09-002270TTS Manatee County School Board vs. Stephanie Waiters Status: Closed Recommended Order on Monday, February 1, 2010.

Summary: Petitioner demonstrated that Respondent committed misconduct in office when she stopped a bus for nearly an hour and suspended students from riding. Respondent lacked authority to suspend students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2270

)

STEPHANIE WAITERS, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on September 10 and 11, 2009, in Bradenton, Florida, before

Lawrence P. Stevenson, the designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez &

Hearing, P.A.

201 North Franklin Street, Suite 1600

Tampa, Florida 33602-5246

For Respondent: Adam Tebrugge, Esquire

2337 Ixora Avenue

Sarasota, Florida 34234

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Manatee County School

Board (the "School Board"), may terminate Respondent's

employment as a non-instructional employee for "just cause" as

defined in Section 6.11 of the School Board's Policies and

Procedures Manual, based upon the conduct alleged in the Amended

Administrative Complaint filed at the Division of Administrative

Hearings on June 9, 2009.

PRELIMINARY STATEMENT

On April 2, 2009, School Board Superintendent Timothy

McGonegal served a letter on Respondent Stephanie Waiters. The

letter informed Ms. Waiters that the Superintendent intended to

recommend the termination of Ms. Waiters' employment at the next

meeting of the School Board on April 27, 2009. Served with the

letter was a copy of an Administrative Complaint detailing the

factual allegations supporting the Superintendent's

recommendation. On April 25, 2009, Ms. Waiters timely filed a

request for an administrative hearing to contest the

Superintendent's recommendation. On April 27, 2009, the School

Board placed Ms. Waiters on temporary assignment in its print

shop pending the outcome of the requested administrative

hearing. The matter was forwarded to the Division of

Administrative Hearings ("DOAH") on April 28, 2009.

On May 28, 2009, the School Board filed a Motion for Leave

to File an Amended Administrative Complaint, based on additional

facts obtained through investigation conducted after the filing

of the initial Administrative Complaint. Over Respondent's

objection, the motion was granted by Order dated June 4, 2009.

On June 9, 2009, the School Board filed its Amended

Administrative Complaint, which contained the following factual

allegations:

1. Waiters has been employed with the

School District of Manatee County since

August 6, 1996. She is currently on

temporary assignment at the print shop with

pay pending the hearing on her termination.

2. At all times pertinent to the

allegations of this administrative

complaint, Waiters was an area coordinator

in the Transportation Department.

3. Due to the absence of the regular school

bus driver, Carol Hindman ("Hindman") of

school bus #537 on Monday, February 9, and

Tuesday, February 10, 2009, substitute bus

driver Jose Rodriguez ("Rodriguez") drove

said bus on the morning run to Palmetto High

School.

4. During the bus route on both days, the

students on the bus reportedly engaged in

misbehavior such as screaming and yelling,

talking at the railroad tracks, and

directing racial slurs toward Rodriguez.

5. Rodriguez reported this information to

the regular driver, Hindman and Waiters on

Tuesday, February 10, 2009.

6. As a result of the information related

to Hindman and Waiters by Rodriguez, on the

morning of Wednesday, February 11, 2009,

Waiters rode bus #537 along with Hindman and

Rodriguez on the bus bound for Palmetto High

School.

7. At the direction of Waiters, the bus

stopped at 29th Street and 9th Avenue Drive

East (the fourth stop of the run) whereupon

the students were permitted to board the bus

for transportation to Palmetto High School.

8. However, Waiters ordered that the bus

not proceed to Palmetto High School and

instead she read aloud a list of students

provided to her by substitute driver

Rodriguez. Waiters stated that the students

she read from the list should enjoy the ride

because it would be "their last day riding

the bus, ever."

9. Waiters then called an unidentified

party from her cell phone and requested that

the Sheriff's Department report to 29th

Street and 9th Avenue Drive East whereupon

Waiters advised the students that she would

be releasing them either to their parents or

the Sheriff. Waiters directed the students

that if they had a cell phone, they should

call their parents to pick them up.

