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.
The Issue The issue for consideration in this hearing was whether Respondent's employment as a school bus driver with the Pinellas County Schools should be terminated because of the matters alleged in the Superintendent's Charging Letter dated June 10, 1996.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Pinellas County School Board, operated the system of public elementary and secondary education in Pinellas County Florida. Included within that function was the operation of the public school bus system. Respondent was employed by the Petitioner as a school bus driver. On May 8, 1996, Respondent was operating his school bus as required on the afternoon run from school to disembarkation points along the routes. According to several students who were riding the bus that day, a male student, otherwise identified only as Nick, was misbehaving on the bus by standing up while the bus was moving and being unnecessarily noisy. This conduct prompted a censure by the Respondent, who told the student to sit down and be quiet. When the bus reached the stop at Winding Wood Road, just off Countryside Boulevard, Nick, while disembarking from the bus, called the Respondent a "nigger." This was overheard by several students, one of whom, Stephanie Erin Clark, also was to disembark at that location. Erin and two other students, both of whom were seated in the front row of seats, one on each side of the bus, observed Respondent get up from the driver's seat and, while the bus' engine was still running, push other children who were on the bus steps out of the way and chase Nick down the side of the street in front of the bus. While Respondent was off the bus, it started to roll down the hill with students still aboard. This resulted in a frightening situation for many of the students, some of whom began to scream. After he had gone about 30 feet from the bus, Respondent apparently heard the screaming and stopped chasing Nick. When he saw the bus moving, he ran back to it, climbed aboard, resumed his seat and brought the bus to a stop. By this time it had traveled between ten and twenty feet from where he had left it. Fortunately, no one was hurt as a result of this incident. When he resumed his seat on the bus, Respondent was overheard by students in the seats immediately behind his to comment to himself words to the effect, "I'm going to get him and break his neck. He called me Nigger." When this matter was reported to the appropriate authorities, an investigation was conducted into the allegations which investigation confirmed the substance of those matters alleged. According to the Pinellas County Schools' Director of Transportation, Mr. Fleming, himself an African-American with many years experience in public school transportation, both with this agency and in Maryland, Respondent's actions were not appropriate. The most important figure in the bus driver program is the driver. He or she must control the bus and the students and remain with the bus at all times to insure the safety of the students. Mr. Fleming has handled situations similar to that shown here in a much different way. When a student commented about him in a racially derogative way, he returned the bus with the student aboard to the school and took the student to the principal for appropriate action. Mr. Fleming considers the proposed action in this case to be appropriate to the circumstances. The allegations in this matter were investigated by James Barker, an administrator with the Board's Office of Professional Standards, who found Respondent's misconduct to be so serious as to jeopardize the safety of the students entrusted to him. This constituted a severe lapse in judgement on the part of the driver and amounted to employee misconduct in office which justifies dismissal under the provision of Board policy 6Gx52-5.31, Section 1v.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County sustain the Superintendent's action of June 5, 1996 suspending Respondent without pay and, further, dismiss him from employment with the Board. DONE and ENTERED this 2nd day of December, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1996. COPIES FURNISHED: Kieth B. Martin, Esquire Pinellas County Schools 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942 Mr. Larry Jackson 1482 Franklin Street, Apt 7 Clearwater, Florida 34615 Dr. J. Howard Hinesley Superintendent Pinellas County Schools 301 Fourth Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Frank T. Brogan Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether the School Board should terminate or take other disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Respondent Joe Thomas Alford, Jr., started working for the Bay County School Board in 1980, as a substitute school bus driver. His first full-time position with the School Board was as a "gasoline attendant," a position he assumed in 1981. After Larry Daniels became superintendent of transportation in July of 1985, he granted Mr. Alford's request to be permitted to resume driving a school bus. By all accounts, Mr. Alford did a good job as a full-time bus driver through the end of the school year 1986-87, except for the day he received a speeding ticket while driving a school bus. On another occasion, he exhibited great courage, even heroism, as one of the drivers in a convoy returning from an athletic contest. When the lead bus had an accident that made it impossible for students to get out of the bus in the usual way, Mr. Alford climbed in through a window and kicked out the emergency door, leaking gas tank notwithstanding. 1987-88 On the morning of October 16, 1987, Mr. Alford failed to report for work to drive school bus No. 340 on its three accustomed runs, necessitating the tardy dispatch of another driver. Later, in response to Mr. Daniels' questions, he explained that Harry Wells, a substitute school bus driver, had agreed to drive for him on the morning of the 16th (among other times), with the understanding that Mr. Alford would drive on a field trip for Mr. Wells. It was to an apparent misunderstanding that Mr. Alford attributed his absence without giving notice or arranging for a substitute on October 16, 1987. At the time, school board procedure required a bus driver who was to be absent for any reason to arrange for a substitute, as Mr. Alford apparently thought he had done, and to report the arrangement to the payroll clerk at the office of the superintendent of transportation. But the agreement went unreported, and no approval of the exchange was ever obtained. On October 26, 1987, Mr. Daniels, then superintendent of transportation, and Patricia Holland, route manager for routes including those Mr. Alford drove, Harry Wells and Mr. Alford gathered to discuss the lack of coverage on October 16, 1987. Mr. Alford told everybody present about his plan to drive on a field trip November 6, 1987, which would necessitate his missing the afternoon runs that day. He said (and Mr. Wells was there to deny it, if it had not been true) that Mr. Wells had agreed to substitute for him on the afternoon of November 6, 1987. Eventually this information reached Janet, who logged in Mr. Wells as a substitute for the afternoon runs on November 6, 1987. On the morning of November 6, however, Mr. Alford failed to appear, again without giving notice and without arranging for a substitute. Again it was necessary to make belated arrangements for another driver. Later that morning, Mr. Alford telephoned to report that his wife had locked him out of his house, and that he had lost access to his personal effects. He said that personal problems had prevented his driving that morning, and explained that, without clothes, he would be unable to drive on the field trip that afternoon, as well. In the afternoon, a substitute drove in his stead, without any report of inconvenience to anybody who went on the field trip. On Monday, February 8, 1988, somebody called from Mowat Junior High School with word that school bus No. 340 had not arrived as of quarter past two that afternoon. Ordinarily, and according to schedule, the bus arrived at the school by two o'clock, was loaded