The Issue The issue is whether Petitioner, the Manatee County School Board (the "School Board"), may terminate Respondent's employment as a non-instructional employee for "just cause" as defined in Section 6.11 of the School Board's Policies and Procedures Manual, based upon the conduct alleged in the Amended Administrative Complaint filed at the Division of Administrative Hearings on June 9, 2009.
Findings Of Fact Respondent Stephanie Waiters was hired by the School Board as a bus driver on August 6, 1996. In 2005, she was promoted to the position of area coordinator. The five "area coordinators" are first-line supervisors responsible for overseeing the daily operations of the buses within their assigned geographical districts. In December 2008, Terry Palmer was promoted from assistant director to the position of director of transportation. Upon his promotion, he was informed by the School Board that, due to budget constraints, his former position would not be filled, nor would the open position of operations coordinator. On January 23, 2009, Mr. Palmer issued a memorandum to all transportation employees regarding the additional duties that transportation department employees would be required to undertake in response to the budget cuts. Mr. Palmer's memorandum stated that, because he would not have administrative assistance, the area coordinators would report directly to him and would assume certain "additional responsibilities": The expanded role of the Area Coordinators will include: 1. employee evaluations; 2. parent conferences; 3. coaching and assisting employees on their buses; 4. observing bus operations at stops, schools etc. when needed; 5. following through on complaints from schools, parents and/or citizens and coordinating action with others inside and outside the department; 6. counseling employees on performance issues and documenting employee discipline; 7. ensuring all employees assigned to them have all of the training and coaching they need to succeed; 8. initiating, in conjunction with the director, involvement of the Office of Professional Standards on extreme issues of poor performance and/or misconduct. Ms. Waiters was the area coordinator for District 5, which includes Palmetto High School. Bus 537 was assigned to District 5 and ran routes to, among other schools, Palmetto High School. The regular operator of Bus 537 during the 2008-2009 school year was Carol Hindman. Ms. Waiters testified that there had been a lengthy history of student disciplinary problems on Bus 537. On Thursday, February 5, 2009, Ms. Waiters phoned Jose Rodriguez, a substitute bus driver employed by the School Board, and informed him that he would be driving Bus 537 on Monday, February 9, 2009.1 On the morning of Friday, February 6, 2009, Mr. Rodriguez rode Bus 537 with Ms. Hindman driving in order to familiarize himself with the route. Mr. Rodriguez testified that there were no problems on the bus until it reached the stop at 29th Street and 9th Avenue Drive East ("29th and 9th"). The students at this stop were rowdy and disregarded his instructions to put away their cell phones and iPods and to carry their backpacks in front of their bodies. From that stop onward, it became a "party bus," according to Mr. Rodriguez. The students informed Mr. Rodriguez that they run the bus, and that the "racist cracker bitch" Ms. Hindman just drives it. The students claimed to have hurt Ms. Hindman, and threatened to hurt Mr. Rodriguez if he attempted to control their behavior. One student began calling Mr. Rodriguez "Chico." Mr. Rodriguez testified that the situation was even worse on the afternoon route, with noise, screaming, radios playing and general horseplay making the situation dangerous. That night, Mr. Rodriguez phoned Ms. Waiters to tell her the Palmetto High School students on Bus 537 were "off the chain" and he was not sure he could handle the situation. She advised him to drive the bus on Monday and see how it went when he was alone. Ms. Waiters told Mr. Rodriguez to "write referrals" on the students who made trouble and she would back him up in any way necessary. Mr. Palmer explained the disciplinary authority of bus drivers and the related referral process as follows: From the standpoint of what they can do, is obviously they should try to work with the student on the bus, they can counsel them, they can move their seat, they can work with them on the bus. If that's unsuccessful, they then write a referral which is given to the school for processing, describing what the behavior has been that is disruptive or that is [in] violation of the safety rules, and then that's given to the school to take care of... Typically, [upon receipt of the bus driver referral,] the principal will assign the assistant principal or have parent liaisons that will meet with the individual students regarding behavior, talk about what that behavior is, why it's dangerous, and so forth, counsel them the first time, and then go through a series of progressive disciplinary steps which can lead to suspension from the bus and ultimately expulsion if it's not corrected. The referral form indicates the disciplinary action taken by the principal or his designee. (Section 1006.10(2), Florida Statutes, prohibits the principal from delegating to bus drivers the authority to suspend students from riding the bus.) If the student is to be suspended from riding the bus, the student's parent must first be notified. The school bus operator is also notified of the discipline resulting from the referral. Before a suspended student may ride the bus again, he is required to present the pink carbon copy of the referral form to the driver.2 Mr. Rodriguez drove Bus 537 on the morning of Monday, February 9, 2009. He testified that it was "the same routine" on Monday. Mr. Rodriguez said that he did not even attempt to control the students because his efforts to do so the previous Friday had been such a failure. Mr. Rodriguez stated that he was concerned for his and the students' safety at the three railroad crossings the bus had to traverse on the way to Palmetto High School. The proper procedure is to put on the signal flashers when the bus comes within 50 feet of the railroad crossing. Then, when the bus is within 25 feet of the crossing, the driver turns off everything but the motor to achieve as complete a silence as possible, because he must be able not only to see but to hear whether a train is approaching the crossing. Mr. Rodriguez testified that he tried to silence the students at the railroad crossings, telling them it was for their own safety. They laughed and carried on with their screaming and horseplay. After finishing the morning route, Mr. Rodriguez reported to Ms. Waiters, who told him to write referrals on the students for their behavior at the railroad crossings and the general mayhem described by Mr. Rodriguez. Ms. Waiters told Mr. Rodriguez to take a School Board vehicle and drive to Palmetto High School to turn in the referrals. Mr. Rodriguez testified that he went to Palmetto High School and gave the referrals to the assistant principal, Carl Auckerman. Mr. Rodriguez testified that Mr. Auckerman told him he would take care of the matter. Mr. Rodriguez testified that the situation was at least as bad on the Monday afternoon route of Bus 537. Ms. Waiters phoned him at home that evening, and advised him to write more referrals on the misbehaving students. She asked him if he needed someone else on the bus, but Mr. Rodriguez said he could handle the situation. Mr. Rodriguez testified that he wrote referrals on Monday evening. He drove the bus on Tuesday morning, experienced the "party bus" situation again, and then wrote more referrals. He testified that he and Ms. Waiters drove to Palmetto High School with the new referrals. They met with Mr. Auckerman and the SRO, Officer Douglas Marston of the Palmetto Police Department. Mr. Rodriguez testified that Mr. Auckerman told them he was going to issue bus suspensions of eight-to-ten days to all of the students who received referrals. Mr. Rodriguez and Ms. Waiters were satisfied with this outcome, and left the office. Ms. Waiters generally supported Mr. Rodriguez' version of the events occurring on Monday, February 9 and Tuesday, February 10. However, Mr. Auckerman, the assistant principal, testified that he did not know Mr. Rodriguez, did not meet with him on February 9 or 10, and received no referrals related to Bus 537 prior to February 11, 2009. Officer Marston testified that he knew nothing of the situation on Bus 537 prior to the morning of Wednesday, February 11. The testimony of Mr. Auckerman and Officer Marston was consistent and credible. The testimony of Mr. Rodriguez and Ms. Waiters was inconsistent. Their chronology of events constantly shifted and was unsupported by the documentary evidence, which was consistent with the testimony of Mr. Auckerman and Officer Marston.3 Mr. Rodriguez testified that he alone met with Mr. Auckerman on the morning of Monday, February 9. In a deposition, Ms. Waiters testified that she accompanied Mr. Rodriguez to Palmetto High School on February 9 and was in Mr. Auckerman's office with Mr. Rodriguez. At the hearing, Ms. Waiters testified that her only meeting with Mr. Auckerman on February 9 occurred that afternoon at the Palmetto High School bus loop. During cross-examination, when she was confronted with her contradictory deposition testimony, Ms. Waiters testified: With all the dates, the 9th, the 10th and the 11th, it's very vague, everything. I probably did, probably didn't, but I did go in to see Mr. Auckerman. I don't know if he came to the bus loop on Monday or whether I went, but I did go there two consecutive days with Mr. Rodriguez. The above quote is typical of Ms. Waiters' testimony at the hearing. She would make a definite, affirmative statement as to where and when an event occurred, but when pressed by opposing counsel or contradicted by her own prior statements, she would retreat into vagueness and uncertainty. During her interview with Debra Horne, the OPS investigator, Ms. Waiters stated that referrals were submitted to Mr. Auckerman on Tuesday, February 10 and Wednesday, February 11, then changed her story to state that the referrals were not submitted until Wednesday, February 11 and Thursday, February 12. Both versions contradict her testimony at the hearing that she oversaw Mr. Rodriguez' writing of referrals on Monday, February 9 and Tuesday, February 10. Ms. Waiters attributed her confusion to Ms. Horne's interviewing style.4 Mr. Rodriguez was similarly subject to confusion as to the timing of events. As noted above, he testified that he and Ms. Waiters met with Mr. Auckerman on Tuesday, February 10 and that at this meeting Mr. Auckerman announced that the misbehaving students would be suspended for eight to ten days. During cross-examination, Mr. Rodriguez was presented with the referrals that he claimed