07-005362TTS Hernando County School Board vs. Christopher O`brien Status: Closed Recommended Order on Tuesday, July 15, 2008.

Summary: School Board rule applying Florida Administrative Code ethical rules for educators to non-educational personnel and other School Board rules were applied against Respondent and his attendant. There is "just cause" to discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case Nos. 07-5362

) 07-5363

CHRISTOPHER O'BRIEN AND )

ANGELO DIPAOLO, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on April 2, 2008, in Brooksville, Florida, before Ella Jane

P. Davis, a duly-assigned Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601

For Respondent: Christopher O'Brien

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Tallahassee, Florida 32301

For Respondent: Angelo DiPaolo

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUES

(1) Whether Petitioner School Board had just cause to

reprimand Respondent Christopher O'Brien and suspend him for

five days without pay.

(2) Whether Petitioner School Board had just cause to

reprimand Respondent Angelo DiPaolo and suspend him for three

days without pay.

PRELIMINARY STATEMENT

On or about November 7, 2007, Respondent Christopher O'Brien

was served with Petitioner School Board's disciplinary letter

reprimanding him and issuing a five-day suspension without pay.

Mr. O'Brien filed a timely request for hearing, and on November

21, 2007, the cause was referred to the Division of

Administrative Hearings for a contract hearing, where it was

assigned DOAH Case No. 07-5362.

On or about November 7, 2007, Respondent Angelo DiPaolo was

served with Petitioner School Board's disciplinary letter

reprimanding him, and issuing a three-day suspension without pay

for his actions arising out of the same incident involving

Respondent O'Brien. Mr. DiPaolo filed a timely request for

hearing with Petitioner, which request was referred to the

Division and assigned DOAH Case No. 07-5363.

The parties did not want to schedule final hearing until

other peripheral matters were resolved, including discovery of a

video tape from a third party. The record reflects all

pleadings, motions, and orders herein, notable among which is

that both Respondents filed unopposed Motions to Consolidate. On

January 24, 2008, an Order was issued, consolidating Respondent

O'Brien's DOAH Case No 07-5362 with Respondent DiPaolo's DOAH

Case No. 07-5363. A Notice of Hearing was issued on February 1,

2008, setting the consolidated cases for final hearing on April

2, 2008.

At hearing, Petitioner presented the oral testimony of Linda

Smith, Director of Transportation; Rucell Nesmith, Operator

Trainer/Safety Coordinator for Transportation; and Steve Daniels,

ESE Driver Coordinator Specialist. Petitioner had admitted in

evidence Petitioner's Exhibits 1-5, 7-22, 24-26, and 28-35.

Respondent O'Brien had two exhibits admitted in evidence and

testified on his own behalf. Although not necessarily called as

witnesses by each other, each Respondent testified on his own

behalf during the consolidated hearing, and each one's testimony

has been considered as to both Respondents. Respondent O'Brien's

exhibits also have been considered as to both Respondents. The

parties' Pre-hearing Stipulation was admitted as Joint Exhibit A.

A Transcript was filed on April 25, 2008. Petitioner and

Respondent O'Brien timely filed their respective Proposed

Recommended Orders directed to DOAH Case No. 07-5362, on May 15,

2008. Petitioner timely filed its Proposed Recommended Order in

DOAH Case No. 07-5363; Respondent DiPaolo has filed no proposal.

All proposals have been considered in completing this single

Recommended Order.

FINDINGS OF FACT

1. At all times material, Christopher O'Brien was employed

by Petitioner Hernando County School Board as a school bus

driver.

2. Mr. O'Brien was first hired by Petitioner as a school

bus driver in 2001. Prior to the events of this case, he had

never been disciplined by his employer, and he had received a

number of commendations.

3. At all times material, Angelo DiPaolo was employed by

Petitioner as a school bus attendant.

4. Mr. DiPaolo was first employed and trained by

Petitioner as a school bus driver for about one year, but he had

been employed by Petitioner as a school bus attendant for the

last six years preceding the incident in this case.

5. Respondents are members of the Hernando United School

Workers Union (HUSW). For the 2007-2008, school year, both men

were assigned by the School Board's Transportation Department to

Bus 473, Route 22. During that school year, the bus carried

between 50 and 60 children, ages kindergarten through eighth

grade, to and from J.D. Floyd Elementary School. Student A.R.

was one of these students.

