The Issue Whether Respondent, a non-instructional employee of Petitioner, should be dismissed on charges that he made unwelcome and offensive sexual advances toward several female employees over whom he had authority.
Findings Of Fact Respondent, Dan Quinn, has been employed by the School Board for 16 years. From July 1981 until November 1985 (when he was charged with misconduct and suspended from duty), he was employed as a driver trainer. In that position he not only trained school bus drivers, but assigned them school field trips for which they received extra pay. His other job duties included assisting the Supervisor of Transportation in coordinating bus routes and communicating with bus drivers assisting bus drivers with disciplinary problems on buses and riding buses when necessary: assisting mechanics in maintaining service and gas records in gassing buses, obtaining parts, and taking buses to inspection stations: serving as a substitute bus driver when necessary: and "other duties as assigned by the Supervisor of Transportation." (Resp. Exh. 5) The job of bus driver trainer is a non-instructional position. Respondent did not have a written employment contract with the School Board. II. The School Board has adopted Rules 4.3.2 and 4.3.3, internal rules not published in the Florida Administrative Code; which provide grounds and procedures for suspending and dismissing non-instructional school employees: Suspension Procedure The Superintendent has the authority to suspend non-instructional school employees for emergency reasons, and shall notify the Board immediately of such suspension. The suspension shall be reviewed by the Board at its regular or special meeting, at which time the employee shall be restored to duty or the Superintendent shall be authorized to serve noticed on the employee of charges against him and the date and place of hearing before the Board; at which all parties shall be heard on all matters relevant to the suspension and the employee's continued employment. Upon conclusion of the hearing; the Board shall restore the employee to duty, dismiss the employee; or otherwise adopt the recommendations of the Superintendent. For the purpose of this rule the term "emergency" includes, but is not necessarily limited to; any situation arising from the conduct of any Board employee for which the Board may find cause to dismiss the employee, such as immorality, intoxication while on duty, gross insubordination; willful neglect of duty, assaults upon other persons, incompetency, unjustified interruption of the orderly conduct of a school or any school activity, conviction of any crime involving moral turpitude or other misconduct. * * * Dismissal of Employees Dismissal of non-instructional personnel from employment by the Board shall be as follows: * * * If the quality of the employee's work is unsatisfactory and unacceptable, the Superintendent may recommend dismissal of the employee. (Petitioner's Exh.2) III. J.F. has been a bus driver employed by the School Board since 1970. At approximately 6:15 a.m. on one morning in January or February 1983, while she was sweeping her school bus before leaving on her route, Respondent entered the bus and passed her in the aisle. After she was seated in the driver's seat, he approached her and, while standing to her right (in the bus aisle), put his left arm behind her neck and around her left shoulder and placed his hand on the side of her breast. He then tried to kiss her on the right cheek. She told him to "knock it off," and "get off the bus." He complied but, while stepping off the bus, told her that, "If you're not good to me, I don't have to give you all these field trips," referring to the lucrative field trips which he assigned to bus drivers. She was embarrassed and offended, but did not report the incident for fear that she would lose her job. (At that time, she did not know whether Respondent had made similar advances toward other bus drivers: she also believed Respondent to be a good friend of Charlie Horn, the Supervisor to whom she would address her complaint.) (Tr.9) There is no evidence that Respondent ever again made a sexual advance toward J.F. or touched her in an offensive manner. Nor did he carry out his threat to deny her field trips. In school years 1982-83, he assigned her six field trips; in 1983-84, seven. IV. Another incident involving Respondent occurred in 1979 or 1980--five or six years before it was used as grounds to suspend and dismiss him. In the bus garage--at approximately 2:00 p.m. on a school day--Respondent approached M.S., another female bus driver, and asked her what time she would return from her route. She told him and he replied, "well, I'm going to have the air turned on upstairs in the meeting room so you and I can go up there and have some fun," or words to that effect. (Tr.34, 41, 52) She interpreted this as a request for "some kind of sex," and was offended. (Tr.39) She told him that there would be "no way" she would go up there with him. (Tr.41) He laughed and walked away. V. The next incident involving Respondent occurred on a school day in November 1983--two years prior to its being used as a basis for suspending and dismissing him. A.H., another female bus driver, was in the bus barn in Kissimmee. She had recently been hired. As the other drivers left for a field trip to the Tupperware Auditorium, about 8:45-9:45 a.m., Respondent approached and asked her to go upstairs to a classroom with him so he could show her something. She complied and accompanied him to the classroom. Once inside he turned off the lights, shut the door, reached for her and tried to hug her. She switched the lights back on; he turned them off again. She protested that she didn't want to do this; and she didn't "play games like this." (Tr.63) He put his hand on her breast; she tried to push him away. He then tried to slip his hand inside her pants. She switched the lights back on; he switched them off. He then agreed to go downstairs, saying, "Don't be mad now, I was only kidding; only fooling around." (Tr.64) Although his actions were unwelcomed and offended her, she agreed to forget it. Later, he asked her if she was mad; although she was still angry; she said, "No." (Tr.64) She did not report the incident because she was a new employee and feared losing her job or being labeled as a troublemaker. Almost two years later, A.H. had another unpleasant encounter with Respondent. After inviting her to his office and resolving a problem she had with a newly assigned route, he said, "See what I did for you." (Tr.65) He then began hugging her and tried to kiss her. She pushed him away, and tried to go out the door. He held her by the arm; pushed her back against the closed door and began rubbing up against her. He then left, telling her not to be mad, he was just kidding. These advances, also, were unwelcomed and offended her. VI. Another incident occurred in October 1984. Respondent approached M.S., another female bus driver. She was standing in the hallway, he put his arm around her and "took a hold" of her right breast. (Tr.96) She considered this an unwelcomed sexual advance and was offended by it. Later in that school year, Respondent told her that he controlled the assignment of field trips and could "throw a lot of money [her] way." (Tr.97) She replied that she had a second job and did not need field trips. She reasonably interpreted his comment as an implied suggestion that if she submitted to his advances; she would receive employment benefits. VII. J.B. was another female bus driver employed by the School Board. At approximately 6:15 or 6:30 a.m., during a school day toward the end of 1983, she was sitting in the driver's seat on her bus; checking it out before leaving on her route. It was still dark. Respondent entered the bus and placed his hand on her thigh, with his fingers "going down between" her thighs. (Tr.119) She brushed his hand away. She did not report this incident because she thought she would not be believed. VIII. Respondent flatly denies that these incidents ever took place. His denial is rejected as unpersuasive. The testimony of the women who received his unwelcome advances is, however, accepted as credible and worthy of belief. These witnesses had no discernible bias or motive to falsify. They were candid and factual, though it was obviously difficult and embarrassing for them to testify. IX. Except for the complaint of incidents, there is no evidence that Respondent, over the last 16 years, has been other than a responsible and satisfactory employee for the School Board. He never received a bad evaluation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent be suspended (without pay) from his employment for one year, commencing in November 1985, and that any reinstatement be conditional upon the availability of a comparable position for which he is qualified. He should not, however; be returned to his former position; and That; within 10 days of entry of a final order, Respondent pay the School Board the sum of $200.00 as attorneys' fees which it incurred in obtaining an order compelling discovery; dated April 15, 1986. D0NE and ORDERED this 29th day of August, 1986, in Tallahassee; Florida. R. L. CALEEN, Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1986.
