08-005409 Lee County School Board vs. Collin Hall Status: Closed Recommended Order on Monday, June 29, 2009.

Summary: Petitioner proved by preponderance of evidence that Respondent failed to control students; permitted fighting; failed to protect students from injury; and failed to follow procedures. There was just cause to terminate Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-5409

)

COLLIN HALL, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Daniel M.

Kilbride, Administrative Law Judge, Division of Administrative

Hearings, on April 2, 2009.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate Respondent’s

employment as an educational support employee.

PRELIMINARY STATEMENT

On October 21, 2008, Petitioner suspended Respondent

without pay and benefits and notified Respondent that Petitioner

intended to seek termination of Respondent’s employment.

Respondent timely requested an administrative hearing.

Thereafter, this matter was referred to the Division of

Administrative Hearings (DOAH) to conduct the administrative

hearing. Following discovery, this matter was set for final

hearing.

At the hearing, certain facts contained in the Joint

Pre-Hearing Stipulation were officially recognized. Petitioner

presented the testimony of two witnesses: Craig Baker and

Robert Morgan. Petitioner’s exhibits numbered 1 through 12 were

admitted into evidence. Respondent presented the testimony of

four witnesses: Steve Lucas, Tammy Black, Kelia Wallace and

Collin Hall. Respondent also testified on his own behalf.

Respondent’s exhibits numbered 1 through 11, 13 and 14 were

admitted into evidence. The two-volume Transcript of the

hearing was filed with DOAH on May 4, 2009. Petitioner and

Respondent each timely-filed their respective Proposed

Recommended Orders, which have been carefully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent, Collin Hall, has been employed with the Lee

County School District since August 13, 2001. He is currently

assigned as a Bus Operator in Petitioner’s Transportation

Department.

2. Respondent is a member of the Support Personnel

all times relevant to this matter.

3. Respondent was assigned as an unassigned regular (UAR)

bus operator during the 2007-2008 and 2008-2009 school year. A

UAR is available each day to be assigned to a bus when the

regular driver is out sick or if the bus route is challenging.

The District considers a UAR bus operator as its most

professional bus operator.

4. The allegations against Respondent are set forth in the

Petition for Termination of Employment filed with DOAH (the

Petition). In relevant part, the Petition charges Respondent

with the following:

a. failing to control students on the bus Respondent was

operating;

b. failing to protect students on the bus if an emergency

should develop due to the conduct of the students;

c. failing to ensure that each passenger on the bus was

wearing a safety belt;

d. failing to maintain order and discipline, require all

passengers remain seated and keep the aisles clear, and

immediately report to the designated official student misconduct

occurring on the bus in violation of Florida Administrative Code

Rule 6A-3.017;

e. grabbing a student in violation of Board Policy 5.26;

f. failing to adhere to the highest ethical standards and

to exemplify conduct that is lawful and professional and

contributes to a positive learning environment for students in

violation of Board Policies 5.02 and 5.29; and

g. failing to call a dispatcher for assistance if a

discipline problem is not resolved in a few minutes as outlined

in the Lee County School District’s Handbook for bus operators.

5. Respondent attended various trainings during his tenure

with the District, including training entitled, “Wolfgang

and “First Line of Defense.” All of these classes provided

training in student management or student discipline on a school

bus.

6. In addition to receiving yearly and periodic training,

Respondent was provided a manual entitled “School Bus Driver’s

Manual, Critical Incident Procedures” published by the Florida

Department of Education (FDOE) and distributed by the District

to all bus operators. Page 14 of the manual outlines the

procedures to be used for disruptive students.

7. The Bus Driver’s Manual further provides in its

Introduction that:

The procedures outlined in this document are

guidelines (emphasis added) and should be

reviewed and tailored by each school

district to conform to local policies –

always (emphasis theirs) adhere to the

district emergency procedures.

Although these guidelines reflect the best

practices of several Florida school district

transportation departments, no one can

foresee the details of every emergency.

Many emergencies require the driver’s best

judgment, keeping in mind the priorities of

life safety (sic), protection of property

and the environment.

8. In keeping with the FDOE’s directive to tailor the

guidelines to conform to the District’s local policies, the

District established a policy for the “Preservation of Order on

Special Needs Bus.” That policy is outlined in Robert Morgan’s

August 24, 2008, Memorandum to Professional Standards. It

requires the school bus operator “and/or attendant” to preserve

order and good behavior on the part of all pupils being

transported. It also provides that:

shall an emergency develop due to conduct of

the pupils on the bus, the bus driver and/or

attendant shall take steps reasonably

necessary to protect the pupils on the bus.

They are not obligated to place themselves

in physical danger ; however, they are

obligated to immediately report pupil

misconduct to a Transportation Supervisor.

