03-001498 Lee County School Board vs. Joseph Simmons Status: Closed Recommended Order on Tuesday, July 15, 2003.

Summary: School Board may terminate bus driver who was absent without approved leave as a result of his incarceration.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1498

)

JOSEPH SIMMONS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on June 26, 2003, in Fort Myers, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland, Jr., Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33916

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether the Lee County School Board may

terminate Respondent's employment as a school bus driver based

upon the conduct alleged in the Petition for Termination.

PRELIMINARY STATEMENT

On March 25, 2003, the Lee County School Board (School

Board) served a Petition for Termination (Petition) on

Respondent, through which it sought to terminate Responden t's

employment as a school bus driver. By letter dated April 4,

2003, Respondent timely contested the charges against him and

requested a hearing. On April 28, 2003, the School Board

referred the matter to the Division of Administrative Hearings

(Divisio n) for the assignment of an administrative law judge to

conduct the hearing requested by Petitioner.

On May 12, 2003, the School Board filed a motion to amend

its Petition. That motion was granted by Order dated May 21,

2003.

On June 25, 2003, the School Board filed a motion to

proceed on the original Petition. That motion was treated as a

motion to amend the Amended Petition, and was granted on the

record at the outset of the hearing.

The hearing was held on June 26, 2003. At the hearing, the

School B oard presented the testimony of Joe Howard, a supervisor

in the School Board's transportation department and Respondent's

direct supervisor; and Georgianna McDaniel, the School Board's

director of human resources. The School Board's Exhibits 1

through 5, 7, 8, and 12 through 15, were received into evidence.

Respondent did not appear at the hearing and therefore did not

present the testimony of any witnesses or introduce any

exhibits.

Official recognition was taken of Section 1012.67, Florida

Statutes ( 2002). Official recognition was also taken of the

docket sheet in State of Florida v. Joseph Simmons , Case No. 03 -

375CF in the Circuit Court in and for Lee County pursuant to

Section 90.202(6), Florida Statutes.

No Transcript of the hearing was filed wit h the Division.

In accordance with Rule 28 - 106.216, Florida Administrative Code,

the parties were given ten days from the date of the hearing to

file their proposed recommended orders (PROs). Respondent did

not file a PRO. The School Board's PRO was tim ely - filed and was

given due consideration by the undersigned in preparing this

Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing and the matters officially recognized, the following

findings are made:

1. The School Board is the governing body of the local

school district in and for Lee County, Florida.

2. In January 2003, Respondent was employed by the School

Board as a school bus driver. Respondent had been in that

position since April 2000.

3. Respo ndent's employment with the School Board is

governed by a collective bargaining agreement between the

Support Personnel Association of Lee County and the School Board

(hereafter "SPALC Agreement").

4. On January 27, 2003, Respondent's supervisor, Joe

How ard, received a note from Respondent which stated that

Respondent was "going through a lot of problems (personal)" and

that he "can't work today." The note was delivered to Mr.

Howard's office by one of Respondent's relatives.

5. The note did not express ly request leave and it stated

that Respondent "will give [Mr. Howard] more details when [he]

come[s] back to work." Respondent never contacted Mr. Howard to

explain his absence, nor did Respondent report for work at any

point after January 27, 2003. Mr. Howard subsequently learned

that Respondent had not returned to work because he was in jail.

6. Respondent never filled out the School Board's leave

request form, nor did he get approval for his leave on

January 27, 2003, or thereafter.

7. School Board policy specifically requires requests for

leave to be made and approved in advance of the period of leave.

The policy has an exception for "sickness or other emergencies,"

but that exception is not implicated in this case.

8. On January 29, 2003, Resp ondent was arrested by the Lee

County Sheriff's office after he was involved in a confrontation

with his girlfriend on the Mid Point bridge in Lee County.

9. Respondent was charged with four counts of aggravated

assault with a deadly weapon, one count of aggravated battery,

and one count of false imprisonment. Each of those offenses is

a third - degree felony.