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.
The Issue Whether the Petitioner should terminate the Respondent's employment as a school bus driver for the reasons set forth in correspondence dated December 14, 2006.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At all times material to this proceeding, Ms. McGriff was employed as a school bus driver by the School Board. She was hired for this position in 2003, and is on a continuing contract. In the four years since she began working as a bus driver for the School Board she has had no disciplinary action taken against her. As a bus driver, Ms. McGriff is classified as an educational support employee of the School Board's Department of Transportation pursuant to Section 1012.40, Florida Statutes (2006).2 Ms. McGriff is a member of the Communication Workers of America for Professional Support Employees ("CWA"), and the School Board and the CWA have entered into a Collective Bargaining Agreement ("Bargaining Agreement") that is effective from July 1, 2005, through June 30, 2008. Article 13C.2. of the Bargaining Agreement provides in pertinent part: Discipline and Termination of Professional Support Staff on Annual or Continuous Employment Status Suspension and dismissal of professional support staff personnel shall be conducted in accordance with the procedures contained below except that the Superintendent may suspend members of the professional support staff in an emergency. With School Board approval, an employee may be suspended without pay, discharged and/or returned to annual status, for reasons including but not limited to the following: * * * 9. Endangering the health, safety or welfare of any student or employee of the District. At the times material to this proceeding, Ms. McGriff was assigned as the driver of school bus number 69, and she regularly drove students attending Vero Beach High School to and from school. Students C.C., P.K., and E. were among the students who regularly rode on Ms. McGriff's school bus. On October 27, 2006, Ms. McGriff prepared a bus referral to the assistant principal for student C.C., in which she stated that he had used inappropriate language while riding school bus number 69. Frank Harmer, one of the assistant principals in charge of discipline at Vero Beach High School, received the referral and met with student C.C. on October 31, 2006, to discuss his conduct on the school bus on October 27, 2006. Mr. Harmer told C.C. to stop using inappropriate language on the bus. During this conversation, C.C. told Mr. Harmer that he had been previously harassed by students on the bus. Mr. Harmer urged C.C. to report any future harassing behavior by students to the school bus driver. In preparing for the meeting with C.C., Mr. Harmer consulted the School Board's computer system and learned that C.C. is a child with an emotional handicap and that he receives exceptional student education services from the School Board. On October 31, 2006, after speaking with student C.C., Mr. Harmer spoke with Ms. McGriff about the October 27, 2006, referral and about his conversation with C.C. During this conversation, Mr. Harmer told Ms. McGriff that C.C. was a student with an emotional handicap and that she should ensure that the other students did not harass him in the future. Ms. McGriff indicated to Mr. Harmer that she would prevent any future harassment. On the afternoon of November 3, 2006, at approximately 1:30 p.m., Ms. McGriff was waiting on school bus number 69 for the end of classes and the arrival of the students who would ride the bus home that afternoon. The conversation and ensuing events that took place on school bus number 69 were recorded on a surveillance video that was installed in the bus in accordance with School Board policy to record the activities of the bus driver and students. Student P.K. came onto the school bus before any of the other students, and P.K. initiated a conversation with Ms. McGriff about student C.C. During this conversation, which took place at approximately 1:31 p.m., Ms. McGriff referred to C.C. as a "dumb ass," and she complained to P.K. that C.C. got away with "murder." Ms. McGriff also told P.K. that she did not believe that C.C. was emotionally handicapped and that she wanted him off of her bus. In this conversation, student P.K. told Ms. McGriff that student C.C. had written P.K. a note telling P.K. that he wanted to fight him. P.K. indicated that he might try to pick a fight with C.C. on the bus that day and told Ms. McGriff to hold a clipboard in front of the video camera so the fight couldn't be seen. Ms. McGriff told P.K. that she would hold a clipboard up and would just continue driving if P.K. and C.C. got into a fight. Student P.K. had with him a stack of signs containing derogatory statements about student C.C. that he had prepared and wanted to post on the bus. Ms. McGriff laughed and encouraged P.K. to hang the signs on the windows of the bus, which he did. When P.K. asked if Ms. McGriff had any tape, she told him that she did not but that she would give tape to him if she had any. Ms. McGriff also told P.K. that she would try to drive without laughing but that it would be difficult. At approximately 1:35 p.m., student E. came onto the bus with a sign she had prepared that contained a derogatory remark about student C.C. P.K. and E. finished hanging the signs, gave each other a "high five," and Ms. McGriff laughed. The other students began entering the school bus at approximately 1:38 p.m. When student C.C. boarded the bus, he saw the signs and tore down two of them. Student P.K. re-hung one sign and gave the other to C.C. C.C. sat in his seat with his head down. P.K. took pictures of C.C. with his camera phone, and Ms. McGriff chuckled. Ms. McGriff pulled the bus away from Vero Beach High School at approximately 1:43 p.m. and began dropping off students at their bus stops. When student C.C. rose to exit the bus at his stop, student P.K. called out to him, "Bye Charles." C.C. turned, walked back to P.K., and struck P.K. several times, very quickly. C.C. then quickly left the bus. Ms. McGriff called and reported the fight to her supervisor. She also thanked P.K. and told him: "I needed that." Both students C.C. and P.K. received punishment in the form of out-of-school suspensions as a result of the altercation on the bus. Ms. McGriff admitted to having said things she should not have said and to using poor judgment with regard to the November 3, 2006, incident. Ms. McGriff endangered the safety and welfare of student C.C. on November 3, 2006, by allowing student P.K. to harass and humiliate C.C. on school bus number 69; by encouraging P.K. to harass and humiliate C.C. by laughing at P.K.'s plans to hang derogatory signs and to start a fight with C.C.; by making derogatory remarks to P.K. about C.C. herself; and by appearing to approve of P.K.'s plan to start a fight with C.C. by promising to cover the video camera when the fight started.
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 finding that Andrea McGriff endangered the safety and welfare of student C.C. and terminating her employment as a school bus driver. DONE AND ENTERED this 14th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 14th day of June, 2007.
