as soon as possible." On June 10, 1997, after examining the test results and speaking with Respondent, who admitted that she had used both cocaine and marijuana, the Medical Review Officer verified the test results. He determined, based upon his conversation with Respondent, that there was no legitimate medical explanation for the presence of the cocaine and marijuana metabolites in the urine specimen Respondent had provided. On June 11, 1997, Moss held a conference-for-the-record with Respondent. The results of the alcohol and drug tests to which Respondent had submitted were discussed at the conference. Upon being told of the test results, Respondent stated, "I don't know about the cocaine, but I am aware of the marijuana. I was very depressed and was with some friends who were using marijuana and joined them in using." She further stated that she did not drink alcoholic beverages when she worked. Also addressed at the conference were Respondent's unauthorized absences. During the 12-month period preceding the conference (June 12, 1996, to June 11, 1997), she had been absent without authorization on the following 37 days for a total of 147 hours or 24.5 "workdays," as that term is defined in Article V, Section 18, of the AFSCME Contract: July 2, 1996 (3 hours); July 29, 1996 (3 hours); October 31, 1996 (3 hours); November 5, 1996 (3 hours); November 13, 1996 (6 hours); November 14, 1996 (6 hours); November 15, 1996 (3 hours); November 19, 1996 (3 hours); November 20, 1996 (6 hours); November 26, 1996 (3 hours); December 4, 1996 (3 hours); December 11, 1996 (6 hours); December 13, 1996 (3 hours); December 18, 1996 (6 hours); December 19, 1996 (3 hours); December 20, 1996 (3 hours); January 8, 1997 (3 hours); January 22, 1997 (3 hours); January 23, 1997 (6 hours); January 27, 1997 (6 hours); February 3, 1997 (6 hours); February 7, 1997 (3 hours); February 12, 1997 (6 hours); February 18, 1997 (3 hours); February 19, 1997 (6 hours); February 20, 1997 (3 hours); February 24, 1997 (3 hours); February 26, 1997 (3 hours); March 3, 1997 (3 hours); March 20, 1997 (3 hours); March 24, 1997 (6 hours); April 15, 1997 (3 hours); April 21, 1997 (6 hours); April 24, 1997 (3 hours); May 12, 1997 (3 hours); May 23, 1997 (3 hours); and June 5, 1997 (3 hours). Respondent was given another assignment at the Center pending further School Board review of her employment At its July 23, 1997, meeting, the School Board suspended Respondent and initiated a dismissal proceeding against her "for just cause, including but not limited to excessive unauthorized absence and violation of Drug-Free Work Place Policy."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board. DONE AND ENTERED this 24th day of February, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1998.
The Issue The issues are whether Respondent engaged in violence in the workplace, breached the responsibilities and duties of an employee, and imposed physical discipline in violation of School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07; and, if so, whether Petitioner should suspend Respondent for 30 days without pay from her position as a school bus driver.
Findings Of Fact Petitioner is responsible for operating public schools within the school district of Miami-Dade County, Florida (the District), and disciplining employees within the District when necessary. Petitioner employs Respondent as a school bus driver within the District subject to rules and regulations of the School Board promulgated pursuant to Section 1012.23, Florida Statutes (2002); and subject to the collective bargaining agreement between Petitioner and the American Federation of State, County and Municipal Employees (the Contract). Petitioner has employed Respondent as a school bus driver within the District for approximately ten years. Petitioner trains school bus drivers, including Respondent, in procedures to follow when students become disruptive or unruly while traveling in a school bus. Petitioner directs drivers to stop the school bus on the side of the road until the students calm down. If necessary, the driver must then radio or telephone a supervisor or the police for further assistance. On October 8, 2002, Respondent drove a school bus for the purpose of taking students home following an after school activity at Coral Reef Senior High School. Respondent was substituting for the regular bus driver. It was dark, and Respondent was unfamiliar with the bus route. Respondent drove the school bus in a manner that endangered the physical safety of the students in the bus. Respondent instructed the students to walk to the front of the bus when their stop was near and to tell Respondent where to stop the bus. Respondent repeatedly applied the brakes of the bus with sufficient force that the students, who stood in the aisle to give Respondent instructions, were thrown into the seats or forward in the aisle. Respondent engaged in other behavior that endangered the physical safety of the students. Respondent's driving pattern of abrupt stops continued until only a few students remained on the bus. One student, identified in the record as C.C., became angry when Respondent missed the student's stop. When C.C. was stepping down to get off the bus, C.C. realized she had dropped her purse, asked Respondent to turn on the light, and Respondent complied. C.C. walked back up the steps of the bus to retrieve her purse and called Respondent a "bitch." Respondent responded by saying, "You a bitch." Respondent violated relevant procedures for defusing disruptive situations, endangered students riding on the bus, and threatened students. Contemporaneously with the exchange between Respondent and C.C., Respondent stopped the bus in the middle of the road, rather than the side of the road and turned off the engine. Respondent did not attempt to defuse the situation and did not contact a supervisor or the police. Rather, Respondent unbuckled her seat belt, approached C.C., and participated in a physical altercation with C.C. Respondent's conduct exposed other students in the school bus to physical harm. The other students came forward to separate Respondent and C.C. A student identified in the record as Z.G. tried to grab Respondent from behind, and female students tried to stop C.C. Respondent threw her walkie-talkie at C.C., but hit Z.G. No student other than C.C. hit Respondent. Respondent threatened the students riding on the school bus at the time of the altercation with C.C. Respondent stated that she was going to "kill" the students and that she had a son who was going to "bury" them. Respondent sat down in the driver's seat and drove the school bus to the Cutler Ridge Police Station. Respondent told police that the students on the bus attacked her. At the police station, Respondent did not telephone the supervisor on duty for the District. Rather, Respondent telephoned her daughter and Ms. Shirley Morris, a coworker and friend (Morris). Morris paged Aned Lamboglia (Lamboglia), the supervisor on duty. Lamboglia spoke to Respondent by telephone. Lamboglia was surprised at the assertion that students on the school bus attacked Respondent because incidents involving a student attacking a bus driver are "extremely rare." A suspension without pay for 30 days is reasonable under the circumstances. Although violence in the workplace is an egregious offense that is aggravated because it involves students, Respondent has no prior history of discipline. There is no pattern of violent behavior. The proposed penalty is consistent with the progressive discipline agreed to in the Contract. Other than this incident, Respondent has an exemplary work history, and Petitioner does not wish to lose Respondent as an employee.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of violating School Board Rules 6Gx13-4-1.08, 6Gx13-4A-1.21, and 6Gx13-5D-1.07, and suspending Respondent from her employment for 30 days without pay. DONE AND ENTERED this 4th day of December, 2003, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 4th day of December, 2003. COPIES FURNISHED: Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Mary Jill Hanson, Esquire Hanson, Perry & Jensen, P.A. 105 South Narcissus Avenue, Suite 510 West Palm Beach, Florida 33401 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400 Honorable Jim Horne, Commissioner of Education Department of Education 325 West Gaines Street Turlington Building, Suite 1514 Tallahassee, Florida 32399-0400 Merrett R. Stierheim, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 912 Miami, Florida 33132-1394
The Issue Whether respondent is guilty of the acts charged in the specific notice of charges dated September 11, 1990, and, if so, whether petitioner should discharge him from his job as a school bus driver or take other disciplinary action?
