06-004995 Lee County School Board vs. Roy B. Denson Status: Closed Recommended Order on Wednesday, April 18, 2007.

Summary: There is just cause to terminate employment of Respondent for striking another person while on duty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 06 - 4995

)

ROY B. DENSON , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a f inal hearing was held in this case

on February 14, 2007, in Fort Myers, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2055 Central Avenue

Fort Myers, Florida 33901

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 20 89

Fort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to terminate Respondent's employment as an educational support

employee.

PRELIMINARY STATEMENT

On November 9, 2006 , James W. Browder, Ed.D.,

superintendent for the School District of Lee County (School

District), issued a Petition for Termination of Employment

(Petition) against Respondent, Roy B. Denson (Mr. Denson),

recommending to the Lee County School Board (Schoo l Board) that

Mr. Denson's employment with the School District be terminated

for alleged violations of Subsection 1012.33(6)(b), Florida

Statutes (2006) 1 ; Florida Administrative Code Rule 6B - 4.009(3);

and School Board Policies 2.7 and 4.10.

Mr. Denson requ ested an administrative hearing. On

December 5, 2006, the Petition was heard by the School Board,

who voted to suspend Mr. Denson without pay pending the outcome

of an administrative hearing to be conducted by the Division of

Administrative Hearings. The Petition and request for an

administrative hearing were forwarded to the Division of

Administrative Hearings on December 8, 2006, for assignment of

an Administrative Law Judge. The case was originally assigned

to Administrative Law Judge R. Bruce McKibbe n, but was

transferred to Administrative Law Judge Susan B. Harrell to

conduct the final hearing.

The parties entered into a Joint Pre - hearing Stipulation,

stipulating to certain facts contained in Section E of the Joint

Pre - hearing Stipulation. Those fac ts have been incorporated

into this Recommended Order to the extent relevant.

At the final hearing, Petitioner called Erik Craig Baker as

its witness. Petitioner's Exhibits 1 through 15 were admitted

in evidence. At the final hearing, Mr. Denson testifie d in his

own behalf and called Dale A. Maybin and Brian William Kearney

as his witnesses. Respondent's Exhibits 1 through 10 were

admitted in evidence.

The one - volume Transcript was filed on February 23, 2006.

The parties timely filed their Proposed Reco mmended Orders,

which have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Mr. Denson first became employed with the School

District in May 1992 as a helping teacher at a behavioral

school. He was transferred to attending the dis ciplinary room

and remained in that position until 1996, when he resigned to

take a position at a juvenile prison. The new job fell through,

and he became reemployed with the School District in 1997. He

remained employed with the School District until Ma y 30, 2005,

when he resigned to work in the private sector as an air -

conditioner technician. In April 2006, Mr. Denson became

employed with the School District as a bus driver. Pursuant to

the Support Personnel Association of Lee County Collective

Bargai ning Agreement (SPALC Agreement), Mr. Denson is an annual

contract employee.

2. On or about July 31, 2006, at approximately 1:28 p.m.,

Mr. Denson was driving school bus number 533 south on

Southeast 8th Place in Cape Coral, Florida. He was doing a dry

r un or practice run of the school bus route for which he had bid

to make sure that he could make the trip in the time allotted.

There were no students in the bus. Neither the horn nor the

radio on the bus was functional.

3. A maintenance crew was working at a residence located

at 3138 Southeast 8th Place in Cape Coral. A black Ford F150

truck with a trailer belonging to the lawn maintenance company

was parked on the side of the road, blocking the road. As a

result, Mr. Denson could not pass the truck wi th the school bus

he was driving.

4. Erick Baker, one of the lawn maintenance workers, was

at the trailer putting up some equipment and putting on a

backpack, wand - type weed sprayer containing Ortho Weed - B - Gone, a

chemical weed killer. The wand of the s prayer is about two feet

long and is activated by pressing a trigger. Mr. Denson

signaled with his hands for someone to move the truck.

Mr. Baker signaled to Mr. Denson, suggesting that he was not the

driver and to wait a moment.

5. Mr. Baker began to walk toward the house while spraying

weeds. Mr. Denson opened the bus door and yelled that he needed

to have the truck moved so he could proceed with his route.

Mr. Baker continued to spray the weeds. Mr. Baker may have not

heard Mr. Denson because one worker was operating a leaf blower

and another was operating a riding lawn mower. Mr. Denson then

exited the bus and approached Mr. Baker, who had his back to Mr.