6. On October 5, 2007, A.R. was a three-year-old, female,

pre-kindergarten, Exceptional Student Education (ESE) student.

She was a special needs child, whose 2007-2008, Individualized

Education Plan (IEP) called for her to have adult supervision

while riding the bus.

7. The School Board had implemented A.R.'s IEP for the

2007-2008, school year by placing Mr. DiPaolo on Mr. O'Brien's

bus. Steve Daniels, Petitioner's ESE Driver Coordinator

Specialist, provided Mr. DiPaolo with written confirmation of

his assignment, which included information on A.R.'s grade

level, bus stop, and need for a special seat restraint.

Mr. DiPaolo first met A.R. at the beginning of the 2007-2008,

school year. Mr. DiPaolo's assigned first and primary

responsibility was the safety of A.R., which included buckling

her into her child safety seat, but his second and subordinate

responsibility was to maintain order on the bus and manage the

safety of the other 50-60 children.

8. Mr. O'Brien had met A.R. during the second semester of

the 2006-2007, school year, when she was initially placed on his

school bus route. During that school year, A.R. had ridden the

bus driven by Mr. O'Brien without having a school bus attendant

specifically devoted to her safety and exceptionalities. During

that school year, Mr. O'Brien had been instrumental in getting a

particular type of safety seat for A.R. to ride in, due to her

small size. This type of seat is called "a C. E. White" or

"CEW" child's safety seat, and has an integrated five-point

harness.

9. During the 2006-2007, school year, Mr. O'Brien's bus

had no bus attendant. Therefore, during that period of time, he

had ultimate responsibility for all the children on his bus,

including A.R.

10. During the 2006-2007, school year, A.R. was sometimes

buckled into her bus safety seat by older siblings who rode the

same bus, but Mr. O'Brien had a good rapport with A.R. and often

also helped buckle her into her seat. To do so, he had to leave

the bus driver's compartment of the bus.

11. During the 2007-2008, school year, A.R. and one

sister, R.R., who was then approximately nine years old,

continued to ride Mr. O'Brien's bus.

12. Mr. O'Brien was advised at the start of the 2007-2008,

school year that A.R. would be riding with the adult supervision

of Mr. DiPaolo. Mr. O'Brien was not made privy to the reasons

why the decision had been made to require a bus attendant

specifically for A.R., but he understood he was supposed to

comply with this requirement, regardless of the reason. There

also was testimony that any three-year-old attending

kindergarten with a special bus attendant would be an ESE

student.

13. In assessing the relative credibility and weighing the

testimony of all the witnesses, as well as hearing the comments

made by R.R. on the videotape of the October 5, 2007, incident,

it is found that A.R. was not a usually compliant and accepting

bus passenger, but was frequently what any parent would

recognize as difficult or oppositional. (See Finding of Fact

23.)

14. Indeed, during the 2007-2008, school year prior to

October 5, 2007, Mr. DiPaolo had twice sought direction from

Mr. Daniels, who had told him to do the best he could with A.R.,

but if Mr. DiPaolo's "best" did not work out, something else

might have to be done about A.R.

15. A.R.'s father usually brought her to the bus stop. On

the morning of October 5, 2007, a neighbor brought the two

siblings to the bus stop. A.R. was already upset when boarding

began.

16. On October 5, 2007, A.R. did not want to get on the

bus. Mr. DiPaolo had to go down to the first step of the bus to

get A.R. from the neighbor who was supervising the sisters at

the bus stop. Once A.R. made it to the top step of the bus

entrance, she still did not want to move. Mr. DiPaolo had to

lift her up and place her in her C.E. White seat, which was

strapped-into the window-side of the first row seat, immediately

inside the door on the side of the bus opposite the driver's

side. Once there, A.R. deliberately slumped off the car seat

onto the floor of the bus. When lifted up again, A.R. repeated

the behavior. This "battle of wills" between the three-year-old

and the bus attendant continued for a little while.

17. Fairly quickly, however, Mr. DiPaolo retired from the

field of battle to speak to some students in the back of the

bus. At this point, A.R. was either sliding herself onto the

floor or was on the floor between the first row of seats and the

stairwell barricade.