by five past, then left Mowat on the first of three runs the bus made each afternoon. When the report that school bus No. 340 had not arrived at Mowat reached the transportation office, Mr. Carter looked in the bus barn out back and saw that the bus was still there. He himself, despite his supervisory position as route manager for the Rutherford district, made two of the three runs for which Mr. Alford was responsible, while another driver drove children home from Hiland Park school. At no time on Monday afternoon did Mr. Alford communicate with the transportation office or with any of his supervisors or with anybody else employed by the school board. When he reported to work on Tuesday morning, he set out in school bus No. 340, without speaking to anybody in the transportation office. His supervisor, Patricia Holland, called Mr. Griffin, the assistant principal in charge of loading and unloading buses at Mowat and asked him to tell Mr. Alford to telephone. Later in the day Mr. Alford did call. He said he had missed work the afternoon before because, coming back from Tyndall Air Force Base, he had had a flat tire. He said he had given a hitchhiker (who he purportedly picked up just before the problem with the tire) 50 cents for a telephone call and asked him to call the school board's transportation office to say he could not get to work. He also said that he was worried about his wife and believed that she had a tumor in her arm. But nobody had telephoned the day before and, for the third time, respondent was orally reprimanded for not reporting for work and failing to give notice beforehand. At a meeting with his supervisors later in February of 1988, Mr. Alford declined to sign a document reciting these three lapses in his attendance record, although assigning the wrong date to one of them. No contemporaneous, independent, written records of counseling on October 16 and November 6 were prepared. On the morning of April 7, 1988, Mr. Tucker of Mosley High School called at half past seven to report that school bus No. 340 was late. As he spoke, it arrived, although it had been due at 6:55 a.m. Unmollified, Mr. Tucker complained that such a late arrival was disruptive because a number of the children ate breakfast at the school and had to be fed, even if they were late. Respondent's supervisors discussed these matters with him that day, and a record was made of the counseling on April 7, 1988. 1988-89 Before students returned for the next school year, all bus drivers hired for the 1988-89 term attended a meeting. In the future, the school bus drivers were told, they should report to the route manager for their district in an emergency or if, for some other reason, they would be unable to appear for work. Rather than making arrangements themselves, they were advised, they should let the route manager contact a substitute. On the morning of October 12, 1988, at quarter of seven, Clarice Rehberg, the route manager for the Bay High School District (which is not the district in which Mr. Alford's route was located) received a telephone call from Mr. Alford, who said that he was in Pensacola, and that his car had broken down. He also told her that school bus No. 340 was in the shop for repair, so that a substitute driver would need another bus. Finally, he let her know that the first scheduled pickup was to have been five minutes earlier at the cemetery on 17th Street. Despite Ms. Rehberg's prompt action, school children on all three runs to Mosley and Hiland Park were late for school that day. At all pertinent times, school bus drivers, including substitutes, were required to make a pre-trip inspection, which sometimes takes fifteen minutes, before driving a school bus in the morning. The following morning at about five o'clock Ms. Rehberg received a second telephone call from Mr. Alford, who again reported that he was calling from Pensacola. He said that he had called Harvey Childress in hopes that Harvey would substitute for him that morning, but that Harvey told him that he was already driving. As the "barn book" reflected, Ms. Rehberg had already scheduled Mr. Childress to drive Mr. Alford's route, morning and afternoon, just as he had done the day before. It was just as well Ms. Rehberg had the foresight to arrange for Mr. Childress to drive that afternoon because Mr. Alford never showed up. On Thursday, October 13, 1988, at about eight o'clock in the morning, Mr. Enterkin, who also drove a school bus for the Bay County School Board, spotted Mr. Alford and two friends in a car waiting at a stop sign. During the ensuing conversation, Mr. Alford told Mr. Enterkin that he was taking the rest of the week off. He also said something about having to go to Pensacola because he could not get the lights fixed on his new car. On Thursday afternoon, Mr. Alford telephoned Mr. Conway, the new supervisor of transportation, telling him that he was at a service station in Pensacola waiting for money to be wired to fix his car. On October 14, at about eight o'clock in the morning, Mr. Alford called and said that he was ready to go back to work. Mr. Conway asked him to come see him before he reported for any further duties as a bus driver. Missing a three o'clock appointment the following Tuesday, Mr. Alford appeared in Mr. Conway's office at three o'clock on Wednesday, saying that he must have gotten the days mixed up. The conversation between the men was short, to the point, and unpleasant. Mr. Conway suspended Mr. Alford with pay. On October 26, 1988, the school board suspended him without pay. The present proceedings followed.
Recommendation It is, accordingly, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0634 Petitioner's proposed findings of fact Nos. 1 through 5 and 7 through 18 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 6, it was not clear that he needed approval from anybody other than the substitute at that time. Petitioner's proposed finding of fact No. 19 is properly a conclusion of law. Respondent's proposed findings of fact Nos. 1 through 4, 6 through 9, 15, 16, 23, and 26 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 5, 28 through 31, and 32 pertain to immaterial matters. Respondent's proposed findings of fact No. 10, 14, 17 through 20, 22, 27, and 33 relate to subordinate matters. With respect to respondent's proposed finding of fact No. 11, the evidence did not show any understanding that Mr. Wells had agreed to take the morning run on November 6, 1987. With respect to respondent's proposed finding of fact No. 12, there was no morning route to Perry, and he supposedly stayed with the car. With respect to respondent's proposed finding of fact No. 13 the respondent did not give notice he was going to be absent. The hearing officer has not seen a hearing transcript. With respect to respondent's proposed finding of fact No. 21, the weight of the evidence showed he did not place a call to Ms. Holland on October 12, 1988. With respect to respondent's proposed finding of fact No. 24, the route was not "covered" on time. With respect to respondent's proposed finding of fact No. 25, respondent did not tell Ms. Rehberg in advance that he was not going to report for the afternoon run on October 12, 1989. With respect to respondent's proposed finding of fact No. 34, the evidence demonstrated knowing, intentional disregard of instructions to let people know of impending absences far enough ahead of time for other arrangements to be made. Respondent's proposed finding of fact No. 35 is properly a conclusion of law. COPIES FURNISHED: Jack W. Simonson Superintendent of Bay County Schools 5205 West Highway 98 Panama City, Florida 32401 The Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Franklin R. Harrison Sale, Smoak, Harrison, Sale McCloy & Thompson Post Office Drawer 1579 Panama City, Florida 32401 Pamela L. Cooper Meyer, Brooks and Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302