(emphasis supplied)

9. On May 21, 2008, Respondent was assigned to Bus 999,

along with bus attendant Kelia Wallace. Bus 999 transported

students that attend Royal Palm Exceptional Center. Royal Palm

Exceptional Center is a school that educates students with

special needs, including those that may have emotional issues

that result in disruptive behavior. All Royal Palm students

have Individual Education Plans that require special

transportation. Bus 999 was equipped with an audio and video

recording system, as are all Exceptional Student Education (ESE)

busses in Lee County. The audio and video are recorded to a

hard drive which can be viewed at a later time.

10. Robert Morgan, Director of Transportation South, was

alerted of an issue on Bus 999 on the evening of May 21, 2008.

Morgan was informed that Bus 999 made an unscheduled stop at the

San Carlos Park Fire Station during its afternoon route earlier

that day. As a result, on the morning of May 22, 2008, Morgan

viewed the video recording from Bus 999 from the previous

afternoon. Following his review of the footage, Morgan directed

a member of his staff to copy the relevant portions of the raw

footage to a compact disc. The information on the disc was then

forwarded to the District’s Department of Professional Standards

and Equity for review and further investigation.

11. There was some testimony from Respondent doubting the

accuracy of the video and inferring that the video had been

altered in some way. However, the record is devoid of any

evidence to contradict the audio and video evidence submitted on

compact disc by the District. In addition, there was credible

eye witness testimony relative to the incident.

12. After Respondent picked up the students at their

school and was following the route to deliver them home, Student

C.M. was acting inappropriately in the back of the bus. From

his driver’s seat, Respondent commanded C.M. to sit down, which

was ignored. Respondent pulled over, stopped the bus and

proceeded to the back of the bus to deal with C.M. Respondent

grabbed C.M., lifted him off the floor of the bus, carried him

several rows forward, and put him into another seat on the bus.

C.M. was not kicking, punching or threatening any other student

when Respondent took this action. C.M. continued to carry on a

taunting dialogue with students, including J.O., who was in the

back of the bus.

13. Respondent then proceeded on the route. After several

minutes Respondent noticed some paper sitting in the middle of

the aisle. While the bus was moving, Respondent ordered J.O. to

come forward in the aisle to retrieve the piece of paper he had

thrown toward the front of the bus. As a result, J.O. walked by

C.M. who was still taunting J.O. and other students. The two

students then become involved in a physical altercation.

Respondent said nothing and continued to drive the bus. The two

students continued to fight for approximately 40 seconds before

Respondent stopped the bus and walked toward the back of the bus

to get a closer look.

14. The fight continued for an entire minute before

Respondent took any action to intervene or break up the fight.

Instead, Respondent instructed his bus attendant to write up a

disciplinary referral (students fighting), but stood nearby and

watched the students fight. Respondent said nothing to the

students. Respondent then turned his back on the fight, threw

up his hands in disgust and returned to the driver’s seat to

resume driving the bus. Respondent did not contact dispatch or

law enforcement regarding the fight.

15. Approximately 30 seconds later, student C.M. yelled an

expletive at student J.S. J.S. came forward, confronted C.M.,

and battered him to the point where C.M. ended up on the floor

of the bus, where J.S. punched and kicked him numerous times.

Respondent said nothing. The incident continued for another 20

seconds before J.S. backed off.

16. Respondent again walked down the aisle toward the

students. While lying on the floor between the seats, C.M.

complained that he was injured. Respondent waited several

seconds prior to attempting to assess C.M.’s injuries.

Respondent then stated to C.M., “Let me see your nose.”

Respondent observed that C.M. suffered a bloody nose as a result

of the altercation.

17. Respondent did not provide any immediate medical

attention or care to C.M. Respondent returned to the driver’s

seat and began to drive. Respondent drove the bus to the San

Carlos Park Fire Department station where C.M. received first

aide from an Emergency Medical Technician. C.M.’s father was

also notified and responded to the scene.

18. Respondent attempted to defend his conduct by

indicating that he would have been injured or he could have

injured one of the students if he attempted to break up the

altercations. This testimony is not credible.

19. Respondent admitted that bus operators are prohibited

from picking up students and that he should have used verbal

prompts during the other incidents to urge the students to stop

fighting. Respondent testified that prior to the events

depicted on video, C.M. had responded to an earlier verbal

prompt by the bus attendant to return to his seat. Respondent’s

testimony is inconsistent and not entirely credible in this

regard.

20. In a further effort to mitigate Respondent’s conduct,

Respondent’s counsel attempted to portray the students on the

bus as completely uncontrollable and the District or school as

unsupportive of the bus operators hired to transport these

students. However, credible evidence showed that disruptive

students were regularly suspended from the bus and from school.