to have written on February 10, and was forced to concede that these referrals described events that actually occurred on Wednesday, February 11. He unconvincingly continued to claim that the meeting occurred on February 10, and that there existed other referrals that were actually written on February 9 and 10 that were not part of the documentary evidence. Mr. Rodriguez claimed to have his own copies of these referrals, but was unable to produce them at the hearing. In her interview with Ms. Horne, Ms. Waiters claimed that on the morning of Wednesday, February 11, she was enforcing bus suspensions issued by Mr. Auckerman at their meeting on the previous day. At the hearing, she conceded that she could not remember whether the meeting with Mr. Auckerman occurred on February 10 or 11, and further conceded that no student had been suspended from Bus 537 prior to Wednesday, February 11, 2009. Mr. Rodriguez testified that Bus 537 was worse than ever on the afternoon of Tuesday, February 10, because the students knew they had received referrals and had nothing to lose. He was afraid for his personal safety when crossing railroad tracks. On the phone that evening, Ms. Waiters told Mr. Rodriguez that she would be riding the bus on Wednesday morning. As to the events leading up to Wednesday morning, Ms. Waiters testified that Mr. Rodriguez had difficulty writing his initial referrals on Monday because, as a substitute driver, he did not know the names of the students. Ms. Waiters lives in the area served by Bus 537, and drove many of the same students on her bus when they were in elementary school. She suggested that they "pull the tape" from Monday morning so that she could name the misbehaving students for Mr. Rodriguez. The School Board maintains recording video cameras on its school buses. However, the video camera on Bus 537 was broken and in need of repair. A written repair request submitted by Mr. Rodriguez at 10:13 a.m. on Tuesday, February 10, 2009, stated, "Camera & tape don't work; tape pops out & stays out; no red light indicating camera is on." Nonetheless, Mr. Rodriguez testified that he and Ms. Waiters watched a video recording from Bus 537 on Monday, February 9. Ms. Waiters testified that there was no video tape from February 9 because the tape was "popped out," but that they were able to watch video after the morning route on February 10. She stated that "the tape was working fine, but the audio was totally messed up." No video tape documenting the events of the morning of February 10 on Bus 537 was presented at the hearing. The video camera was repaired and fully functional on the morning of Wednesday, February 11, 2009, and a video recording of the events of that morning on Bus 537 was entered into evidence.5 The undersigned viewed the videotape at the final hearing, and viewed a DVD version of the videotape twice more during the preparation of this Recommended Order. Ms. Hindman, the regular driver, drove Bus 537 on the morning of February 11. Mr. Rodriguez was already on the bus as the video commenced at 6:44 a.m. Mr. Rodriguez thought he was to drive the bus on Wednesday morning, but for some reason Ms. Hindman showed up and drove. Mr. Rodriguez decided to ride the bus because Ms. Hindman had no control over the situation, and he would be free to watch the situation and continue writing referrals on the troublesome students. Ms. Waiters testified that she decided to ride Bus 537 on Wednesday morning because Mr. Palmer had ordered her to "take care" of the situation, which she took as permission to do whatever was needed to bring order to the bus.6 At 6:47 a.m., Ms. Waiters boarded Bus 537 at the corner of 22nd Street and 2nd Avenue, one stop before 29th and 9th. As the bus proceeded, Mr. Rodriguez consulted Ms. Waiters as he attempted to identify some of the troublemaking students. He held a sheaf of papers. Ms. Waiters admonished him not to discuss what they were about to do in front of the students7 already on the bus, and stated her intent to move those students to the back of the bus before the students boarded at 29th and 9th. The bus was scheduled to reach the stop at 29th and 9th at 6:50 a.m. On February 11, 2009, the bus stopped at 29th and 9th at 6:53 a.m. When the bus came to a stop, Ms. Waiters directed the students already on the bus to move to the rear seats. After the bus had been stopped for approximately ten seconds, a student at the 29th and 9th stop, whom Ms. Waiters identified as J.P., knocked on the door. Ms. Waiters moved to the door and out of camera range, but could be heard stating authoritatively, "Get your hands off the window." At the hearing, Ms. Waiters testified that she suspected J.P. was carrying a weapon and that she feared for her safety and that of the students on the bus, but believed that the safest course was to allow him to board the bus rather than confront him about the suspected weapon. This testimony cannot be credited, as Ms. Waiters made no mention of such a suspicion to the Sheriff's deputies who were later dispatched to the bus, to Mr. Auckerman or SRO Marston when they arrived at the bus, or to Ms. Horne during the later investigation. Ms. Waiters' testimony that she did not reveal her suspicions due to fear of reprisals from J.P. or his confederates, based in part on an apparently unrelated and unsolved break-in that occurred at her home five years earlier, is not credited. After admonishing J.P., Ms. Waiters stated, "Everybody that rode yesterday, let's get on the bus, come on." Then, only seconds later, she stated, "Everybody who rode this bus yesterday still thinks they are going to get on the bus. They're not riding anymore." She stood just inside the door and began allowing a few students on the bus one at a time, directing them to their assigned seats. Ms. Waiters could be heard telling one unseen student, "Off the bus, off the bus," while his voice could be heard saying, "But I ride this bus." She began reading out names from a list provided by Mr. Rodriguez. The named students, apparently those who did not make trouble for Mr. Rodriguez the previous day, were allowed to board the bus.8 After these students were boarded and seated, Ms. Waiters directed them to move to the back of the bus. Then, Ms. Waiters began letting the rest of the students from 29th and 9th onto the bus. As they boarded, she said, "Enjoy this ride. This is y'alls last day riding the bus ever." The videotape shows that these students boarded the bus in orderly fashion and were seated without incident. As the students were boarding, Ms. Waiters stated that the bus would not be stopping at 29th and 9th any more. "You're within walking distance, you'll walk," she said to an unseen student. By 6:59 a.m., all of the students had boarded the bus at the 29th and 9th stop. The bus remained stopped. The students talked loudly among themselves, but were otherwise well behaved. Ms. Waiters phoned her dispatcher and told her to request that the Manatee County Sheriff's Office send deputies to the bus stop at 29th and 9th. At approximately 7:02 a.m., a male student attempted to disembark, telling Ms. Waiters that he had phoned his mother and she was coming to pick him up. Ms. Waiters told him to be seated because they had to wait for the Sheriff's deputies to arrive. The student complained, "What Sheriff? Nobody didn't do nothing," but obeyed Ms. Waiters' instruction. While they waited, the students in the front of the bus could be heard laughing and joking about what various parents or step-parents might do when they came to the bus, such as breaking the windows or tearing off the door.9 At approximately 7:06 a.m., Ms. Waiters spoke to some unseen parents through the closed door of the bus, saying, "Wait a minute. We'll release them in a second." A few seconds later, she addressed the students: "We'll either be releasing you to your parents or the Sheriff. So if you have a cell phone, you want to call your parents. You can go ahead and call them." At this point, no Sheriff's deputy had arrived at the scene. The evidence established that the first deputy to arrive, Deputy Kenneth Warner, was not even dispatched until 7:07 a.m. This fact is significant because during her interview, Ms. Waiters told Ms. Horne that law enforcement had directed her to tell the student to call their parents. At the hearing, Ms. Waiters testified that a Sheriff's deputy told her to have the kids call their parents, and that she was just repeating what the deputy told her. Ms. Waiters' testimony on this point is clearly not true. At approximately 7:07 a.m., Ms. Waiters stated to the students, "We're waiting to release you to the Sheriff or your parents." At this point, the students were still in high spirits, talking loudly to each other but not noticeably upset. At approximately 7:08 a.m., a call was made to the Sheriff's Office by a parent. The caller informed the dispatcher that her son had used his cell phone to call her from Bus 537. Her son told her that the students were locked on the bus and the driver refused to speak to parents who had arrived at the bus stop in response to their children's calls. Deputy Warner arrived at 29th and 9th at 7:10 a.m. His view of the situation, which is entirely supported by the videotape, was as follows: [The students] were all sitting in their seats, no one was up, but they were vocal, they were expressing their concerns about comments and stuff like that Ms. Waiters was stating... She was kind of instigating an issue. She was walking up and down, and making comments. Like if they made a comment to her, she would reply with a comment which would fire them up, and then they would all have comments back and forth... [The four or five parents who arrived] just didn't know what was going on, as me, I didn't know what was going on, either. They were wondering why they were getting calls from their children. So, I don't know. They were upset. Deputy Warner credibly denied that he gave any directives to Ms. Waiters, or indeed had much idea why he had been summoned to the scene: "It was my impression when I arrived that she just needed me there as support, and that she was handling the situation." The videotape shows Ms. Waiters meeting Deputy Warner at the door of the bus, and stating that this was a situation similar to the "one we had a couple of weeks ago that I took care of."10 She told the deputy that certain students on the bus must either be taken to the juvenile detention center ("JDC") or be released to their parents, because there have been "a lot of problems" on the bus. Ms. Waiters offered Deputy Warner no further details as to why the students could not ride the bus to school. Because he was confused by the situation, Deputy Warner radioed dispatch and requested that SRO Marston respond to his call. At 7:12 a.m., Ms. Waiters announced to the students, "You need to call your parents because you will not be riding the bus. The ones