18. Despite some testimony to the effect that the older

students in the back of the bus were rowdy and needed to be

settled down, the video tape does not corroborate that "take" on

the chain of events. While it might have been good strategy for

Mr. DiPaolo to let A.R. cool off a little before again trying to

buckle her into her seat, there does not appear to have been any

pressing reason for Mr. DiPaolo to absent himself from her

vicinity to address issues in the back of the bus. Moreover,

A.R. was his first and prime responsibility, and he abandoned

that responsibility by saying to A.R.'s sister, R.R., who was

still standing and not in her own seat, that she should try to

get A.R. buckled in, and he did not alert Mr. O'Brien that A.R.

was not yet buckled-in.

19. Mr. DiPaolo's superior, Mr. Daniels, would have

sanctioned Mr. DiPaolo's enlisting the aid of the older sibling

if Mr. DiPaolo also had not simply abandoned the situation and

walked to the back of the bus.

20. Mr. DiPaolo also could have, and did not, attempt to

enlist the aid of the adult neighbor who had delivered A.R. to

the bus stop, or he could have returned A.R. back to that adult

neighbor and suggested the neighbor take A.R. to school

separately, both of which were options his superiors testified

they would have sanctioned. He could also have requested that

Mr. O'Brien radio the dispatcher for help. He chose none of

these options.

21. As Mr. DiPaolo gave instructions to A.R.'s sister and

walked to the back of the bus, Mr. O'Brien, not realizing that

A.R. was not secured into her seat, pulled the bus away from the

stop.

22. Although Mr. O'Brien testified to several reasons that

he believed A.R. was secured in her seat before he pulled the

bus away from its stop, Mr. DiPaolo clearly had not orally

advised him that she was buckled-in, and Mr. O'Brien did not, in

fact, make sure that A.R. was secure before he pulled the bus

into four-lane traffic. Moreover, the sister, R.R., was up and

down while all this was going on. She was not always in her

seat as the bus was moving, either.

23. R.R. was not able to secure A.R. in her seat, so she

approached the driver's compartment and stated to Mr. O'Brien

that they were going to have to do things "the hard way."

R.R.'s choice of words suggests that R.R. and Mr. O'Brien had

previously had to buckle A.R. into her car seat by sheer force.

24. Approximately 25 seconds after he started the bus,

during which time the bus entered the flow of four lanes of

traffic and proceeded through an intersection, Mr. O'Brien

pulled the bus over to the side of the road and stopped. During

the whole of this period, A.R. was not in her seat or buckled-

in.

25. When Mr. O'Brien pulled over, he put on the emergency

brake and put the transmission in neutral. He intentionally

left the bus engine running, because the doors on that type of

bus are controlled by air pressure. Once the engine is turned

off, the doors will open with just the touch of a hand from

either inside or outside the door. For safety reasons, he

wanted the door to remain secure.

26. Under the circumstances, pulling over the bus was

probably a wise move, but Mr. O'Brien went further. He could

have summoned Mr. DiPaolo to come back and do his job as A.R.'s

bus attendant, and he could have called dispatch to alert the

administration to a problem requiring their help, but instead,

Mr. O'Brien left the driver's compartment to check on A.R.

27. When Mr. O'Brien reached her, A.R. was not in her

seat. He lifted her up from the floor of the bus and attempted

to buckle her into her seat. At first, Mr. O'Brien was not

successful getting A.R. into her seat and asked her if she knew

she was about to get "a spanking." Mr. O'Brien admitted to

threatening to spank A.R. to "snap her out of it," and to

emphasize the importance of complying with his demands, even

though he knew that "corporal punishment" was against

Petitioner's policies. His voice was firm in making the

statement and more matter-of-fact than threatening. However,

his threat was loud enough to be heard over the general

commotion on the bus, the idling engine, and the sound of

traffic. R.R. and at least a few nearby children must have

heard the threat.

28. When A.R. continued to physically resist Mr. O'Brien's

efforts to get her into her seat, he administered a single,

swift slap to her right buttocks/thigh area. A.R. did not cry

out specifically at that point, although later she began to cry.

After spanking A.R., Mr. O'Brien was able, unassisted, to

wrestle her into her seat and buckle her in.

29. At some point in Mr. O'Brien's struggle, Mr. DiPaolo

returned and stood in the aisle, level with the back of A.R.'s

seat, observing Mr. O'Brien interacting with A.R. and A.R.

crying.