10. After checking student identification,

Waiters released several students on the

list to their parents.

11. Shortly thereafter, a Manatee County

Sheriff's Deputy boarded the bus and

explained to the remaining students that

they were not permitted to disembark the bus

because the School Board was responsible for

their safety.

12. Shortly thereafter, the Palmetto High

School resource officer and assistant

principal arrived at the bus stop and

assisted in transporting to Palmetto High

School the students who had been unable to

reach their parents for transportation to

that school.

13. Waiters did not provide Assistant

Principal Carl Auckerman ("Auckerman") with

bus referrals prior to refusing to permit

students from riding bus #537 to Palmetto

High School and releasing them to their

parents. Nor had said students been

suspended from riding the bus by anyone with

the authority to do so.

14. Waiters unilaterally, summarily removed

and thus suspended students from being

transported to Palmetto High School on their

school bus on the morning of Wednesday,

February 11, 2009, in violation of the

Standard Operating Procedures Manual of the

Transportation Department of the School

District of Manatee County as well as

Florida Statutes. Waiters had absolutely no

authority to detain the bus once it was en

route to Palmetto High School.

15. As a result of Waiters' actions, the

health, welfare and safety of the students

who were removed from the bus was

jeopardized as was that of the students who

were waiting to be picked up by bus #537 at

subsequent stops along the side of the road.

16. Waiters directed students on the bus to

use their cell phones when riding the school

bus in violation of the Standard Operating

Procedures Manual of the Transportation

Department of the School District of Manatee

County.

17. As a result of Waiters' unauthorized

detaining of bus #537, all of the students

on the bus route were late for school

inasmuch as the bus arrived at Palmetto High

School at 7:57 a.m. after school had started

at 7:45 a.m. due to Waiters' unauthorized

action.

18. Waiters' actions individually and

cumulatively, constitute just cause for

discipline under section 6.11 of the

Policies and Procedures Manual of the School

Board of Manatee County.

19. Prior to this incident, Waiters was

reprimanded and suspended without pay for

previous instances of misconduct.

Based on these factual allegations, the Amended

Administrative Complaint charged Ms. Waiters with the following

violations:

21. Waiters' actions violated Section

3.003(2) of the Standard Operating

Procedures Manual of the Transportation

Department of the School Board of Manatee

County which provides that the School

District requires progressive discipline and

that disciplinary actions, including

suspension of students from riding on school

district buses shall be subject to School

Board policies and may be imposed by the

principal or the principal's designee.

Section 3.003 further provides that the

principal or the principal's designee may

delegate any disciplinary authority to

school bus operators except for suspension

of students from riding the school bus.

22. Waiters' actions violated Section 4.003

of the Standard Operating Procedures Manual

of the Transportation Department of the

School Board of Manatee County which

specifically provides that school principals

may elect to suspend the student's bus

riding privileges when prior warnings and/or

alternative discipline have failed to result

in an improvement in the student's behavior.

Section 4.003 specifically provides that the

school principal may suspend a student's bus

riding privileges.

23. Waiters' actions violated [Section]

1006.10(2), Florida Statutes (2008) which

provides that the principal or principal's

designee may delegate any disciplinary

authority to school bus drivers except for

suspension of students from riding the bus.

24. Waiters' actions constitute misconduct

in office which is defined as a violation of

the Code of Ethics of the Education

Profession as adopted in [Florida

Administrative Code Rule 6B-1.001] and the

Principles of Professional Conduct for the

Education Profession in Florida as adopted

in [Florida Administrative Code Rule 6B-

1.006], which is so serious as to impair the

individual's effectiveness in the school

system.

25. Waiters' actions in directing students

to call their parents on the cell phone in

violation of section 4.005 of the Standard

Operating Procedures Manual of the

Transportation Department of the School

Board of Manatee County as well as the Code

of Student Conduct, both of which require

that students' cell phones be turned off

while they are on the school bus.