that have parents at work, you'll need to get your aunts or something, because you will not ride the bus." Ms. Waiters began releasing students whose parents were waiting outside the bus. At 7:20 a.m. and at 7:22 a.m., Ms. Waiters again told the remaining students that they needed to call their parents for a ride to school. Deputy Daniel Whidden was dispatched by the Sheriff's Office and arrived at the scene after Deputy Warner. Deputy Whidden, who was also a football coach at Palmetto High School and knew several students on the bus, testified that he gave Ms. Waiters no direction on how to handle the situation. Ms. Waiters told him that there had been problems on the bus the day before, and she was calling parents and having them pick up their children. At 7:23 a.m., Deputy Whidden boarded the bus and explained to the students that they were not allowed to disembark because the School Board was responsible for their safety. He told the students that SRO Marston was on his way to the bus stop to assist in transporting to school those students who were not allowed to ride the bus. Deputy Whidden testified that when he boarded the bus, the students were all in their seats. Some were protesting that they had done nothing wrong, but no one needed to be calmed down. This testimony is consistent with the evidence of the videotape. At 7:26 a.m., Ms. Waiters told Deputy Whidden that the students in the rear would be transported to school on the bus. As to the others, she stated, "I told them yesterday at the school they might as well find transportation in the morning. Well, they came here, and we can't leave them standing out at the bus stop." In conversation with Deputy Whidden, a female student confirmed that some of the students had been told they would not be allowed on the bus for the rest of the year.11 Officer Marston and Mr. Auckerman arrived at the bus stop at 7:31 a.m. When they arrived, most of the students had already disembarked. At no time did Mr. Auckerman tell Ms. Waiters that the students on the bus should call their parents or be transported by Sheriff's deputies. Ms. Waiters' testimony to the contrary is not credited. Mr. Auckerman, Officer Marston, and Deputy Whidden drove students to Palmetto High School. The bus began to run again at 7:37 a.m., 44 minutes after it stopped at 29th and 9th. The bus made only one more stop before arriving at Palmetto High School. This stop occurred at 7:43 a.m. Two students boarded the bus. Bus 537 is scheduled to make five stops after 29th and 9th. Because of the delay, Ms. Waiters called the driver of Bus 534 to cover some of Bus 537's stops. However, not all of Bus 537's stops were covered, and Bus 534 was 15 to 20 minutes late picking up some of the students. Further, Bus 537 was scheduled to make an elementary school run after it dropped off students at Palmetto High School. The bus made only one of its nine scheduled stops for elementary school students because the parents of most of those students had given up on the bus and either driven their children to school or had the children walk.12 During the 2008-2009 school year, classes began at Palmetto High School at 7:45 a.m. Bus 537 typically arrived at Palmetto High School at 7:20 a.m. On Wednesday, February 11, 2009, Bus 537 arrived at Palmetto High School at 7:57 a.m., twelve minutes after the final bell. After the bus arrived at Palmetto High School, Ms. Waiters and Mr. Rodriguez went into the school and spoke to Mr. Auckerman. They presented him with the list of names that they had used to identify the misbehaving students on Bus 537. Mr. Auckerman told them that he would need referrals before he could take any disciplinary action against the students. Ms. Waiters and Mr. Rodriguez submitted some referrals on Wednesday, February 11, then submitted additional referrals on Thursday, February 12. The referrals described student misbehavior, such as failing to be silent at railroad crossings and using cell phones, but gave no indication that either Ms. Waiters or Mr. Rodriguez ever feared for their safety on Bus 537. Mr. Rodriguez testified that the only time he feared for his physical safety was when he had to drive the noisy bus over railroad crossings. He did not fear any sort of physical assault by the students on the bus.13 Mr. Auckerman passed on the referrals to Palmetto High School's parent liaisons, Robert Kelly and Kevin Jackson. "Parent liaisons" are School Board employees responsible for general disciplinary referrals and communicating with parents regarding student behavior and discipline. The principal of Palmetto High School has delegated the authority to issue bus suspensions to the parent liaisons. On Friday, February 13, Mr. Kelly interviewed some of the students. He decided that the referred students would be suspended from riding the bus, commencing Tuesday, February 17. However, as Mr. Kelly and Mr. Jackson were about to finalize the suspensions by entering the referrals into the computer system, Mr. Auckerman halted the suspension process pending a School Board investigation into the events of the morning of February 11. Mr. Auckerman was reacting to parent complaints about Ms. Waiters' actions on Bus 537. Mr. Palmer, the director of transportation, also began receiving complaints. Mr. Palmer spoke with Ms. Waiters, safety officer John Searles, and school personnel, and was unsettled by the inconsistency of their stories. On or about February 18, 2009, Mr. Palmer referred the matter to the OPS. Ms. Horne then began her investigation of the incident. At the conclusion of her investigation, Ms. Horne presented a written OPS investigatory report to her supervisor and scheduled a meeting of all persons in Ms. Waiters' chain of command, up to Mr. Palmer, the transportation director. At a meeting on March 19, 2009, the School Board personnel met and recommended to the Superintendent that Ms. Waiters' employment with the School Board be terminated. The Superintendent concurred with the recommendation. Aside from contending that she was merely carrying out suspensions issued by Mr. Auckerman, which was completely at odds with the credible evidence produced at the hearing, Ms. Waiters' chief defense was that her actions on February 11, 2009, were consistent with the action she took in an incident that occurred on Wednesday, January 28, 2009, for which the bus driver received a laudatory write-up in the local newspaper and the praise of law enforcement and school officials. In the earlier incident, a substitute driver on a morning route to Lakewood Ranch High School pulled the bus over on State Road 64 and refused to continue because she believed the students' actions were placing her and the students in danger. In particular, the students were rocking the bus back and forth to the point that the driver feared losing control. Ms. Waiters drove out to the scene, followed shortly by at least six Sheriff's deputies. Ms. Waiters described the students as "out of control," "hanging out of the windows, yelling and cursing, throwing stuff out of the windows, rocking the bus." Ms. Waiters boarded the bus and was able to calm some of the students. The Sheriff's deputies called the parents of the troublemaking students and gave them the choice of picking up their children or having them taken to the JDC. According to Ms. Waiters, some students actually fought with their parents and had to be forcibly taken to the juvenile detention center. The next day, the local newspaper ran an article containing praise for the substitute bus driver. The principal of Lakewood Ranch High School and a spokesman for the Sheriff's Office were both quoted saying that she "did the right thing." Though Ms. Waiters was not mentioned in the article, it is clear from her testimony that she believed the praise was reflected on her. The differences between the incidents of January 28 and February 11, 2009, are clear. In the earlier incident, law enforcement was summoned to deal with an immediate, on-going dangerous situation. Sheriff's deputies took charge of the matter, with some assistance from Ms. Waiters, and concluded that the bus driver had done the right thing in stopping the bus when it became too hazardous to continue. In the February 11 incident, the videotape makes plain there was no danger whatever. Once allowed to board the bus, the students took their seats and talked among themselves. There were no threats, no disturbances, no rocking of the bus. Ms. Waiters' claim that she felt threatened was unsupported and not credible. The students, with good reason, appeared mostly puzzled as to what was happening. From the incident of January 28, 2009, Ms. Waiters apparently took the lesson that she was authorized to stop the scheduled running of a school bus for nearly an hour and to call out Sheriff's deputies to assist her in disciplining students for misbehavior that occurred on previous days. This was the wrong lesson. Ms. Waiters acknowledged that she did not have authority to suspend students from the bus, and claimed that she was not "suspending" the students; rather, she was restoring "order and control" on the bus for the students' safety.14 Ms. Waiters' actions might have been partially justified had there been some imminent danger such as that on the Lakewood Ranch High School bus on January 28, 2009, though even in that situation it was Sheriff's deputies, not Ms. Waiters, who removed the problem students from the bus. On Bus 537 on February 11, 2009, in the absence of any immediate threat or even untoward behavior by the students, Ms. Waiters took it upon herself to halt the bus and require students to phone their parents for rides to school well before law enforcement arrived on the scene. Ms. Waiters' actions were disproportionate to the situation on the bus, and constituted "suspensions" of the students under any reasonable understanding of that term. Ms. Waiters' actions on the morning of February 11, 2009, might merit discipline short of termination had Ms. Waiters fully and honestly cooperated in the subsequent investigation. However, Ms. Waiters stubbornly told a convoluted and contradictory version of events that made little sense on its face and was at direct odds with the consistent and credible testimony of School Board personnel and law enforcement officers who were present during the relevant events, and at odds with the direct evidence of the videotape from Bus 537. Ms. Waiters lack of candor throughout the process, coupled with the extremely poor judgment she employed in stopping the bus and suspending students without immediate cause or authority, fully justifies the School Board's decision to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Manatee County School Board, enter a final order that terminates the employment of Respondent, Stephanie Waiters. DONE AND ENTERED this 1st day of February, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 February, 2010.