30. The "driver's compartment" on Mr. O'Brien's bus does

not show up well in the video and there was no testimony

concerning how it is configured. However, it does not appear to

be separated from the students' seats by a door or partition.

The diagrams in the Operations Handbook show clear access to the

driver's seat and controls from the student seats on the

driver's side immediately behind the driver's seat, if the

driver is not in his seat, regardless of whether anyone is

blocking the aisle.

31. During the entire period of time Mr. O'Brien was

dealing with A.R., he had his back turned towards the driver's

seat and controls, which he had left unattended. During this

entire period of time, the bus engine continued running and the

doors remained closed. However, Mr. O'Brien's bus has just a

knob for an emergency brake and anyone could have hit the knob

so that the bus would begin rolling forward.

32. After securing A.R. and being sure R.R. also was

safely seated, Mr. O'Brien returned to the driver's compartment

and drove the bus to school.

33. A.R.'s screaming, crying, and fussing seems to have

escalated after Mr. O'Brien resumed the driver's seat, when

Mr. DiPaolo said something to A.R. about his not being willing

to sit with her. However, Mr. DiPaolo eventually sat next to

A.R. and interacted with A.R. to keep her amused, and apparently

happy, until the bus stopped again and the passengers debarked

at J.D. Floyd Elementary School.

34. Mr. O'Brien described the incident to A.R.'s classroom

teacher when he delivered A.R. into her care at the school on

October 5, 2007. He did not report it to Petitioner's

Transportation Department, because it was, in his mind, a minor

bit of misbehavior by a student. Mr. DiPaolo also made no

report. The undersigned is not persuaded that either

Mr. O'Brien or Mr. DiPaolo tried to keep the incident secret.

35. One of Petitioner's own training manuals provides:

Minor incidents of misbehavior such as

getting out of the seat, standing, or

speaking loudly are usually better handled

on the bus. If every incident of

misbehavior is reported to the principal,

the operator will lose credibility.

36. However, on the following Monday morning, A.R.'s

mother boarded Mr. O'Brien's bus and made a scene, accusing

Mr. O'Brien of spanking A.R. on her bottom. The mother then

proceeded to Petitioner's administrative offices, where she

lodged a complaint, and finally went on to the Sheriff's Office

to do the same. Ultimately, because they are required to do so

when there is an accusation of corporal punishment, Petitioner's

administration notified the Department of Children and Family

Services of the mother's allegations.

37. After receiving the complaint, Linda Smith,

Petitioner's Director of Transportation, requested a copy of the

October 5, 2007, surveillance video from the front of Bus 473.

That surveillance film was admitted in evidence and has been

heavily relied-upon in this Recommended Order. The surveillance

film from the back of the bus was not offered or admitted.

38. Ms. Smith, and Ms. Rucell Nesmith, Petitioner's

Operator Trainer/Safety Coordinator for Transportation, have

each been involved in school bus transportation for over 30

years and both have served as drivers and as transportation

administrators. They testified that Mr. O'Brien's conduct on

October 5, 2007, violated Petitioner's policy on two basic

levels: he left the driver's compartment while the bus was

still running and still loaded with students, and he

administered corporal punishment to a student.

39. While bus attendants and drivers have some discretion

in handling disruptive students or students like A.R., who are

not following directions, they are not supposed to permit, or

cause, a bus to leave a stop until every student is properly

secured, and they are forbidden to use corporal punishment.

40. Bus drivers/operators receive training, including

training on Petitioner's Operations Handbook as well as training

on the State-approved driver curriculum.

41. Mr. O'Brien was certified as having completed the bus

driver training on July 20, 2001.

42. Mr. O'Brien attended annual in-service trainings

thereafter in 2002, 2003, 2004, 2005, 2006 and 2007. In-service

trainings include, among other things, any updates to the

Operations Handbook. General statements were also made during

in-service trainings about not touching students.

43. Mr. DiPaolo received his initial training as a bus

driver from Ms. Nesmith and a copy of the Operations Handbook in

2001, when he first was hired by Petitioner.

44. Mr. DiPaolo, and all bus attendants, receive initial

training as bus attendants, including a review of Petitioner's

Operations Handbook. Mr. DiPaolo also received in-service

trainings thereafter in 2002, 2003, 2004, 2005, 2006, and 2007.