26. Waiters' actions violated [Florida

Administrative Code Rule 6B-1.006(3)(a)],

which requires that the employee make a

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.

27. Waiters' actions violated [section]

6.13(4)(a) and (b) of the Policies and

Procedures Manual of the School Board of

Manatee County in that she failed to make

truthful statements to the Office of

Professional Standards during her interview.

28. Waiters' actions violated [Florida

Administrative Code Rule 6B-1.006(5)(a)],

which requires that the individual shall

maintain honesty in all professional

dealings.

29. Waiters' actions constitute a violation

of Florida Administrative Code Rule 6B-

1.001(2), which provides that the educator

will seek to exercise the best professional

judgment and integrity.

30. Individually and cumulatively, Waiters'

actions and her violations of the

aforementioned policies, procedures, rules

and statutes constitute just cause for the

termination of her employment with the

Manatee County School Board.

The matter was continued once before the final hearing was

held on September 10 and 11, 2009. At the hearing, the School

Board presented the testimony of: Daniel Whidden and Kenneth

Warner, deputies with the Manatee County Sheriff's Office at the

time of the events in question; Anissia Williams-Bell, the

mother of a student who rode Bus 537 in February 2009; Carl

Auckerman, assistant principal at Palmetto High School at the

time of the events in question; Douglas Marsten, an officer with

the Palmetto Police Department and the school resource officer

("SRO") at Palmetto High School; Kevin Jackson and Robert Kelly,

parent liaisons at Palmetto High School; Terry Palmer, director

of the School Board's transportation department; and Debra

Horne, investigator for the School Board's office of

professional standards ("OPS"). The School Board's Exhibits P-1

through P-9, P-11, P-14 through P-16, P-18, P-19, P-21, P-25,

P-29 and P-30 were admitted into evidence. (Only pages 56

through 65 of School Board Exhibit 6 were admitted into

evidence).

The Respondent testified on her own behalf and presented

the testimony of Terri Anne Dingler, an area coordinator for the

School Board, and Jose Rodriguez, a substitute bus driver for

the School Board. Respondent's Exhibits R-1 through R-3 were

admitted into evidence.

The two-volume Transcript of the hearing was filed at DOAH

on October 28, 2009. Also on October 28, 2009, the parties

filed a Joint Motion for Extension of Time to File Proposed

Recommended Orders, which was granted by order dated October 29,

2009. In accord with the order granting extension, both parties

filed their Proposed Recommended Orders on November 20, 2009.

FINDINGS OF FACT

1. Respondent Stephanie Waiters was hired by the School

Board as a bus driver on August 6, 1996. In 2005, she was

promoted to the position of area coordinator. The five "area

coordinators" are first-line supervisors responsible for

overseeing the daily operations of the buses within their

assigned geographical districts.

2. In December 2008, Terry Palmer was promoted from

assistant director to the position of director of

transportation. Upon his promotion, he was informed by the

School Board that, due to budget constraints, his former

position would not be filled, nor would the open position of

operations coordinator. On January 23, 2009, Mr. Palmer issued

a memorandum to all transportation employees regarding the

additional duties that transportation department employees would

be required to undertake in response to the budget cuts.

3. Mr. Palmer's memorandum stated that, because he would

not have administrative assistance, the area coordinators would

report directly to him and would assume certain "additional

responsibilities":

The expanded role of the Area Coordinators

will include: 1. employee evaluations; 2.

parent conferences; 3. coaching and

assisting employees on their buses; 4.

observing bus operations at stops, schools

etc. when needed; 5. following through on

complaints from schools, parents and/or

citizens and coordinating action with others

inside and outside the department; 6.

counseling employees on performance issues

and documenting employee discipline; 7.

ensuring all employees assigned to them have

all of the training and coaching they need

to succeed; 8. initiating, in conjunction

with the director, involvement of the Office

of Professional Standards on extreme issues

of poor performance and/or misconduct.