The Issue The issue for consideration in this hearing is whether Respondent's Rule 6A-3.001, F.A.C., is a valid exercise of delegated legislative authority and a properly promulgated rule.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, School Board of Palm Beach County, (Board), was the agency responsible for providing public school bus transportation to eligible students in the public schools of Palm Beach County, Florida. The Petitioners were the parents of children enrolled in and attending Hammock Pointe Elementary School, a public school in Palm Beach County operated by the Respondent. Prior to January 17, 1992, the Petitioners' children were enrolled in and attending Whispering Pines Elementary School, operated by the Board, and, because that school was located sufficiently far from the students' homes, were receiving public school bus transportation furnished by the Respondent. After the beginning of the 1991-1992 school year, the Respondent advised the Petitioners that in January, 1992, their children would be reassigned from Whispering Pines to Hammock Pointe Elementary School located somewhat closer to their residences at the Boca Palms apartment complex located at 22573 Southwest 66th Avenue, Boca Raton, Florida. The program at the new school was to begin on January 21, 1992. The Petitioners were also advised that because Boca Palms was located within two miles of Hammock Pointe School, based upon the Board's interpretation of the pertinent rules regulating school bus transportation, Rule 6A-3.001, F.A.C., their children would not be provided with public bus transportation to that school. This interpretation was made by the Board's Director of school bus transportation. Rule 6A-3.001, which implements the provisions of Sections 230.23 and 234.01, Florida Statutes, requires school boards to provide bus transportation to those students whose homes are beyond a reasonable walking distance from the assigned public school. The term, "reasonable walking distance", for a student who is not handicapped, is defined by the rule as: ny distance not more than two (2) miles between the home and school or one and one- half (1 1/2) miles between the home and the assigned bus stop. Such distance shall be measured from the closest pedestrian entry point of the property where the student resides to the closest pedestrian entry point of the assigned school building or to the assigned bus stop. The District shall determine the shortest pedestrian route whether or not it is accessible to motor vehicle traffic. Though the rule does not specifically define it, the Board's Director of bus transportation interpreted the phrase, "closest pedestrian entry point of the property where the student resides" as meaning that point where the public right of way ends whether or not that point constitutes a pedestrian entry point. Measuring the shortest pedestrian route from the school building to the junction of the public street adjacent to the apartment complex and the complex entry drive, the Board indicates a distance of 1.9 miles, within the rule definition of reasonable walking distance. Mr. Wattenberg, the Petitioners' expert, who personally walked the route with a walking wheel, determined the distance from the gate to the school to be 10,692 feet. The distance from the aforementioned junction, down the complex entry drive to the actual gatehouse, is 277 feet. Subtracting that distance from Mr. Wattenberg's measured distance leaves a balance from the school to the junction of 10,415 feet. This is barely under 2 miles, (10,560 feet). From the gate to the closest residence within the complex is an additional 255 feet, and from the gate to the southwest corner of the complex is an additional 700 - 1,000 feet. Mr. Wattenberg considered those figures relevant on the basis of his interpretation of the term "entry point of the property" which, he feels, is the individual students' homes. All of those would lie well outside the 2 mile cut-off point. His position has some merit in light of the fact that the complex is surrounded by either a man made or vegetative fence which restrict pedestrian entry and exit to through the gate. Were the children to be able to walk directly from their homes to the school, they would have less distance to travel because all homes are currently located in an area to the south of the gate, and the walking route, for the most part, is to the south and east of the complex. However, under the circumstances here, the children have to walk the 10,416 feet to the junction, an additional 277 feet to the gate, and then from 255 to 1,000 feet more from the gate to their homes. Together, this is all in excess of 2 miles, but the Department's interpretation makes the controlling distance less than 2 miles. Even if the distance is less than 2 miles, however, the Board will provide transportation if it is determined that hazards exist along the route that would endanger the student. Here, the Board has also taken the position that the route to be followed by the students does not present any hazardous conditions within the meaning of Section 234.021, Florida Statutes. This position is supported by the opinion of Sergeant Szczepanski, the Sheriff Department's head of the school crossing division. She is familiar with the route proposed from Boca Palms to the school and drove it at the request of the Board's head of risk management. Her viewing convinced her that there was a hazard on S.W. 8th Street near S.W. 56th Avenue, but from her discussions with that individual was satisfied that the danger has been abated. If she felt it were unsafe she would say so and when she has done so in the past, the Board has uniformly acceded to her determination and provided bus transport. Whenever hazardous conditions are identified, the bussing is provided only so long as those conditions persist, and when the hazard is removed, the bussing is terminated. Ms. Falana, the Board's risk management expert reviewed the route several times while the school was being considered and built and found nothing which, to her, met the statutory criteria. As she saw it, going by the statutory criteria, there was no need even for crossing guards, but there is at least one guard along the projected route and a total of three for the entire school area. Ms. Falana walked the route herself and did not merely drive it. She was specifically looking for hazards to children and found none. She coordinated with Sgt. Szczepanski and determined that there were no complaints registered by any of the parents with the bussing division, with her office, or with Sgt. Szczepanski's office. Ms. Falana recognizes that along the projected route there is a dogleg with a rise in the side of the street, (without a walkway), where a child might slip down into the roadway. She feels this is not a problem, however, because there are other similar areas in the county and there has never been an accident at one of those sites. Only where children have to cross a major highway or an unusual traffic situation is a crossing guard required. Mr. Wattenberg disagrees with Ms. Falana's and Sgt. Szczepanski's assessments of the hazard situation and contends there are several. One is at the intersection of Edward Blvd. and Sandalfoot where high hedges obstruct the view of drivers. The intersection at 8th Street and 57th Avenue is also dangerous but there will be a crossing guard there. From 57th Avenue east the route is on a service road which runs along a canal that has no sidewalk or guardrail. Mr. Wattenberg, an adult, required 45 minutes to traverse the route which has 10 cross streets intersecting with it. There will be between 40 and 45 children who will have to make this walk at least twice a day, five days a week, in all kinds of weather. The evidence is not clearly dispositive of the issue. According to Mr. Baker, the Board's director of transportation, the decision on whether to provide bus transport is made on the basis of both distance and hazardous conditions. He measured the distance electronically with a measuring device calibrated for accuracy both before and after each use. There is no dispute as to the actual distances involved, only at what point the distance is to be measured. School Board policy requires that the distance be measured according to the terms of the Department of Education rule, (6A- 3.001(3)), which refers to "... the closest entry point of the property where the student resides." He measured the shortest route from the school to that point where the public sidewalk meet the private property on the abutting thoroughfare and found the distance to be 178 feet short of two miles. On that basis, the transportation was denied. Mr. Baker also looked at the issue of hazardous conditions and relied on the determination of Ms. Falana who has the authority to determine if there is such a condition. Here, she determined there was no hazard requiring transport within the criteria in the statute. To be certain of his position, Mr. Baker wrote to the State Department of Education which rendered an opinion that the starting point for measurement is the point of demarcation between the public street and the private property. According to Mr. McBride, the Department of Education's school bus chief, there is no statutory definition of "pedestrian entry point." However, the Department, and the state auditors, always use the property line between private and public property as the line of demarcation. In this case, then, even though the entry gate is 277 feet further in from the property line, the entry to the property, for bussing purposes, is at the property line at the street. To the best of his knowledge, there has been no official determination on this point by court, rule, or statute. Ms. Gudermuth, one of the Petitioners, indicates that at the present time, since the school change, the management at Boca Palms has been providing bus transport for the 35 or so children who are involved. If the complex did not do so, she would not allow her seven year old child to walk to the school. She could take her daughter to school in the morning, but because she works outside the home, could not come to get her after school without switching to part time work. Many other parents are in the same situation. Car pooling is not a viable option because she, and each other parent who participated, would still need to take time off from work when it was her or his turn to drive. Boca Palms has indicated that though it is currently providing transportation to its tenants by leased bus, it cannot continue to do so. Because of the cost of $1.00 per mile per student, plus insurance and driver salary, the cost cannot reasonably be passed on to tenants through rent increases because of existing economic conditions. When the issue was raised with several of the parents, they were uniformly opposed to it.