In-service training included any updates to the Operations

Handbook.

45. Ms. Smith recommended discipline for Messrs. O'Brien

and DiPaolo. She recommended a five-day suspension for

Mr. O'Brien and a three-day suspension for Mr. DiPaolo.

46. Petitioner scheduled a pre-disciplinary meeting

concerning the incident for October 17, 2007. The meeting was

postponed because Messrs. O'Brien and DiPaolo had obtained legal

counsel. The meeting was eventually rescheduled for November

2007. Messrs. O'Brien and DiPaolo attended that meeting with

their respective legal counsel, and it resulted in the

November 7, 2007, charges addressed below and in the Conclusions

of Law.

47. In accord with Ms. Smith's recommendation,

Petitioner's Superintendent issued a letter dated November 7,

2007, to Mr. O'Brien, reprimanding him and issuing a five-day

suspension without pay for leaving the driver's compartment;

leaving the bus running while attending to A.R.; orally

threatening to spank a student while attempting to put her into

her seat; swatting the student on her posterior; and failing to

immediately report to the Transportation Department the incident

as a student safety issue. Mr. O'Brien was cited in the letter

for violations of Petitioner's policies, namely Policy 6.37,

Group III, Section (10)- On or off the job conduct which

adversely affects the ability of the employee to perform his

duties and/or the duties of other employees and/or adversely

affects the efficient operation of the school system or any

department, division, or area of the School Board; Policy 6.301,

Ethics: Section (3) (a) failure to make reasonable effort to

protect the student from conditions harmful to learning and/or

to the student's mental and/or physical health and/or safety;

and (3) (e) not intentionally expose a student to unnecessary

embarrassment or disparagement; and provisions in Petitioner's

2007 Staff Handbook prohibiting touching students except to

protect their health, safety and/or welfare. Policy 6.38 was

cited as a disciplinary guideline.

48. In accord with Ms. Smith's recommendation, the

Superintendent issued a letter dated November 7, 2007, to

Mr. DiPaolo, reprimanding him and issuing a three-day suspension

without pay, for failing to place a student assigned

specifically to him for supervision and assistance in her seat;

walking to the back of the bus while the bus driver had to

secure the student in her seat; and failing to immediately

report the incident to the Transportation Department as a

student safety issue. Mr. DiPaolo was cited in the letter for

violations of Petitioner's policies, namely Policy 6.37, Group

II, Section (13), Incompetency or inefficiency in the

performance of duties; Policy 6.37, Group III, Section (4),

Interfering with the work of other employees or refusal to

perform assigned work; and Policy 6.301: Ethics, Section (3) (a)

failure to make reasonable effort to protect the student from

conditions harmful to learning and/or to the student's mental

and/or physical health and/or safety. Again, Policy 6.38 was

cited as a disciplinary guideline.

49. The School Board's Operations Handbook, at page 37,

states, in pertinent part:

Bus Aides

5. Drivers are to remain in the driver's compartment.

50. The School Board's Operations Handbook, at page 59-Y,

states, in pertinent part:

Responsibilities of a School Bus Aide

1. To load and unload students and assist

driver as needed.

* * *

3. To ensure that all students are secured

and when appropriate, secure restraining

devices, i.e. seat belts, safety vest,

infant seats, and toddler seats.

* * *

6. To recognize individual student

capabilities and exceptionalities while

maintaining order on the bus and administer

to their individual needs as required.

51. At page 59-D, the Operations Handbook provides, in

pertinent part:

Operating Procedure No. 27,

Responsibilities of the School Bus Driver

Related to Board of Education Rules 6A-3

25. To report immediately to the director

or supervisor of transportation, school

principal or other designated officials:

a. Misconduct on the part of any student

while on bus or under the driver's immediate

supervision,

52. The Department of Education Bureau of Professional

Practices Services' handout, provided during training of bus

drivers, provides, in pertinent part:

INTERACTION WITH STUDENTS:

Keep hands and other parts of your body to

yourself.

TIPS FOR STAFF WITH AGGRESSIVE STUDENTS:

DON'TS:

1. Do not physically handle the student.

2. Do not react aggressively in return.

* * *

5. Do not create punitive consequences to

"get even" with the student.