4. Ms. Waiters was the area coordinator for District 5,

which includes Palmetto High School. Bus 537 was assigned to

District 5 and ran routes to, among other schools, Palmetto High

School. The regular operator of Bus 537 during the 2008-2009

school year was Carol Hindman. Ms. Waiters testified that there

had been a lengthy history of student disciplinary problems on

Bus 537.

5. On Thursday, February 5, 2009, Ms. Waiters phoned Jose

Rodriguez, a substitute bus driver employed by the School Board,

and informed him that he would be driving Bus 537 on Monday,

February 9, 2009. 1 On the morning of Friday, February 6, 2009,

Mr. Rodriguez rode Bus 537 with Ms. Hindman driving in order to

familiarize himself with the route.

6. Mr. Rodriguez testified that there were no problems on

the bus until it reached the stop at 29th Street and 9th Avenue

Drive East ("29th and 9th"). The students at this stop were

rowdy and disregarded his instructions to put away their cell

phones and iPods and to carry their backpacks in front of their

bodies. From that stop onward, it became a "party bus,"

according to Mr. Rodriguez. The students informed Mr. Rodriguez

that they run the bus, and that the "racist cracker bitch"

Ms. Hindman just drives it. The students claimed to have hurt

Ms. Hindman, and threatened to hurt Mr. Rodriguez if he

attempted to control their behavior. One student began calling

Mr. Rodriguez "Chico."

7. Mr. Rodriguez testified that the situation was even

worse on the afternoon route, with noise, screaming, radios

playing and general horseplay making the situation dangerous.

That night, Mr. Rodriguez phoned Ms. Waiters to tell her the

Palmetto High School students on Bus 537 were "off the chain"

and he was not sure he could handle the situation. She advised

him to drive the bus on Monday and see how it went when he was

alone. Ms. Waiters told Mr. Rodriguez to "write referrals" on

the students who made trouble and she would back him up in any

way necessary.

8. Mr. Palmer explained the disciplinary authority of bus

drivers and the related referral process as follows:

From the standpoint of what they can do, is

obviously they should try to work with the

student on the bus, they can counsel them,

they can move their seat, they can work with

them on the bus. If that's unsuccessful,

they then write a referral which is given to

the school for processing, describing what

the behavior has been that is disruptive or

that is [in] violation of the safety rules,

and then that's given to the school to take

care of...

Typically, [upon receipt of the bus driver

referral,] the principal will assign the

assistant principal or have parent liaisons

that will meet with the individual students

regarding behavior, talk about what that

behavior is, why it's dangerous, and so

forth, counsel them the first time, and then

go through a series of progressive

disciplinary steps which can lead to

suspension from the bus and ultimately

expulsion if it's not corrected.

9. The referral form indicates the disciplinary action

taken by the principal or his designee. (Section 1006.10(2),

Florida Statutes, prohibits the principal from delegating to bus

drivers the authority to suspend students from riding the bus.)

If the student is to be suspended from riding the bus, the

student's parent must first be notified. The school bus

operator is also notified of the discipline resulting from the

referral. Before a suspended student may ride the bus again, he

is required to present the pink carbon copy of the referral form

to the driver. 2

10. Mr. Rodriguez drove Bus 537 on the morning of Monday,

February 9, 2009. He testified that it was "the same routine"

on Monday. Mr. Rodriguez said that he did not even attempt to

control the students because his efforts to do so the previous

Friday had been such a failure.

11. Mr. Rodriguez stated that he was concerned for his and

the students' safety at the three railroad crossings the bus had

to traverse on the way to Palmetto High School. The proper

procedure is to put on the signal flashers when the bus comes

within 50 feet of the railroad crossing. Then, when the bus is

within 25 feet of the crossing, the driver turns off everything

but the motor to achieve as complete a silence as possible,

because he must be able not only to see but to hear whether a

train is approaching the crossing.