10. Respondent was taken to jail after his arrest. He

remained in jail through March 5, 2003.

11. All of the charges against Respondent except t he false

imprisonment and one count of aggravated assault were

subsequently "dropped." Respondent is currently awaiting trial

on the remaining charges.

12. Upon learning of Respondent's arrest and the nature of

the allegations against him, Mr. Howard h ad serious concerns

regarding Respondent's ability to work as a bus driver.

Mr. Howard was particularly concerned that parents would be

uncomfortable with Respondent transporting their children in

light of Respondent's alleged failure to follow the law.

Mr. Howard considers compliance with the law to be a paramount

duty of a bus driver.

13. In accordance with School Board policy and the SPALC

Agreement, the School Board investigated the circumstances

surrounding Respondent's absence and arrest, as well as other

unrelated allegations of misconduct by Respondent.

14. The findings of the investigation were discussed at a

duly - noticed pre - determination conference held on March 6, 2003.

The purpose of the pre - determination conference is to give the

employe e an opportunity to respond to the allegations against

him or her.

15. Respondent attended the pre - determination conference

and spoke on his own behalf. Respondent confirmed that he was

arrested on January 29, 2003, and that he was in jail until

March 5, 2003. Respondent also provided his version of the

events surrounding his arrest.

16. On March 24, 2003, the Superintendent informed

Respondent that he was suspended from his position based upon

the findings of the investigation and the pre - determination

conference. The suspension was retroactive to March 6, 2003,

which was the first day that Respondent could have reported to

work after his release from jail.

17. Also on March 24, 2003, the School Board's director of

human resources informed Respondent that there was probable

cause to discipline him for his conduct and that she was

recommending that Respondent be terminated from his position.

Thereafter, Respondent timely requested an administrative

hearing.

18. Respondent's employment contract with th e School Board

expired on May 29, 2003. His contract was not renewed for the

2003 - 04 school year as a result of a number of performance

deficiencies cited in Respondent's annual assessment. Those

performance deficiencies were not directly related to

Resp ondent's arrest.

19. Notice of this proceeding was provided to Respondent

at the address he gave to the School Board at the pre -

determination conference. Respondent received certified mail

from the School Board at that address during the course of this

proceeding.

20. Respondent failed to appear at the final hearing

despite having been given due notice of its date, time, and

location.

CONCLUSIONS OF LAW

21. The Division has jurisdiction over the parties to and

subject matter of this proceeding pursu ant to Sections 120.569,

120.57(1), and 1012.40(2)(c), Florida Statutes. (All references

to Sections and Chapters are to the 2002 compilation of the

Florida Statutes. 1 All references to Rules are to the current

version of the Florida Administrative Code. )

22. The School Board has the burden to establish by a

preponderance of the evidence the grounds for disciplining

Respondent. See , e.g. , McNeill v. Pinellas County School Board ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

School Bo ard , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen

v. School Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA

1990); Dileo v. School Board of Dade County , 569 So. 2d 883, 884

(Fla. 3d DCA 1990).

23. Section 1012.40(2)(b) provides that educationa l

support employees such as Respondent may be terminated only "for

reasons stated in the collective bargaining agreement."

24. The SPALC Agreement provides that "[a]ny absence from

duty without leave may subject the employee to termination or

other appro priate discipline." SPALC Agreement, at Section

9.011. Accord Section 1012.67 ("Any district school board

employee who is willfully absent from duty without leave shall

forfeit compensation for the time of such absence, and his or

her employment shall be subject to termination by the district

school board.").

25. The School Board met its burden to prove that

Respondent was absent without leave starting on January 27,

2003. In view of the fact that Respondent's absence was the

result of his arrest and s ubsequent imprisonment for serious

crimes, termination is the appropriate remedy. See Miami - Dade

County School Board v. Holmes , DOAH Case No. 02 - 2820, 2002 WL

31780251 (Dec. 10, 2002) (recommending termination of a school

board employee who was absent wit hout leave as a result of her

incarceration); Stokes v. Choice , DOAH Case No. 89 - 2022, 1990 WL

749365, at *5 (Jan. 2, 1990) (rejecting school board employee's

argument that his incarceration was not "willful" and therefore

not a violation of the predecesso r to Section 1012.67 because

the employee "willed the series of acts which set in motion the

chain of events which eventually resulted in his

incarceration").

