05-000950 Miami-Dade County School Board vs. Tanweer I. Malik Status: Closed Recommended Order on Tuesday, September 13, 2005.

Summary: Respondent should be suspended without pay for 30 days for failing to file a pre-trip inspection form and post-accident report.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0950

)

TANWEER I. MALIK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to noti ce, a fina l hearing was conducted on

June 9, 2005, at Miami, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Denise Wallace, Esquire

M iami - Dade County Public Schools

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Respondent: Madelin Gonzalez, Qualified Representative

AFSCME Council 79

99 Northwest 183 Street, Suite 224

Miami, Florida 33169

Steven H. Malone, Esquire

Suite 1650, Esperante

222 Lakeview Avenue

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Respondent committed the offenses alleged in the

Notice of Specific Charges (NSC) filed by Petitioner and the

penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

At all times relevant t o this proceeding, Respondent has

been employed by Petitioner as a school bus driver. At its

regularly scheduled meeting of February 16, 2005, Petitioner

voted to suspend Respondent’s employment without pay for a

period of 30 days. Respondent timely chal lenged Petitioner’s

proposed action, the matter was referred to DOAH, and this

proceeding followed.

On April 7, 2005, Petitioner filed its NSC, which

constitutes the charging document in this proceeding. The NSC

alleged certain facts pertaining to an acci dent Respondent had

on August 20, 2004, while driving a school bus (the bus). Based

on those facts, Petitioner charged Respondent with three

offenses. Count I alleged that Respondent failed to bring

credit upon himself and the School Board in violation o f School

Board Rule 6Gx13 - 4A - 1.21, which is captioned “Responsibilities

and Duties of Employees.” Count II alleged that Respondent

violated School Board Rule 6Gx13 - 3E - 1.10, which is captioned

“Transportation – Specific Procedures,” by failing to follow

re quired pre - trip inspection procedures, failing to make a

required inspection following an accident, and failing to

immediately report an accident. Count III alleged that

Respondent failed to perform his job responsibilities, which

subjects him to discipli ne pursuant to the provisions of Article

XI, Section 4C of the applicable collective bargaining agreement

between the American Federation of State, County, and Municipal

Employees (AFSCME), Local 1184 and Petitioner (the AFSCME

contract).

At the final he aring, Petitioner presented the testimony of

Mary Carter (school bus attendant), Gwendolyn Cone (Field

Operations Specialist for Petitioner’s Transportation

Department), Mary Sweeting (an Area Director for Petitioner’s

Transportation Department), Barbara M oss (a District Director

for Petitioner’s Office of Professional Standards), and

Respondent. Petitioner presented seven sequentially - numbered

exhibits, each of which was admitted into evidence. Respondent

presented the testimony of Greg Allen (a school b us driver and

union officer). Respondent had two exhibits marked for

identification purposes, but neither exhibit was admitted into

evidence.

A Transcript of the proceedings was filed on August 8,

2005. Each party filed a Proposed Recommended Order, wh ich has

been duly considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times, Petitioner has been a duly constituted

School Board pursuant to Article IX, Florida Constitution, and

Section 1001.32, Florid a Statutes (2005). 1

2. At all times relevant to this proceeding, Respondent

has been a member of AFSCME and, as such, has been entitled to

the benefits of the AFSCM E Contract.

3. Since November 15, 2002, Respondent has been employed

by Petitioner as a school bus driver and assigned to the North

Regional Transportation Center (NRTC). Until this incident,

Respondent had not been disciplined by Petitioner.

4. At all times relevant to this proceeding, Ms. Carter

was a school bus attendant assigned to the NRTC.

5. At all times relevant to this proceeding, Ms. Cone was

a Field Operations Specialist assigned to the NRTC and had

supervisory authority over Ms. Carter and Respondent.

6. At all times relevant to this proceeding, Ms. Sweeting

was the Dire ctor of Petitioner’s NRTC and had supervisory

authority over Ms. Cone.

7. At all times relevant to this proceeding, Ms. Moss was

a District Director in the Office of Professional Standards and

assisted with performance and discipline of employees. She

en sured that Petitioner complied with applicable due process

requirements during a disciplinary proceeding.

8. School Board Rule 6Gx13 - 4A - 1.21 states in pertinent

part that:

All persons employed by The School Board

of Miami - Dade County, Florida are

rep resentatives of the Miami - Dade County

Public Schools. As such, they are expected

to conduct themselves, both in their

employment and in the community, in a manner

that will reflect credit upon themselves and

the school system.