Findings Of Fact After orientation and instruction beginning with his employment as a school bus driver trainee in September of 1987, respondent "was given [his] first bus" (T.383) on December 9, 1987. Formerly a truck driver, he became a permanent or non-probationary school bus driver in March of 1988. 1987-1988 After respondent drove his first route, No. 131, for two days, a supervisor shifted him to route No. 94, telling him "what a troubled bus it was." T.386. The supervisor told him the middle school students had already had plenty of warnings and exhorted him, "'Quit warning them. Write them up.'" Id. The rest of the 1987-1988 school year, respondent drove route No. 94, which entailed two separate runs, one for kindergarteners and one for middle schoolers. On the middle school run, "90 percent of the children wouldn't mind at all." T.392. The first of March or the end of February of 1988 (T.64), respondent Henderson told Rosalyn Brown, at the time the only black student on the bus, "to sit [her] black ass down in the seat." T.269. On other occasions, he told students to "[s]hut the hell up," (T.270) and said, "I won't put up with this bullshit." Id. He used the word "[f]uck . . . sometimes." T.256. Petitioner's official school board policies, a copy of which respondent received at or about the time he began work, state: Drivers shall at all times set good examples for the students riding their buses. Do not do on your bus that which students are not permitted to do. Petitioner's Exhibit No. 1, No. 6.44.9. Hernando County School Bus Rules, Instructions for Pupils Riding Buses provides, "Pupils must not use any abusive or profane language to other pupils, the driver, or pedestrians." Petitioner's Exhibit No. 4, No. 10(b). On May 23, 1988, middle school girls were seated on the right hand side of the bus and boys on the left, as usual. As the bus, with respondent at the wheel, passed prisoners at work on a shoulder of the road, "the girls started leaning out the window hollering." (T.396) Mr. Henderson had hardly told them to close their windows when, while waiting for a traffic light to change, a "car pulled up beside [him, and the driver] complained that the boys w[ere] throwing paper out the windows at the back," (T.397) so he "informed the boys to close their windows," (id.) too. When, windows closed (except for respondent's), the bus began to resound with the sound of "stomping . . . feet" (T.397), Mr. Henderson pulled the bus over and parked by the side of the road. Unable to restore order, he drove the bus back to middle school. There respondent allowed the students to lower their windows, and the "duty teacher" urged them to behave. To respondent, the duty teacher said "if they didn't quiet down, take them on into Brooksville," (T.398) to the bus barn. Because the students were still unruly five minutes later, respondent drove them from the school to the transportation compound, where a mechanic boarded the bus to help maintain order, while respondent drove the children home. No violation of school board policy on Mr. Henderson's part was proven, in connection with the events of May 23, 1988. Limbs protruding and various missiles leaving through open windows justified his directing that the windows be closed. The radio in respondent's bus at the time was not in working order. Petitioner's official policies require that each "bus driver shall be responsible for being familiar with all state and local laws and regulations in regard to safety and see that these are properly carried out." Petitioner's Exhibit No. 1, 6.44.4. At stop signs, respondent would "slow down, but he wouldn't come to a complete stop" (T.271) every time. When he failed to come to a complete stop, "the students would always yell at him about it." T.277. 1988-1989 Respondent resumed driving route No. 94 when school started in the fall of 1988. One day the first week back two fights broke out before the bus left middle school, and the new principal had to intervene. Later in the week, Joan Gear, petitioner's transportation coordinator told Mr. Henderson, "'Ray, we're going to prove a point to this principal. I want you to take another bus for a while.'" T.402 (Discipline problems persisted under respondent's successor on bus No. 94.) Mr. Henderson began the second week of the new school year driving route No. 108. After a week on route No. 108, he was transferred, without explanation, to route No. 73, one of the routes he had been on as a trainee and a less remunerative assignment than either No. 94 or No. 108. Only after the first Monday morning's run did he receive the No. 73 route report or route sheet, which listed twelve regularly scheduled stops. Petitioner's Exhibit No. 12B. The tenth morning stop was listed as "White House on Right," Petitioner's Exhibit No. 12B, on Ft. Dade Street. The white house meant stands north of Ft. Dade and slightly east of Little People's Day Care, which is on the south side of the street. Brandy Huntley, a niece of the day care center's proprietress, and two other middle schoolers were picked up mornings directly across the street from the white house, at the end of the day care center driveway. The first afternoon he drove, respondent stopped directly in front of the white house, and Brandy and the other middle schoolers disembarked there. But two afternoons that week (not in succession) he failed to stop in front of the white house (or across the street from Little People's Day Care.) Instead he stopped after turning left at the next intersection. Respondent's claim that a ditch made it necessary to stop in the middle of the road, if the bus stopped in front of the white house or across from the nursery afternoons, went unrebutted; but letting children out around the corner created other hazards. Nor was the spot respondent chose a "regularly scheduled stop" for any student. School board policy provides that "[a] driver shall not let any student off the bus at other than the student's regularly scheduled stop, unless permission has been given in writing by the child's parent." Petitioner's Exhibit No. 1, 6.44.18. No such permission had been given here. Under school board policy, bus drivers may never let students off between regularly scheduled stops. After a discussion about where to stop on Ft. Dade Street in the afternoons and before his first week on route No. 73 was out, respondent took a leave of absence through November 22, 1988. Once the leave was over, petitioner's initial refusal to put him back to work resulted in respondent's filing an unfair labor practice charge. On January 18, 1989, he returned to work. For the remainder of the school year, he drove route No. 75, without incident. Two Minutes Time allotted for regular routes includes a half hour for cleaning and paper work, but drivers on field trips are paid based on the time actually required to do the job. On July 18, 1989, Mr. Henderson drove on a field trip. Ordinarily, a field trip driver completes and submits a form showing how long he has worked, only after making the trip and cleaning the bus. Petitioner's Exhibits Nos. 11 and 13; T. 423. Rain made for an early end to the field trip. At five minutes after noon on the 18th, Mr. Henderson set out for the restroom in the transportation compound offices. He took with him a form on which he had written 12:30, his estimate of when he would finish cleaning the bus. Leaving the form on Miss Looper's desk, he returned to the bus and began cleaning. After he had cleaned the bus, he returned to the compound office, which he reached at 12:28. Petitioner's Exhibits Nos. 11, 13, T. 423. When Ms. Gear asked him to substitute 12:28 for 12:30 on the form, he responded, "Joan, if you want the time changed, change it." (T.424) When she said, "I won't pay you if you don't change it," Id., he replied, "Don't pay me." Id. A month later, the unaltered form was processed and respondent was paid. Whether two minutes made any difference in his compensation for the field trip the evidence did not show. 1989-1990 When the next school year began, Mr. Henderson drove route No. 200. One October afternoon after students had boarded, Mr. Henderson prepared to pull away from the high school. Before moving forward, the bus rolled back a few inches into the bus driven by Jose Santiago. Without respondent's knowing, a tail light lens struck (without damaging) a mirror on Santiago's bus, leaving a hole in the lens two inches across. T. 287-291, 376, 429. Accidents of this kind are not uncommon. To prevent students' walking in front of buses, the drivers park them tightly one behind another before school lets out. T. 287-291, 342, 376, 377, 426, 530. By the time Mr. Santiago finished his route and reached the transportation compound, Mr. Henderson had already left. Mr. Santiago reported the accident to the office staff and to one of the mechanics, who brought the bus respondent had driven to the garage to replace the lens. But Mark Tallent told the mechanic to return the bus unrepaired to its regular parking place, setting a "trap" he had never set for any other driver. T. 24, 58, 59, 288, 378. Bus drivers are required to perform a "pre-trip inspection" of their buses, and make records of the inspections by completing forms. Petitioner requires that all exterior lights be checked. The next morning respondent indicated that everything was in working order on his pre-trip inspection form. Petitioner's Exhibit No. 7; T. 39. Ken Schill, petitioner's safety officer, followed respondent's bus in another vehicle and pulled him over. Together they inspected the broken lens. Petitioner suspended Henderson for three days and required him to take eight hours of in-service training, on account of the inspection form's inaccuracy. T. 40-41, 95-96, 428-429. In January or February, Mr. Henderson's bus was following bus No. 149 on a dusty rock or gravel road. After bus No. 149 made a newly scheduled stop, Mr. Henderson braked suddenly and steered his bus to the left to avoid hitting bus No. 149. By the time he came to a stop, the buses overlapped. T. 454, 498, 502. On the afternoon of February 28, 1990, Mr. Henderson had driven the school bus to the crest of a hill on Weatherley Road, when state trooper Lee Frye, who was sitting in his car at the bottom of (the other side of) the hill "clocked Mr. Henderson speeding." T.151. He was exceeding the 35-mile-per hour speed limit by at least ten miles per hour, although he told the trooper the speedometer had not indicated this. T. 151, 157, 430-433; Respondent's Exhibit No. 7A. Trooper Frye did not give Mr. Henderson a citation, but he told the Board's transportation department that the bus was going 52 miles per hour. Although not consistently enforced, school Board Policy 6.44(23) states: "Any bus driver guilty of a traffic violation involving a school bus will be dismissed." After Mr. Tallent checked Henderson's speedometer, he recommended and the School Board approved a suspension of ten days plus fifteen hours' retraining on account of this incident. T. 44-45, 151-157, 430-436. One afternoon on Willow Street respondent veered to avoid a car and knocked over at least two empty, lidless, rubber trashcans standing approximately one foot from the right edge of the road. When, back at the compound, Mr. Henderson told Mark Tallent about the accident, Mr. Tallent said to forget about it. T. 437-444, 496. On another afternoon, Scott Robinson, a student who had just gotten off bus No. 200, was approximately 6 or 7 feet in front of the bus when he heard the engine revving. Although Scott did not see the bus move forward, he was frightened, and the bus in fact "jerked." T. 133-148. The next morning, Mr. Henderson inquired "You really didn't think I was going to hit you, did you?" T.134. Another time the bus lurched forward while Kathy Black "was still in front of the bus" (T.252) "and about hit her." Id. Tom Ferris complained that Henderson almost hit another bus. Cathy Smith, a parent of a student on route No. 200 filed a complaint on April 30, 1990, claiming that he failed to stop for her daughter at her regularly scheduled stop. On May 3, 1990, petitioner received a three-page list of 21 complaints against Mr. Henderson, accompanied by a petition with 20 names on it, both written by Kim Lowe, a student on route No. 200 whom respondent had frequently disciplined. On May 4, 1990, another parent, Mr. Burris, complained to Mr. Tallent that he had observed respondent speeding and driving recklessly. T. 46-51, Petitioner's Exhibit 8. Earlier during the 1989-90 school year, petitioner's Department of Transportation had received still other complaints about Mr. Henderson. On May 3 or 4, 1990, without offering any explanation, Mr. Tallent told respondent he need no longer report for work. He did not tell Mr. Henderson of the complaints Ms. Smith and Messers. Burris and Ferris had made or give him an opportunity to refute their allegations prior to the filing of formal charges.