Findings Of Fact Exception No. 1 - That portion of Findings of Fact No. 15, which finds that "(t)he Division has consistently denied Petitioners the right to purchase their service with the Pawley companies", is clearly erroneous and not substantiated by the evidence of record. Petitioners are correct in that the Division has advised them by letter (Petitioner's Exhibit No. 2, #17B) that they were able to buy their prior service with Pawley at full actuarial cost. However, that was not an issue nor the subject of this proceeding, and the finding of fact must be considered in the context of the ultimate issue in this case, that being whether or not the Petitioners were entitled to purchase their prior service at the reduced rates provided in Section 121.081(1)(g), Florida Statutes. ,with respect to that issue, the Division has consistently denied Petitioners the right to purchase their prior service. The Report of Proceedings of the Dade County Independent Review Panel (Petitioner's Exhibit No. 2, #10) contains a similar statement. That statement appears to be based on statements of Mr. Stone and Petitioner's Exhibit No. 2, #17B, above. The Report of Proceedings is hearsay and duplicates the facts and exhibits presented at the hearing. In the context of the issue in this case, the Proposed Finding of Fact No. 15 is correct, and Petitioners' exception is rejected being without factual basis in the record. Exception No. 2 - That portion of Findings of Fact No. 17, which finds that "the IRP de- termined what the "Cut-Off" date of March 27, 1962, was a "reasonable decision" to end the "period of solicitation", is irrelevant and immaterial, unless it is considered together with whether the Petitioners were given ade- cuate notice of that "reasonable decision". Petitioners claim that the above finding is irrelevant and immaterial unless considered together with the "issue" of adequate notice. The only question the Division may consider is whether or not the finding of fact was based on competent substantial evidence in the record. Since there is no evidence in record to contradict the proposed finding of fact, it is the only finding that the Hearing Officer or the Division could have reached. It is based on competent, substantial evidence in the record. The proposed finding of fact was made based on the finding of the Independent Review Panel in its Report of Proceedings. Petitioners accepted the report of the Panel and placed the Report into evidence at the hearing. They are not attempting a collateral attack on the report. Such an attack should not be a-lowed In the absence of good and sufficient reason. The question of relevancy and materiality raised by Petitioners is an appropriate objection at the time the evidence is introduced at the hearing but is inappropriate in attacking a finding of fact In a recommended order. Petitioners' objection is rejected. Exception No. 3 - That portion of Findings of Faction 20 which finds that "(i)t is under- standable that Dade County gassed a resolution simply supporting Petitioners in their claims, rather than placing Petitioners in their claims situation as any other Pawley employee who came to work for Dade County before 3/27/62, since the latter position would cost Dade County $104,696 for retroactive benefits. Petitioners claim the above finding 15 clearly erroneous and misleading, and not supported by substantial and competent evidence In the record. Petitioners discuss certain amounts necessary to purchase employee benefits and other amounts needed to purchase creditable service in the Florida Retirement System. By discussing the two amounts as if they were one amount, Petitioners clearly show their understanding of the evidence and testimony presented at the hearing. The Division advised Petitioners that it would cost Petitioner Stone $18,997.12 and Petitioner Wilson $11,657.23 to purchase their prior service should they prevail in the case at bar. In the event Dade County had considered all three petitioners to be continuously employed from the date of the strike to the respective dates of their reemployment the cost to the County to pay retroactive benefits would have been 5104.E95. Since the County and not consider Petitioners to be employees during this period, it did not pay for the normal employees fringe benefits. The payment of those benefits (albeit, retroactively) is represented by the $104,695 amount. Thus, the two amounts discussed by Petitioners represent two different funds; one to be paid by Petitioners for prior service, and one to be paid by Dade County for fringe benefits, but not including Petitioners' prior service. Contrary to Petitioners' assertion that their employment percentent and payroll status from the date of the strike to the respective dates of reemployment was not the issue in this case, the Division believes that that issue is at the very heart of this case. In order to purchase their prior service at the rates permitted by Section 121.081(1)(g) , Florida Statutes, Petitioners had to be employees of the County on March 2, 1962. If they were employees, then they are due the appropriate employee benefits for that period of time. However, since the County did not pay those benefits, then Petitioners were obviously not employees during the period at issue and, therefore, not eligible to purchase the creditable service under Section 121.06.1(1)(g), Florida Statutes. Petitioners' objection is rejected. Exception No. 4 - That portion of Findings or Fact No. 22 which finds that "/i/n addition to the obvious fact that petitioners were par- ticipating in an illegal strike and were in violation of the restraining order of the cir- cuit court, they voluntarily abandoned their right to employment by not commencing their jobs by March 27, 1962", is not supported by substantial and competent evidence. In reviewing this proceeding to determine the legality vel non of the strike, It seems obvious that the strike was illegal under one or both of two principles (see Finding of Fact No. 4). First, it was illegal under existing state law; and second, it was illegal for being in violation of the injunction issued by the circuit court. Respondent's Exhibit No. 4, pg. 271. The union in which Petitioners ware members, Amalgamated Association of Street, Electric, Railway and Motor Coach Employee of America ("Union") was involved in labor negotiations concerning the future status of the Union after the transfer. The County filed a declaratory judgment action in circuit court (Respondent's Exhibits 4 against the Union. In its final decree, the circuit court stated in part that: "2. plaintiffs are not require by law to offer employment to members of the defendant union, . . . plaintiffs are not authorized by law to enter into a collective bargaining agreement with defendants and would not be authorized to do so upon consummation of the contractual transaction evidenced by the record in this cause. plaintiffs are not authorized to recog- nized as lawful any strike directed against them and would not be authorized to do so upon consummation of the con- tractual transaction evidenced by-the record in this cause." (Respondent's Exhibit 4, numbered pages 199-200) Notwithstanding the above provisions the Union went on strike on January 29, 1962 (Respondent's Exhibit.4, numbered pg. 256); the Court, after issuing an order to show cause (id. numbered pg. 259), ordered that the Union was "enjoined and restrained from striking or continuing any strike for the purpose of covering the plaintiffs (county) or any other governmental agency to engage in collective bargaining". (Id, numbered pg. 271) However, the Union continued on strike. The case was appealed to the Third District Court of Appeal. The illegality of the strike under state law was affirmed by that court in Dade County v. Amalgamated Assn. of S.E.R. of M.C. Employees, et al, 157 So.2d 176, 183 (Fla. 3rd DC. 1963). The second issue concerning the violation of the injunction was never appealed, and the Union and its members were in continued violation of the injunction by remaining on strike. Accordingly, petitioners' objection is rejected. Exception No. 5 - That portion of Findings of Fact No. 23, which finds that "/p/etitioners claim that any returning strikers employed more than "one day" after the takeover, had a in service", is not supported by substantial and competent evidence. Petitioners claim that absence from employment of "one calendar month" constitutes