9. School Board Rule 6Gx13 - E - 1.10 incorporate s by

reference Petitioner’s Handbook for School Bus Drivers, Aides,

and Operations Staff (Handbook).

10. Section 3 of the Handbook is captioned “School Bus

Driver Guidelines and Procedures.” Section 3.4 of the Handbook,

captioned “Du ties,” imposes the following duties on a school bus

driver:

. . . Drivers must report defective

equipment to their Dispatch Office in

writing on the “Driver’s Request for Repair

(DRR)” form. The report must be made as

soon as possible after the prob lem is

detected. . . . If the driver encounters a

problem while operating the vehicle, the

Dispatch Office must be notified immediately

and the driver must wait for instructions

from the garage.

11. Section 3.3 of the Handbook, captioned “Regulations,”

imp oses the following responsibilities on a school bus driver:

“. . . Prepare immediately an accident

report after every accident involving the

bus or bus passenger. This report must be

completed with the driver’s supervisor.

12. Section 10 of the Hand book is captioned “Operating

Procedures and Safe Driving Principles.” Section 10.1 of the

Handbook, captioned “School Bus Operation,” provides as follows:

Drivers must perform a complete pre - trip

inspection of their assigned buses at least

twice daily. The pre - trip inspection must

be accomplished before the driver departs

the compound with the bus. Pre - trip

inspection results must be documented on the

f orm provided for this purpose. . . .

13. On August 20, 2004, Respondent was assigned to drive

the b us along school bus Route 22.

14. There is a bridge on Northwest 42 nd Avenue between

Northwest 179 and 183 Streets (the 42 nd Avenue Bridge). On

August 20, 2004, the 42 nd Avenue Bridge was undergoing

construction work. There were barricades, constructi on cones,

and other warning devices that were visible to approaching

drivers. Because of the construction, the NRTC had informed

school bus drivers not to cross the 42 nd Avenue Bridge.

Respondent testified that he did not hear that warning, but that

he k new the bridge was undergoing construction work.

15. On the morning of August 20, 2004, Ms. Carter was the

bus attendant on the bus driven by Respondent. At the time of

the accident described below, there were four students on the

bus.

16. On the mo rning of August 20, 2004, Respondent drove

the bus across the 42 nd Avenue Bridge.

17. There was a dispute between the parties as to what, if

anything, occurred while Respondent was driving the bus across

the 42 nd Avenue Bridge. The greater weight of the competent

evidence established that the bus collided with an object on the

42 nd Avenue Bridge or with the 42 nd Avenue Bridge itself. This

accident caused minor damage to the bus. 2

18. Respondent did not immediately stop to inspect the

bus. After Respon dent crossed the 42 nd Avenue, he continued on

his route, picked up students, and stopped at North Dade Middle

School (NDMS) to drop off students. While stopped at NDMS,

Respondent inspected the bus and noticed that the outer tire on

the right rear of the bus was flat. Respondent testified that

the inner tire on the right rear of the bus did not appear to be

damaged. Respondent did not contact or make any report to the

transportation dispatch office at that time. Respondent drove

the bus with the damaged tire to the NRTC bus parking area.

Respondent made the determination that it was safe to drive the

bus with the damaged tire without consulting anyone. 3

19. After Respondent returned to the NRTC bus compound, he

completed a Driver’s Request for Repair (DRR) form, which

indicated that the right rear outer tire needed repair.

20. Because of Respondent’s DRR, the bus was taken from

the bus parking area to the garage.

21. After Ms. Carter returned to the bus compound with

Respondent, she reported to Ms. Cone that the bus had had an

accident as it crossed the 42 nd Avenue Bridge. The report was

in the form of a message left for Ms. Cone on her voicemail.

22. Ms. Cone received Ms. Carter’s message on August 20,

2004, and promptly went to the parking area and then to the

garage. She inspected the bus at the garage. Ms. Cone, who has

had extensive experience and training in accident investigation,

observed that bus’ right rear tire rim was bent and disfigured

and that the bus’ door was damaged.

23. After inspecting the bus, Ms. Cone informed

Ms. Sweeting of Ms. Carter’s report and of her own observations.

Ms. Sweeting and Ms. Cone immediately thereafter went to the

42 nd Avenue Bridge , where they observed markings on the bridge

that were consistent with a vehicle coming in contact with the

bridge. The white stony color of the damaged area of the bridge

was consistent with the white stony color Ms. Cone had observed

on the damaged tire rim. Although the markings on the bus and

on the bridge were con sistent with one another, there was no

conclusive proof that the markings observed on the bridge were

caused by the bus.