The Issue Whether Petitioner has just cause to terminate Respondent's employment as an educational support employer based on the incident that occurred on November 3, 2005.
Findings Of Fact Respondent's employment with Petitioner began on September 30, 2002. He is a school bus driver, who works out of the south zone transportation compound. The position of the bus driver is an education support employee. Respondent is governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC). Since Respondent commenced working for Petitioner in September 2002, he received one probationary performance assessment and three annual performance assessments. Respondent always scored an "effective level of performance" in all areas targeted for assessment. The "comment" section for Petitioner's 2003-2004 performance assessment stated he was "an excellent employee." On his 2004-2005 assessment, the assessor wrote in the "comments" section that Respondent "performs daily route, requiring little supervision." Respondent's director recommended that Respondent's annual contract with Petitioner be renewed for each of the school years for 2003-2004, 2004-2005, and 2005-2006. On September 13, 2005, Respondent was involved in a minor traffic accident while driving his school bus. There were no passengers on the bus at the time. After initially being unable to reach his supervisor on the radio, Respondent spoke with his supervisor and was instructed to complete his scheduled run. As a consequence of the accident, Respondent was required to submit to a drug and alcohol test. Both tests were negative. Pending the results for the test, however, Respondent was reassigned to office duty at Petitioner's south zone transportation department. Respondent was required to submit to a second drug and alcohol test on September 15, 2005. Respondent was working in the transportation office at the time. He had returned from lunch and was accused of smelling like he had consumed marijuana. He claimed that he simply had smoked a cigar during his lunch break. The drug and alcohol tests were negative. Respondent cooperated with the drug and alcohol testing in both instances. Notwithstanding, he believed he was being unfairly singled out and expressed this fact to Armando de Leon, the director of transportation for the south zone. On November 3, 2005, Respondent reported for duty around 5:00 a.m. He conducted his pre-trip check of the bus and discovered that the screws on the bracket of the passenger-side cross-over mirror, which assists the driver in observing students, who pass in front, and to the side of the bus, had come loose from the bus. Respondent did not record the problem on his pre-trip checklist, but instead drove the bus to the mechanic bay to have it repaired. Since September 2005, Respondent repeatedly had experienced a problem with the bracket of the passenger-side cross-over mirror becoming loose. It was repaired on several occasions both before and after November 3, 2005. Respondent showed the mechanic, David Deberardis, the problem with the mirror. Respondent and the mechanic both determined that it was safe to operate the bus in its existing condition, at least for Respondent's initial morning run. The mechanic instructed Respondent to return the bus to him after Respondent's first trip, and he would repair it at that time. Before commencing his run, Respondent repositioned the bracket of the mirror so it was temporarily operable. Only after his students disembarked at their destination at South Fort Myers High School did Respondent observe that the mirror bracket had again worked itself loose, and the mirror was hanging down from the bus. On November 3, 2005, in response to a citizen's anonymous complaint regarding Respondent's operating his bus erratically, Nena Garrett, the Petitioner's road safety supervisor, was assigned to surveil Respondent's bus. Garrett waited for Respondent at the bus ramp of South Fort Myers High School on November 3, 2005. She observed Respondent park his bus, get out of his bus, and speak to the driver of the bus in front of him. Garrett was convinced that the bus in front of her then intentionally blocked her access to the bus ramp. However, she was able to follow Respondent's bus and observed that Respondent activated the left turn signal, but made a right turn out of the school bus ramp and drove approximately two miles to the bus compound. When Respondent parked his bus at the south compound, Garret noticed that the front bumper of the bus on the passenger side was scraped and that the cross-over mirror bracket was detached from the holder. Garrett did not witness Respondent be involved in an accident; however, she saw the damaged mirror. She then reviewed Respondent's pre-trip inspection log, which indicated that everything on Respondent's bus was in working order. No damage to the bus was reported on the inspection log for that day. Bus operators are taught in training how to conduct a pre-trip inspection, and that if anything is wrong with the bus, it should be noted on the form. Respondent acknowledged that he attended such training and that he had received the Operator's, Assistant's and Monitor's Handbook, which includes requirement that bus operators are to conduct a pre-trip inspection daily. Respondent did not indicate on his pre-trip inspection log that there was any damage to the mirror or to the outside of the bus for the report submitted on November 3, 2005. Garrett did not observe anything of concern when Respondent exited his bus at the compound. However, Garrett confronted Respondent in the parking lot and asked how the cross-over mirror was broken. Respondent explained to Garrett that he had reported the loose mirror to the mechanic earlier that morning and that the mechanic told him to return to have it fixed after he completed the first run. Garrett conferred with the mechanic and confirmed that Respondent indeed had reported the problem with the mirror to him and that he told Respondent to proceed with his first run. The mechanic also confirmed that the condition of the mirror was not the result of an accident. Garrett testified that during the conversation with Respondent in the parking lot of the south compound, she observed the Respondent trip climbing the bus stairs. She also testified that his eyes were red and glassy and that he had pasty saliva coming from his mouth. Based on her experience as a teacher of drug and alcohol traffic education courses, she determined that something was wrong with Respondent and that he must be impaired. Garrett made the decision to contact the south zone director, Armando de Leon, to inform him that it appeared Respondent had been in an accident and that his appearance was suspicious. Garrett did not inform de Leon that she had talked to the mechanic. Following Garrett's phone call, de Leon arrived on the scene, and Garrett informed de Leon what she had witnessed. De Leon contacted Patrick Hayhurst, the district's safety inspector and deputy sheriff, to ascertain how he should proceed with searching the bus. Hayhurst advised de Leon to conduct the search. Respondent was advised that Garrett would be searching the bus. Respondent consented to the search and stated that he "had nothing to hide." Respondent claimed that he also requested union representation at that time, but his request was denied, and they proceeded with the search. During the search, a small grey briefcase was discovered on the floor resting against a partition behind the driver's seat. De Leon obtained Respondent's permission to search the briefcase. Among the contents of the briefcase, Garrett found a plastic card with scrape marks and a light brown, sticky powder stuck to it. She also found a Swiss army pocket knife. The pocket knife was a multi-tool devise with a knife blade estimated to be a two inch to two and a half inch blade, along with other tools. Respondent admitted to de Leon that the knife was his. He also admitted that he had placed the knife in the briefcase, but had forgotten it was there. In addition to the above items found in the briefcase, a transparent pen was also found with some type of residue on it. Respondent testified on direct examination that the pen was actually a mechanical pencil; however, on cross-examination he admitted that it was in fact a pen. Respondent had received the School Board's employee Handbook, which indicates the Petitioner's zero tolerance policy for weapons on school property. The policy reads as follows: Florida Statutes supports district procedures stating that persons shall not possess any firearm, electric weapon or electric devise, destructive devise or other weapon on the property of any school, any school bus stop, any facility having a school-sponsored activity, a district facility or any district property. Check with your site administrator for more specific procedures and for information regarding situations of this type at your worksite. Due to the observations made by Garrett and de Leon, it was determined that reasonable suspicion existed to administer a drug and alcohol screening of the Respondent; including, a test for Oxycontin. De Leon was aware that Respondent had been prescribed to take Oxycontin for pain-related injuries received in the past. De Leon testified that after the items were found on the bus, he contacted Hayhurst once again to determine what to do next. Hayhurst advised de Leon to contact the Lee County Sheriff's Office for the purpose of documenting what was discovered and to have the substance on the plastic card tested. De Leon then contacted the sheriff's office. Respondent was asked to come into de Leon's office. Once inside, Respondent was afforded the opportunity to contact a union representative. He spoke with Suzan Rudd, the executive director of SPALC, who told him to say as little as possible. A union representative did not arrive at de Leon's office prior to Respondent's departure. De Leon put the knife, pen barrel, and plastic card down on his office desk and went to advise Jack Shelton of what was taking place. When he returned to the office, the knife and plastic card were gone. Respondent had taken possession of both items. Upon request, Respondent returned the plastic card to de Leon, but retained the knife. De Leon then received a phone call advising him that a deputy had arrived. De Leon testified that at that moment Respondent's disposition changed, and he became extremely agitated and aggressive, and he advanced towards him. At this point, the testimony of the witnesses becomes very conflicted. However, the best evidence indicates that Respondent