a "break in continuous service". In reviewing the exhibits, we note that petitioners' Exhibit No. 2, 12, listed 33 individuals who were prior employees of the Pawley companies, went on strike and returned to work by March 27, 1962. These individuals were given retroactive benefits by Dade County and, therefore, the right to purchase the prior service under Section 121.081(1), Florida Statutes. Some of those individuals were hired by the County before the end of "one calendar month" (that is to say, before March 9, 1962) and others were hired after that date. Petitioners originally argued that an absence of one day constituted a break in service. Apparently, they have changed their position since the hearing and now argue that "one calendar month" constitutes a "break in continuous service". However, based on the facts shown and the arguments bade at the hearing the Hearing Officer's finding of fact is correct and is based on competent substantial evidence. Even if Petitioners were correct, the change from "one day" to "one calendar month" would not change the fact that they did not become employees of the County as a result of the transfer or merger of the private bus company. Petitioners' objection is rejected. EXCEPTIONS TO CONCLUSIONS OF LAW Exception No. E - Conclusion of Law No. 4. Petitioners' claim that Dade County recognized and credited them with their past service with Pawley. The evidence and testimony given at the hearing does not substantiate their claim. While the transmittal letter of Mr. Talbert (Petitioners' Exhibit No.2,#14) states that the "County Commission instructed the County Manager that the above subject employees shall be considered by Dade County to have an original employment date reflecting their employment with the Pawley companies", the actual motion by Commissioner Shack was "that Hodowud, Stone and Wilson be permitted to purchase their past services from the Satate of Florida at the reduced rate." Further, the testimony of Mr. Richard Jay Weiss, Assistant Dade County Attorney, and his exhibit (Petitioners' Exhibit 3) do not support Petitioners' position. The Exhibit states in part as follows: ". . .the County Commission has gone on record by motion to urge the State Retirement System to allow the three present claimants to receive their back time at the reduced rate". Thus, the County merely urged the Division to allow Petitioners to purchase their prior service and did not itself credit them with their past service with retroactive fringe benefits. The bearing Officer's conclusion of law is supported by competent, substantial evidence. Petitioners' objection is rejected. Exception No.7 - Conclusion of Law No. 5 Petitioners' claim that the Hearing Officers' conclusion that they did not enjoy an employee/employer relationship at the time of takeover is not supported by competent, substantial evidence. Section 11 of Ordinance 60-23 of Dade County (petitioners' Exhibit 2, item 1) states that: "whenever the County acquires existing transit systems or facilities from a publicly or pri- vately owned public utility, to the extent necessary or feasible for the economical opera- tion of such facilities, all of the employees of such acquired transit system whose duties pertain to the facilities acquired shall be employed In comparable positions in the County service and the pay status, seniority, vacation and sick leave rights shall be preserved and maintained to the fullest possible extent. All employees of the Authority shall be deemed, con- sidered or construed as County employees and shall be entitled to all the rights, privileges and benefits of County employees." Since the County cannot force any person to work or it the words "all of the employees" and "shall be employed" can logically only refer to those employees who decide to go to work for the County and conversely do not include those employees who voluntarily decide not to work for the County. In addition to the fact that the Hearing Officer found that Petitioners were participating in an illegal strike and were in violation of the restraining order of the circuit court, Petitioners voluntarily abandoned their right to employment by not returning to their jobs by March 27, 1962. Later, when they finally did commence employment with MTA, they were hired as new employees rather than previous employees who were being given reemployment. The hearing officer's conclusion of law is supported by competent, substantial evidence, and Petitioners' objection is rejected. Exception No. 8 - Conclusion of Law No. 7 Petitioners argue that the met their burden of proving that they were entitled to purchase their service under Section 121.081(1)(g), Florida Statutes; however, they offer no basis in law or fact would allow the Division to conclude the Hearing Officer was in error. In the absence of an adequate legal basis or contrary evidence in the record, the Division rejects Petitioners' objection. By motion prior to the hearing, Petitioners Wilson and Stone moved to add Metropolitan Dade County as a art Respondent. The motion was denied by the bearing Officer, and the Division hereby adopts that ruling as part of this final order. The Recommended Order is corrected at page 8, paragraph 20, line 6, wherein the month of "January" is changed to read "February". WHEREFORE based upon the foregoing findings, holdings and rulings or the Division as to Petitioners' exceptions to the Hearing Officer's Recommended Order, it is, ORDERED AND DIRECTED that each and every exception of the Petitioners' to the Recommended Order be and the same are OVERRULED and REJECTED. It is further, ORDERED AND DIRECTED that copy of said Recommended Order is attached hereto and incorporated as part of this final order. It is further, ORDERED AND DIRECTED that Petitioners' requests to purchase in the Florida Retirement System their prior service with the Pawley companies at the rates allowed in Section 121.081(1)(g), Florida Statutes, are denied. DONE AND ORDERED this 20th day of October, 1983. J. MULLIAN, III State Retirement Director Filed with the Clerk of the Division of Retirement this 21st day of October, 1983. Edna E. Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125 Edward F. Hodowud 8874 Emerson Avenue Surfside, Florida 33154 Linda M. Rigot, Hearing Officer Dan Brown, Esquire Division of Administrative Hearings John Finney, Esquire The Oakland Building Paul McMahon 2009 Apalachee Parkway Tallahassee, Florida 32301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioners' requests to purchase in the Florida Retirement System their prior service with the Pawley companies at a reduced rate pursuant to Section 121.081(1)(g), Florida Statutes. DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1983. COPIES FURNISHED: Edna E Canino, Esquire 1609 NW 14th Avenue Miami, Florida 33125 Mr. Edward F. Hodowud 8874 Emerson Avenue Surfside, Florida 33154 Stanley M. Danek, Esquire Division of Retirement Cedars Executive Center 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303 Nevin G. Smith, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT NORMA WILSON, EDWARD F. HODOWUD, and, WESLEY E. STONE, Petitioner, vs. CASE NO. 81-3192 STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, DIVISION OF RETIREMENT, Respondent. /
The Issue The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.
Findings Of Fact The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student behavior while on the school bus at all times." Handbook, at 28.1/ Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her. The District argues that Harrell meant to embarrass M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/ When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to hit M.M. with the belt, and also whether she did so, either on purpose or by accident. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record, Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Harrell guilty of misconduct in office and imposing the following penalties therefor: (a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay. DONE AND ENTERED this 11th day of April, 2017, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 11th day of April, 2017.