The Issue Whether Petitioner has just cause to terminate Respondent’s employment as an educational support employee.
Findings Of Fact Respondent, Collin Hall, has been employed with the Lee County School District since August 13, 2001. He is currently assigned as a Bus Operator in Petitioner’s Transportation Department. Respondent is a member of the Support Personnel Association of Lee County (“SPALC”) and has been a member during all times relevant to this matter. Respondent was assigned as an unassigned regular (UAR) bus operator during the 2007-2008 and 2008-2009 school year. A UAR is available each day to be assigned to a bus when the regular driver is out sick or if the bus route is challenging. The District considers a UAR bus operator as its most professional bus operator. The allegations against Respondent are set forth in the Petition for Termination of Employment filed with DOAH (the Petition). In relevant part, the Petition charges Respondent with the following: failing to control students on the bus Respondent was operating; failing to protect students on the bus if an emergency should develop due to the conduct of the students; failing to ensure that each passenger on the bus was wearing a safety belt; failing to maintain order and discipline, require all passengers remain seated and keep the aisles clear, and immediately report to the designated official student misconduct occurring on the bus in violation of Florida Administrative Code Rule 6A-3.017; grabbing a student in violation of Board Policy 5.26; failing to adhere to the highest ethical standards and to exemplify conduct that is lawful and professional and contributes to a positive learning environment for students in violation of Board Policies 5.02 and 5.29; and failing to call a dispatcher for assistance if a discipline problem is not resolved in a few minutes as outlined in the Lee County School District’s Handbook for bus operators. Respondent attended various trainings during his tenure with the District, including training entitled, “Wolfgang Student Management,” “All Safe in their Seats,” “Dealing with Difficult Students/Seatbelts,” “Bully on Bus,” “ESE Behavior” and “First Line of Defense.” All of these classes provided training in student management or student discipline on a school bus. In addition to receiving yearly and periodic training, Respondent was provided a manual entitled “School Bus Driver’s Manual, Critical Incident Procedures” published by the Florida Department of Education (FDOE) and distributed by the District to all bus operators. Page 14 of the manual outlines the procedures to be used for disruptive students. The Bus Driver’s Manual further provides in its Introduction that: The procedures outlined in this document are guidelines (emphasis added) and should be reviewed and tailored by each school district to conform to local policies – always (emphasis theirs) adhere to the district emergency procedures. Although these guidelines reflect the best practices of several Florida school district transportation departments, no one can foresee the details of every emergency. Many emergencies require the driver’s best judgment, keeping in mind the priorities of life safety (sic), protection of property and the environment. In keeping with the FDOE’s directive to tailor the guidelines to conform to the District’s local policies, the District established a policy for the “Preservation of Order on Special Needs Bus.” That policy is outlined in Robert Morgan’s August 24, 2008, Memorandum to Professional Standards. It requires the school bus operator “and/or attendant” to preserve order and good behavior on the part of all pupils being transported. It also provides that: shall an emergency develop due to conduct of the pupils on the bus, the bus driver and/or attendant shall take steps reasonably necessary to protect the pupils on the bus. They are not obligated to place themselves in physical danger; however, they are obligated to immediately report pupil misconduct to a Transportation Supervisor. (emphasis supplied) On May 21, 2008, Respondent was assigned to Bus 999, along with bus attendant Kelia Wallace. Bus 999 transported students that attend Royal Palm Exceptional Center. Royal Palm Exceptional Center is a school that educates students with special needs, including those that may have emotional issues that result in disruptive behavior. All Royal Palm students have Individual Education Plans that require special transportation. Bus 999 was equipped with an audio and video recording system, as are all Exceptional Student Education (ESE) busses in Lee County. The audio and video are recorded to a hard drive which can be viewed at a later time. Robert Morgan, Director of Transportation South, was alerted of an issue on Bus 999 on the evening of May 21, 2008. Morgan was informed that Bus 999 made an unscheduled stop at the San Carlos Park Fire Station during its afternoon route earlier that day. As a result, on the morning of May 22, 2008, Morgan viewed the video recording from Bus 999 from the previous afternoon. Following his review of the footage, Morgan directed a member of his staff to copy the relevant portions of the raw footage to a compact disc. The information on the disc was then forwarded to the District’s Department of Professional Standards and Equity for review and further investigation. There was some testimony from Respondent doubting the accuracy of the video and inferring that the video had been altered in some way. However, the record is devoid of any evidence to contradict the audio and video evidence submitted on compact disc by the District. In addition, there was credible eye witness testimony relative to the incident. After Respondent picked up the students at their school and was following the route to deliver them home, Student C.M. was acting inappropriately in the back of the bus. From his driver’s seat, Respondent commanded C.M. to sit down, which was ignored. Respondent pulled over, stopped the bus and proceeded to the back of the bus to deal with C.M. Respondent grabbed C.M., lifted him off the floor of the bus, carried him several rows forward, and put him into another seat on the bus. C.M. was not kicking, punching or threatening any other student when Respondent took this action. C.M. continued to carry on a taunting dialogue with students, including J.O., who was in the back of the bus. Respondent then proceeded on the route. After several minutes Respondent noticed some paper sitting in the middle of the aisle. While the bus was moving, Respondent ordered J.O. to come forward in the aisle to retrieve the piece of paper he had thrown toward the front of the bus. As a result, J.O. walked by C.M. who was still taunting J.O. and other students. The two students then become involved in a physical altercation. Respondent said nothing and continued to drive the bus. The two students continued to fight for approximately 40 seconds before Respondent stopped the bus and walked toward the back of the bus to get a closer look. The fight continued for an entire minute before Respondent took any action to intervene or break up the fight. Instead, Respondent instructed his bus attendant to write up a disciplinary referral (students fighting), but stood nearby and watched the students fight. Respondent said nothing to the students. Respondent then turned his back on the fight, threw up his hands in disgust and returned to the driver’s seat to resume driving the bus. Respondent did not contact dispatch or law enforcement regarding the fight. Approximately 30 seconds later, student C.M. yelled an expletive at student J.S. J.S. came forward, confronted C.M., and battered him to the point where C.M. ended up on the floor of the bus, where J.S. punched and kicked him numerous times. Respondent said nothing. The incident continued for