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss respondent as a school bus driver. DONE and ENTERED this 12th day of September, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1991. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 15, 18 through 45, 47, 51, 52, 53, 54, 55, 56, 57, 58, 60, 61, 62, 63, 66, 67 and 68 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, the school year was 1987-1988. With respect to petitioner's proposed finding of fact No. 7, the complaint included the words "god damn." With respect to petitioner's proposed findings of fact Nos. 16 and 17, the evidence showed things were being thrown out of the bus. With respect to petitioner's proposed findings of fact Nos. 46, 48, 49 and 50, it was not proven that other drivers reported every accident, however minor, or did so before leaving the scene, and respondent did report hitting the trashcans. Petitioner's proposed finding of fact No. 64 refers to a complaint that was not proven at hearing. Petitioner's proposed finding of fact No. 65 is not supported by citation to the record. With respect to petitioner's proposed finding of fact No. 69, the evidence did not show what she thought other than that she was "stunned looking." Respondent's proposed findings of fact Nos. 1 through 6, 8, 9, 10, 11, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 32, 34, 35, 36, 37 and 39 through 44 have been adopted, in substance, insofar as material. Respondent's proposed finding of fact No. 7 is a proposed conclusion of law. With respect to respondent's proposed finding of fact No. 12, she testified she was the only black. With respect to respondent's proposed finding of fact No. 17, a "duty teacher" boarded the bus and spoke to the children. With respect to respondent's proposed finding of fact No. 24, the morning stop was across the street from the white house. With respect to respondent's proposed finding of fact No. 31, students calling out alerted him the buses had collided. With respect to respondent's proposed finding of fact No. 38, the policy has not been enforced consistently. COPIES FURNISHED: John T. Jaszczak, Esquire Hogg, Allen, North & Blue, P.A. Hyde Park Plaza, Suite 350 324 S. Hyde Park Avenue Tampa, FL 33606 Sally C. Gertz, Esquire 118 North Monroe Street Tallahassee, FL 32399-1700 Dr. Daniel L. McIntyre, Superintendent Hernando County School Board 919 U.S. 41 North Brooksville, FL 34601
The Issue As stipulated by the parties, the issue in this case is whether there is “just cause” to terminate the employment of Patricia Davis.
Findings Of Fact The School Board employs Ms. Davis as a bus paraprofessional. Ms. Davis has satisfactorily served the School Board as a bus paraprofessional for approximately ten years, without any significant discipline. Ms. Davis is a continuing status employee. Ms. Davis is covered by the CTA-CU bargaining unit Collective Bargaining Agreement (CBA). During the 2009-2010 school year, until February 8, 2010, Ms. Davis was assigned to regularly work on bus number 2407. Ms. Marvel Ann Figueroa was the driver regularly assigned to bus number 2407. During the 2009-2010 school year, Ms. Davis was assigned to supervise Exceptional Student Education (ESE) students during transport to and from school on bus number 2407. During the 2009-2010 school year, until February 8, 2010, C.P.2/ was regularly transported on bus number 2407, to and from Palm Pointe Educational Research School (Palm Pointe). C.P. is a student with autism. During the 2009-2010 school year, until February 8, 2010, C.P. was under Ms. Davis’ supervision during transport on bus number 2407. Ms. Davis was aware that C.P. was non-verbal. Ms. Davis recognized that student C.P. was an ESE student with autism. Ms. Davis knew that C.P. was required to use a safety harness/E-Z vest during transport. As required by School Board rules, C.P.’s Emergency Information ESE Bus Form was provided to the staff on bus number 2407, and located on the bus on February 8, 2010. The form provided minimal information. It provided family information and contact numbers. A block labeled "Non-verbal" is checked. In a space labeled "Special instructions for Dealing with Student," one word appears: "Autism." In the "Special Bus Equipment" section, "E-Z on Vest" is checked. School officials knew that within the past two years C.P.’s behavior included vigorous head banging. They also knew that within the past two years C.P. had worn a protective helmet. C.P.’s educational plans included techniques developed to manage head banging and other self-injurious behavior. The school did not inform Ms. Davis of the history of head banging or of the risk of the behavior. This information did not appear on the ESE form. The School Board did not provide the bus with a helmet or other protective or cushioning gear. On February 8, 2010, Ms. Davis was working on bus number 2407. On the morning of February 8, 2010, before boarding students, Ms. Davis performed the pre-trip inspection required by her job duties. It included verifying that the seat belts were securely attached to the seats and that all seat belts were in working condition. Ms. Davis was not feeling well that morning. But she chose to work rather than call in sick. This was poor judgment that contributed to the events of the morning. Ms. Davis and the driver, Ms. Figueroa, discussed Ms. Davis’ illness. They agreed that Ms. Figueroa would get off the bus to escort the children to their seats. This service was a responsibility of Ms. Davis, the bus paraprofessional. On the morning of February 8, 2010, Ms. Davis sat at the front of the bus. Her training and instructions said that the aide was to sit at the back of the bus. But the Transportation Director had repeatedly approved seating charts for the bus that showed Ms. Davis sitting at the front. Consequently, the School Board had authorized Ms. Davis to sit in the front. Ms. Davis’ job duties also required her to constantly monitor the students. Although Ms. Davis periodically looked around to check on the students, she did not maintain a constant view of them. Due to her illness, Ms. Davis struggled to stay awake. Her head nodded and her eyes periodically closed momentarily. Ms. Davis was fighting sleep. She never fell completely asleep. But she did not maintain constant observation of the students. C.P. and three other students were riding bus number 2407 on the route to Palm Pointe the morning of February 8, 2010. Ms. Figueroa properly placed C.P. in his E-Z vest and secured him by his harness in the middle seat of his bus seat row. He was not seated beside the window. During the ride to Palm Pointe, C.P. became upset. He began engaging in self-stimulatory behavior, looking out the window, shaking his hands, and rocking back and forward in his seat. The self-stimulatory behavior was intermittent. This behavior, while often and typically exhibited by autistic children, was more vigorous behavior than C.P. had previously exhibited while riding the bus. As the drive to Palm Pointe continued, C.P. began to hit his hands and then his head against the side of the bus and the bus window. He rocked back and forward in his seat. He leaned and rocked from side to side as he banged his head on the bus window. This behavior continued for about eight minutes. Before that day, C.P. had never exhibited those behaviors while riding the bus. On February 8, 2010, C.P. had been riding bus number 2407, since the beginning of the school year, about six months earlier. Ms. Davis and the bus driver noticed the behavior quickly. They were very concerned about C.P.'s behavior and safety, as well as the safety of the other children on the bus. The bus driver could not pull over, because of the traffic conditions and restrictions resulting from the roads on which she was driving. Ms. Davis did not move C.P. farther away from the window. Unfastening C.P. from his harness and attempting to move him would have been dangerous for him and for the others on the bus. Ms. Davis and Ms. Figueroa were panicked and frightened. They discussed what steps they could take. They were hesitant to physically approach C.P. because they remembered being told in training that physical efforts to control a child with autism would likely cause them to become more violent. Ms. Davis’ training required her to seek help from a manager if she did not know how to handle a situation. Throughout the bus ride on February 8, 2010, as the situation worsened, Ms. Davis never used the available cell phone to seek assistance from a manager. Near the end of the ride, C.P.’s head banging broke the window and cut C.P. He began bleeding, but not profusely. Ms. Davis got the phone number of C.P.’s mother from the ESE form and called her. C.P.’s mother asked them to continue to the school and said she would meet them there. Ms. Davis’ call for assistance came too late. Her failure to promptly seek assistance was a neglect of her duties and a failure to exercise sound professional judgment. As the bus pulled in and stopped at the school, C.P. calmed. Ms. Davis approached him and comforted him verbally and physically. Other school employees boarded the bus and escorted C.P. off where his mother met him. The emergency intervention duties of a bus paraprofessional, like Ms. Davis, include providing ESE students physical assistance, if needed, during an emergency. Ms. Davis had seen C.P. mildly agitated before February 8, 2010. But there is no persuasive evidence that his actions included banging his head against the window or anything else, or that he had previously engaged in any self-injurious activities in Ms. Davis' presence. C.P.'s activities when agitated had included rocking, jerking, rubbing his fingers together, and humming. These are all typical self-calming behaviors shown by individuals with autism. They were not unusual for a student with C.P.'s disability. The behaviors were to be expected and would not have triggered concerns sufficient to report the behavior. In the past when C.P. became agitated, Ms. Davis had calmed him by offering cookies and speaking quietly to him. On February 8, 2010, these techniques worked briefly. C.P. paused his head banging, but then resumed. During Ms. Davis’ ten years of employment, the School Board provided her 92 hours of job-related training, an average of 9.2 hours per year. Of that, 20 hours were her initial training. Ms. Davis attended the classes and successfully completed them. The instruction covered a wide range of topics including equipment, procedures for emergencies, such as traffic accidents, school board policies, and employee relations. The training provided by the School Board included initial and refresher training in Crisis Prevention Intervention (CPI). Ms. Davis' most recent CPI training was August, 2007. She successfully completed it. The CPI training is general and addressed a range of situations. It includes training in verbal and non-verbal techniques. The techniques range from soothing and calming to physical restraint. There