Denson.

6. Mr. Baker, with the sprayer wand in his hand, turned

toward Mr. Denson. The wa nd was pointed in the direction of

Mr. Denson's face, approximately six to 12 inches away from

Mr. Denson's eyes and mouth. Mr. Denson felt threatened,

knocked the sprayer away, and struck Mr. Baker in the head.

Mr. Baker never sprayed Mr. Denson with the chemicals in the

sprayer.

7. Mr. Denson claims that he struck Mr. Baker in self -

defense, stating that when Mr. Baker turned around, Mr. Denson

told him he needed to get the sprayer out of his face and that

Mr. Baker replied that he would " spray Mr. D enson's ass. "

Mr. Baker denies saying that he would spray Mr. Denson.

Mr. Baker's testimony is more credible.

8. The two men fell to the ground with Mr. Denson on top

of Mr. Baker. Mr. Denson hit Mr. Baker in the forehead again.

Mr. Baker never stru ck Mr. Denson. Another worker with the

maintenance crew grabbed Mr. Denson and pulled him off

Mr. Baker. Mr. Denson returned to his bus and used his cell

telephone to contact the Transportation West Zone Office of the

School District to report the incid ent. Mr. Baker called the

police to report the incident. After the altercation, Mr. Baker

told Mr. Denson that he should have sprayed Mr. Denson.

9. Officer B. W. Kearney of the Cape Coral Police

Department was dispatched to the scene. Officer Kearney

completed an Incident/Investigation Report, indicating that he

was dispatched to a battery. In the report, Officer Kearney

stated that Mr. Denson admitted punching Mr. Baker; however,

Mr. Denson felt he acted in self - defense. Officer Kearney noted

that Mr. Baker had no visible injuries and declined medical

attention. Mr. Baker did not press charges, and Mr. Denson was

not arrested.

10. In response to Mr. Denson's call, Dale Maybin,

assistant supervisor of the Transportation West Office, reported

to the scene of the incident where he spoke with Officer

Kearney. Mr. Maybin later submitted an Investigation Request

form along with a written statement to the Department of

Professional Standards and Equity.

11. Mr. Denson was informed via certified letter d ated

August 7, 2006, from the superintendent that he was being

suspended with pay pending the outcome of the School District's

investigation into the matter.

12. In accordance with Section 7.09 of the SPALC

Agreement, a predetermination conference was sch eduled with

Mr. Denson for October 26, 2006, to review the allegations and

to give Mr. Denson an opportunity to respond. Mr. Denson was

advised of the conference via certified letter dated October 11,

2006, from Dr. Gregory K. Adkins, e xecutive d irector of Human

Resources and Employee Relations. The letter included a copy of

the School District's investigative file.

13. The predetermination conference took place as

scheduled and was attended by Mr. Denson and Suzan Rudd, Island

Coast FEA Service Unit d i rector. Mr. Denson and Ms. Rudd were

given an opportunity to address the allegations.

14. Subsequent to the predetermination conference, a

determination was made that probable cause existed to discipline

Mr. Denson for his conduct. A certified letter da ted

October 30, 2006, was sent to Mr. Denson, advising him of the

probable cause determination. The letter also advised that a

recom mendation would be made to the s uperintendent that

Mr. Denson be terminated from his employment with the School

District.

15. By letter dated November 8, 2006, Robert J. Coleman,

Esquire , advised the School Board's attorney that he had been

retained to represent Mr. Denson.

16. A Petition for Termination of Employment (Petition)

was prepared , and a copy was forwarded to Mr . Denson's attorney

on November 9, 2006. The Petition advised that the matter of

Mr. Denson's termination was scheduled to be heard by the School

Board on December 5, 2006.

17. On November 13, 2006, Mr. Denson's attorney forwarded

a letter to the School Board's attorney requesting a formal

administrative hearing regarding the matter of Mr. Denson's

termination.

18. On December 5, 2006, the Petition was heard by the

School Board. At that time, Mr. Denson was suspended without

pay pending the outcome of a hearing to be conducted by the

Division of Administrative Hearings.