Findings Of Fact By Stipulation of Fact, the parties agreed, and it is found, that: Respondent, Janet Shrader, has been employed by the School Board of SARASOTA County for approximately seven years as a school bus aide. The job responsibilities of a school bus aide include assisting the bus driver in dealing with discipline problems and doing everything possible for the comfort of the students. School bus aides are required to have good working relationships with drivers, teachers and parents. The school bus aide is supervised by the route coordinator. Bus aides are only assigned to buses which transport students participating in the exceptional student education program. The Board provides training courses for bus drivers and bus aides by a behavior specialist. This program is designed to assist employees in acquiring skills for disciplining students in an appropriate manner. This program is titled ACT, (Aggression Control Techniques), and was developed by the Department of Health and Rehabilitative Services. Janet Shrader attended the training programs for ACT conducted by behavior specialist, Linda Hall. On the morning of October 19, 1989, Janet Shrader lost her temper with Roy Sanders, a Board employee employed at the Student Center. In the course of the ensuing intercourse, she tweaked his nose with her hand, dislodging his eyeglasses, and yelled at him to, "Fuck Off, Asshole." On the afternoon of October 19, 1990, the bus on which she was riding as an aide had to return to the school. Respondent and Tony Sanders, a child classified as Severely Emotionally Disturbed, and the son of the Roy Sanders previously mentioned above, got off the bus. Ms. Shrader went with Tony to speak with Mr. Marks, the school psychologist. At this point, Ms. Cocanower, a teacher, and an aide, Ms. Rizzo, got on the bus to attempt to calm down the students who appeared to be somewhat upset. Shortly thereafter, Respondent returned with Tony and boarded the bus. She began yelling and when Ms. Cocanower heard this, she got on the bus and observed Respondent yelling at Tony who, by then, was even more upset. He was standing up saying, "I didn't do it." He was not trying to harm anyone. Ms. Cocanower attempted to take Tony's wrist but was unable to do so because Respondent grabbed the boy by the elbow from behind in a modified ACT grip and pushed him forward, at the same time yelling at Ms. Cocanower to get off the bus. At this point, Mr. Marks boarded the bus and Ms. Cocanower got off. In the opinion of Ms. Cocanower, Respondent's use of the ACT procedure was not consistent with the training received and was improper, especially when accompanied by the yelling Respondent was doing at the time. It is so found. Subsequent inquiry revealed that the incident came about when Tony was assaulted by `another child, Bobby Resnick and was responding to the attack on him. He `had not initiated the incident. Respondent did not see Resnik's kick but only Tony's response. As Respondent pushed Tony down the aisle toward the bus entrance, in the course of resisting her efforts to put him off the bus, he apparently kicked her. Whether this was by accident or on purpose is unknown. Respondent, in response, kicked back at him as he exited the bus. Her attempt to kick Tony did not connect. Had it done so, according to Detective Bank, the school resource officer who saw the incident, he would have arrested her. As it was, in his opinion, Ms. Shrader was completely out of control. She was yelling and screaming at the children and was verbally abusive. He does not recall her exact words, and refers more to the inappropriate tone of voice she was utilizing with emotionally disturbed children. There was, according to Ms. Tucker, another unusual incident relating to Respondent that same day, but earlier, in the morning. Ms. Tucker had written a referral slip on Tony Sanders to which Respondent wanted to place an addendum to the effect that Tony had been good that day, except for the referral incident. While on the bus, in front of the children, Respondent began yelling at Ms. Tucker about that situation and walked off the bus leaving Ms. Tucker alone with the children. That upset Tony. As a result of this incident, two meetings were held between Board officials and Ms. Shrader. The first was held on November 1, 1989. It was called by Vincent Laurini, Board Director of Transportation, and attended by the Assistant Superintendent for Human Resources and the union representative, as well as Respondent. The second was held on November 2, 1989,after Respondent had been given an opportunity to review witness statements regarding the incident. Ms. Shrader admitted that the statements were "pretty accurate" and in a conversation with Ms. Tucker, on the bus on October l9, 1989, after the incident took place, she commented to the effect that at least if they "got" her, she wouldn't have to ride with the kids for a year. As a result of this incident, Mr. Laurini subsequently recommended Ms. S~rader be terminated for her conduct on October 19, 1989 and this action was subsequently recommended to the Superintendent. Ms. Shrader was thereafter initially suspended with by Dr. Fowler, but on November 21, 1989, the Board suspended her without pay pending termination. There is no contest by Respondent regarding the fact that the incident took place or that it happened as described. Whereas Ms. Tucker, Ms. Cocanower, Ms. Rizzo, and Detective Bang all opined that her conduct was a severe overreaction which was inconsistent with the best interests of not only Tony but all of the exceptional children dn the bus, it may have been an isolated incident. This was the first year Ms. Tucker had been riding with Respondent. A written statement from another driver who worked with Respondent for three years, and who retired from bus driving in 1988, indicates she was always very good with the children, had a good rapport with the parents and teachers, and contributed greatly to making his/her job easier. On the other hand, there is some evidence of aberrant behavior on the part of the Respondent in early March,1989 which resulted in her being evaluated by a psychiatrist at Mental Health Associates in Sarasota. The physician's report, rendered on April 4, 1989, indicated that Respondent had had psychiatric contact as early as 1966 when she was 19 and has been under continuing psychiatric care, intermittently, since that time. Her psychiatric history reflects a diagnosis of a bipolar illness, (manic-depressive), and a history of alcohol abuse. Based on this evaluation by Respondent's own psychiatrist, she was also referred to the Suncoast Mental Health Center for evaluation. In his report dated June 1, 1989, Dr. Fosser confirmed the prior diagnoses, indicating both conditions were in remission, and concluding she was ready to restart work. Dr. Fosser related he could not see, at that time, that her psychiatric symptoms would endanger the safety of the children under her custody. This opinion appears not to have been borne out by the ensuing circumstances.
Recommendation Based on the foregoing bindings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the $chool Board of SARASOTA County enter a Final Order confirming its action suspending her without pay effective November 12, 1989, and dismissing her from employment with the Board. RECOMMENDED this 6th day of June, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 6th day of June, 1990. COPIES FURNISHED: Maria D. Korn, Esquire Kunkel & Miller 290 Cocoanut Avenue SARASOTA, Florida 34236 Herbert W. AbeIl, Esquire 3224 Markridge Rd. SARASOTA, Florida 34231 Janet Shrader 22 Goodrich Street SARASOTA, Florida 34236 Dr. Charles W. Fowler Superintendent of Schools Sarasota County 2418 Hatton Street Sarasota, Florida 34237
The Issue Whether the Respondent, Beverly Rice, should be terminated from her position as a school bus driver for the School Board of Collier County for "use, possession, sale or intention to sell illegal narcotics and/or paraphernalia" in violation of Article VII, Section 7.021(j) of the collective bargaining agreement between the Collier County Association of Educational Supportive Services Personnel and the District School Board of Collier County. Whether the Respondent, Beverly Rice, is entitled to reinstatement to her position as a school bus driver for the School Board of Collier County. Whether the Respondent, Beverly Rice, is entitled to back pay from the date of her suspension, and if she is entitled to back pay, the amount thereof. The Petitioner, School Board of Collier County, presented the testimony of Lee Hollander, Dr. Thomas L. Richey, Thomas Storrar, Jr., and Arthur McClellan (by deposition). Additionally, Petitioner's Exhibits 1-10 were admitted into evidence. Respondent presented her own testimony and that of Tom Grogan and Euleut Lee Rice (by deposition). Respondent's Exhibit 1 was admitted into evidence. The parties have filed proposed findings of fact and conclusions of law as permitted by law. All proposed findings of fact and conclusions of law have been considered. To the extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent and credible evidence.1