12. Mr. Rodriguez testified that he tried to silence the

students at the railroad crossings, telling them it was for

their own safety. They laughed and carried on with their

screaming and horseplay.

13. After finishing the morning route, Mr. Rodriguez

reported to Ms. Waiters, who told him to write referrals on the

students for their behavior at the railroad crossings and the

general mayhem described by Mr. Rodriguez. Ms. Waiters told

Mr. Rodriguez to take a School Board vehicle and drive to

Palmetto High School to turn in the referrals. Mr. Rodriguez

testified that he went to Palmetto High School and gave the

referrals to the assistant principal, Carl Auckerman.

Mr. Rodriguez testified that Mr. Auckerman told him he would

take care of the matter.

14. Mr. Rodriguez testified that the situation was at

least as bad on the Monday afternoon route of Bus 537.

Ms. Waiters phoned him at home that evening, and advised him to

write more referrals on the misbehaving students. She asked him

if he needed someone else on the bus, but Mr. Rodriguez said he

could handle the situation.

15. Mr. Rodriguez testified that he wrote referrals on

Monday evening. He drove the bus on Tuesday morning,

experienced the "party bus" situation again, and then wrote more

referrals. He testified that he and Ms. Waiters drove to

Palmetto High School with the new referrals. They met with

Mr. Auckerman and the SRO, Officer Douglas Marston of the

Palmetto Police Department.

16. Mr. Rodriguez testified that Mr. Auckerman told them

he was going to issue bus suspensions of eight-to-ten days to

all of the students who received referrals. Mr. Rodriguez and

Ms. Waiters were satisfied with this outcome, and left the

office.

17. Ms. Waiters generally supported Mr. Rodriguez' version

of the events occurring on Monday, February 9 and Tuesday,

February 10. However, Mr. Auckerman, the assistant principal,

testified that he did not know Mr. Rodriguez, did not meet with

him on February 9 or 10, and received no referrals related to

Bus 537 prior to February 11, 2009. Officer Marston testified

that he knew nothing of the situation on Bus 537 prior to the

morning of Wednesday, February 11.

18. The testimony of Mr. Auckerman and Officer Marston was

consistent and credible. The testimony of Mr. Rodriguez and

Ms. Waiters was inconsistent. Their chronology of events

constantly shifted and was unsupported by the documentary

evidence, which was consistent with the testimony of

Mr. Auckerman and Officer Marston. 3

19. Mr. Rodriguez testified that he alone met with

Mr. Auckerman on the morning of Monday, February 9. In a

deposition, Ms. Waiters testified that she accompanied

Mr. Rodriguez to Palmetto High School on February 9 and was in

Mr. Auckerman's office with Mr. Rodriguez. At the hearing,

Ms. Waiters testified that her only meeting with Mr. Auckerman

on February 9 occurred that afternoon at the Palmetto High

School bus loop.

20. During cross-examination, when she was confronted with

her contradictory deposition testimony, Ms. Waiters testified:

With all the dates, the 9th, the 10th and

the 11th, it's very vague, everything. I

probably did, probably didn't, but I did go

in to see Mr. Auckerman. I don't know if he

came to the bus loop on Monday or whether I

went, but I did go there two consecutive

days with Mr. Rodriguez.

21. The above quote is typical of Ms. Waiters' testimony

at the hearing. She would make a definite, affirmative

statement as to where and when an event occurred, but when

pressed by opposing counsel or contradicted by her own prior

statements, she would retreat into vagueness and uncertainty.