21. C.M. had proven to be a discipline problem on the bus.

C.M. historically was confrontational and argumentative with the

other students. Notwithstanding C.M.’s prior history of

misconduct and violence on the bus, the District suspended C.M.

from the bus for one day. Whether Respondent failed to take

adequate corrective measures to ensure that C.M. did not repeat

such actions prior to allowing him to continue riding the bus is

irrelevant to this proceeding.

22. However, Respondent was aware that at least one of the

students on the bus had been previously disciplined for

inappropriate conduct. Respondent had experience transporting

Royal Palm students and had transported Royal Palm students

previously during the 2007-2008 school year.

23. In addition, Respondent stated that he had attended

all of the training the District provided regarding the

discipline and handling of disruptive students on a school bus.

It is clear from the record that Respondent had been trained to

deal with such students.

24. Respondent mentioned the word “judgment” repeatedly

throughout his testimony. Although judgment plays a role in the

control of student behavior, the FDOE School Bus Driver’s Manual

spells out the protocol for dealing with disruptive students.

The first three things a bus operator is to do is to tell

students to stop fighting, pull off the road to a safe place and

call dispatch and have them contact parents. Judgment is not a

part of any of the above instructions, and Respondent failed to

follow two out of three requirements. He neither told the

students to stop fighting nor called dispatch to inform them of

the fights.

25. The bus operator is then to go to the area of the

fight, assess the situation, identify the students involved and

attempt to gain control. If the operator cannot gain control

the FDOE manual states that the operator should radio for help,

remove other students from the area of the fight, intervene if

the situation is life-threatening, or if not, to monitor and

wait for assistance and use reasonable force to prevent injury

to himself and the students.

26. Respondent never attempted to gain control of the

situation and then, when it did get out of control, he never

radioed for help, removed other students from the area of the

fight or used reasonable force to prevent injury to the

students.

27. Morgan testified that Respondent’s alleged violation

of the policy for safety belts was “not the issue,” and the

District was not seeking to discipline Respondent for anything

related to the non-use of safety belts. Consequently, the

District effectively withdrew this charge at hearing.

28. Also, the District did not introduce as evidence the

School District of Lee County Transportation Services

Respondent did not follow the procedure as outlined in the

Handbook therefore fails for lack of evidence.

29. Respondent failed to comply with the District’s policy

for preserving order on a special needs bus. He did not

exercise his best judgment. His testimony as to why he did not

physically intervene in the fights between C.M. and J.O. and

J.S. for fear that he would injure himself or the students is

not credible. Although he directed Ms. Wallace to write

disciplinary referrals for the students that were fighting, this

was inadequate. He did, however, obtain emergency medical care

for C.M., and notified the dispatch center of the Transportation

Department of the fight and the fact that he was required to

divert his route of travel to the fire station for medical care.

Immediately, upon his return to the bus compound, Respondent

completed and filed with his supervisor an Incident Report

detailing the events on the bus that afternoon.

30. Petitioner proved by a preponderance of evidence that

Respondent violated the policies recited in the Petition as a.,

b., c., d., e., and f.

31. Since Respondent commenced working for the District,

he received one probationary and seven annual performance

assessments. With the exception of his 2007-2008 performance

assessment, Respondent always scored at an “Effective level of

performance observed,” except one score of “Inconsistently

practiced” in his 2003-2004 assessment for the area targeted of

“Demonstrates an energetic and enthusiastic approach to work,

avoids excessive or unnecessary use of sick/personal leave.”

Respondent’s supervisor consistently recommended him for

reemployment, including the 2008-2009 school year.

32. In his 2007-2008 annual performance assessment,

Respondent received a score of “Effective level of performance

observed” in 29 out of a total of 32 areas targeted for

assessment. Respondent received two scores of “Inconsistently

practiced” for the areas of “Reports to work as expected unless

an absence has been authorized” and “Reports to work on time as

determined by route schedules,” and one score of “Unacceptable

level of performance observed” for the area of “Demonstrates an

energetic and enthusiastic approach to work, avoids excessive or

unnecessary use of sick/personal leave.” Although the

District’s performance assessment form provides that Criteria

evidence of any such documentation.

33. During the 2007-2008 school year, Respondent was

disciplined on two occasions. Respondent was involved in a

physical altercation with another employee in February of 2008

and as a result he was suspended for three days without pay. In

addition, Respondent was suspended for an additional three days

without pay for causing a disruption on another bus operator’s

route.

34. Petitioner has proven by a preponderance of evidence

that Petitioner has just cause to terminate Respondent.

CONCLUSIONS OF LAW

35. DOAH has jurisdiction over the parties and the subject

matter of these proceedings, pursuant to Section 120.569 and

Subsections 120.57(1), and 1012.33(6)(a), Florida Statutes

(2008) 1 , and School Board Policy 1.16(6)(c).

36. As a bus operator, Respondent is an “educational

support employee,” as defined by Subsection 1012.40(1)(a),

Florida Statutes.