Findings Of Fact The parties stipulated to the following findings of fact which are adopted herein: Mrs. Rice had earnings in 1984 of $12,000 (assuming tax return doesn't contradict). Mrs. Rice has sought no employment since her suspension other than her employment at Naples Yacht Club. One hundred pounds (100 lbs.) of marijuana was present in Mrs. Rice's home on January 3, 1984. The Respondent, Beverly Rice, is a non-probationary employee within a bargaining unit represented by the Collier County Association of Educational Supportive Services Personnel and is subject to the terms and conditions of a collective bargaining agreement which became effective July 1, 1983, and remains in effect until June 30, 1986, as amended. The charges set forth in the document entitled " In Re: the Superintendent's Recommendation for Termination of Beverly Rice," Case No. 84-114, form the basis for the actions recommended to be taken against Respondent. Mrs. Rice was arrested on January 3, 1984, for possession of marijuana with intent to distribute. Mrs. Rice has resided at 3525 5th Avenue, N.W., since 1977 and so resided on January 2, 1984, and January 3, 1984. Mrs. Rice was employed as a school bus driver by the School Board prior to her suspension. The criminal action against Mrs. Rice was dismissed. Mrs. Rice was employed by the School Board of Collier County as a school bus driver for approximately 10 years until her suspension on January 3, 1984. During this time it has been customary Mrs. Rice to park the school bus at her home when it was not in use. At all time pertinent hereto, Mrs. Rice's home was located 3525 5th Avenue, N.W., Naples, Florida. During the 1983-84 school year, Mrs. Rice's bus run typically begin at 6:00 A.M. and ended at approximately 9:45 A.M. She also had a similar bus run in the afternoon. On January 3, 1984, Mrs. Rice left her home as usual at 6:00 A.M. At approximately 6:13 A.M., police officer served a warrant for trafficking in cocaine on Mr. Euleut Rice at 3525 5th Avenue, N.W., Naples, Florida. Pursuant to that warrant, Mr. Rice was arrested. When police officers entered the residence, the odor of marijuana was strong and pervasive throughout the house. The police officers secured the premises and in doing so found a loaded firearm on the upper level of the dwelling. Upon going to the upper level of the dwelling, officers found a substantial quantity of marijuana spread out for drying. The marijuana was spread throughout the upper level on the floors of the bedroom area and bathroom and was being dried with fans, a dehumidifier, and a heat lamp. Additionally, police officers found numerous shopping bags full of marijuana on the upper floor of the dwelling and found one shopping bag of marijuana in the kitchen on the lower level. At approximately 9:15 A.M., Mrs. Rice returned from her bus run. She was arrested at approximately 9:18 A.M., when she entered the front yard of the residence. Mr. and Mrs. Rice were arrested and charged with possession and trafficking of marijuana. Additionally, Mr. Rice was arrested pursuant to the warrant for his involvement in the sale of cocaine during the summer of 1983. Mrs. Rice was not charged in connection with this earlier matter. Mr. and Mrs. Rice are co-owners of the home located 3525 5th Avenue, N.W., Naples, Florida, as joint tenants with right of survivorship. They were married in 1970, divorced in 1975, and remarried in 1984. From 1977 to their remarriage in 1984, they cohabitated at the above mentioned residence. A few days prior to the arrest of Mr. and Mrs. Rice, Mr. Rice was out fishing with friends and found a bale of marijuana floating in the water. Without his wife's knowledge and during her absence from their home, Mr. Rice brought the marijuana to the house and spread it out to dry. Mrs. Rice discovered the marijuana in the house when she returned home that same day. She requested that Mr. Rice remove it from the house and Mr. Rice refused. From that time until her arrest on January 3, 1984, Mrs. Rice continued to reside in the home and took no action to force Mr. Rice to remove it from their home. No fingerprints of Mrs. Rice were located on the bags containing marijuana or on any of the fans or other appliances being used to dry it. Mrs. Rice was suspended from her employment as a school bus driver on January 3, 1984. In October, 1984, pursuant to a plea bargain agreement, Mr. Rice pled guilty to the charges pertaining to both the cocaine and possession or trafficking of marijuana. As part of that plea bargain, the criminal charges against Mrs. Rice were nolle prossed and she was permitted to keep the marital home. Upon the charges against her being nolle prossed, Mrs. Rice requested reinstatement to her employment as a school bus driver. The School Board then determined to proceed with dismissal charges against her. For approximately seven years prior to her suspension, Mrs. Rice had worked part-time as a waitress at the Naples Yacht Club. During 1984 after her suspension, Mrs. Rice increased the number of hours which she worked at the Naples Yacht Club. During 1984, Mrs. Rice received a total of $11,908.46 in wages as a waitress at the Naples Yacht Club. After her suspension, she worked 41 noon hour shifts and was paid $25.00 per noon hour shift, for a total of $1,025.00 earned for the noon hour work after her suspension. The balance of the wages which Mrs. Rice earned in 1984 was for waitressing during a 5:00 P.M. to 10:00 P.M. shift. This is the shift she had worked for a number of years prior to her suspension. While Mrs. Rice was working as a school bus driver, she missed 30 minutes each evening shift. Because Mrs. Rice was paid an hourly rate plus a percentage of. her total table receipts, it is impossible to determine the exact amount of income earned during the 30 minutes of the evening shift mentioned above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That the School Board of Collier County enter a Final Order terminating Beverly Rice as an employee effective January 3, 1984, and denying her request for reinstatement and back pay. DONE and ENTERED this 5th day of September, 1985, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1985.
The Issue Whether Petitioner established “just cause” to terminate Respondent's employment as a school bus driver.
Findings Of Fact Mr. Moore has been a school bus driver in Seminole County since 2009. The operative facts are not in dispute. On October 24, 2012, Mr. Moore was beginning his morning school bus route. After picking up two students, Mr. Moore, at approximately 6:45 a.m., pulled into a parking lot of a local doughnut shop and parked the bus. Mr. Moore exited the bus, left the school bus door open with the motor idling. Mr. Moore returned within three minutes with a bagel and a soft-drink. All of these events were captured on video, and Mr. Moore does not dispute that this early morning breakfast stop occurred. Mr. Moore's only explanation is that he was not thinking, and had been under a lot of personal stress at the time. The School Board has a specific policy that requires a school bus driver to operate the bus with "maximum regard for the safety of students and due consideration for the protection of health of all students . . . ." School Board Policy 8.31. Moreover, a bus driver is prohibited from using the bus for personal business, and prohibited from leaving the bus' motor unnecessarily idling while in the vicinity of students. School Board Policies 8.48, and 6.22(J). In addition to the School Board Policies, the School Board bus drivers are required to follow the procedures set out in the School Bus Operations Handbook (Handbook). Seminole County Public Schools, Transportation Services, School Bus Operations Handbook, (amended July 2012). Importantly, for this case, the Handbook expressly provides that a driver shall never leave students unattended on the school bus. School Bus Operations Handbook at 247. Further, the Handbook provides that in the event a driver must leave the bus, the driver must set the parking brake and remove the bus keys from the ignition. Id. A school bus driver is then directed to keep the keys in his or her possession. Id. Finally, the Handbook clearly states that the school bus driver is not to leave the approved bus route without permission. Id. Mr. Moore received extensive training in the School Board's policies concerning the safe operation of the school bus and the School Board's expectations for its school bus drivers found in the Handbook. Mr. Moore is sincere in his testimony that he loves his job, and forthright in his admission that he made a mistake in stopping for his morning breakfast while on his bus route.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Seminole County School Board terminate Mr. Moore's employment. DONE AND ENTERED this 14th day of February, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2013.