22. During her interview with Debra Horne, the OPS

investigator, Ms. Waiters stated that referrals were submitted

to Mr. Auckerman on Tuesday, February 10 and Wednesday,

February 11, then changed her story to state that the referrals

were not submitted until Wednesday, February 11 and Thursday,

February 12. Both versions contradict her testimony at the

hearing that she oversaw Mr. Rodriguez' writing of referrals on

Monday, February 9 and Tuesday, February 10. Ms. Waiters

attributed her confusion to Ms. Horne's interviewing style. 4

23. Mr. Rodriguez was similarly subject to confusion as to

the timing of events. As noted above, he testified that he and

Ms. Waiters met with Mr. Auckerman on Tuesday, February 10 and

that at this meeting Mr. Auckerman announced that the

misbehaving students would be suspended for eight to ten days.

During cross-examination, Mr. Rodriguez was presented with the

referrals that he claimed to have written on February 10, and

was forced to concede that these referrals described events that

actually occurred on Wednesday, February 11. He unconvincingly

continued to claim that the meeting occurred on February 10, and

that there existed other referrals that were actually written on

February 9 and 10 that were not part of the documentary

evidence. Mr. Rodriguez claimed to have his own copies of these

referrals, but was unable to produce them at the hearing.

24. In her interview with Ms. Horne, Ms. Waiters claimed

that on the morning of Wednesday, February 11, she was enforcing

bus suspensions issued by Mr. Auckerman at their meeting on the

previous day. At the hearing, she conceded that she could not

remember whether the meeting with Mr. Auckerman occurred on

February 10 or 11, and further conceded that no student had been

suspended from Bus 537 prior to Wednesday, February 11, 2009.

25. Mr. Rodriguez testified that Bus 537 was worse than

ever on the afternoon of Tuesday, February 10, because the

students knew they had received referrals and had nothing to

lose. He was afraid for his personal safety when crossing

railroad tracks. On the phone that evening, Ms. Waiters told

Mr. Rodriguez that she would be riding the bus on Wednesday

morning.

26. As to the events leading up to Wednesday morning,

Ms. Waiters testified that Mr. Rodriguez had difficulty writing

his initial referrals on Monday because, as a substitute driver,

he did not know the names of the students. Ms. Waiters lives in

the area served by Bus 537, and drove many of the same students

on her bus when they were in elementary school. She suggested

that they "pull the tape" from Monday morning so that she could

name the misbehaving students for Mr. Rodriguez.

27. The School Board maintains recording video cameras on

its school buses. However, the video camera on Bus 537 was

broken and in need of repair. A written repair request

submitted by Mr. Rodriguez at 10:13 a.m. on Tuesday, February

10, 2009, stated, "Camera & tape don't work; tape pops out &

stays out; no red light indicating camera is on." Nonetheless,

Mr. Rodriguez testified that he and Ms. Waiters watched a video

recording from Bus 537 on Monday, February 9.

28. Ms. Waiters testified that there was no video tape

from February 9 because the tape was "popped out," but that they

were able to watch video after the morning route on February 10.

She stated that "the tape was working fine, but the audio was

totally messed up." No video tape documenting the events of the

morning of February 10 on Bus 537 was presented at the hearing.

29. The video camera was repaired and fully functional on

the morning of Wednesday, February 11, 2009, and a video

recording of the events of that morning on Bus 537 was entered

into evidence. 5 The undersigned viewed the videotape at the

final hearing, and viewed a DVD version of the videotape twice

more during the preparation of this Recommended Order.

30. Ms. Hindman, the regular driver, drove Bus 537 on the

morning of February 11. Mr. Rodriguez was already on the bus as

the video commenced at 6:44 a.m. Mr. Rodriguez thought he was

to drive the bus on Wednesday morning, but for some reason

Ms. Hindman showed up and drove. Mr. Rodriguez decided to ride

the bus because Ms. Hindman had no control over the situation,

and he would be free to watch the situation and continue writing

referrals on the troublesome students.

31. Ms. Waiters testified that she decided to ride Bus 537

on Wednesday morning because Mr. Palmer had ordered her to "take

care" of the situation, which she took as permission to do

whatever was needed to bring order to the bus. 6 At 6:47 a.m.,

Ms. Waiters boarded Bus 537 at the corner of 22nd Street and 2nd

Avenue, one stop before 29th and 9th.