37. The superintendent of the District has the authority

to recommend to Petitioner that educational support employees be

suspended and/or dismissed from employment. § 1012.27, Fla.

Stat.

38. The School Board has the authority to terminate and/or

suspend without pay, educational support employees.

§§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat.

39. An educational support employee can only be terminated

for the reasons set forth in the collective bargaining agreement

(SPALC agreement), which governs these employees. The SPALC

agreement provides that support employees can only be terminated

7.10. Provision 7.10 of the SPALC Agreement provides that “any

discipline during the contract year, that constitutes a

reprimand, suspension, demotion, or termination shall be for

just cause.”

40. Just cause for discipline is a reason which is

rationally and logically related to an employee’s conduct in the

performance of the employee’s job duties and which is concerned

with inefficiency, delinquency, poor leadership, lack of role

modeling or misconduct. State ex rel Hathaway v. Smith , 35 So.

2d 650 (Fla. 1948).

41. Petitioner has the burden of establishing just cause

by a preponderance of the evidence. McNeill v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

42. The Petition sets forth the specific facts upon which

Respondent’s proposed discipline is based. Respondent cannot be

disciplined for conduct that is not set out in the Petition.

Respondent is entitled to fair notice and an opportunity to be

heard on each of the charges against him. Pilla v. School Board

of Dade County, Florida , 655 So. 2d 1312 (Fla. 3d DCA 1995);

Florida State University v. Tucker , 440 So. 2d 37 (Fla. 1st DCA

1983).

43. Under Florida law, a school board’s decision to

terminate an employee is one affecting the employee’s

substantial interest; therefore the employee is entitled to a

formal hearing under Subsection 120.57(1), Florida Statutes, if

material issues of fact are in dispute. Sublett v. District

School Board of Sumpter County , 617 So. 2d 374, 377 (Fla. 5th

DCA 1993).

44. Subsection 1012.45(2), Florida Statutes, invests each

school bus driver with the authority and responsibility to

control students during the time students are on the school bus

pursuant to Section 1006.10, Florida Statutes. Section 1006.10,

Florida Statutes, requires Respondent to control students during

the time students are on the school bus.

45. Subsection 1006.09(1)(a), Florida Statutes, requires

each school principal to “fully support the authority of his or

her teachers and school bus drivers to remove disobedient,

disrespectful, violent, abusive, uncontrollable, or disruptive

students from the classroom and the school bus . . . and give

full consideration to the recommendation for discipline made

by . . . a bus driver when making a decision regarding student

referral for discipline.”

46. The District’s Code of Student Conduct expressly

provides that with regard to bus transportation, fighting will

not be permitted and suspension of bus-riding privileges may

result when a student violates the code of conduct. (emphasis

theirs).

47. The School Board has construed just cause for purposes

of discipline pursuant to the SPALC Agreement in the same manner

as that phrase is used in Section 1012.33, Florida Statutes,

relating to instructional staff. 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).

48. The School Board has established by a preponderance of

evidence that Respondent, on May 21, 2008, failed to control

students on the school bus and did not take the steps necessary

to protect students from injury.

49. Respondent’s failure to respond appropriately to

multiple student fights and his failure to follow the procedure

outlined in the FDOE School Bus Driver’s Manual regarding

disruptive behavior are in violation of Subsection 1006.10(4),

Florida Statutes, which requires a bus operator to take the

steps necessary to protect students. His actions are in

violation of Florida Administrative Code Rule 6A-3.017, which

requires a bus driver to maintain order and discipline to ensure

that each passenger remains seated, to keep each aisle clear and

to report immediately to the proper authority any misconduct on

the part of any student while on the bus.

50. Respondent’s actions are also in violation of School

Board Policy 5.26, which prohibits pushing or grabbing a student

unless the student’s health or safety is directly threatened and

the employee is acting in defense of a student.

51. Respondent is in violation of School Board policy

5.02, which requires Respondent to be in compliance with state

laws and adhere to the highest ethical standards. Finally,

Respondent is in violation of School Board Policy 5.29, which

requires Respondent to exemplify conduct that is lawful and

professional.

52. The School Board has established by a preponderance of

evidence that Respondent’s conduct on May 21, 2008, while

serving as the bus operator for Bus 999, constituted just cause

for his dismissal from employment from the School Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a Final Order

finding that just cause exists for termination of the employment

of Respondent and dismissing Respondent from his position as a

bus operator with the School District of Lee County.

DONE AND ENTERED this 29th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of June, 2009.

ENDNOTE

1/ All references to Florida Statutes are to Florida

Statutes (2008), unless otherwise indicated.

COPIES FURNISHED :

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

James W. Browder, Ed.D., Superintendent

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

Robert J. Coleman, Esquire

Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

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.