24. Ms. Cone took photographs of the bus and th e bridge on

August 20, 2004. M s . Cone subsequently delivered the

photographs and a rep ort of the accident to Ms. Sweeting. Prior

to the final hearing in this matter, Ms. Sweeting was reassigned

to the East Regional Transportation Center. When she left the

NRTC, Ms. Sweeting left the photographs in a file on her desk.

The photographs were subsequently lost or misplaced.

Respondent’s qualified representative made a public record’s

request for the photographs and was informed that they had been

lost. 4

25. A Conference for the Record (CFR) was conducted on

August 23, 2004, with Ms. Sweeting presiding. Also present were

Respondent and an AFSCME representative. Ms. Sweeting

recommended further disciplinary action.

26. A second CFR was condu cted October 29, 2004, with

Ms. Moss presiding. Also present were Jerry Klein (Petitioner’s

Director of Transportation), Ms. Sweeting, two AFSCME

representatives, and Respondent. Following the second CFR,

Respondent was required to submit to a fitness - for - duty

evaluation. Thereafter, Petitioner’s staff made the

disciplinary recommendation that was subse quently adopted by

Petitioner.

27. The photographs taken by Ms. Cone were available for

review at both CFRs.

28. The Handbook does not define the term “accident . ”

School bus drivers employed by Petitioner are required to

undergo training when they a re first hired. During training, a

driver is taught to immediately report to the transportation

dispatcher if his or her bus hits an object and damage to the

bus results. A driver is taught that such an incident is an

accident. Despite that training, Re spondent denied that there

had been an accident and explained that he defined an accident

as being when someone gets hurt on the bus, when he hits or

kills someone, or when he damages the property of another. He

would not acknowledge that an accident also includes damaging

the bus by hitting a bridge or an object on a bridge.

29. It is undisputed that Respondent failed to document

pre - trip inspections on August 18, 19 and 20, 2004. Respondent

testified that he actually performed the pre - trip inspections ,

but that he did no documentation because he could not find the

pencil he usually kept on the bus after he returned from sick

leave. Respondent’s testimony that he completed the pre - trip

inspection but failed to complete the required paperwork,

although self - serving, was not refuted. Consequently, it is

found that Petitioner failed to prove that Respondent did not

conduct a pre - trip inspection, but it did prove that Respondent

failed to complete the pre - trip inspection report. 5

30. The parties agree that Petitioner has the authority to

discipline Respondent for just cause consistent with the

principles of progressive discipline. Article XI, Section 1A of

the AFSCME Contract provides, under the caption “Due Process”,

in relevant part, as follows:

. . . Progressive discipline steps should

be followed, however in administering

discipline, the degree of discipline shall

be reasonably related to the seriousness of

the offense and the employees [sic] record.

Therefore, disciplinary steps may include:

1. verbal warning;

2. written warning (acknowledged);

3. letter of reprimand;

4. suspension/demotion;

5. dismissal.

31. Article XI, Section 1B of the AFSCME Contract

provides, in part, as follows:

. . . [I]t is agreed that disciplinary

a ction(s) taken against AFSCME . . . members

shall be consistent with the concept and

practice of progressive or corrective

discipline and that in all instances the

degree of discipline shall be reasonably

related to the seriousness of the offense

and the e mployee’s record.

32. Article XI, Section 4C of the AFSCME Contract provides

that termination of employment may occur if a member is guilty

of non - performance of job responsibilities. Article XI, Section

3 of the AFSCME Contract provides as follows:

If those cases where any employee has not

complied with Board Policies and/or

department regulations, but the infraction

is not deemed serious enough to recommend

dismissal, the department head may recommend

suspension up to 30 calendar days without

pay. All suspensions must be approved by

the Superintendent.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statut es.

34. Pursuant to Section 1012.40(2)(b), Florida Statutes,

and the AFSCME Contract, Petitioner has the authority to

discipline Respondent’s employment for "just cause." The School

Board has the burden of proving the allegations in the N SC by a

preponde rance of the evidence. Allen v. School Board of Dade

County , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School

Board of Lake County , 569 So. 2d 883 (Fla. 3d DCA 1990). The

AFSCME Contract does not impose a more stringent burden of proof

on the Scho ol Board.

35. This is a de novo proceeding, not an appeal of a

decision by Petitioner or its staff. See § 120.57(1)(k), F la .

S tat . Consequently, the fact that the missing photographs were

considered at the CFRs but were not available at the final

hear ing does not dictate a finding of not guilty on all charges

as argued by Respondent. Whether Respondent is guilty or not

guilty of the charges must be determined based solely on the

preponderance of the competent evidence presented at the final

hearing. See § 120.57(1)(j), Fla. Stat.