32. As the bus proceeded, Mr. Rodriguez consulted

Ms. Waiters as he attempted to identify some of the

troublemaking students. He held a sheaf of papers. Ms. Waiters

admonished him not to discuss what they were about to do in

front of the students 7 already on the bus, and stated her intent

to move those students to the back of the bus before the

students boarded at 29th and 9th.

33. The bus was scheduled to reach the stop at 29th and

9th at 6:50 a.m. On February 11, 2009, the bus stopped at 29th

and 9th at 6:53 a.m. When the bus came to a stop, Ms. Waiters

directed the students already on the bus to move to the rear

seats.

34. After the bus had been stopped for approximately ten

seconds, a student at the 29th and 9th stop, whom Ms. Waiters

identified as J.P., knocked on the door. Ms. Waiters moved to

the door and out of camera range, but could be heard stating

authoritatively, "Get your hands off the window."

35. At the hearing, Ms. Waiters testified that she

suspected J.P. was carrying a weapon and that she feared for her

safety and that of the students on the bus, but believed that

the safest course was to allow him to board the bus rather than

confront him about the suspected weapon. This testimony cannot

be credited, as Ms. Waiters made no mention of such a suspicion

to the Sheriff's deputies who were later dispatched to the bus,

to Mr. Auckerman or SRO Marston when they arrived at the bus, or

to Ms. Horne during the later investigation. Ms. Waiters'

testimony that she did not reveal her suspicions due to fear of

reprisals from J.P. or his confederates, based in part on an

apparently unrelated and unsolved break-in that occurred at her

home five years earlier, is not credited.

36. After admonishing J.P., Ms. Waiters stated, "Everybody

that rode yesterday, let's get on the bus, come on." Then, only

seconds later, she stated, "Everybody who rode this bus

yesterday still thinks they are going to get on the bus.

They're not riding anymore." She stood just inside the door and

began allowing a few students on the bus one at a time,

directing them to their assigned seats. Ms. Waiters could be

heard telling one unseen student, "Off the bus, off the bus,"

while his voice could be heard saying, "But I ride this bus."

She began reading out names from a list provided by

Mr. Rodriguez. The named students, apparently those who did not

make trouble for Mr. Rodriguez the previous day, were allowed to

board the bus. 8 After these students were boarded and seated,

Ms. Waiters directed them to move to the back of the bus.

37. Then, Ms. Waiters began letting the rest of the

students from 29th and 9th onto the bus. As they boarded, she

said, "Enjoy this ride. This is y'alls last day riding the bus

ever." The videotape shows that these students boarded the bus

in orderly fashion and were seated without incident.

38. As the students were boarding, Ms. Waiters stated that

the bus would not be stopping at 29th and 9th any more. "You're

within walking distance, you'll walk," she said to an unseen

student.

39. By 6:59 a.m., all of the students had boarded the bus

at the 29th and 9th stop. The bus remained stopped. The

students talked loudly among themselves, but were otherwise well

behaved. Ms. Waiters phoned her dispatcher and told her to

request that the Manatee County Sheriff's Office send deputies

to the bus stop at 29th and 9th.

40. At approximately 7:02 a.m., a male student attempted

to disembark, telling Ms. Waiters that he had phoned his mother

and she was coming to pick him up. Ms. Waiters told him to be

seated because they had to wait for the Sheriff's deputies to

arrive. The student complained, "What Sheriff? Nobody didn't do

nothing," but obeyed Ms. Waiters' instruction.

41. While they waited, the students in the front of the

bus could be heard laughing and joking about what various

parents or step-parents might do when they came to the bus, such

as breaking the windows or tearing off the door. 9

42. At approximately 7:06 a.m., Ms. Waiters spoke to some

unseen parents through the closed door of the bus, saying, "Wait

a minute. We'll release them in a second." A few seconds

later, she addressed the students: "We'll either be releasing

you to your parents or the Sheriff. So if you have a cell

phone, you want to call your parents. You can go ahead and call

them."