backed de Leon up against the wall near the corner of his office. Garrett stood up, and de Leon yelled for help. De Leon had his hands up above his head, and Respondent reached his hands toward de Leon's arms seeking to retrieve the plastic card. At that time, Shelton entered the room and, at Shelton's request, Respondent stepped away from de Leon. The testimony is inconsistent regarding the physical incident with de Leon. The testimony was that he stumbled into de Leon, shoved de Leon, fought with de Leon, or forcibly put his hands on de Leon. The testimony of Garrett, Shelton, and Giles corroborates de Leon's testimony that he had his hands in the air, and Respondent was forcibly making contact with de Leon's arms and/or hands against his will. Immediately following the incident with de Leon, Respondent announced that he was resigning his position. He was advised that there was a process for submitting a resignation, and that it cannot be done verbally. Once again, Respondent was advised that he was being asked to submit to a drug test, and he refused. Respondent admitted to observing the nurse, from the company used to conduct drug tests for Petitioner, on the compound prior to leaving the premises. Lee County Sheriff's Deputy John Kinsey testified that when he arrived at the scene, he proceeded to de Leon's office and observed a struggle going on. He obtained information about the incident from those present. He stated that he could have taken Respondent to jail for battery; however, he advised de Leon that his possession of the Respondent's plastic card could be considered petty theft. He testified that both parties thought better of pressing charges at that moment and moved on. Deputy Kinsey then conducted a swipe of the plastic card, which is less then a presumptive field test. The test would show for cocaine and any type of methamphetamine. The test was negative. Deputy Kinsey did not test for marijuana or Oxycontin. His visual observation of the plastic card was inconclusive as to illegal substances. Respondent looked medicated and disconnected from the world to Deputy Kinsey, like someone who had been taking pills. Based on his observation of Respondent, he advised Respondent not to drive home after leaving Petitioner's compound. Respondent ignored the deputy's advice and drove from the premises. Respondent withdrew his verbal resignation when he arrived home later that day, after he had an opportunity to confer with a union representative. Although both Garrett and de Leon overreacted to the incident, de Leon was authorized to require Respondent to take a drug and alcohol test, to test the plastic card for drug residue, and to consider the pocket knife a weapon.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order suspending Respondent without pay from his position as a bus operator with the Lee County School District from March 14, 2006, until the end of the 2005-2006 school year. FURTHER RECOMMENDED that should the School Board follow this recommendation to suspend Respondent rather than terminate him, it is within the sole discretion of the superintendent of the district to offer Respondent a new contract for the school year 2006-2007. See Cox v. School Board of Osceola County, 669 So. 2d 353 (Fla. 5th DCA 1996). DONE AND ENTERED this 18th day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 18th day of August, 2006.
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 Petitioners, Renaissance Charter School, Inc., and Renaissance Charter School at Tradition, can be required by the St. Lucie County School Board ("School Board") to offer regular school busing to all eligible charter school students residing more than two miles from the charter school. Whether Petitioner, Renaissance Charter School at Tradition, breached its contract with the School Board by not providing transportation to students in accord with the parties' charter school contract and Florida Statutes. Whether School Board Policies 3.90 and 8.31 constitute an invalid exercise of delegated legislative authority. Whether the School Board has charter busing policies which amount to illegal, unadopted rules under chapter 120, Florida Statutes (2014).
Findings Of Fact The Parties Renaissance Charter School, Inc., is a not-for-profit Florida corporation. Renaissance Charter School, Inc., currently owns and operates two charter schools in St. Lucie County: Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. The School Board is the "sponsor" of Renaissance Charter School at Tradition within the meaning of the charter school statute, section 1002.33. The School Board's Approval of Renaissance Charter School at Tradition's Charter Application and Charter Contract On August 1, 2012, a charter school application was submitted to the School Board by Renaissance Charter School, Inc., on behalf of Renaissance Charter School at Tradition. During the charter application and approval process, the School Board consistently contended that charter schools in St. Lucie County are required by law to offer regular school busing to all eligible students residing more than two miles from their charter school.1/ On September 17, 2012, the School Board's Charter School Evaluation Team recommended approval of the Renaissance Charter School at Tradition charter school application, subject to the charter school providing "a viable transportation plan that meets statutory requirements once a school site has been finalized." On May 14, 2013, the School Board, at a regular board meeting, unanimously approved its charter contract with Renaissance Charter School, Inc., for Renaissance Charter School at Tradition. The Renaissance Charter School at Tradition charter contract became effective upon approval by the School Board at its May 14, 2013, meeting. The term of the charter contract is five years, commencing on the first day of the 2013-2014 school year, and ending on June 30, 2018. The School Board and Renaissance Charter School at Tradition have a valid and binding charter school contract that is still in full force and effect. Applicable Transportation Provisions of Renaissance Charter School at Tradition's Charter Contract Section 6 of the charter contract between the School Board and Renaissance Charter School at Tradition, which governs student transportation, provides as follows: SECTION 6: TRANSPORTATION Cooperation Between Sponsor and School: The School shall provide transportation to the School's students consistent with the requirements of Part I.E. of Chapter 1006, and Section 1012.45, F.S. The School may contract with the Sponsor to provide transportation service. Reasonable Distance: Transportation will not be a barrier to equal access for all students residing within the District, and the School shall provide transportation to all students residing in the District subject to the limitations in this Section 6.B. Students residing within two miles of the school will be expected to furnish their own transportation, except that certain students, as specified in Section 1006.21, F.S., for example students with disabilities and elementary grade students who are subject to specified hazardous walking conditions, must be provided transportation, regardless of the distance from the school. For students who are geographically isolated, or who are unable to be transported on a school bus due to disabilities, the School will offer reimbursement to eligible parents residing within the District. This parental reimbursement shall be equivalent to the monies provided by the Sponsor to the School for transportation of the student. At the time of student application for enrollment, the School shall be responsible for informing parents of the transportation options available, including the reimbursement amount available in lieu of provided transportation to qualifying students. Compliance with Safety Requirements: The School shall demonstrate compliance with all applicable transportation safety requirements. Unless it contracts with the Sponsor for the provision of student transportation, the School is required to ensure that each school bus transporting the School's students meets applicable federal motor vehicle safety standards and other specifications. The School agrees to monitor the status of the commercial drivers' licenses of each school bus driver employed or hired by the School (hereafter "School Bus Drivers") unless it contracts with Sponsor to provide such services. The School will provide the Sponsor, via the Charter Schools Support Department, an updated list each quarter of all School Bus Drivers providing commercial driver's license numbers, current license status and license expiration dates. Fees: The School may not charge a fee for transportation to which the student is entitled pursuant to state law. The School shall reimburse parents for parent-provided transportation costs if the student is legally entitled to transportation. Private Transportation Agreement: In the event the School will be contracting with a third party to provide transportation to its students, the School shall provide a copy of the transportation contract to the Sponsor at least sixty (60) days prior to the initial day of classes. Reimbursement for School Funded Transportation: The rate of reimbursement to the School by the Sponsor for transportation will be equivalent to the reimbursement rate provided by the State of Florida for all eligible transported students. Section 1 B) 4) of the charter contract further provides: 4) Statutory Requirements: The Parties will comply with Section 1002.33, F.S., and any regulations adopted by the State Board of Education or other state agency, or amendments thereto, pertaining to charter schools, and all applicable federal, state and local laws pertaining to civil rights and student health, safety and welfare. If any conflict exists between the provisions of the approved application or this Charter and any specific provision of law, then the provisions of the law shall prevail. The School shall be bound by amendments to applicable statutes, rules, and regulation, as any such amendments take effect. Unless specifically incorporated herein, the policies of the Sponsor do not apply to the School. However, if the School is statutorily required to have a policy and does not, the Sponsor's policy shall be deemed to apply. Students of Renaissance Charter School at Tradition and the School's Transportation Policy For a student to attend Renaissance Charter School at Tradition, their parents must apply during an open enrollment period, and a lottery system is used to determine who may attend. Parents