The Issue Did Respondent Mary Jane Nilsen violate the policies of Petitioner School Board of Highlands County (Board) and thereby justify a five-day suspension without pay?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made: The Board is the county agency responsible for operating the public schools within the Highlands County School District as established in Chapter 228, Florida Statutes, including the hiring of, among other personnel, school bus drivers. Respondent has been employed in the Polk County School System as a school bus driver since 1991. Respondent is employed pursuant to an annual contract. Dr. Calvin Smith testified that if an employee such as Respondent has been employed by the Board for 3 continuous years, then that employee would be eligible for a continuing contract. Although Respondent had been employed continuously by the Board for more than 3 years, there was no evidence that Respondent had been granted a continuing contract by the Board which would require the Board to show just cause for disciplining Respondent. By letter dated June 11, 1996, Superintendent Farmer advised Respondent that he was recommending to the Board that she be suspended for five days without pay based on information submitted to him "by Mr. Roy Wright, Coordinator of Transportation, Mr. Calvin Smith, Director of Operations, and the recommendation of Dr. John Martin, Deputy Superintendent." By letter dated June 11, 1996, Dr. John Martin, Deputy Superintendent, advised Superintendent Farmer, based on the information submitted to him by Mr. Roy Wright and Calvin Smith, that he was recommending a five-day suspension without pay for Respondent. By letter dated June 6, 1996, Mr. Roy Wright advised Dr. Calvin Smith that he recommended a five-day suspension for Respondent. The letter in pertinent part provides: I am recommending that Mrs. Mary Jane Nilsen, a bus driver, be suspended from work without pay for five days. Mrs. Nilsen was involved in a confrontation with several other bus drivers in the Lake Placid compound on the morning of May 31. * * * Mrs. Nilsen has had several previous episodes of angry and belligerent behavior which have resulted in actions with the progressive discipline practice. The first such incident was October 21, 1994, when Mrs. Nilsen was given a verbal warning for a "loud, rude and very discourteous" exchange with her supervisor. . . . Also, in February of this year, I gave Mrs. Nilsen a written letter of reprimand for "belligerent, hostile and insubordinate" behavior toward the Area Transportation Manager and the Transportation Operations Supervisor. These actions took place during a conference with Mrs. Nilsen and several other drivers in the Lake Placid Transportation office. . . You will note that in my letter of February 28, I warned Mrs. Nilsen that a future incident could result in a five day suspension without pay. * * * Therefore, I am recommending her suspension without pay for five days consistent with the progressive discipline Provision of the negotiated agreement. (Emphasis furnished). A copy of this letter was forwarded to Dr. John Martin, Deputy Superintendent, by Dr. Calvin Smith with a note that Dr. Smith concurred in Mr. Wright's recommendation. The letter of February 28, 1996, from Roy Wright to Respondent provides in pertinent part as follows: This letter is in reference to the meeting and discussion that you and several drivers had with Mrs. Carlene Varnes, Area Transportation Manager and Mrs. Shirley Higgins, Transportation Operations Manager on Monday morning February 26. You will consider that the outcome of Mrs. Hiagins and Mrs. Varnes discussion with you stands as a verbal warning. I am writing to you in order to emphasize the position of the department regarding your conduct. Your will refrain from the use of profanity at any time you are in the uniform of a Highlands County School Bus Driver, particularly when you are in the presence of other School Bus Drivers and School Board Employees. The incident at a local restaurant on Friday, February 23, occurred while you and other school bus drivers were in uniform. Other drivers present asked you to quiet down and stop the vulgar language. Your failure to do so created an intimidating, hostile and offensive situation which has a direct bearing on the work environment. . . The language and actions on your part also presented an unfavorable and unacceptable image which undermines the public's perception of school bus drivers as professionals. In addition, your reaction to the management staff when this matter was brought to your attention can only be described as belligerent, hostile and insubordinate. . . Your response to your immediate supervisor when she was investigating the matter and warning you of inappropriate conduct while in uniform was completely out of line. You may consider this a written reprimand for that action. You have now received a verbal warning and a written reprimand. The next incident may result in a five day suspension without pay. (Emphasis furnished). It appears that the verbal warning and written reprimand were based on the same incident. This letter does not mention the October 21, 1994, verbal warning. Respondent did not challenge the verbal warning given to her for the infraction observed on October 21, 1994. Likewise, Respondent did not challenge Mr. Wright's decision to issue a verbal warning and written reprimand for the infraction observed on February 26, 1996. Carlene Varnes, Area Transportation Manager at Lake Placid, gave Kala Barfield and two other bus drivers permission to wash their buses in the wash area of the bus compound at Lake Placid on May 31, 1966. The record is not clear, but apparently Barfield and the other bus drivers were allowed to wash their buses during the busy time of other bus drivers coming into the compound to park. On May 31, 1996, Barfield backed her bus into the wash area of the bus compound at Lake Placid. However, Barfield could not get her bus entirely into the wash area due to a vehicle (van) being parked in the wash area. Barfield made no attempt to have the owner move the vehicle. Also, at this same time Brenda Sullivan was fueling her bus which, along with Barfield washing her bus, created a situation where other bus drivers would have to carefully navigate between the two buses in order to park their buses. While Barfield was washing her bus and Sullivan was fueling her bus, Respondent entered the compound and pulled her bus "nose-to-nose" with Barfield's bus, leaving approximately 15 to 20 feet between the buses. Respondent testified that she made no attempt to navigate between Barfield's and Sullivan's buses while Sullivan was fueling her bus because Respondent had determined that her bus could not be navigated between the two buses without incident. With Respondent's bus parked as it was, all other buses entering the compound were unable to navigate around Respondent's bus and park. Therefore, once the area of the compound behind Respondent's bus was filled, other buses were forced to park on the road outside the compound. Respondent's action in this regard violated Board policy of not blocking buses in the compound and created a hazardous condition for those buses parked on the road. . Respondent was aware that buses entering the compound after her were unable to navigate past her bus and that bus traffic was "piling up" behind Respondent, creating a problem out in the road. Respondent was also aware of those bus drivers behind her attempting to get Respondent to move. Although Respondent may have believed that she could not navigate her bus around Barfield's and Sullivan's buses, she made no attempt to alleviate this hazardous situation by requesting another available bus driver or anyone else for assistance in navigating her bus around Barfield's and Sullivan's bus. The incident lasted approximately 10 to 20 minutes. Varnes was advised immediately of the situation, but due to an emergency with another bus driver, Varnes was unable to address this problem immediately. By the time Varnes was able to address the problem, Sullivan had finished fueling her bus and moved it. Upon Varnes coming on the scene, she told Respondent to move her bus and Respondent did so. However, Respondent parked her bus in backwards which created a problem for other buses attempting to get by. Upon being advised that her bus was incorrectly parked, Respondent corrected the situation. It is clear that Respondent did not like the idea of Barfield being allowed to wash her bus while other buses were attempting to park, and so expressed that view on May 31, 1996. As a result, Barfield attempted to discuss this matter with Respondent in a somewhat heated fashion, but Respondent boarded her bus and closed the door preventing any further conversation on the matter with Barfield.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly, Recommended that Respondent be suspended without pay for a period of 5 days. DONE AND ENTERED this 30th day of June, 1997, in Leon County, Tallahassee, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1997. COPIES FURNISHED: Honorable Richard R. Farmer Superintendent of Schools Post Office Box 9300 Sebring, Florida 33870-4098 James F. McCollum, Esquire Clay Oberhausen, Esquire 129 South Commerce Avenue Sebring, Florida 33870 Mark Herdman, Esquire 34650 U.S. Highway 19 North Suite 308 Palm Harbor, Florida 34684
The Issue The issues are whether Respondent properly suspended Petitioner's Contract for Transportation of School Children and revoked his license to drive a school bus.