26. The SPALC Agreement further provides that "[a]ny

discipline . . . shall be for just cause." SPALC Agreement, at

Section 7.094. This provision is a separate and distinct basis

for discipline than Section 9.011 of the SPALC Agreement

relating to absence without approved leave.

27. The School Board construes "just cause" in

Section 7.094 of the SPALC Agreement in the same manner as

that phrase is used in Section 1012.33 relating to instructional

staff. That statute provides in pertinent part that:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the Sta te Board of Education: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turpitude.

Section 1012.33(1)(a). See also Rule 6B - 4.009 (defining the

terms used in Section 1012.33(1)(a )).

28. In light of the determination above that the School

Board can terminate Respondent under Section 9.011 of the SPALC

Agreement based upon his absence without approved leave, it is

not necessary to determine whether the School Board can also

termin ate Respondent for "just cause" under Section 7.094 of the

SPALC Agreement based upon the fact that he was arrested for

several felonies. 2

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Lee Cou nty School Board issue a final

order that terminates Respondent's employment.

DONE AND ENTERED this 15th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15t h day of July, 2003.

ENDNOTES

1/ The events giving rise to this proceeding occurred after

January 1, 2003, which was the effective date of the substantial

reorganization of the Education Code enacted through Chapter

2002 - 387, Laws of Florida. The 200 2 compilation of the Florida

Statutes includes the reorganized Education Code in Chapters

1000 through 1013.

2/ The events surrounding Respondent's arrest were not proven

at the hearing. Although the arrest report/probable cause

affidavit was received a s part of the School Board's

investigative file (Exhibit 1, at 11 - 16), the statements and

details in the report/affidavit regarding Respondent's conduct

are hearsay to the extent they are being offered for their

truth, which they clearly are. See Reichenb erg v. Davis , 2003

WL 21297232, at *1 (Fla. 5th DCA June 6, 2003); Harris v. Game &

Fresh Water Fish Comm'n , 495 So. 2d 806, 808 - 09 (Fla. 1st DCA

1986). Because those hearsay statements were not corroborated

by other testimony or evidence (such as the tes timony of the

arresting officer or Respondent's girlfriend), they cannot serve

as a basis for a finding of fact. See Sections 120.569(2)(g)

and 120.57(1)(c). Indeed, Respondent's statements at the pre -

determination conference (Exhibit 3, at 21), which wo uld qualify

under the admission or statement against interest exceptions to

the hearsay rule, contradict the details in the arrest

report/probable cause affidavit. As a result, any "just cause" -

based discipline under Section 7.094 of the SPALC Agreement

w ould have to be based upon the mere fact that Respondent was

arrested for several felonies. In light of Mr. Howard's serious

concerns regarding Respondent's continued effectiveness as a bus

driver because of his arrest, the arrest alone may be sufficient

to constitute "misconduct in office." See Rule 6B - 4.009(3)

(defining "misconduct in office" as a violation "which is so

serious as to impair the individual's effectiveness in the

school system"); Rule 6B - 1.001(3) (incorporated by reference

into Rule 6B - 4. 009(3), and requiring individual to "strive[] to

achieve and sustain the highest degree of ethical conduct" so as

to "maintain[] the respect and confidence of one's colleagues,

of students, of parents, and of other members of the

community"). And cf. Sect ion 1012.45 (requiring school bus

drivers to be "of good moral character").

COPIES FURNISHED :

J. Paul Carland, II

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

Joseph Simmons

1512 Palmetto Avenue

Fort Myers, Florida 3391 6

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable Jim Horne, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. John W. Sanders, Superintendent

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.