another 20 seconds before J.S. backed off. Respondent again walked down the aisle toward the students. While lying on the floor between the seats, C.M. complained that he was injured. Respondent waited several seconds prior to attempting to assess C.M.’s injuries. Respondent then stated to C.M., “Let me see your nose.” Respondent observed that C.M. suffered a bloody nose as a result of the altercation. Respondent did not provide any immediate medical attention or care to C.M. Respondent returned to the driver’s seat and began to drive. Respondent drove the bus to the San Carlos Park Fire Department station where C.M. received first aide from an Emergency Medical Technician. C.M.’s father was also notified and responded to the scene. Respondent attempted to defend his conduct by indicating that he would have been injured or he could have injured one of the students if he attempted to break up the altercations. This testimony is not credible. Respondent admitted that bus operators are prohibited from picking up students and that he should have used verbal prompts during the other incidents to urge the students to stop fighting. Respondent testified that prior to the events depicted on video, C.M. had responded to an earlier verbal prompt by the bus attendant to return to his seat. Respondent’s testimony is inconsistent and not entirely credible in this regard. In a further effort to mitigate Respondent’s conduct, Respondent’s counsel attempted to portray the students on the bus as completely uncontrollable and the District or school as unsupportive of the bus operators hired to transport these students. However, credible evidence showed that disruptive students were regularly suspended from the bus and from school. C.M. had proven to be a discipline problem on the bus. C.M. historically was confrontational and argumentative with the other students. Notwithstanding C.M.’s prior history of misconduct and violence on the bus, the District suspended C.M. from the bus for one day. Whether Respondent failed to take adequate corrective measures to ensure that C.M. did not repeat such actions prior to allowing him to continue riding the bus is irrelevant to this proceeding. However, Respondent was aware that at least one of the students on the bus had been previously disciplined for inappropriate conduct. Respondent had experience transporting Royal Palm students and had transported Royal Palm students previously during the 2007-2008 school year. In addition, Respondent stated that he had attended all of the training the District provided regarding the discipline and handling of disruptive students on a school bus. It is clear from the record that Respondent had been trained to deal with such students. Respondent mentioned the word “judgment” repeatedly throughout his testimony. Although judgment plays a role in the control of student behavior, the FDOE School Bus Driver’s Manual spells out the protocol for dealing with disruptive students. The first three things a bus operator is to do is to tell students to stop fighting, pull off the road to a safe place and call dispatch and have them contact parents. Judgment is not a part of any of the above instructions, and Respondent failed to follow two out of three requirements. He neither told the students to stop fighting nor called dispatch to inform them of the fights. The bus operator is then to go to the area of the fight, assess the situation, identify the students involved and attempt to gain control. If the operator cannot gain control the FDOE manual states that the operator should radio for help, remove other students from the area of the fight, intervene if the situation is life-threatening, or if not, to monitor and wait for assistance and use reasonable force to prevent injury to himself and the students. Respondent never attempted to gain control of the situation and then, when it did get out of control, he never radioed for help, removed other students from the area of the fight or used reasonable force to prevent injury to the students. Morgan testified that Respondent’s alleged violation of the policy for safety belts was “not the issue,” and the District was not seeking to discipline Respondent for anything related to the non-use of safety belts. Consequently, the District effectively withdrew this charge at hearing. Also, the District did not introduce as evidence the School District of Lee County Transportation Services Operator’s, Assistant’s and Monitor’s Handbook. The charge that Respondent did not follow the procedure as outlined in the Handbook therefore fails for lack of evidence. Respondent failed to comply with the District’s policy for preserving order on a special needs bus. He did not exercise his best judgment. His testimony as to why he did not physically intervene in the fights between C.M. and J.O. and J.S. for fear that he would injure himself or the students is not credible. Although he directed Ms. Wallace to write disciplinary referrals for the students that were fighting, this was inadequate. He did, however, obtain emergency medical care for C.M., and notified the dispatch center of the Transportation Department of the fight and the fact that he was required to divert his route of travel to the fire station for medical care. Immediately, upon his return to the bus compound, Respondent completed and filed with his supervisor an Incident Report detailing the events on the bus that afternoon. Petitioner proved by a preponderance of evidence that Respondent violated the policies recited in the Petition as a., b., c., d., e., and f. Since Respondent commenced working for the District, he received one probationary and seven annual performance assessments. With the exception of his 2007-2008 performance assessment, Respondent always scored at an “Effective level of performance observed,” except one score of “Inconsistently practiced” in his 2003-2004 assessment for the area targeted of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Respondent’s supervisor consistently recommended him for reemployment, including the 2008-2009 school year. In his 2007-2008 annual performance assessment, Respondent received a score of “Effective level of performance observed” in 29 out of a total of 32 areas targeted for assessment. Respondent received two scores of “Inconsistently practiced” for the areas of “Reports to work as expected unless an absence has been authorized” and “Reports to work on time as determined by route schedules,” and one score of “Unacceptable level of performance observed” for the area of “Demonstrates an energetic and enthusiastic approach to work, avoids excessive or unnecessary use of sick/personal leave.” Although the District’s performance assessment form provides that Criteria marked “I” or “U” require additional documentation, there was no evidence of any such documentation. During the 2007-2008 school year, Respondent was disciplined on two occasions. Respondent was involved in a physical altercation with another employee in February of 2008 and as a result he was suspended for three days without pay. In addition, Respondent was suspended for an additional three days without pay for causing a disruption on another bus operator’s route. Petitioner has proven by a preponderance of evidence that Petitioner has just cause to terminate Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order finding that just cause exists for termination of the employment of Respondent and dismissing Respondent from his position as a bus operator with the School District of Lee County. DONE AND ENTERED this 29th day of June, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2009.
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 The issue in the case is whether the Sarasota County School Board (Petitioner) has cause for terminating the employment of Virgil Mae (Respondent).