19. The School Board has a "zero" tolerance policy for

threats of violence made by staff of the School District as set

forth in Policy 2.71. The School Board has also adopted Policy

4 .10 , requiring employees of the School District to be in

compliance with state and federal laws and with certain ethical

standards. School District Administrative Regulation 2.61(1)

provides:

All employees are expected to exemplify

conduct that is lawful and professional and

contributes to a positive learning

environment for students. All employees are

expected to meet the specific standards as

described in the Employee Handbook(s),

negotiated contracts, the Principles of

Professional Conduct for the Educ ation

Profession in Florida as described by State

Board of Education Rule, and all local State

and federal laws.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding . §§ 120.569, 120.57, and 1012.33(6)(a), Fla. Stat.

21. Mr. Denson is a school bus driver and is considered to

be an "educational support employee," as that term is defined in

Subsection 1012.40(1)(a), Florida Statutes. The superintendent

of the School District has the authority to recommend to the

School Board that an educational support employee be suspended

and/or dismissed from employment. § 1012.27, Fla. Stat. The

School Board has the authority to terminate and/or suspend

without pay educational s upport employees. §§ 1012.22(1)(f) and

1012.40(2)(c), Fla. Stat.

22. An educational support employee can be terminated only

for the reasons set forth in the collective bargaining agreement

which governs such an employee. § 1012.40(2)(b), Fla. Stat.

The SPALC Agreement is the collective bargaining agreement

governing Mr. Denson's employment with the School District.

Section 7.09 of the SPALC Agreement provides that "[a]ny

discipline during the contract year, that constitutes a

reprimand, suspension, dem otion, or termination shall be for

just cause."

23. The SPALC Agreement does not define the term "just

cause" nor does it provide for a progressive discipline plan.

The School Board has construed just cause for purposes of

discipline pursuant to the SP A L C Agreement in the same manner as

that phrase i s used in Section 1012.33, Florida Statutes,

relating to instructional staff. Subsection 1012.33(1)(a),

Florida Statutes, provides: "Just cause includes, but is not

limited to, the following instances, as de fined by rule of the

State Board of Education: misconduct in office, incompetency,

gross insubordination, willful neglect of duty, or conviction of

a crime involving moral turpitude." See Lee County School Board

v. Simmons , Case No. 03 - 1498 (DOAH July 15 , 2003) (adopted in

toto by Final Order dated August 12, 2003). See also Lee County

School Board v. Kehn , Case No. 04 - 1912 (DOAH February 21, 2005)

(adopted in toto by Final Order dated March 10, 2005).

24. Florida Administrative Code Rule 6B - 4.009(3) de fines

"misconduct in office" as a violation of the Code of Ethics and

of the Education Profession and Principles of Professional

Conduct for the Education Profession in Florida, which is so

serious as to impair the individual's effectiveness in the

school system. Florida Administrative Code Rule 6B - 1.001

required Mr. Denson to seek to use his best professional

judgment and integrity and to strive to achieve and sustain the

highest degree of ethical conduct.

25. The School Board has alleged that Mr. Denson is guilty

of misconduct in office by committing battery on an individual

by striking him in the head and has the burden of establishing

that allegation by a preponderance of the evidence. McNeill v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d D CA 1996).

26. The School Board has established by a preponderance of

the evidence that Mr. Denson did commit a battery on Mr. Baker

and that the battery was not committed in self - defense. Even if

Mr. Denson had established that his first swing at Mr. Bak er was

committed in self - defense, his self - defense theory disappeared

when he continued to strike Mr. Baker while he was down and the

sprayer wand had been knocked away. Mr. Denson's actions are in

violation of School Board Policy 2.71, which prohibits th reats

of violence. His actions are also in violation of School Board

Policy 4.10, which requires Mr. Denson to be in compliance with

state laws, and School District Administrative Regulation 2.61,

which requires Mr. Denson to exemplify conduct that is law ful

and professional.

27. The School Board has established by a preponderance of

the evidence that the commission of the battery by Mr. Denson

constituted just cause for his dismissal from employment with

the School Board.

RECOMMENDATION

Based on the fore going Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Lee County School Board enter a

final order finding that just cause exists for termination of

the employment of Mr. Denson and dismissing Mr. Denson from his

employment as a school b us operator with the School District.

DONE AND ENTERED this 18th day of April , 2007 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buildin g

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 April , 2007 .

ENDNOTE

1/ All refer ences to the Florida Statutes are to the 2006

version.

COPIES FURNISHED :

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

Robert Dodig, Jr., Esquire

School District of Lee County

2055 Central Avenue

For t Myers, Florida 33901

Dr. James Browder, III, Superintendent

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3988

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable Jeanine Blomberg

Interim Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.