whose child is selected through the lottery to attend Renaissance Charter School at Tradition are given a certain number of days to accept or decline the seat. Then the process starts over again until all seats are filled or there are no other students on the list. Renaissance Charter School at Tradition opened for the 2013-2014 school year as a K-6 school with 695 enrolled students. Projected enrollment for the 2013-2014 school year was 661 students. However, before the 2013-2014 school year began, projected enrollment had increased to 745 students. Renaissance Charter School at Tradition opened for the 2014-2015 school year as a K-7 school with 890 enrolled students and an enrollment cap of 945 students. For the 2015-2016 school year, Renaissance Charter School at Tradition plans to open as a K-8 school with projected enrollment of 1,075 students. For the 2016-2017 school year, Renaissance Charter School at Tradition plans to open as a K-8 school at maximum capacity of 1,145 enrolled students. The only "A" graded schools in St. Lucie County, Florida, for the 2013-2014 school year were Renaissance Charter School at Tradition and Renaissance Charter School at St. Lucie. There is a waiting list for grades K-3 at Renaissance Charter School at Tradition. Parents of students enrolled at Renaissance Charter School at Tradition recognize that Renaissance Charter School at Tradition provides their children with a unique educational opportunity. Parents of students enrolled at Renaissance Charter School at Tradition recognize that the decision to enroll their children at Renaissance Charter School at Tradition is a personal choice and not a privilege. Parents of students enrolled at Renaissance Charter School at Tradition are active partners in the education of their children. Renaissance Charter School at Tradition does not provide regular school busing to its students who reside more than two miles from the charter school. Renaissance Charter School at Tradition re-evaluates its transportation policies on a yearly basis. Parents of students are informed that Renaissance Charter School at Tradition does not offer regular school busing in informational meetings before they apply for their child to attend the school. Parents of students enrolled at Renaissance Charter School at Tradition sign a "Parent Obligation Form," contractually obligating themselves "[t]o provide transportation to and from the school for my child." Parents are required to sign the "Parent Obligation Form" every year as part of the enrollment process. The transportation policy of Renaissance Charter School at Tradition, which is given to all parents upon enrollment, apprises parents that the school does not offer regular school busing to students, but that the school agrees to provide "transportation or an equivalent reimbursement" to students in certain legally-defined circumstances. The transportation policy of Renaissance Charter School at Tradition provides as follows: Student Transportation Policy Renaissance Charter School at Tradition's [sic], is and always has been, fully committed to ensuring that transportation will not be a barrier to equal access for all students residing within the District. To date, there are more students attending our newly-opened charter school than was projected for our first year. Although our school does not presently offer busing as a means of school transportation, we are in the process of helping put together parent carpools for those parents who want their children to share rides to and from school. Moreover, transportation, or an equivalent reimbursement, will be provided to any student who falls under any of the following categories [taken from Florida State Statute 1006.21]: Any student in grades K-8 who does not otherwise have access to an adequate educational facility or opportunity. Any student in grades K-6 who are subjected to a hazardous walking condition as defined in s. 1006.23 while en route to or from school. Any student in grades K-8 who have a documented transportation need in their IEP. Any student in grades K-8 who are pregnant, student parents, and/or the children of these students if a teenage parent program is presented at the school. If you feel your child falls within one of the categories listed above, please notify the front office and we will work with you on a case-by-case basis. The School Board rejected the transportation policy of Renaissance Charter School at Tradition because it does not provide for the regular school busing of all students residing more than two miles from the charter school. Renaissance Charter School at Tradition's failure to provide regular bus transportation to all students residing more than two miles from the charter school does not constitute a barrier to equal access to all students. At the hearing, no credible and persuasive evidence was presented that any students lack equal access to an adequate educational facility or opportunity. No evidence was presented that any students are subject to hazardous walking conditions while en route to or from the charter school. There is one student who enrolled on January 20, 2015, who has a transportation need documented in their individual education plan, but the child's parent has chosen to provide transportation. No evidence was presented of any students who are pregnant or who have given birth to any children. Renaissance Charter School at Tradition opens at 6:00 a.m. and closes at 6:00 p.m. There are before-and-after- care private buses that take students off-site to other organizations, such as to karate and the Boys and Girls Clubs. Renaissance Charter School at Tradition also encourages parents' use of carpooling their children to and from school. The School Board's position is that carpooling is not a viable transportation option for the charter school. At Renaissance Charter School at Tradition, one parent has decided to run a private busing service, but no other parents have chosen to use the services of that private bus.2/ The Charter Contract and Transportation Policy Do Not Require Petitioners to Transport by Regular School Bus All Students Residing More Than Two Miles From the Charter School The parties' dispute centers on whether the School Board can require Renaissance Charter School at Tradition to offer regular school bus transportation, to and from the school, for all students residing more than two miles from the school. The interests of Petitioners are directly and substantially affected by the School Board's attempt to require that Petitioners transport by regular school bus all students residing more than two miles from the charter school. The parties unsuccessfully mediated their dispute before the Florida Department of Education. The persuasive and credible evidence adduced at hearing demonstrates that Renaissance Charter School at Tradition has not breached its charter contract with the School Board by not providing regular school busing to all students residing more than two miles from the charter school. The charter school contract between the School Board and Renaissance Charter School at Tradition does not require Renaissance Charter School at Tradition to provide regular school busing to all students residing more than two miles from the charter school.3/ Renaissance Charter School at Tradition's transportation policy is consistent with its charter contract with the School Board. The School Board's Inequitable Treatment of Charter Schools The persuasive and credible evidence adduced at hearing demonstrates that the School Board's treatment of Petitioners is inequitable. The School Board has a "no transportation zone," which geographically encompasses approximately one-third of the county. Students of traditional public schools residing in the "no transportation zone" are not provided regular school bus transportation to and from school. The School Board also has a "limited transportation zone." Students of traditional public schools residing in the "limited transportation zone" are provided regular school bus transportation, but only if they attend a school located within the "limited transportation zone." The "no transportation zone" and "limited transportation zone" encompass approximately one-half of St. Lucie County. At the hearing, the School Board conceded that it has different policies for the transportation of traditional public school students and students at magnet schools and attractor schools. The School Board encourages the use of carpools for students of traditional public schools. The School Board's Alleged Unadopted Policy The School Board, in paragraph 20 of its counter- petition filed in Case No. 14-3267, specifically states: "The School District's adopted policy is that students who live more than two miles from their assigned school shall be provided school bus transportation." (emphasis added). The persuasive and credible evidence adduced at hearing demonstrates that the School Board interprets Florida law and its adopted School Board Policies 3.90 and 8.31 to require that all existing and future charter schools within the county provide regular school bus transportation for all students residing more than two miles from the charter school. The persuasive and credible evidence adduced at hearing demonstrates that the School Board does not have an unadopted policy that all charter schools within the county must provide regular school busing to all students residing more than two miles from their charter school. The School Board's Adopted Policies The School Board has two adopted policies, School Board Policy 3.90 (dealing with charter schools) and School Board Policy 8.31 (dealing with student transportation). The interests of Petitioner are directly and substantially affected by these policies.4/ Both School Board Policies 3.90 and 8.31 were properly noticed pursuant to chapter 120, Florida Statutes. Neither School Board Policy 3.90 nor 8.31 is specifically incorporated into the charter agreement between the School Board and Renaissance Charter School at Tradition. Moreover, according to the School Board, School Board Policy 8.31 applies only in the absence of a viable charter school transportation policy. The persuasive and credible evidence adduced at hearing fails to demonstrate that the School Board and Renaissance Charter School at Tradition mutually agreed that School Board Policy 3.90, or 8.31, apply to the charter school.
The Issue The issues in these cases are whether there is just cause to terminate the employment of Kasha Brunson, and whether there is just cause to terminate the employment of Maria Colina.