is no persuasive evidence that any of the CPI or other training specifically addressed the unique problems and dangers presented by a student in need of physical restraint in a moving vehicle. The testimony of School Board witnesses who reviewed the video tape of the incident and the reports highlighted the difficulty of the situation. The School Board witnesses believed that C.P. was sitting in a window seat and said Ms. Davis should have relocated him. Other School Board witnesses, and common sense, more reasonably maintained that trying to relocate a physically agitated student in a moving bus would endanger him and the other passengers. The CPI training did not include techniques specific to the unique issues presented by students with autism. It did not provide information about how to address head banging or suggest techniques such as cushioning the blows’ impact when a person is banging his head against a hard object. Typically, the school’s training involved two days of in-service presentations about general issues, transportation, student and personnel issues, including School Board policy, equipment, safety, and duties of bus drivers and aides. The training in aggregate provided little specific information about students with autism and nothing useful about ways to manage behavior such as that exhibited by C.P. on February 8, 2010. The School Board provided Ms. Davis training in non- violent crisis intervention. It involved techniques for dealing with children who are acting out in an aggressive or violent manner. The training did not emphasize or focus on issues involving behavior of students with autism. It presented techniques as equally applicable and effective for all student populations, including ESE students with autism. The training, however, provided that employees should call their manager for assistance when faced with a problem they cannot handle. Autism presents widely varied types of behavior. The crisis intervention techniques suggest engaging students in conversation and establishing a relationship with them through verbal interaction. This is not particularly useful or instructive in dealing with situations concerning non-verbal children. One of the district's training documents is titled "How well do you KNOW YOUR EQUIPMENT ?????." This training document is a representative sample of the training material that the district relies upon as having prepared Ms. Davis for the student's head banging. The information it provided did not. This is all the document had to say about possible behaviors of children with autism and how to react to them. Child may not be able to voice his/her discomfort, this may be apparent by different types of behavior: Rocking Banging with head or hands Biting Yelling, etc. In retrospect things could be fine, and child may exhibit inappropriate language and behavior. Modification training may be required to minimize their actions and reactions, to a more acceptable behavior. DON'T TAKE IT PERSONALLY The information in other training materials is similarly non-specific and not helpful in the emergency Ms. Davis faced. The CBA states: “[a]ny member of the Classified Unit may be dismissed by the School Board during his/her term of appointment, when a recommendation for dismissal is made by the Superintendent, for “just cause.” The CBA defines “just cause” to include “insubordination; neglect of duty; unsatisfactory work performance; and violation of School Board Policy and/or Rules . . .”. School Board Rule 6.301(3)(b), provides a non-inclusive list of infractions that support disciplinary action. They include: neglect of duty; violation of any rule, policy, or regulation; sleeping during working hours; violation of safety rules; violation of the Code of Ethics of the Education Profession; violation of the Principles of Professional Conduct for the Education Profession; violation of the Standards of Competent and Professional Performance; and violation of the Code of Ethics for Public Officers and employees. The Code of Ethics of the Education Profession in Florida (Florida Administrative Code Rule 6B-1.001), and the Principles of Professional Conduct for the Education Profession in Florida (Florida Administrative Code Rule 6B-1.006) require Ms. Davis to have concern for the students as her primary professional concern; to seek to exercise the best professional judgment and integrity; and to make reasonable efforts to protect students from harmful conditions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered pursuant to section 435.06, suspending Respondent, Patricia Davis, from employment for a period of one year, starting November 9, 2010. DONE AND ENTERED this 1st day of November, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 1st day of November, 2011.
The Issue Whether Respondent's employment should be terminated for the reasons set forth in the Petition for Suspension Without Pay and Dismissal from Employment.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public school operations in Palm Beach County. Respondent has been employed by the School Board as a school bus attendant since January 25, 2006. She is currently under suspension pending the outcome of these proceedings. As a school bus attendant employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." As is its right under Article 8 of the SEIU Contract, the School Board has established requirements for its school bus attendants. These requirements are set forth in a School Bus Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed to each and every school bus driver and school bus attendant employed by the School Board. The SDSBA Handbook provides, in pertinent part, as follows: X. Transportation of Exceptional Students by School Bus Drivers and Bus Attendants * * * B. Bus attendant shall be assigned to ESE routes when necessary and when possible. . . . * * * D. The ESE Bus Attendant * * * . . . . His regular assigned seat should be at the rear of the bus to facilitate student observation and behavior management. Assists the bus driver, parents, and school personnel in loading and unloading students at bus stops and school centers, as necessary and as directed. . . . 5. Assists the bus driver and students in following the school bus rules and procedures. * * * Assures that all seat belts, wheelchair securements, and occupant restraints are put away or locked in the seats when not in use to avoid safety hazards. Shall be alert to student passenger needs at all times, getting up to assist students in route, providing directions to students, and maintaining order. However, unless attending to a student's needs, the attendant shall remain seated at the rear of the bus when the bus is in motion. * * * 11. Performs other relevant duties as required, such as securing wheelchairs, securing students in their occupant restraints, cleaning up students, helping the driver clean up the bus, putting windows up and down, safely securing carry-on items, securing wheelchair trays, and assisting the driver in performing the Pre-Trip and Post- Trip Inspections. * * * 14. Shall be thoroughly familiar and perform in accordance with the training Handbooks of this School District: School Bus Drivers and Bus Attendants Handbook; and Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook. The Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook, which is referenced in the SDSBA Handbook, stated the following, among other things, regarding the job responsibilities of "ESE Bus Attendants": Overview of the Job of the Bus Attendant . . . . The Bus Attendant assists the Bus Driver with bus cleanliness, emergency situations, pre-trip and post-trip bus safety inspections, and knowing the route. * * * Preparing for Daily Trips * * * Check the wheelchair securement and occupant restraints for proper functioning. . . . Help the Bus Driver perform the pre-trip inspections. Help the Bus Driver clean up the bus. * * * Safely secure any loose items. Make sure that seat belts, wheel chair securements, and occupant restraints are put away or locked in the seats when not in use in order to avoid hazards. Working with Students A major duty that is required of a Bus Attendant is to care for students while they are on the bus. This means that you are to get out of your seat as necessary to be sure that students are safe, following the bus rules, and are not in any physical, health, or medical danger. You also must assist the Bus Driver, parents, and school personnel with loading and unloading of students at bus stops and school centers. You will do this as necessary and as directed. Specifically Bus Attendants must: Assist all pre-school students up and down the bus stairwell. Assist physically impaired students up and down the bus stairwell. Help any student who needs your assistance getting onto/off the bus. Open and close the bus lift door and assist students who are in a wheelchair onto/off the lift in the absence of a parent or school person, or when a parent/guardian cannot help due to extenuating circumstances. Operate the wheelchair lift. Secure wheelchairs, and secure students in their occupant restraint systems. Clean up students and the bus when students have soiled themselves. Help the students to follow the bus rules and procedures. Be alert to student passenger needs at all times. Give assistance to students, provide direction to them and help to maintain order on the bus. * * * Where you place yourself on the bus is important. It is generally recommended that a Bus Attendant sit at the back of the bus, which allows you to watch the students in front of you. . . . Article 17 of the SEIU Contract addresses "[d]iscipline of [e]mployees" and provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Respondent has been disciplined by the School Board on previous occasions for failing to properly perform her job duties as an ESE school bus attendant. On August 26, 2008, Respondent received a verbal reprimand with written notation "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." The letter advising her of such disciplinary action read as follows: This correspondence is being given to you as a verbal reprimand with written notation for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically, on June 6, 2008, during your pre-disciplinary meeting you stated that you take a nonprescription medication that makes you sleepy. Furthermore, the review of two (2) videos from buses that you served as an attendant revealed you were asleep and not seated in the rear of the bus while students were being transported. Additionally, these acts w[ere] confirmed by Ms. Evangelina Patterson who stated that you have fallen asleep on every route that you served as an attendant on her bus. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This letter of verbal reprimand with written notation will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. On October 28, 2008, Respondent was given a written reprimand "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." This written reprimand was in the form of a letter, which read as follows This correspondence is being given to you as a written reprimand for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically on October 22, 2008, during your pre- disciplinary meeting you stated that you were not fully alert while serving as an attendant on Route E536. Furthermore, a review of the video from this bus revealed that you were asleep while students were being transported. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant.. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This written reprimand will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. Notwithstanding (and in brazen disregard of) the reasonable directive contained in this written reprimand that she "desist from engaging in the same or similar actions in the future," less than three months later, on the morning of January 22, 2009, Respondent was once again inattentive while on duty as an ESE school bus attendant. The bus to which she was assigned that morning was Bus #0691, which was driven by Evangelina Patterson. There was an operational video camera (with audio), mounted in the front of the interior of the bus, which captured what occurred on the bus that morning. At 8:08 a.m., Bus #0691 arrived at the school to which the three students then on the bus were being transported. The students unfastened their seat belts, got out of their seats, and exited the bus. Instead of escorting the students off the bus, Respondent stayed in her seat, put her jacket over her face, and leaned her head against the window in an admitted effort to get some rest. She remained essentially in this position for at least the next 18 minutes, keeping her jacket over her face the entire time, except for a brief moment (at approximately 8:16 a.m.) when, startled by a tap on the leg from the driver, Ms. Patterson, who was trying to rouse her, she temporarily removed the jacket. During this 18-minute period, without Respondent's assistance, Ms. Patterson did her post-trip inspection and readied the bus for its next trip that morning. On this next trip, the bus picked up three students and transported them to their high school. For at least the last seven or eight minutes of the trip, none of the three students was wearing a seat belt, a situation that Respondent did nothing, during that time period, to try to correct. One of the three unbelted students (seated three rows in front of Respondent) had his back facing the window and his left lower leg and foot in the aisle. The student's book bag was also in the aisle, immediately next to his left foot, so that the entire width of the aisle was blocked. For almost all of this seven or eight-minute period at the end of the trip, Respondent's eyes were closed and her head was bobbing back and forth. She had no interaction with the students on the bus. After the bus arrived at the school, Respondent walked behind the students as they exited the bus. As she passed by the camera in the front of the bus, Respondent looked like she had just woken up, with her eyes appearing to be adjusting to the light. Respondent has demonstrated, through her actions, that she cannot be depended upon to be alert and attentive at all times while on duty and to otherwise discharge her job responsibilities as a school bus attendant in a manner that will ensure the safety of the students in her care and that will not expose the School Board to liability. Consequently, her continued employment as a school bus attendant constitutes a real and immediate danger to the School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 23rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 23rd day of March, 2010. COPIES FURNISHED: Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Aikeea Howell 5145 Caribbean Boulevard, Apt. 1027 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 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
The Issue The issue is whether Petitioner may suspend Respondent for 30 calendar days without pay for driving a school bus while her driver license was suspended.
Findings Of Fact Petitioner has employed Respondent as a school bus driver for 14 years. In January, 2013, Respondent committed three toll violations. Initially, she could have paid $22.50 to have resolved these violations, but Respondent failed to do so. Unpaid, the violations matured into citations that required a court appearance. Respondent received a summons to appear in court on February 19, 2013, but Respondent failed to do so. Respondent then received a notice that her driver license would be suspended effective March 11, 2013. In late February, Respondent hired an attorney to clear up the matter. On February 28, the attorney appeared in court and obtained a disposition of the three citations. However, for some reason, the Clerk's office did not process the paperwork correctly, so the March 11 suspension was not lifted. On March 11, 2013, which was a Monday, Respondent reported to work and drove her bus. She did not conduct a driver license check prior to reporting to work, but she did so later that morning, at which time she learned that her license had been suspended. Respondent called her attorney and informed him that her license had been suspended. He said that it should not have been and, the next day, visited the Clerk's office and cleared up the confusion. After being suspended March 11-13, Respondent's driver license was reinstated without any costs effective March 14, 2013. In the meantime, knowing that her license had been suspended, Respondent drove her school bus on the afternoon of March 11. Due to the driver-license suspension, Respondent did not report to work on March 12, but she did on March 13 and, either knowing that her license was still suspended or in conscious disregard of the status of her license, drove the bus in the morning and afternoon. Petitioner's Handbook for School Bus Drivers, Aides and Operations Staff, dated July 2012 (Handbook), provides that drivers "must at all times maintain a valid Commercial Driver's License," and "[o]perating a bus with a suspended, expired, or revoked license shall be grounds for suspension or dismissal . . . ." Handbook, p. 10. School Board Policy 8600 incorporates by reference the Handbook. Also, the collective bargaining agreement covering Respondent acknowledges that noncompliance with any School Board policy, if not serious enough to warrant dismissal, may be a ground for suspension of the employee for up to 30 calendar days without pay.
Recommendation It is RECOMMENDED that the Miami-Dade County School Board enter a final order suspending Respondent for 30 calendar days without pay. DONE AND ENTERED this 24th day of April, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 24th day of April, 2014. COPIES FURNISHED: Sara M. Marken, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 430 Miami, Florida 33132-1308 Barbara A. Roberts 3120 Northwest 161st Street Miami Gardens, Florida 33054 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Alberto M. Carvalho, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132-1308
The Issue Whether Petitioner School Board had just cause to reprimand Respondent Christopher O'Brien and suspend him for five days without pay. Whether Petitioner School Board had just cause to reprimand Respondent Angelo DiPaolo and suspend him for three days without pay.
Findings Of Fact At all times material, Christopher O'Brien was employed by Petitioner Hernando County School Board as a school bus driver. Mr. O'Brien was first hired by Petitioner as a school bus driver in 2001. Prior to the events of this case, he had never been disciplined by his employer, and he had received a number of commendations. At all times material, Angelo DiPaolo was employed by Petitioner as a school bus attendant. Mr. DiPaolo was first employed and trained by Petitioner as a school bus driver for about one year, but he had been employed by Petitioner as a school bus attendant for the last six years preceding the incident in this case. Respondents are members of the Hernando United School Workers Union (HUSW). For the 2007-2008, school year, both men were assigned by the School Board's Transportation Department to Bus 473, Route 22. During that school year, the bus carried between 50 and 60 children, ages kindergarten through eighth grade, to and from J.D. Floyd Elementary School. Student A.R. was one of these students. On October 5, 2007, A.R. was a three-year-old, female, pre-kindergarten, Exceptional Student Education (ESE) student. She was a special needs child, whose 2007-2008, Individualized Education Plan (IEP) called for her to have adult supervision while riding the bus. The School Board had implemented A.R.'s IEP for the 2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's bus. Steve Daniels, Petitioner's ESE Driver Coordinator Specialist, provided Mr. DiPaolo with written confirmation of his assignment, which included information on A.R.'s grade level, bus stop, and need for a special seat restraint. Mr. DiPaolo first met A.R. at the beginning of the 2007-2008, school year. Mr. DiPaolo's assigned first and primary responsibility was the safety of A.R., which included buckling her into her child safety seat, but his second and subordinate responsibility was to maintain order on the bus and manage the safety of the other 50-60 children. Mr. O'Brien had met A.R. during the second semester of the 2006-2007, school year, when she was initially placed on his school bus route. During that school year, A.R. had ridden the bus driven by Mr. O'Brien without having a school bus attendant specifically devoted to her safety and exceptionalities. During that school year, Mr. O'Brien had been instrumental in getting a particular type of safety seat for A.R. to ride in, due to her small size. This type of seat is called "a C. E. White" or "CEW" child's safety seat, and has an integrated five-point harness. During the 2006-2007, school year, Mr. O'Brien's bus had no bus attendant. Therefore, during that period of time, he had ultimate responsibility for all the children on his bus, including A.R. During the 2006-2007, school year, A.R. was sometimes buckled into her bus safety seat by older siblings who rode the same bus, but Mr. O'Brien had a good rapport with A.R. and often also helped buckle her into her seat. To do so, he had to leave the bus driver's compartment of the bus. During the 2007-2008, school year, A.R. and one sister, R.R., who was then approximately nine years old, continued to ride Mr. O'Brien's bus. Mr. O'Brien was advised at the start of the 2007-2008, school year that A.R. would be riding with the adult supervision of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons why the decision had been made to require a bus attendant specifically for A.R., but he understood he was supposed to comply with this requirement, regardless of the reason. There also was testimony that any three-year-old attending kindergarten with a special bus attendant would