Findings Of Fact At all times material to this case, the Respondent was employed by the Petitioner as a school bus driver. The Respondent was subject to the provisions for "classified" employees as identified in the Collective Bargaining Agreement (CBA) between the Petitioner and the "Sarasota Classified/Teachers Association." Under the terms of the CBA, the Petitioner's school bus drivers must comply with various requirements including: possession of a commercial driver's license (CDL) and automobile insurance, passage of an annual health physical, passage of a "reflex" or dexterity test, and completion of in-service training. In May of each year, the Petitioner makes physicians available to provide health physicals for school bus drivers at no charge. In the alternative, the Petitioner pays the insurance co-payment for drivers who choose to obtain physicals from their personal physicians. School board policy requires that the reflex test be conducted within 30 days of the physical. Accordingly, the Petitioner provides reflex testing in May, so that it may be completed in conjunction with physicals. The reflex testing is also at the Petitioner's expense. Prior to May of each year, the Petitioner posts flyers at the school bus compounds to remind bus drivers of the requirements and advise of the dates of the tests. The Transportation Department also broadcasts the information through a radio dispatch system that provides communications links to all drivers. Written notices are also sent to the drivers. Most drivers complete both tests during May, but drivers may complete the tests in their own time. If a driver chooses to obtain a physical through a private physician, the Transportation Department will schedule the reflex test to accommodate the driver's physical, so that both are completed within 30 days. The Respondent asserted that he was unaware of the requirement that the reflex test be conducted within 30 days of the physical, but the greater weight of the evidence establishes that he has been a bus driver for the Petitioner since October 2003, that he has complied with the annual requirement in previous years, and that the policy has not changed during the term of his employment. The evidence further establishes that the Respondent had not completed the physical even by the time of the administrative hearing. Each fall, during the week preceding the commencement of school, the Petitioner's Transportation Department conducts a "Safety School," during which the school bus drivers receive in- service training sufficient to meet the relevant requirements applicable to drivers. School bus drivers are paid their regular wages to attend Safety School. On the second day of Safety School, the Petitioner conducts a "bid day," through which drivers bid on routes based on their employment seniority. Under the terms of the CBA, school bus drivers must have the valid CDL and have completed the health physical and in-service training no later than the time of the initial bid. Article XXI, Section M, of the CBA provides as follows: An employee who fails to return to duty for each of the first three work days of a new school year and who fails to notify his/her cost center head of his/her intentions will be considered to have abandoned his/her job and may be terminated. At the hearing, the Respondent asserted that he did not return to work because he believed his insurance had lapsed and that his driver's license was suspended and that he was trying to resolve the matter so that he could return to work. He further asserted that he contacted his supervisor and advised him of the matter, by leaving the information with the receptionist who answered the calls. At the hearing, the receptionist acknowledged that the Respondent had called, but stated that he declined to leave a message or a telephone number to which the supervisor could have returned the calls. She testified that according to the "Caller ID" telephone number information, the Respondent was calling from a storage company. The evidence establishes that the Respondent did not appear for the first three work days of the 2008-2009 school year and, in fact, was absent through the first eight days of the school year, extending over a two-week period. The Respondent's explanation for his failure to return to work lacks sufficient credibility and is rejected. Additionally, the evidence establishes that the Respondent failed to obtain the required annual health physical or to complete the in-service training prior to bid day and, accordingly, was not in compliance with the requirements of the CBA. During his employment by the Petitioner, the Respondent has been cited for excessive absences on several occasions. At the hearing, the Respondent asserted that the absences were related to health matters. The evidence establishes that the Respondent failed to supply medical documentation for some of the absences, and they were deemed to be "unexcused."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order terminating the employment of Virgil Mae. DONE AND ENTERED this 24th day of December, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 2008. COPIES FURNISHED: Virgil Mae 1575 20th Street Sarasota, Florida 34234 Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the Manatee County School Board (Petitioner) has just cause to terminate the employment of School Bus Operator Ava White-Smith (Respondent).
Findings Of Fact At all times material to this case, the Respondent was a school bus operator employed by the Petitioner. School bus operators employed by the Petitioner are responsible for safely operating the vehicle and for maintaining order among the students being transported. On buses that are equipped with seat belts, students are to use the seat belts. Whether or not seat belts are present, students are to remain properly seated, facing forward, while the bus is in motion. The Petitioner prohibits consumption of all beverages on school buses. Part of the rationale for prohibiting beverage consumption by passengers on the bus is the inherent difficulty in identifying the type of beverage being consumed. At all times material to this case, the Respondent operated school bus number 611. Her school bus was equipped with seat belts. A large rearward-facing mirror located above the driver's position allowed the driver to observe the passengers. The bus was also equipped with an audio/video system that recorded the passengers being transported. On the morning of February 19, 2010, the Respondent transported students to the Manatee School for the Arts (MSA) and to the "Just for Girls" (JFG) School. The audio/video system recorded the behavior of the passengers on the Respondent's bus on February 19, 2010. Copies of the video recordings were admitted as exhibits and were played during the hearing and narrated by a witness for the Petitioner. The recordings were also reviewed subsequently by the Administrative Law Judge. On February 19, 2010, the Respondent first drove the bus to the MSA, where she discharged the majority of students being transported that day, and then she drove the remaining students to the JFG School. As demonstrated by the video recordings, many of the students on the Respondent's bus were not properly seated and were not wearing the seat belts. The Respondent made no attempt to require the passengers to sit in a forward-facing manner or to require that seat belts be used. During the time that all the students were present on the bus, the JFG School students sat in the rear of the vehicle. Some of the JFG School students surreptitiously consumed an unknown beverage from a container that was passed around by the students involved in the incident. As the bus trip continued and the beverage was consumed, the participating students became very loud and restless. The Respondent was aware that some students were consuming a beverage on the bus, but she made no attempt to intervene in the activity. Given the prohibition on consumption of beverages, and the demeanor of the students involved, the Respondent should have interceded in the situation. When the Respondent arrived at the MSA, the students attending that facility exited the vehicle, and the JFG School students moved to the front of the bus. Before the JFG School students were seated, the Respondent started to drive the bus away from the MSA. None of the JFG School students appeared to use the seat belts after moving. While being transported to the JFG School, some students sang or spoke loudly and inappropriately, one student stood and danced to a lewd song on her music player, two students were excessively affectionate, and a general "party" mood prevailed. It is inconceivable that the Respondent was unaware of the JFG School students' behavior after the MSA students were discharged from the vehicle. The JFG School students were at the front of the bus, in the immediate proximity of the Respondent, who on occasion conversed with and about the students. The Respondent made no significant attempt to require the students to be seated properly or to correct their behavior. Shortly after the bus arrived at the JFG school, school administrators discovered that some of the JFG School students who had been transported by the Respondent were intoxicated. One of the students had a half-emptied, half- gallon bottle of gin in her possession. The JFG School officials took disciplinary action against the students involved in the incident. None of the students being transported by the Respondent to the JFG School had ever been the subject of a disciplinary report filed by the Respondent. At the hearing, the Respondent testified that she paid little attention to the behavior of the students on her bus, because, in her experience, their behavior was not unusual. However, rather than excuse the Respondent's failure to properly supervise her bus passengers on February 19, 2010, the testimony suggests that the Respondent failed on a repeated basis to enforce rules clearly related to passenger safety. On February 23, 2010, the Respondent was driving the bus westbound on 30th Avenue in Manatee County, Florida, and arrived at an intersection with U.S. Highway 301, a well- traveled four-lane highway. There were no students on the bus. Presumably because the Respondent initially intended to make a left turn at the signaled intersection, she was in a left turn lane. The Respondent realized that the traffic signals at the intersection were not functioning. As required, she contacted the Petitioner's transportation dispatcher to advise authorities of the situation and to request permission to make a right turn; however, she failed to inform the dispatcher that she was located in the left turn lane or that a right turn would require her to take the bus across other traffic lanes. The dispatcher approved the Respondent's request, and she made the turn without incident. The Petitioner subsequently received a complaint from a "concerned citizen" about the Respondent's turn across the traffic lanes. There was no evidence presented at the hearing that there was injury or damage to any person or property by the turn. There was no credible evidence that the traffic present at the intersection at the time the Respondent completed the turn precluded the Respondent from making the right turn in a safe manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order, terminating the employment of Ava White- Smith. DONE AND ENTERED this 26th day of August, 2010, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 26th day of August, 2010. COPIES FURNISHED: Scott A. Martin, EsquireManatee County School BoardPost Office Box 9069Bradenton, Florida 34206-9069Norman Adam Tebrugge, EsquireTebrugge Legal520 12th Street, West, Suite 203Bradenton, Florida 34205 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 Tim McGonegal, Superintendent Manatee County School Board 215 Manatee Avenue, West Bradenton, Florida 34206-9069
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's employment should be terminated for the reasons set forth in the Petition for Suspension Without Pay and Dismissal from Employment.