Findings Of Fact Ms. Brunson has been employed by the School District since August 20, 1996. She is currently a bus attendant in the School District's transportation department. During her tenure with the School District, Ms. Brunson has had excellent performance evaluations. Ms. Colina has been employed by the School District since February 9, 2000. She is currently a bus operator in the School District's transportation department. During her tenure with the School District, Ms. Colina has had excellent performance evaluations. Both Ms. Brunson and Ms. Colina are governed by the collective bargaining agreement between the Support Personnel Association of Lee County (SPLAC) and the School Board. Provision 7.10 of the SPLAC agreement provides: "Any discipline during the contract year, that constitutes a verbal warning, letter of warning, letter of reprimand, suspension, demotion or termination shall be for just cause." The SPLAC agreement does not specifically define just cause, but Provision 7.10 of the SPLAC agreement provides that allegations of misconduct and poor job performance, which could result in suspension without pay or termination of employment, could be investigated, and a recommendation for discipline could be made to the superintendent as a result of the investigation. Provision 7.11 of the SPLAC agreement provides: [D]isciplinary action(s) taken against SPLAC bargaining unit members shall be consistent with the concept and practice of the provisions of 7.10 of the collective bargaining agreement and that in all instances the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record. On December 7, 2010, Ms. Colina was the bus operator, and Ms. Brunson was the bus attendant on Bus 134. The bus was assigned to pick up exceptional education students on its morning route to East Lee County High School (East Lee County). The bus has approximately six rows of seats. On December 7, 2010, the bus had two stops for East Lee County and picked up students C.E., a female, and T.T., a male, for delivery to East Lee County. C.E. and T.T. are tenth-grade students; however, they are mentally delayed and function between a fourth and sixth-grade level. In late October 2010, Ms. Brunson and Ms. Colina had been advised to keep C.E. and T.T. separated. The students were not to speak to one another, and they were not to sit together. Ms. Brunson and Ms. Colina were not told the reason why they were to keep the students separated, and they both assumed the students had been involved in an argument. On December 7, 2010, the bus arrived at East Lee County approximately 15 minutes prior to the bell ringing. Ms. Brunson, Ms. Colina, and the two students remained on the bus while waiting for the school to open. T.T. was seated in a seat at the rear of the bus across from Ms. Brunson. C.E. was in a seat at the front of the bus directly behind Ms. Colina, five rows in front of Ms. Brunson. T.T. asked Ms. Brunson for permission to change the radio station. She gave permission, and T.T. got up and walked to the front of the bus where he changed the station on the on-board radio. In order to change the radio station, he had to reach across Ms. Colina. Instead of returning to his assigned seat, T.T. sat down next to C.E. in her seat. Neither Ms. Brunson nor Ms. Colina saw T.T. sit next to C.E. At some point, Ms. Brunson observed T.T. in the seat with C.E. She felt that something inappropriate was happening, and she called T.T. back to his seat. Ms. Brunson reported the incident to Dale Maybin (Mr. Maybin), her supervisor for that day, as soon as C.E. and T.T. left the bus. Later in the morning, she also advised Shannan Pugh (Ms. Pugh), who was the paraprofessional who was supervising C.E. and T.T. at their work site. She told Ms. Pugh that, when T.T. stood up from C.E.'s seat, she saw C.E.'s head "pop up." In addition to the East Lee County delivery, Bus 134 was assigned to a route for students at Manatee Elementary School (Manatee). The Manatee route began after the completion of the East Lee County route. On the morning of December 7, 2010, Ms. Brunson and Ms. Colina had been assigned two additional students to the Manatee route beginning on December 9, 2010. At the time of the incident involving T.T. and C.E., both Ms. Brunson and Ms. Colina claim that they were doing paperwork related to the assignment of two new students. Bus drivers are given 15 minutes each morning and 15 minutes each afternoon to do a pre-trip inspection and to do paperwork. The paperwork involved in adding the two students to the bus route was minimal. The students' names would be added to the seating chart, and the students' names and I.D. numbers would be added to a Medicaid form. Once the bus arrived at Manatee where the students were to be delivered, the driver would receive additional information from the school and fill out a TR-1 form and get an emergency information card, which was to be placed in the bus. At the time of the incident on December 7, 2010, the only paperwork that needed to be done would be to add the names of the new students to the seating chart and to place the students' names and I.D. numbers on the Medicaid form. Although Ms. Colina had the responsibility of completing the paperwork, she and Ms. Brunson divided the paperwork. The longest time that it should have taken each person to do the paperwork was a couple of minutes. Respondents claim that they were unable to adequately supervise the students because of attending to paperwork is not credible. The amount of time that it would have taken to do the paperwork was minimal and should not have precluded Respondents from keeping an eye on the students. Additionally, Respondents should not have been doing their paperwork at the same time. Obviously, if both Respondents are doing paperwork at the same time, no one is watching the students. Because Respondents were doing paperwork does not relieve them of the responsibility of adequately supervising the students and keeping the students separated. The reason that C.E. and T.T. were separated stemmed from an incident in October 2010, when C.E. and T.T. had engaged in inappropriate activity during a work study program. C.E., T.T., and five other students were assigned to work off-campus at a grocery store. The students were supervised by two paraprofessionals from East Lee County. C.E. and T.T. left the area in the grocery store where they were assigned and went into the men's restroom together. C.E. admitted having sexual contact with T.T. while in the men's restroom. School officials changed the classroom and work study schedules of the two students to eliminate contact between the students. Ms. Brunson and Ms. Colina were aware that C.E. and T.T. no longer went to the work site on the same days. No disciplinary actions were taken against the two paraprofessionals as a result of the incident at the grocery store. From late October 2010 to December 7, 2010, Ms. Brunson and Ms. Colina kept C.E. and T.T. separated while on the bus, and the students did not engage in any inappropriate contact on the bus until the incident at issue. Respondents claim that they would have been more diligent in supervising the students if they had known that the reason that the students were being separated was for previous sexual misconduct. This reasoning for failure to adequately supervise is no excuse. Respondents should have adhered to their charge of keeping the students separated no matter the reason for the students being separated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that there is just cause to discipline Ms. Brunson and Ms. Colina and suspending Ms. Brunson and Ms. Colina without pay from March 8, 2011, to January 1, 2012. DONE AND ENTERED this 28th day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 2011.
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 the Respondent, Andrew Lewis (Respondent), committed the violation alleged, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is a duly constituted entity charged with the responsibility and authority to operate, control, and supervise the public schools within the Indian River County Public School District. As such, it has the authority to regulate all personnel matters for the school district. At all times material to the allegations of this case, the Respondent, Andrew Lewis, was an employee of the School Board and was subject to the disciplinary rules and regulations pertinent to employees of the school district. At all times material to this case, the Respondent was employed by the Petitioner and was assigned to teach and coach at Sebastian River Middle School. He has been employed at the middle school for over seven years. The Respondent has coached the boys' basketball team since his first year and has coached a co-ed soccer team for the past three seasons. All of the acts or omissions complained of in this matter occurred on September 15, 2008, during an athletic bus trip from the middle school to an athletic event in Okeechobee County. More specifically, the incident occurred during the return trip, a portion of which occurred after dark, when the bus was occupied by approximately 40 students, two adult chaperones, and the bus driver. The Respondent was one of the two coach chaperones. The allegations stemmed from the Respondent's failure to appropriately supervise the students on the bus. During his tenure with the Petitioner the Respondent has participated in dozens of bus trips with teams. This case is the sole allegation of wrong-doing against the Respondent. Prior to the allegations of the instant matter, the Respondent maintained an impeccable record. He is well-respected by his superiors. The Respondent is not charged with committing the assault on the student. The Respondent was unaware that an assault had occurred. The Respondent is charged with failure to supervise the students who committed an assault on another student. The incident occurred at approximately 8:00 p.m. after it was sufficiently dark on the bus to preclude a visual inspection of the rear portion of the bus from the front. The Respondent and another coach on the bus, John Kebbel, sat in the front of the bus behind the bus driver. The Respondent sat sideways in a seat directly behind the driver. Mr. Kebbel sat across from the Respondent and the two observed the students in the bus from their seats. Although Mr. Kebbel got up and walked back to check on the female students seated in the front portion of the bus on at least three occasions, the Respondent remained seated. Before leaving the Okeechobee site, the students were separated into two groups. The male students sat in the rear portion of the bus with the girls seated more toward the front of the bus. The instructions from the athletic director required that the Respondent and Mr. Kebbel keep the boys and girls separated. Additionally, the coaches were to defer to the bus driver regarding safety and conduct on the bus. Finally, the students were to be counted to assure that the number returning on the trip matched the number that traveled to the event with the team. With a few exceptions not pertinent to this matter, these instructions were followed. Mr. Kebbel got up from his seat and walked back to check on "his girls" to make sure they were not sitting with the males in the rear portion of the bus. He was preoccupied with making sure they did not fraternize during the trip. He was aware that inappropriate contact between the boys and girls might occur. The Respondent did not move to the rear of the bus to check on the males there. The Respondent did not ask that the lights be turned on in order to spot check what the males were doing. The Respondent did not ask the students to be more quiet. It is undisputed that the students were very loud. Additionally, the