Findings Of Fact Respondent's method of providing transportation for its students is unique in the state of Florida because it contracts annually with independent contractors for each bus route. Pursuant to the contract, independent contractors furnish a bus or busses and are responsible for employing qualified drivers. In order to be qualified, drivers must hold a license issued by Respondent pursuant to Rule 6A-3.0141, Florida Administrative Code. Respondent and Petitioner entered into an annual contract for Petitioner to transport school children in Bus #657 for the 1991-1992 school year. At all times material hereto, the parties continued to perform under the terms of the 1991-1992 contract because Respondent was still negotiating the bus contracts for the 1992-1993 school year. Petitioner had been an independent bus contractor for approximately nineteen (19) years. The contract provided no guarantee that Respondent would renew its contract with Petitioner from year to year. At all times material hereto, Petitioner's wife, Eloise J. Lester, was the independent bus contractor for Bus #28. At all times material hereto, Petitioner held a Florida Department of Education school bus license issued by Respondent to operate a school bus. He had been licensed to drive a school bus for Respondent for nineteen (19) years. During that time, he had driven a bus on the Plummer Road route approximately 1,800 times with no reported mishaps. His prior record as a bus driver and bus contractor was unblemished. Respondent uses the Florida School Bus Drivers Handbook, published by the Florida Department of Education, as the curriculum to initially train drivers and for annual in-service training. Respondent gives a copy of this handbook to every driver. On the morning of February 8, 1993, Petitioner was driving his wife's bus #28 with students on board. He approached the railroad crossing at 9520 Plummer Road, stopped, and opened the door. Petitioner saw the Norfolk Southern Railroad train #229 a "good ways" down the track. The railroad crossing signals, flashing lights and bells, were activated indicating that the train was approaching the crossing. The engineer blew the train's whistle. Despite these warnings, Petitioner drove the bus across the tracks in front of the approaching train. The bus cleared the tracks just seconds before the train entered the crossing. The engineer, Jimmy W. Carter, and the conductor, Everett Maine, witnessed the incident and immediately reported the "near miss" to the railroad yard by radio. Later they prepared written incident reports. Norfolk Southern Railroad reported the incident to Respondent. Mr. Carter has been a train engineer for twenty-five (25) years. Mr. Maine has been a train conductor for forty-three (43) years. They were not under the influence of drugs or alcohol at the time of the incident. They were not involved in any conspiracy to harm Petitioner. Ms. Ruby C. Mardis lives near the crossing. She was waiting for the bus in her driveway with her grandchildren on the morning of February 8, 1993. She testified that she did not know where the train was when the bus crossed the tracks. She did not remember hearing any bells or whistles. Petitioner testified that he could see the light of the approaching train before he entered the crossing. He denied that the crossing lights were flashing or that the alarm bells were ringing at that time. However, Petitioner stated that under certain circumstances, even if the crossing signals were activated, he had discretion to cross the tracks, i.e. when there is no train in sight or a train is stopped on the track. The eyewitness testimony of the engineer and the conductor relative to the activated signals and the distance of the train from the crossing at the time Petitioner drove across the tracts is more persuasive than any testimony to the contrary. After completing an investigation, the Director of Transportation, as the designee of the Superintendent made a determination in writing to suspend Petitioner's bus contract and revoke his school bus driver's license effective February 19, 1993. The initial suspension of the contract and revocation of the license was not permanent because both actions were subject to review by Respondent. The Respondent has discretion to enter into a new bus contract with Petitioner and to reinstate Petitioner's school bus license provided he meets the requirements of Rule 6A-3.0141, Florida Administrative Code. In March of 1993, Respondent assigned the contract for Route #657 (School Bus #657) to Petitioner's wife at her request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order affirming the suspension of Petitioner's bus contract and revoking his school bus license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of May, 1995. SUZANNE F. HOOD, Hearing Officer 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 17th day of May, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Accepted in paragraph 6 of this Recommended Order. Accepted in paragraphs 2-4 of this Recommended Order. Accept that the testimony of the witnesses is in conflict. However, the testimony of the engineer and conductor is more persuasive than the testimony of the neighbor, the Petitioner, or any other witness. Rejected. The suspension and revocation was subject to review by Respondent and will not become final until the Respondent issues a Final Order in this proceeding. Respondent has discretion to enter into a new contract with Petitioner and to reissue a school bus license. Rejected. Ms. Mardis did not see the bus as it crossed the tracks. The testimony of the engineer and the conductor is more persuasive. Rejected. The testimony of the engineer and the conductor is more persuasive. Rejected. The contract was suspended and the license revoked subject to review by Respondent. Even though the contract does not expressly provide for an appeal to Respondent under the facts and circumstances of this case, the right to review is implicit in the contract. Rejected. Regardless of what was said at staff meetings or in conference with Petitioner, the contract was not suspended and the license not revoked until Petitioner was notified in writing. Even then the adverse decisions were reviewable by Respondent. The contract does not specifically provide Petitioner an opportunity to explain why his contract should not be suspended and his license revoked at the time of the staff conference. The suspension and revocation was subject to review before the Respondent. Moreover, Respondent has provided Petitioner with a due process hearing by referring this matter to the Division of Administrative Hearings. Rejected. Ms. Lester was paid for transporting students in Bus 657 for the balance of the 1992-1993 school year beginning March of 1993. Since that time, Ms. Lester has been paid for transporting children in Bus 657. Respondent's Proposed Findings of Fact 1.--15. Accepted in paragraphs 1-12 of this Recommended Order. 16.--17. Accepted in paragraphs 1-2 of this Recommended Order. 18.--19. Accepted in paragraph in paragraph 11 of this Recommended Order. Accepted but unnecessary to resolution of case. Accepted but not at issue in this case. 22.--23. Accepted in paragraph 3. 24.--25. Accepted in paragraph 12 of this Recommended Order. COPIES FURNISHED: Michael Mullin, Esq. 26 S. 5th St. Fernandina Beach, FL 32034 Clay Meux, Esq. Vicki Reynolds, Esq. 600 City Hall 220 E. Bay St. Jackonsville, FL 32202 Dr. Larry Zenke Duval County School Board 1701 Prudential Dr. Jacksonville, FL 32207-8154 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, FL 32399-0400