Department of Education Recommendation:

Discipline

The bus driver has no authority to slap,

spank or abuse any child.

53. By School Board policy, Petitioner has made the

standards for educators applicable to even its non-educational

personnel, such as bus attendants and bus drivers. Policy 6.301

concerns employee ethics and provides in pertinent part:

(2) All employees shall familiarize

themselves with the 'Code of Ethics of the

Education Profession in Florida,' located in

the State Board of Education Rules. All

employees shall abide by the Code at all

times and shall be held to the standards of

the Code in all matters related to their

employment with the Hernando County School

Board.

54. Florida Administrative Code Rule 6B-1.006, which is

provided to Petitioner's employees with their copy of

Petitioner's Policy 6.301, provides in pertinent part:

3. Obligation to the student requires that

the individual:

a. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental

and/or physical health and/or safety.

* * *

e. Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

55. Petitioner's Policy 6.301 (3), reads:

The School Board of Hernando County supports

strong internal control in its procedures

and practices. All incidents of suspected

improprieties should be reported using the

Board approved Compliant [sic] Policy.

56. Petitioner's 2007-2008 Staff Handbook provides, in

pertinent part:

TOUCHING STUDENTS

Employees are advised that they should not

touch students in any way except for the

protection of the health, safety, and/or

welfare of a student or for protection of

themselves.

57. School Board Policy 6.37 -- Group (II) provides, in

pertinent part:

GROUP II OFFENSES

(13) Incompetency or inefficiency in the

performance of duties.

58. School Board Policy 6.37 - Group (III) provides, in

pertinent part:

GROUP III OFFENSES

(4) Interfering with the work of other

employees or refusal to perform assigned

work.

(10) On or off the job conduct which

adversely affects the ability of the

employee to perform his duties and/or the

duties of other employees and/or adversely

affects the efficient operation of the

school system or any department, division,

or area of the School Board.

59. The parties stipulated that this case does not present

a situation of progressive discipline, and accordingly, the

undersigned finds it unnecessary to quote or discuss the levels

of discipline permissible under Groups II and III of Policy 6.37

or Policy 6.38.

60. It further appears that combinations of the penalties

of written reprimand and suspension, with or without pay, are

authorized, and each offense is looked at on a case-by-case

basis. Also, it appears that all penalties listed in any School

Board Policy are recommended, but not mandatory, to apply to

specific offenses and that the penalty utilized is to be

discretionary with management, per Policies 6.37, and 6.38.

Policy 6.38, authorizes the Superintendent to suspend employees

without pay for up to 10 days as a disciplinary measure.

CONCLUSIONS OF LAW

61. Petitioner has a contract with the Division of

Administrative Hearings which establishes the Division's

jurisdiction over the parties and subject matter of this cause.

School Board Policies 6.37, 6.39, and the HUSW Collective

Bargaining Agreement, also apply. The hearing and Recommended

Order have been conducted within the parameters of Sections

120.569 and 120.57(1).

62. The Superintendent of Schools for Hernando County has

the authority, pursuant to Section 1012.27, Florida Statutes, to

recommend to the School Board that any school employee be

suspended and/or dismissed from employment.

63. Petitioner School Board has the authority to terminate

and/or suspend support personnel without pay and benefits,

pursuant to Sections 1012.22(1)(f) and 1012.40(2)(c), Florida

Statutes.

64. The standard for discipline/suspension/termination of

support personnel is "just cause," pursuant to Section 1012.40,

Florida Statutes, School Board Policy 6.37, and the HUSW

Collective Bargaining Agreement. Neither the HUSW contract nor

School Board Policy 6.37 defines "just cause." Likewise,

neither do the Florida Statutes provide an exhaustive definition

of the term. In the absence of such specific definition,

Petitioner has discretion (subject to review via a hearing) in

setting standards which subject an employee to discipline and/or

termination. See Dietz v. Lee County School Board , 647 So. 2d

217 (Fla. 2nd DCA 1994).

65. It was stipulated that the duty to go forward and the

burden of proof by a "preponderance of the evidence" in this

cause is upon the School Board. See also McNeill v. Pinellas

County School Board , 678 So. 2d 476 (Fla. 2nd DCA 1996); Dileo

v. School Board of Dade County , 569 So. 2d 883 (Fla. 3rd DCA

1990); see also , Section 120.57(1)(j), Florida Statutes.