be an ESE student. In assessing the relative credibility and weighing the testimony of all the witnesses, as well as hearing the comments made by R.R. on the videotape of the October 5, 2007, incident, it is found that A.R. was not a usually compliant and accepting bus passenger, but was frequently what any parent would recognize as difficult or oppositional. (See Finding of Fact 23.) Indeed, during the 2007-2008, school year prior to October 5, 2007, Mr. DiPaolo had twice sought direction from Mr. Daniels, who had told him to do the best he could with A.R., but if Mr. DiPaolo's "best" did not work out, something else might have to be done about A.R. A.R.'s father usually brought her to the bus stop. On the morning of October 5, 2007, a neighbor brought the two siblings to the bus stop. A.R. was already upset when boarding began. On October 5, 2007, A.R. did not want to get on the bus. Mr. DiPaolo had to go down to the first step of the bus to get A.R. from the neighbor who was supervising the sisters at the bus stop. Once A.R. made it to the top step of the bus entrance, she still did not want to move. Mr. DiPaolo had to lift her up and place her in her C.E. White seat, which was strapped-into the window-side of the first row seat, immediately inside the door on the side of the bus opposite the driver's side. Once there, A.R. deliberately slumped off the car seat onto the floor of the bus. When lifted up again, A.R. repeated the behavior. This "battle of wills" between the three-year-old and the bus attendant continued for a little while. Fairly quickly, however, Mr. DiPaolo retired from the field of battle to speak to some students in the back of the bus. At this point, A.R. was either sliding herself onto the floor or was on the floor between the first row of seats and the stairwell barricade. Despite some testimony to the effect that the older students in the back of the bus were rowdy and needed to be settled down, the video tape does not corroborate that "take" on the chain of events. While it might have been good strategy for Mr. DiPaolo to let A.R. cool off a little before again trying to buckle her into her seat, there does not appear to have been any pressing reason for Mr. DiPaolo to absent himself from her vicinity to address issues in the back of the bus. Moreover, A.R. was his first and prime responsibility, and he abandoned that responsibility by saying to A.R.'s sister, R.R., who was still standing and not in her own seat, that she should try to get A.R. buckled in, and he did not alert Mr. O'Brien that A.R. was not yet buckled-in. Mr. DiPaolo's superior, Mr. Daniels, would have sanctioned Mr. DiPaolo's enlisting the aid of the older sibling if Mr. DiPaolo also had not simply abandoned the situation and walked to the back of the bus. Mr. DiPaolo also could have, and did not, attempt to enlist the aid of the adult neighbor who had delivered A.R. to the bus stop, or he could have returned A.R. back to that adult neighbor and suggested the neighbor take A.R. to school separately, both of which were options his superiors testified they would have sanctioned. He could also have requested that Mr. O'Brien radio the dispatcher for help. He chose none of these options. As Mr. DiPaolo gave instructions to A.R.'s sister and walked to the back of the bus, Mr. O'Brien, not realizing that A.R. was not secured into her seat, pulled the bus away from the stop. Although Mr. O'Brien testified to several reasons that he believed A.R. was secured in her seat before he pulled the bus away from its stop, Mr. DiPaolo clearly had not orally advised him that she was buckled-in, and Mr. O'Brien did not, in fact, make sure that A.R. was secure before he pulled the bus into four-lane traffic. Moreover, the sister, R.R., was up and down while all this was going on. She was not always in her seat as the bus was moving, either. R.R. was not able to secure A.R. in her seat, so she approached the driver's compartment and stated to Mr. O'Brien that they were going to have to do things "the hard way." R.R.'s choice of words suggests that R.R. and Mr. O'Brien had previously had to buckle A.R. into her car seat by sheer force. Approximately 25 seconds after he started the bus, during which time the bus entered the flow of four lanes of traffic and proceeded through an intersection, Mr. O'Brien pulled the bus over to the side of the road and stopped. During the whole of this period, A.R. was not in her seat or buckled- in. When Mr. O'Brien pulled over, he put on the emergency brake and put the transmission in neutral. He intentionally left the bus engine running, because the doors on that type of bus are controlled by air pressure. Once the engine is turned off, the doors will open with just the touch of a hand from either inside or outside the door. For safety reasons, he wanted the door to remain secure. Under the circumstances, pulling over the bus was probably a wise move, but Mr. O'Brien went further. He could have summoned Mr. DiPaolo to come back and do his job as A.R.'s bus attendant, and he could have called dispatch to alert the administration to a problem requiring their help, but instead, Mr. O'Brien left the driver's compartment to check on A.R. When Mr. O'Brien reached her, A.R. was not in her seat. He lifted her up from the floor of the bus and attempted to buckle her into her seat. At first, Mr. O'Brien was not successful getting A.R. into her seat and asked her if she knew she was about to get "a spanking." Mr. O'Brien admitted to threatening to spank A.R. to "snap her out of it," and to emphasize the importance of complying with his demands, even though he knew that "corporal punishment" was against Petitioner's policies. His voice was firm in making the statement and more matter-of-fact than threatening. However, his threat was loud enough to be heard over the general commotion on the bus, the idling engine, and the sound of traffic. R.R. and at least a few nearby children must have heard the threat. When A.R. continued to physically resist Mr. O'Brien's efforts to get her into her seat, he administered a single, swift slap to her right buttocks/thigh area. A.R. did not cry out specifically at that point, although later she began to cry. After spanking A.R., Mr. O'Brien was able, unassisted, to wrestle her into her seat and buckle her in. At some point in Mr. O'Brien's struggle, Mr. DiPaolo returned and stood in the aisle, level with the back of A.R.'s seat, observing Mr. O'Brien interacting with A.R. and A.R. crying. The "driver's compartment" on Mr. O'Brien's bus does not show up well in the video and there was no testimony concerning how it is configured. However, it does not appear to be separated from the students' seats by a door or partition. The diagrams in the Operations Handbook show clear access to the driver's seat and controls from the student seats on the driver's side immediately behind the driver's seat, if the driver is not in his seat, regardless of whether anyone is blocking the aisle. During the entire period of time Mr. O'Brien was dealing with A.R., he had his back turned towards the driver's seat and controls, which he had left unattended. During this entire period of time, the bus engine continued running and the doors remained closed. However, Mr. O'Brien's bus has just a knob for an emergency brake and anyone could have hit the knob so that the bus would begin rolling forward. After securing A.R. and being sure R.R. also was safely seated, Mr. O'Brien returned to the driver's compartment and drove the bus to school. A.R.'s screaming, crying, and fussing seems to have escalated after Mr. O'Brien resumed the driver's seat, when Mr. DiPaolo said something to A.R. about his not being willing to sit with her. However, Mr. DiPaolo eventually sat next to A.R. and interacted with A.R. to keep her amused, and apparently happy, until the bus stopped again and the passengers debarked at J.D. Floyd Elementary School. Mr. O'Brien described the incident to A.R.'s classroom teacher when he delivered A.R. into her care at the school on October 5, 2007. He did not report it to Petitioner's Transportation Department, because it was, in his mind, a minor bit of misbehavior by a student. Mr. DiPaolo also made no report. The undersigned is not persuaded that either Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret. One of Petitioner's own training manuals provides: Minor incidents of misbehavior such as getting out of the seat, standing, or speaking loudly are usually better handled on the bus. If every incident of misbehavior is reported to the principal, the operator will lose credibility. However, on the following Monday morning, A.R.'s mother boarded Mr. O'Brien's bus and made a scene, accusing Mr. O'Brien of spanking A.R. on her bottom. The mother then proceeded to Petitioner's administrative offices, where she lodged a complaint, and finally went on to the Sheriff's Office to do the same. Ultimately, because they are required to do so when there is an accusation of corporal punishment, Petitioner's administration notified the Department of Children and Family Services of the mother's allegations. After receiving the complaint, Linda Smith, Petitioner's Director of Transportation, requested a copy of the October 5, 2007, surveillance video from the front of Bus 473. That surveillance film was admitted in evidence and has been heavily relied-upon in this Recommended Order. The surveillance film from the back of the bus was not offered or admitted. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's Operator Trainer/Safety Coordinator for Transportation, have each been involved in school bus transportation for over 30 years and both have served as drivers and as transportation administrators. They testified that Mr. O'Brien's conduct on October 5, 2007, violated Petitioner's policy on two basic levels: he left the driver's compartment while the bus was still running and still loaded with students, and he administered corporal punishment to a student. While bus attendants and drivers have some discretion in handling disruptive students or students like A.R., who are not following directions, they are not supposed to permit, or cause, a bus to leave a stop until every student is properly secured, and they are forbidden to use corporal punishment. Bus drivers/operators receive training, including training on Petitioner's Operations Handbook as well as training on the State-approved driver curriculum. Mr. O'Brien was certified as having completed the bus driver training on July 20, 2001. Mr. O'Brien attended annual in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service trainings include, among other things, any updates to the Operations Handbook. General statements were also made during in-service trainings about not touching students. Mr. DiPaolo received his initial training as a bus driver from Ms. Nesmith and a copy of the Operations Handbook in 2001, when he first was hired by Petitioner. Mr. DiPaolo, and all bus attendants, receive initial training as bus attendants, including a review of Petitioner's Operations Handbook. Mr. DiPaolo also received in-service trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007. In-service training included any updates to the Operations Handbook. Ms. Smith recommended discipline for Messrs. O'Brien and DiPaolo. She recommended a five-day suspension for Mr. O'Brien and a three-day suspension for Mr. DiPaolo. Petitioner scheduled a pre-disciplinary meeting concerning the incident for October 17, 2007. The meeting was postponed because Messrs. O'Brien and DiPaolo had obtained legal counsel. The meeting was eventually rescheduled for November 2007. Messrs. O'Brien and DiPaolo attended that meeting with their respective legal counsel, and it resulted in the November 7, 2007, charges addressed below and in the Conclusions of Law. In accord with Ms. Smith's recommendation, Petitioner's Superintendent issued a letter dated November 7, 2007, to Mr. O'Brien, reprimanding him and issuing a five-day suspension without pay for leaving the driver's compartment; leaving the bus running while attending to A.R.; orally threatening to spank a student while attempting to put her into her seat; swatting the student on her posterior; and failing to immediately report to the Transportation Department the incident as a student safety issue. Mr. O'Brien was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group III, Section (10)- On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board; Policy 6.301, Ethics: Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety; and (3) (e) not intentionally expose a student to unnecessary embarrassment or disparagement; and provisions in Petitioner's 2007 Staff Handbook prohibiting touching students except to protect their health, safety and/or welfare. Policy 6.38 was cited as a disciplinary guideline. In accord with Ms. Smith's recommendation, the Superintendent issued a letter dated November 7, 2007, to Mr. DiPaolo, reprimanding him and issuing a three-day suspension without pay, for failing to place a student assigned specifically to him for supervision and assistance in her seat; walking to the back of the bus while the bus driver had to secure the student in her seat; and failing to immediately report the incident to the Transportation Department as a student safety issue. Mr. DiPaolo was cited in the letter for violations of Petitioner's policies, namely Policy 6.37, Group II, Section (13), Incompetency or inefficiency in the performance of duties; Policy 6.37, Group III, Section (4), Interfering with the work of other employees or refusal to perform assigned work; and Policy 6.301: Ethics, Section (3) (a) failure to make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. Again, Policy 6.38 was cited as a disciplinary guideline. The School Board's Operations Handbook, at page 37, states, in pertinent part: Bus Aides 5. Drivers are to remain in the driver's compartment. The School Board's Operations Handbook, at page 59-Y, states, in pertinent part: Responsibilities of a School Bus Aide To load and unload students and assist driver as needed. * * * 3. To ensure that all students are secured and when appropriate, secure restraining devices, i.e. seat belts, safety vest, infant seats, and toddler seats. * * * 6. To recognize individual student capabilities and exceptionalities while maintaining order on the bus and administer to their individual needs as required. At page 59-D, the Operations Handbook provides, in pertinent part: Operating Procedure No. 27, Responsibilities of the School Bus Driver Related to Board of Education Rules 6A-3 25. To report immediately to the director or supervisor of transportation, school principal or other designated officials: a. Misconduct on the part of any student while on bus or under the driver's immediate supervision, The Department of Education Bureau of Professional Practices Services' handout, provided during training of bus drivers, provides, in pertinent part: INTERACTION WITH STUDENTS: Keep hands and other parts of your body to yourself. TIPS FOR STAFF WITH AGGRESSIVE STUDENTS: DON'TS: Do not physically handle the student. Do not react aggressively in return. * * * 5. Do not create punitive consequences to "get even" with the student. Department of Education Recommendation: Discipline The bus driver has no authority to slap, spank or abuse any child. By School Board policy, Petitioner has made the standards for educators applicable to even its non-educational personnel, such as bus attendants and bus drivers. Policy 6.301 concerns employee ethics and provides in pertinent part: (2) All employees shall familiarize themselves with the 'Code of Ethics of the Education Profession in Florida,' located in the State Board of Education Rules. All employees shall abide by the Code at all times and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board. Florida Administrative Code Rule 6B-1.006, which is provided to Petitioner's employees with their copy of Petitioner's Policy 6.301, provides in pertinent part: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. * * * e. Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner's Policy 6.301 (3), reads: The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Compliant [sic] Policy. Petitioner's 2007-2008 Staff Handbook provides, in pertinent part: TOUCHING STUDENTS Employees are advised that they should not touch students in any way except for the protection of the health, safety, and/or welfare of a student or for protection of themselves. School Board Policy 6.37 -- Group (II) provides, in pertinent part: GROUP II OFFENSES (13) Incompetency or inefficiency in the performance of duties. School Board Policy 6.37 - Group (III) provides, in pertinent part: GROUP III OFFENSES (4) Interfering with the work of other employees or refusal to perform assigned work. (10) On or off the job conduct which adversely affects the ability of the employee to perform his duties and/or the duties of other employees and/or adversely affects the efficient operation of the school system or any department, division, or area of the School Board. The parties stipulated that this case does not present a situation of progressive discipline, and accordingly, the undersigned finds it unnecessary to quote or discuss the levels of discipline permissible under Groups II and III of Policy 6.37 or Policy 6.38. It further appears that combinations of the penalties of written reprimand and suspension, with or without pay, are authorized, and each offense is looked at on a case-by-case basis. Also, it appears that all penalties listed in any School Board Policy are recommended, but not mandatory, to apply to specific offenses and that the penalty utilized is to be discretionary with management, per Policies 6.37, and 6.38. Policy 6.38, authorizes the Superintendent to suspend employees without pay for up to 10 days as a disciplinary measure.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner: Enter a Final Order sustaining Respondent O'Brien's reprimand and suspension without pay for five days; and Enter a Final Order sustaining Respondent DiPaolo's reprimand and suspension without pay for three days. DONE AND ENTERED this 15th day of July, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 15th day of July, 2008. COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32301 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Hwy. 19 North, Ste. 110 Clearwater, FL 33761 Dr. Wayne Alexander, Superintendent Hernando County School Board 919 North Broad Street Brooksville, Florida 34601
Findings Of Fact The Respondent, George Culbert, at times pertinent hereto, was employed by the School Board of Bay County. He was employed from November 1981 until March 4, 1987, when he was terminated by recommendation of a supervisor and by the School Superintendent. On April 8, 1987, the School Board took final agency action by terminating Mr. Culbert. The School Board of Bay County, the Petitioner, is a unit of local government charged, in pertinent part, with the hiring, termination and regulation of employment duties and practices of non- instructional personnel, such as the Respondent herein. The Respondent was employed by the School Board as a substitute bus driver from November 1981 until August 1982. From that date until his termination, he held a regular, full-time position as a bus driver with the School Board. During his tenure with the Board he received annual re- appointments to his position. He worked under a 10 month, non-instructional contract with the school board which covered the entire 1986-87 school year. He received annual, non-instructional performance evaluations for each year he was an employee of the school board. The Respondent consistently achieved performance standards on his evaluations and his overall rating was satisfactory. Although he was once disciplined for an episode involving a fight his son was in, while he was transporting his son and other children on a school bus, this infraction was of a personal nature and did not reflect on his skill or competence as a bus driver. During his period of employment from 1981 through March 4, 1987, he never received any disciplinary action regarding his performance as a bus driver. Prior to the instant situation, he had not been disciplined for any infractions of school board rules and policies, or state statutes. On February 25, 1988, bus driver Carol Nesmith was at a railroad crossing at State Road 261, a four lane highway. Her bus was stopped in the right hand lane as pertinent rules and her instructions required, to insure safe negotiation of the railroad crossing. While Ms. Nesmith and her bus was stopped (with students aboard) at the railroad crossing, following safety procedures required of bus drivers, the Respondent approached her bus from the rear. Instead of coming to a complete stop, he changed lanes and passed Ms. Smith's school bus at the railroad crossing, without coming to a complete stop. Mr. Culbert, as a regular practice, always approached a railroad crossing by reducing speed, coming to a stop, opening his window and door in order to look both ways to determine whether a train was approaching. Mr. Culbert testified that he religiously adhered to this practice. On the day in question, however, Mr. Culbert was running a trifle late in his schedule for taking children home from school on his bus because he had been delayed by a train at an earlier railroad crossing. Mr. Culbert, as well as Betty Gates, one of his supervisors, established that the required procedure for approaching and negotiating a railroad crossing could be performed quite quickly, depending upon the habits of the individual driver. There are no rules or regulations governing the time required to complete the "stopping and looking" procedures. Once a school bus comes to a stop, the other safety procedures can be performed in a few seconds and indeed a driver can look both ways when approaching a railroad crossing before coming to a complete