36. Petitioner proved by the requisite evidentiary

standard that Respondent failed to immediately report the

accident on the 42 nd Avenue Bridge, that he failed to

immediately inspect the bus following the accident, and that he

failed to follow the pre - trip inspection procedures by

documenting the inspection. These acts are in violation of the

Handbook as alleged in Count II of the NSC.

37. The foregoing acts also constitute non - performance of

job duties within the meaning of Article XI, Section 4C of the

AFSCME Contract as alleged in Count III of the NSC.

38. The foregoing acts further constitute a violation of

School Board Rule 6Gx13 - 4A - 1.21, as alleged in Count I of the

NSC.

39. Other than the provision for progres sive discipline,

there are no disciplinary guidelines applicable to this

proceeding. Consideration should be given to the fact that

Respondent has no previous discipline against his employment

with Petitioner. Consideration should also be given to the fa ct

that his employment could be terminated for the offenses

established by Petitioner in this proceeding. The testimony

presented by Petitioner established that the penalty of

suspension for 30 calendar days without pay is reasonable under

the circumstanc es.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that. Based on the foregoing Findings of

Fact and Conclusions of Law, it is RECOMMENDED that Petitioner

enter a final order that adopts the Findings of Fact and

Conclusions of Law set forth in this Recommended Order and

sustains the suspension of Respondent's employment for 30

calendar days without pay.

DONE AND ENTERED this 13 th day of September, 2005 , in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13 th day of September, 2005 .

ENDNOTES

1 / Unless otherwise indicated, statutory references are to

Florida Statutes (2005). Rule references are to the version of

the rule admi tted into evidence as an exhibit.

2 / In reaching these findings, the undersigned has considered

Respondent’s testimony that he did not have an accident on

August 20, 2004. The undersigned has further considered

Respondent’s argument based on the theor y of spoliation of

evidence, as discussed below. That argument pertains to

photographs that were taken on the date of the incident but had

been lost or misplaced. The undersigned has also considered the

testimony of the witnesses who inspected the subjec t bus after

Respondent completed his route. Petitioner’s witnesses are

found to be more credible than Respondent’s denial that no

accident had occurred. The Respondent’s definition of the term

“accident , ” which is discussed in a subsequent paragraph of t his

Recommended Order, is one reason that his denial is given little

credibility.

3 / In its NSC, Petitioner cites the following excerpt from

Section 10.1 of the Handbook:

Drivers must at all times, operate their

buses in a safe, prudent, lawful, and

courteous manner. Drivers must, at all

times, observe the principles of defensive

driving. Drivers must always remember that

the main goal of our transportation system

is a safe ride for the students.

In its Proposed Recommended Order, Petitioner argue s that

Respondent violated the cited provision by driving the bus with

a damaged tire. Because the NSC does not contain that factual

allegation, no consideration has been given that argument in

recommending the penalty that follows.

4 / The public reco rds request was made by Ms. Gonzalez while

this matter was pending before DOAH before Mr. Malone entered

his appearance, but while Petitioner was being represented by

Ms. Wallace. No formal discovery request was made by Respondent

for the photographs and neither Respondent’s qualified

representative or his counsel asked Ms. Wallace for the

photographs prior to the hearing. The undersigned denied

Respondent’s motion to treat the unavailability of the

photographs as a discovery violation based on the argume nt that

the absence of the photographs constituted the spoliation of

evidence. Respondent’s motion to infer that there was no damage

to the bus based on the unavailability of the photographs was

also denied. Respondent was granted a continuing o bjection to

the testimony from M s. Cone and Ms. Sweeting as to the damages

they had observed to the bus and/or the 42 nd Avenue Bridge.

5 / The failure to complete the pre - trip inspection report

established that Respondent did not comply with the pre - trip

inspect ion procedures as alleged in Paragraph 9 of the NSC.

COPIES FURNISHED :

Denise Wallace, Esquire

Miami - Dade County Public Schools

1450 Northeast Second Avenue,

Suite 400

Miami, Florida 33132

Madelin Gonzalez , Qualified Representative

AFSCME Council 79

99 Northwest 183 Street, Suite 224

Miami, Florida 33169

Steven H. Malone, Esquire

Suite 1650, Esperante

222 Lakeview Avenue

West Palm Beach, Florida 33401

Dr. Rudolph F. Crew, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 - 1394

Honorable John L. Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Bu ilding

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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 Orde r should be filed with the agency that

will issue the Final Order in this case.