66. Many rules, policies, standards, and

educational/training devices etc. were admitted in evidence.

However, Mr. O'Brien and Mr. DiPaolo may only be disciplined,

pursuant to the charges actually brought against them in the

respective disciplinary letters. ( See Findings of Fact 47 and

48.) The other items, however, are helpful in determining how

those charges are to be interpreted and applied in relationship

to each man's actions or inactions that gave rise to the

charges.

67. This presents some difficulty because both November 7,

2007, letters list in numerical form Policy 6.301 (3), which

refers only to reporting incidents, and the language employed

says the same thing. However, the language of the disciplinary

letters clearly intended to also charge the Respondents with

offending Policy 6.301 (2), which incorporates the Florida

Administrative Code Rule applicable to educators. In fact,

there is no sub-section (a) or sub-section (e) to Petitioner

School Board's Policy 6.301 (3), as set out in the charging

documents. ( Compare Findings of Fact 47-48, the respective

charges, with Findings of Fact 53-55, the specific language of

the School Board policies and Florida Administrative Code Rule,

which does have a 3.a. and 3.e.)

68. Be that as it may, because the charging documents

stated in plain English the contents of both School Board

Policies 6.301 (2) and (3) and specifically quoted the actual

language of sub-paragraphs a. (and, in O'Brien's case, e.) of

Florida Administrative Code Rule 6B-1.006, even though the

citations were somewhat garbled by not specifically referring

back to Policy 6.301(2); because the discipline had already been

imposed prior to the final hearing; because of the lengthy

preparation period for final hearing; because of the fact that

the Code rules were admitted without objection and were

acknowledged as relevant by both Respondents; and because both

the Proposed Recommended Orders of Petitioner, and at least the

Proposed Recommended Order of Mr. O'Brien, addressed whether or

not the ethical rules for educators applied in this case dealing

with Respondents, who are non-educational personnel, and those

proposals also addressed the "failure to report" issue, it is

concluded that both Respondents had full notice of being charged

under both Policy 6.301 (2), encompassing parts of the Florida

Administrative Code Rule for educators, and under Policy 6.301

(3), dealing with immediate reporting to Petitioner's Department

of Transportation, and that each Petitioner had every

opportunity to defend against those charges. Therefore,

Respondent O'Brien was on notice with regard to Policy 6.301(2),

encompassing Florida Administrative Code Rule 6B-1.006, 3. a.

and 3. e., and Policy 6.301(3), for failure to report, and

Respondent DiPaolo was also on notice with regard to Policy

6.301(2), encompassing Florida Administrative Code Rule 6B-

1.006, 3. a., and Policy 6.301(3), for failure to report.

Mr. DiPaolo was not charged with Florida Administrative Code

Rule 6B-1.006, 3. e. in any way. Mr. O'Brien was also charged

with touching contrary to the Staff Handbook.

69. First, what was not an offense: There was no

"inappropriate touching," by either Mr. DiPaolo or Mr. O'Brien

in any normally understood sense in attempting to seat and

buckle-in A.R. Mr. DiPaolo's assisting the three-year-old child

up the steps of the bus was part of his duties. Moreover, when

that three-year-old child had a temper tantrum and slid onto the

school bus floor, picking that child up and putting her in her

seat was entirely reasonable and protective adult behavior by

both men. However, Mr. O'Brien's swat is another matter. See ,

infra .

70. Likewise, there was no "cover up" by Messrs. O'Brien

or DiPaolo. There was, however, a failure by each man to

recognize what he had done wrong. Although there was no "cover

up", it is concluded that each man failed to "immediately

report" the incident per School Board Policy 6.301(3), and the

Operations Handbook requirements. Mr. O'Brien's conversation

with A.R.'s teacher was insufficient to address the student

safety issue with the Transportation Department.

Conclusions Specifically As to Respondent O'Brien

DOAH Case No. 07-5362

71. On October 5, 2007, Mr. O'Brien pulled out into

traffic without first ascertaining from Mr. DiPaolo that all the

children were seated and secure. He was derelict in the

performance of his duties by leaving the driver's compartment

with the engine running, which created an unnecessary potential

danger to the welfare of all the students on the bus. Mr.