stop. Mr. Culbert admitted that he followed these procedures quickly, but maintained that he came to a complete stop and followed the procedures as he normally did, not deviating from the normal practice. In any event, it is found that he failed to come to a complete stop and Ms. Nesmith testified that after he passed her bus, being concerned about the incident, she reported it to her Supervisor, Pat Holland. Ms. Nesmith knew of no other such incident. It was not until March 4, 1987, the day he was notified by his supervisor of his termination, that Mr. Culbert was notified of Ms. Holland's and Ms. Nesmith's concerns about the conduct that occurred on February 25. On March 4, 1987, Mr. Larry Daniels, one of his supervisors, asked him about the incident, whereupon Mr. Culbert denied that he failed to stop at the railroad crossing. In fact, he asked Mr. Daniels to conduct a full investigation of the matter and contact all the students who were in attendance at the incident (on his bus) at the time. As far as Mr. Culbert knew Mr. Daniels never conducted such an investigation. In any event, the Respondent was orally notified on that day of his termination and on the same day Mr. Daniels gave him a letter of termination. The basis for the termination was only the allegation involving his failure to stop at the railroad crossing. The following day, March 5, 1987, Superintendent Hall and Personnel Director Dick Lockner executed a standard Department of Personnel Termination Form regarding the Respondent. Later, on April 8, 1987, without prior notice or hearing, the school board took its final agency action and voted to terminate him. Thereafter, an Administrative Hearing was requested by the Respondent's Union Representative on May 13, 1987. Approximately seven months thereafter the matter was transmitted to the Division of Administrative Hearings for a formal proceeding. Mr. Malcolm Murphy was formerly the Supervisor of the School Board's Department of Transportation. Under his management the Department followed a "progressive discipline model." Under this policy employees were always notified upon their employment of the type of misconduct warranting discipline and the consequences of such misconduct. Mr. Murphy established that alleged violations of school board policy, rules or statutes, such as that involved in this case, would not warrant dismissal for a first offense under prevailing school board policy. The Respondent's offense in this instance is a first offense. Ms. Betty Gates, a former "District Specialist" for the board's Department of Transportation, confirmed that, while the conduct involved herein would be deemed somewhat serious, that dismissal would never be considered as appropriate for a first offense of this nature. It would be considered excessive for an employee who had never committed such an offense. She also established that it was commonly believed by employees, based upon the policy announced to them by the School Board's Department of Transportation, that they would not be dismissed for such an offense as this one, if it were the first such offense. Ms. Gates further opined that the action taken against Mr. Culbert was related to a personal animosity between he and Mr. Daniels, rather than to a violation of professional standards. In support of this belief she recounted an incident where Mr. Daniels had previously attempted to discipline Mr. Culbert for a matter totally unrelated to his employment relationship with the School Board. Mr. Murphy, in his position as Supervisor, could recall no incident of any employee being disciplined in such a serious manner for a first offense. Although he suspended another employee for a second offense involving violation of a rule or school board policy, he did not know of any instance where an employee was terminated even for a second such offense. It was thus unequivocally established that the School Board's policy toward its bus drivers was that no termination should occur for a first offense involving an incident such as failing to come to a complete stop at a railroad crossing, although that is a moderately serious occurrence and should not be allowed to be repeated.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the School Board of Bay County restoring the Respondent to his previous employment position and providing him with back pay and related benefits with interest thereon, at the legal rate, from the time he was wrongfully terminated on March 4, 1987. DONE and RECOMMENDED this 21st day of February, 1989, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5501 PETITIONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as a discussion of testimony rather than as a Proposed Finding of Fact. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as irrelevant. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. and 15. Rejected as being immaterial in the de novo context of the instant proceeding. Rejected as irrelevant. Rejected as irrelevant. Accepted in part, but subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted, except that the witnesses' name was Nesmith and not Smith. Accepted. Accepted as to the first two sentences. The remainder of this Proposed Finding of Fact constitutes a discussion of testimony and is not a Finding of Fact. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. (There is no paragraph #14). Rejected as constituting a recitation of testimony and not a Proposed Finding of Fact. Accepted. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant and as constituting merely a discussion of testimony. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. COPIES FURNISHED: Franklin R. Harrison, Esquire 304 Magnolia Avenue Panama City, Florida 32402 Pamela L. Cooper, Esquire Post Office Box 1547 Tallahassee, Florida 32302 Leonard J. Hall Superintendent of Schools Post Office Box 820 Panama City, Florida 32401
The Issue The issue is whether the Lee County School Board may terminate Respondent's employment as a school bus driver based upon the conduct alleged in the Petition for Termination.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the matters officially recognized, the following findings are made: The School Board is the governing body of the local school district in and for Lee County, Florida. In January 2003, Respondent was employed by the School Board as a school bus driver. Respondent had been in that position since April 2000. Respondent's employment with the School Board is governed by a collective bargaining agreement between the Support Personnel Association of Lee County and the School Board (hereafter "SPALC Agreement"). On January 27, 2003, Respondent's supervisor, Joe Howard, received a note from Respondent which stated that Respondent was "going through a lot of problems (personal)" and that he "can't work today." The note was delivered to Mr. Howard's office by one of Respondent's relatives. The note did not expressly request leave and it stated that Respondent "will give [Mr. Howard] more details when [he] come[s] back to work." Respondent never contacted Mr. Howard to explain his absence, nor did Respondent report for work at any point after January 27, 2003. Mr. Howard subsequently learned that Respondent had not returned to work because he was in jail. Respondent never filled out the School Board's leave request form, nor did he get approval for his leave on January 27, 2003, or thereafter. School Board policy specifically requires requests for leave to be made and approved in advance of the period of leave. The policy has an exception for "sickness or other emergencies," but that exception is not implicated in this case. On January 29, 2003, Respondent was arrested by the Lee County Sheriff's office after he was involved in a confrontation with his girlfriend on the Mid Point bridge in Lee County. Respondent was charged with four counts of aggravated assault with a deadly weapon, one count of aggravated battery, and one count of false imprisonment. Each of those offenses is a third-degree felony. Respondent was taken to jail after his arrest. He remained in jail through March 5, 2003. All of the charges against Respondent except the false imprisonment and one count of aggravated assault were subsequently "dropped." Respondent is currently awaiting trial on the remaining charges. Upon learning of Respondent's arrest and the nature of the allegations against him, Mr. Howard had serious concerns regarding Respondent's ability to work as a bus driver. Mr. Howard was particularly concerned that parents would be uncomfortable with Respondent transporting their children in light of Respondent's alleged failure to follow the law. Mr. Howard considers compliance with the law to be a paramount duty of a bus driver. In accordance with School Board policy and the SPALC Agreement, the School Board investigated the circumstances surrounding Respondent's absence and arrest, as well as other unrelated allegations of misconduct by Respondent. The findings of the investigation were discussed at a duly-noticed pre-determination conference held on March 6, 2003. The purpose of the pre-determination conference is to give the employee an opportunity to respond to the allegations against him or her. Respondent attended the pre-determination conference and spoke on his own behalf. Respondent confirmed that he was arrested on January 29, 2003, and that he was in jail until March 5, 2003. Respondent also provided his version of the events surrounding his arrest. On March 24, 2003, the Superintendent informed Respondent that he was suspended from his position based upon the findings of the investigation and the pre-determination conference. The suspension was retroactive to March 6, 2003, which was the first day that Respondent could have reported to work after his release from jail. Also on March 24, 2003, the School Board's director of human resources informed Respondent that there was probable cause to discipline him for his conduct and that she was recommending that Respondent be terminated from his position. Thereafter, Respondent timely requested an administrative hearing. Respondent's employment contract with the School Board expired on May 29, 2003. His contract was not renewed for the 2003-04 school year as a result of a number of performance deficiencies cited in Respondent's annual assessment. Those performance deficiencies were not directly related to Respondent's arrest. Notice of this proceeding was provided to Respondent at the address he gave to the School Board at the pre- determination conference. Respondent received certified mail from the School Board at that address during the course of this proceeding. Respondent failed to appear at the final hearing despite having been given due notice of its date, time, and location.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board issue a final order that terminates Respondent's employment. DONE AND ENTERED this 15th day of July, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 15th day of July, 2003.