windows on the bus were open and presumably there was road noise contributing to the din on the bus. The bus driver did not require that the students be more quiet. Neither the Respondent or Mr. Kebbel asked the students to be quiet. The two teams on the bus, the Respondent's soccer team and Mr. Kebbel's girls' volleyball team, were in good spirits. The Respondent did not believe there was any reason for concern regarding their behavior on the bus. The bus stopped on the return trip at a McDonald's restaurant where the students were permitted to purchase and consume food. The students were instructed not to bring food onto the bus. Rather, all food was to be consumed at the stop with trash being put in its proper place (not brought onto the bus). Nevertheless, at least one student brought a pie box onto the bus. There is no evidence that the Respondent checked the students for food or trash when they re-entered the bus. In fact, two eighth grade males had the pie box in their possession in the rear portion of the bus. As part of some hazing or bullying effort, the two male eighth grade students held a sixth-grade male student down, pulled down his pants and underwear, and inserted the box between his buttocks. They attempted to pull the pants down on a second sixth grade male student but that individual successfully fought them off. The student and others cried for help during the assaults but no one responded to their cries. During these incidents, the noise on the bus was so loud that the Respondent did not realize something was amiss until the sixth grader on whom the assault was successful started throwing up. The Respondent believed the student to be sick. He did not know what had preceded the vomiting. The Respondent claimed that he continuously looked to the rear portion of the bus and listened for indications of improper activity yet he never asked that the students be more quiet, did not ask that the lights be turned on periodically, did not walk to the rear of the bus, and did not hear the cries for help from the students. The Respondent claimed he chose to sit behind the bus driver so that he could not be the subject of a false accusation of impropriety. There is no evidence that the bus was too full to allow the coaches to sit on a row between the male and female students. Clearly, they enjoyed a row to themselves in the front of the bus. It was too dark on the bus for the Respondent to see the rear portion of the bus clearly after the McDonald's stop. The Respondent and Mr. Kebbel were responsible for the athletic trip and were to assure that the students were properly chaperoned. The failure to appropriately chaperone students constitutes misconduct. The School Board took action to discipline the Respondent for failure to supervise the students on the trip and suspended him for two days without pay. The Respondent served that suspension but claims he did not fail to supervise the students. The Respondent seeks restitution of his pay and a clean performance record. The Respondent claims that the conduct of the eighth- grade students was an unfortunate incident that could not reasonably be expected. He claims that had he thought that such conduct were likely he would have taken immediate steps to intercede on behalf of the sixth graders. The Respondent's vantage point in the front of the bus did not afford him a clear line of sight. He did not see the students crawling over the tops of the seats in the rear of the bus. Further, he did not see students getting out of their seats and moving across the aisle in the rear portion of the bus. The parties stipulated there are no procedural challenges to the pre-suspension proceedings. See Joint Pre- Hearing Stipulation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Indian River County School Board enter a Final Order sustaining the imposition of the two-day suspension. DONE AND ENTERED this 11th day of March, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 March, 2009. COPIES FURNISHED: Harry J. La Cava, Ed.D Superintendent Indian River County School Board 1900 25th Street Vero Beach, Florida 32960-3395 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 Usher Larry Brown, Esquire Brown, Garganese, Weiss & D'Agresta, P.A. Post Office Box 2873 Orlando, Florida 32802-2873 Patrick M. Muldowney, Esquire Baker & Hostetler LLP Post Office Box 112 Orlando, Florida 32802 G. Russell Petersen, Esquire G. Russell Petersen, P.A. 21 Royal Palm Pointe, Suite 200 Vero Beach, Florida 32960
The Issue Whether the Petitioner, Bush, should have been terminated from his employment as a school bus driver.
Findings Of Fact l. Petitioner James Bush was employed as a bus driver by the Broward County School Board until May 17, 1978. Mr. Bush was notified by letter from Mr. Stan McCall, Director of Personnel, that his employment was terminated as of May 17, 1978, for unsatisfactory performance. Mr. Bush petitioned for an administrative hearing. According to the testimony of Mrs. Teems, the South Area Supervisor of the Transportation Department of the Respondent School Board, she observed bus #165 while she was driving at about 10:30 a.m. on June 2, 1976. The operator of bus #165 was driving in an erratic manner and speeding. Mrs. Geraldine Thornton, the immediate supervisor of Petitioner, testified that James Bush was the driver of bus #165 on that day. Mr. Sal Re, a School Board employee with the Department of Safety, testified that on September 7, 1977, bus #169 ran two stop signs without reducing speed by any perceptible degree. He said the driver was exceeding the speed limit by about five miles per hour. Mrs. Thornton testified that on that date bus #169 was operated by the Petitioner, James Bush. Mrs. Muriel Taylor, a substitute teacher for Respondent, testified that on April 5, 1978, in the early afternoon, bus #208 almost caused a head-on collision by improperly merging lanes immediately in front of the vehicle Mrs. Taylor was operating. Mrs. Taylor testified that she wrote down the number of the bus and reported this incident to a school authority by reference to bus #208. Respondent's Exhibit "B," in the handwriting of Geraldine Thornton, and the testimony of Geraldine Thornton established that the assigned driver of bus #208 on the date of the incident was Petitioner. Elizabeth Pearlman, a student assigned to ride Petitioner's bus, testified that she was returned to school after having passed her assigned bus stop without stopping, and that Petitioner Bush made her get off the bus at school at 6:10 p.m. without taking measures for her safety and welfare. Another student, Janis Kaden, substantiated the facts of the incident and testified that Miss Pearlman got off the bus at the school building, and the driver drove away. An unauthorized passenger, student Willie Holmes, on May 16, 1978, boarded the bus operated by Petitioner Bus in the parking area immediately adjacent to the bus compound and traveled with Petitioner to at least one school before traveling the route with Mr. Bush to the school attended by Willie Holmes. Willie Holmes was not authorized to ride the bus with Mr. Bush and was not authorized to ride the bus with Mr. Bush on the route to one or more schools which the student did not attend. It was established by the testimony of Lawrence Insel, Administrative Assistant at Karl High School, that Petitioner was uncooperative on the rainy afternoon of April 14, 1978, Petitioner blocked the bus loading area by improperly parking and caused noise and confusion, and caused the school children to run in the rain to board his bus and to board several other blocked buses. The Administrator talked with the Petitioner at the time, but the Petitioner refused to move. Mr. Insel also testified that the Petitioner had at one time refused, when requested, to go get a disabled bus. Joseph Vargo, Principal at Coconut Creek Elementary School, testified that Petitioner would come into his office without asking to enter and use the office telephone, and that he had more problems with the school children than did the other drivers. Mr. Vargo also testified that, although he counseled with Petitioner, he was not able to help Petitioner relate better to the school children and to other school personnel. Petitioner James Bush presented an evaluation to show that in April of 1978, he received an above-average evaluation. Petitioner denied driving bus #165 on the date of Mrs. Muriel Taylor's report of improper driving of said bus. He testified that he had not driven on one of the streets on which Mr. Sal Re reported he had observed Petitioner driving. Mr. Re had reported that Petitioner had driven through two red lights on September 7, 1977, and had exceeded the speed limit. Petitioner stated that Elizabeth Pearlman was argumentative, and that he went by her bus stop and returned her to school, which was about two miles from her bus stop. Petitioner said he reported the incident about 45 minutes later to the school personnel after he had left the student at the school. There was no evidence of the report. Petitioner stated he tried to keep order on his bus but the children were from time to time smoking, swearing, cursing and falsely accusing him of using marijuana. Petitioner said he took candy from the children to keep the bus clean. He testified that "I don't hear you if you talk at me rather than talk to me." Petitioner was furnished a copy of the Broward County School Bus Driver's Training Manual. Petitioner signed a statement of receipt of the manual and agreed to read it and abide by all instructions, laws, rules and regulations set forth therein. Included in the manual are rules and regulations governing the employment of bus drivers and instructions to be followed for the safety and welfare of bus riders. After hearing the testimony of the various witnesses and of the Petitioner, and upon observing the demeanor of those testifying and examination of the evidence submitted, the Hearing Officer further finds: That the witnesses for the Respondent, Broward County School Board, are truthful and dedicated to the safety and welfare of school children; That some of the employees, including his immediate supervisor, have tried to counsel with Petitioner and help him during the period of his employment; That Petitioner has been a problem to the school employees with whom he worked; that at times he was disrespectful to his supervisor and other employees; that he failed to fill out work sheets; that he failed on at least one occasion to report for work for several days without notice to the person in charge of school buses; that he failed to keep control of the children riding his bus and on at least one occasion failed to let a student off at her bus stop and intentionally returned her to school; that he failed at times to drive his bus in a safe and careful manner; and that he failed to do many of the necessary things to keep the work running smoothly, such as checking his mail box, returning keys, leaving a telephone number at which he could be located, and promptly and accurately making reports. His above-average evaluation appears to have been an effort to encourage a better performance.
Recommendation Affirm the termination of Petitioner, James Bush, from his employment as a school bus driver. DONE and ORDERED this 4th day of April, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stephen J. Press, Esquire Legal Aid Service of Broward County, Inc. 609 South Andrews Avenue Fort Lauderdale, Florida 33301 James T. Moore, Esquire 1265 NW 40th Avenue Lauderhill, Florida 33313
The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, 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 Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
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