O'Brien also exceeded any authority he may have had to manage

the bus by threatening A.R. within the hearing of other

students, and then using corporal punishment to correct A.R.

and/or to achieve compliance with his directives.

72. The Operations Handbook is clear that the driver is

required to remain in the driver's compartment to ensure he

maintains control over the bus and is available to react to any

emergencies on the bus or situations created by other traffic.

Although Mr. O'Brien may have believed he was acting in a safe

manner when he left the driver's compartment to attend to A.R.,

his belief was misguided. He left the compartment unattended

while the bus was sitting on a busy road with rush hour traffic.

He also had his back turned toward the driver's compartment

while the engine was still running. Although this may have

secured the door, it also provided an opportunity for a student

to intentionally or accidentally release the brake and/or put it

into gear in very quick fashion.

73. Mr. O'Brien had the option of calling upon

Mr. DiPaolo, the bus attendant who had been assigned to the bus

for the very purpose of assisting A.R. and making sure she was

properly secured in her seat. He knew that the dedication by

the School Board of a bus attendant to A.R.'s specific needs had

to take precedence over his own supervisory stance for the

entire bus.

74. Mr. O'Brien's interaction with A.R. was also outside

the bounds of well-established School Board policy and

procedures. The School Board Operations Handbook, Staff

Handbook, and the State curriculum for bus drivers all indicate

that spanking a child is prohibited. Even under the significant

provocation of this child, and even if his swat to A.R.'s

thigh/buttocks was well-intended or even mistaken, it was a

clear violation of the Staff Handbook and Policy 6.301(2),

encompassing Florida Administrative Code Rule 6B-1.006, 3.a. and

e.

75. Just cause has been demonstrated to discipline

Mr. O'Brien for violating Policy 6.37 Group III (10), Policy

6.301 (2), which adopts Florida Administrative Code Rule 6B-

1.006 3.a. and e., and Policy 6.301 (3).

76. Leaving the controls unattended was a negligent act,

and Mr. O'Brien's threat/swat were pro-active misuses of his

position. The pro-active misuses of his position are cause for

a higher discipline (five days suspension) than that assigned to

Mr. DiPaolo (three days suspension).

Conclusions Specifically As to Respondent DiPaolo

DOAH Case 07-5363

77. This is not an issue of Mr. DiPaolo seeking help from

the administration and getting none or his "best" not being

"good enough." October 5, 2007, was a situation of Mr. DiPaolo

abandoning his job duties. As a school bus attendant, provided

pursuant to A.R.'s IEP, he was, first and foremost, on the bus

to ensure her safety and welfare, and only thereafter to assist

the bus driver in regard to all the other bus students. One of

the specific tasks Mr. DiPaolo was to perform for A.R. was

securing her in her C.E. White seat. Although he made several

unsuccessful attempts to buckle-in A.R., he abandoned his job

responsibilities by going to the back of the bus for no urgent

purpose, without buckling her in. At the bus stop, he could

have called on the neighbor for help; he could have requested

Mr. O'Brien turn off the engine and help him; he could have

requested that Mr. O'Brien radio the dispatcher. He did none of

these things. He also did not notify Mr. O'Brien that

Mr. O'Brien should not move the bus with A.R. unsecured. When

he returned to the front of the bus, he did not assist

Mr. O'Brien who had stepped into the breach, as it were.

78. Just cause has been demonstrated for disciplining

Mr. DiPaolo for violating Policy 6.37, Group II (13); Policy

6.37 Group III (4); Policy 6.301 (2), which adopts Florida

Administrative Code Rule 6B-1.006 3.a., and Policy 6.301 (3).

79. Mr. DiPaolo's three-day suspension is within

management's discretion.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that Petitioner:

(1) Enter a Final Order sustaining Respondent O'Brien's

reprimand and suspension without pay for five days; and

(2) Enter a Final Order sustaining Respondent DiPaolo's

reprimand and suspension without pay for three days.

DONE AND ENTERED this 15th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July, 2008.

COPIES FURNISHED:

J. Paul Carland, II, Esquire

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Tallahassee, Florida 32301

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Hwy. 19 North, Ste. 110

Clearwater, FL 33761

Dr. Wayne Alexander, Superintendent

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601

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.