Findings Of Fact Based on the evidence adduced at the final hearing, and the record as a whole, the following findings of fact are made: The School Board is responsible for the operation, control, and supervision of all public school operations in Palm Beach County. Respondent has been employed by the School Board as a school bus attendant since January 25, 2006. She is currently under suspension pending the outcome of these proceedings. As a school bus attendant employed by the School Board, Respondent is a member of a collective bargaining unit represented by the SEIU/Florida Public Services Union (SEIU) and covered by a collective bargaining agreement between the School Board and SEIU (SEIU Contract). Article 7 of the SEIU Contract is entitled, "Employees Contractual Rights." Section 2 of this article provides as follows: Upon successful completion of the probationary period by the employee, the employee status shall be continuous unless the Superintendent terminates the employee for reasons stated in Article 17 - Discipline of Employees (Progressive Discipline). In the event the Superintendent seeks termination of a continuous employee, the School Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined in accordance with Article 17 - Discipline of Employees (Progressive Discipline). Article 8 of the SEIU Contract is entitled, "Management Rights," and it provides, in pertinent part, that the School Board has the right "to manage and direct its employees, establish reasonable rules and procedures, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." As is its right under Article 8 of the SEIU Contract, the School Board has established requirements for its school bus attendants. These requirements are set forth in a School Bus Drivers and Bus Attendants Handbook (SDSBA Handbook) distributed to each and every school bus driver and school bus attendant employed by the School Board. The SDSBA Handbook provides, in pertinent part, as follows: X. Transportation of Exceptional Students by School Bus Drivers and Bus Attendants * * * B. Bus attendant shall be assigned to ESE routes when necessary and when possible. . . . * * * D. The ESE Bus Attendant * * * . . . . His regular assigned seat should be at the rear of the bus to facilitate student observation and behavior management. Assists the bus driver, parents, and school personnel in loading and unloading students at bus stops and school centers, as necessary and as directed. . . . 5. Assists the bus driver and students in following the school bus rules and procedures. * * * Assures that all seat belts, wheelchair securements, and occupant restraints are put away or locked in the seats when not in use to avoid safety hazards. Shall be alert to student passenger needs at all times, getting up to assist students in route, providing directions to students, and maintaining order. However, unless attending to a student's needs, the attendant shall remain seated at the rear of the bus when the bus is in motion. * * * 11. Performs other relevant duties as required, such as securing wheelchairs, securing students in their occupant restraints, cleaning up students, helping the driver clean up the bus, putting windows up and down, safely securing carry-on items, securing wheelchair trays, and assisting the driver in performing the Pre-Trip and Post- Trip Inspections. * * * 14. Shall be thoroughly familiar and perform in accordance with the training Handbooks of this School District: School Bus Drivers and Bus Attendants Handbook; and Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook. The Special Needs Student Transportation Bus Drivers and Bus Attendants Handbook, which is referenced in the SDSBA Handbook, stated the following, among other things, regarding the job responsibilities of "ESE Bus Attendants": Overview of the Job of the Bus Attendant . . . . The Bus Attendant assists the Bus Driver with bus cleanliness, emergency situations, pre-trip and post-trip bus safety inspections, and knowing the route. * * * Preparing for Daily Trips * * * Check the wheelchair securement and occupant restraints for proper functioning. . . . Help the Bus Driver perform the pre-trip inspections. Help the Bus Driver clean up the bus. * * * Safely secure any loose items. Make sure that seat belts, wheel chair securements, and occupant restraints are put away or locked in the seats when not in use in order to avoid hazards. Working with Students A major duty that is required of a Bus Attendant is to care for students while they are on the bus. This means that you are to get out of your seat as necessary to be sure that students are safe, following the bus rules, and are not in any physical, health, or medical danger. You also must assist the Bus Driver, parents, and school personnel with loading and unloading of students at bus stops and school centers. You will do this as necessary and as directed. Specifically Bus Attendants must: Assist all pre-school students up and down the bus stairwell. Assist physically impaired students up and down the bus stairwell. Help any student who needs your assistance getting onto/off the bus. Open and close the bus lift door and assist students who are in a wheelchair onto/off the lift in the absence of a parent or school person, or when a parent/guardian cannot help due to extenuating circumstances. Operate the wheelchair lift. Secure wheelchairs, and secure students in their occupant restraint systems. Clean up students and the bus when students have soiled themselves. Help the students to follow the bus rules and procedures. Be alert to student passenger needs at all times. Give assistance to students, provide direction to them and help to maintain order on the bus. * * * Where you place yourself on the bus is important. It is generally recommended that a Bus Attendant sit at the back of the bus, which allows you to watch the students in front of you. . . . Article 17 of the SEIU Contract addresses "[d]iscipline of [e]mployees" and provides as follows: Without the consent of the employee and the Union, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. All disciplinary action shall be governed by applicable statutes and provisions of the Agreement. Further, an employee shall be provided with a written charge of wrongdoing, setting forth the specific charges against that employee as soon as possible after the investigation has begun. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Union representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Union representative. An employee against whom action is to be taken under this Article and his/her Union representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and the Union representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action and concerning the appropriateness of the proposed disciplinary action. This amount of time is to be mutually agreed upon by the parties. Only previous disciplinary actions which are a part of the employee's personnel file or which are a matter of record as provided in paragraph #7 below may be cited if these previous actions are reasonably related to the existing charge. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the parties. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered as follows: Verbal Reprimand With A Written Notation. Such written notation shall be placed in the employee's personnel file and shall not be used to the further detriment of the employee, unless, there is another reasonably related act by the same employee within a twenty four (24) month period. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Article. Such written reprimand shall be dated and signed by the giver of the reprimand and shall be filed in the affected employee's personnel file upon a receipt of a copy to the employee by certified mail. Suspension Without Pay. A suspension without pay by the School Board may be issued to an employee, when appropriate, in keeping with provisions of this Article, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Article. The notice and specifics of the suspension shall be placed in writing, dated, and signed by the giver of the suspension and a copy provided to the employee by certified mail. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Chapter 119 and 231.291 of the Florida Statutes. An employee may be dismissed when appropriate in keeping with provisions of this Article, including just cause and applicable law. An employee against whom disciplinary action(s) has/have been taken may appeal through the grievance procedure. However, if the disciplinary action(s) is/are to be taken by the District, then the employee shall have a choice of appeal between either the Department [sic] of Administrative Hearings in accordance with Florida Statutes or the grievance procedure outlined in the collective bargaining agreement. Such choice must be exercised within fifteen (15) days of receipt of written notification of disciplinary action being taken, and the District notified accordingly. If the grievance procedure is selected, the grievance shall be initiated at Step Three. Respondent has been disciplined by the School Board on previous occasions for failing to properly perform her job duties as an ESE school bus attendant. On August 26, 2008, Respondent received a verbal reprimand with written notation "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." The letter advising her of such disciplinary action read as follows: This correspondence is being given to you as a verbal reprimand with written notation for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically, on June 6, 2008, during your pre-disciplinary meeting you stated that you take a nonprescription medication that makes you sleepy. Furthermore, the review of two (2) videos from buses that you served as an attendant revealed you were asleep and not seated in the rear of the bus while students were being transported. Additionally, these acts w[ere] confirmed by Ms. Evangelina Patterson who stated that you have fallen asleep on every route that you served as an attendant on her bus. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This letter of verbal reprimand with written notation will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. On October 28, 2008, Respondent was given a written reprimand "for failing to ensure the safety and well-being of students under [her] care as a bus attendant." This written reprimand was in the form of a letter, which read as follows This correspondence is being given to you as a written reprimand for failing to ensure the safety and well-being of students under your care as a bus attendant. Specifically on October 22, 2008, during your pre- disciplinary meeting you stated that you were not fully alert while serving as an attendant on Route E536. Furthermore, a review of the video from this bus revealed that you were asleep while students were being transported. Your conduct reflects a failure to exercise the best professional judgment. In addition, you compromised the safety and well-being of a student that you were responsible for monitoring by failing to be alert and properly positioned to carry out your duties as an attendant.. This behavior is not permissible according to The School District of Palm Beach County, Transportation Department School Bus Drivers and Bus Attendants Handbook, Sec. X D.8 and Special Needs Student Transportation Bus Drivers and Attendants Handbook Chapter II. Furthermore, you are directed to desist from engaging in the same or similar actions in the future. Failure to do so will result in further disciplinary action, up to and including termination. This written reprimand will be placed in your District personnel file. Please be advised that the above referenced case and related investigative file is considered to be closed. Pursuant to Section 1012.31, Florida Statutes, when an investigation is concluded, all materials related to the investigation shall be treated as a public record, subject to disclosure upon request, minus any allowable exemptions. In addition, you have the right to inspect this public record and to submit any written rebuttal information for enclosure into the public record within ten days after receipt of this letter. Notwithstanding (and in brazen disregard of) the reasonable directive contained in this written reprimand that she "desist from engaging in the same or similar actions in the future," less than three months later, on the morning of January 22, 2009, Respondent was once again inattentive while on duty as an ESE school bus attendant. The bus to which she was assigned that morning was Bus #0691, which was driven by Evangelina Patterson. There was an operational video camera (with audio), mounted in the front of the interior of the bus, which captured what occurred on the bus that morning. At 8:08 a.m., Bus #0691 arrived at the school to which the three students then on the bus were being transported. The students unfastened their seat belts, got out of their seats, and exited the bus. Instead of escorting the students off the bus, Respondent stayed in her seat, put her jacket over her face, and leaned her head against the window in an admitted effort to get some rest. She remained essentially in this position for at least the next 18 minutes, keeping her jacket over her face the entire time, except for a brief moment (at approximately 8:16 a.m.) when, startled by a tap on the leg from the driver, Ms. Patterson, who was trying to rouse her, she temporarily removed the jacket. During this 18-minute period, without Respondent's assistance, Ms. Patterson did her post-trip inspection and readied the bus for its next trip that morning. On this next trip, the bus picked up three students and transported them to their high school. For at least the last seven or eight minutes of the trip, none of the three students was wearing a seat belt, a situation that Respondent did nothing, during that time period, to try to correct. One of the three unbelted students (seated three rows in front of Respondent) had his back facing the window and his left lower leg and foot in the aisle. The student's book bag was also in the aisle, immediately next to his left foot, so that the entire width of the aisle was blocked. For almost all of this seven or eight-minute period at the end of the trip, Respondent's eyes were closed and her head was bobbing back and forth. She had no interaction with the students on the bus. After the bus arrived at the school, Respondent walked behind the students as they exited the bus. As she passed by the camera in the front of the bus, Respondent looked like she had just woken up, with her eyes appearing to be adjusting to the light. Respondent has demonstrated, through her actions, that she cannot be depended upon to be alert and attentive at all times while on duty and to otherwise discharge her job responsibilities as a school bus attendant in a manner that will ensure the safety of the students in her care and that will not expose the School Board to liability. Consequently, her continued employment as a school bus attendant constitutes a real and immediate danger to the School Board.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and terminating her employment with the School Board. DONE AND ENTERED this 23rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2010. COPIES FURNISHED: Vicki L. Evans-Pare, Esquire Palm Beach County School Board Post Office Box 19239 West Palm Beach, Florida 33416-9239 Aikeea Howell 5145 Caribbean Boulevard, Apt. 1027 West Palm Beach, Florida 33407 Dr. Arthur C. Johnson Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, C316 West Palm Beach, Florida 33406-5869 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