43. At this point, no Sheriff's deputy had arrived at the

scene. The evidence established that the first deputy to

arrive, Deputy Kenneth Warner, was not even dispatched until

7:07 a.m. This fact is significant because during her

interview, Ms. Waiters told Ms. Horne that law enforcement had

directed her to tell the student to call their parents. At the

hearing, Ms. Waiters testified that a Sheriff's deputy told her

to have the kids call their parents, and that she was just

repeating what the deputy told her. Ms. Waiters' testimony on

this point is clearly not true.

44. At approximately 7:07 a.m., Ms. Waiters stated to the

students, "We're waiting to release you to the Sheriff or your

parents." At this point, the students were still in high

spirits, talking loudly to each other but not noticeably upset.

45. At approximately 7:08 a.m., a call was made to the

Sheriff's Office by a parent. The caller informed the

dispatcher that her son had used his cell phone to call her from

Bus 537. Her son told her that the students were locked on the

bus and the driver refused to speak to parents who had arrived

at the bus stop in response to their children's calls.

46. Deputy Warner arrived at 29th and 9th at 7:10 a.m.

His view of the situation, which is entirely supported by the

videotape, was as follows:

[The students] were all sitting in their

seats, no one was up, but they were vocal,

they were expressing their concerns about

comments and stuff like that Ms. Waiters was

stating... She was kind of instigating an

issue. She was walking up and down, and

making comments. Like if they made a

comment to her, she would reply with a

comment which would fire them up, and then

they would all have comments back and

forth... [The four or five parents who

arrived] just didn't know what was going on,

as me, I didn't know what was going on,

either. They were wondering why they were

getting calls from their children. So, I

don't know. They were upset.

47. Deputy Warner credibly denied that he gave any

directives to Ms. Waiters, or indeed had much idea why he had

been summoned to the scene: "It was my impression when I arrived

that she just needed me there as support, and that she was

handling the situation."

48. The videotape shows Ms. Waiters meeting Deputy Warner

at the door of the bus, and stating that this was a situation

similar to the "one we had a couple of weeks ago that I took

care of." 10 She told the deputy that certain students on the bus

must either be taken to the juvenile detention center ("JDC") or

be released to their parents, because there have been "a lot of

problems" on the bus. Ms. Waiters offered Deputy Warner no

further details as to why the students could not ride the bus to

school.

49. Because he was confused by the situation, Deputy

Warner radioed dispatch and requested that SRO Marston respond

to his call.

50. At 7:12 a.m., Ms. Waiters announced to the students,

"You need to call your parents because you will not be riding

the bus. The ones that have parents at work, you'll need to get

your aunts or something, because you will not ride the bus."

Ms. Waiters began releasing students whose parents were waiting

outside the bus.

51. At 7:20 a.m. and at 7:22 a.m., Ms. Waiters again told

the remaining students that they needed to call their parents

for a ride to school.

52. Deputy Daniel Whidden was dispatched by the Sheriff's

Office and arrived at the scene after Deputy Warner. Deputy

Whidden, who was also a football coach at Palmetto High School

and knew several students on the bus, testified that he gave

Ms. Waiters no direction on how to handle the situation.

Ms. Waiters told him that there had been problems on the bus the

day before, and she was calling parents and having them pick up

their children.

53. At 7:23 a.m., Deputy Whidden boarded the bus and

explained to the students that they were not allowed to

disembark because the School Board was responsible for their

safety. He told the students that SRO Marston was on his way to

the bus stop to assist in transporting to school those students

who were not allowed to ride the bus.

54. Deputy Whidden testified that when he boarded the bus,

the students were all in their seats. Some were protesting that

they had done nothing wrong, but no one needed to be calmed

down. This testimony is consistent with the evidence of the

videotape.

55. At 7:26 a.m., Ms. Waiters told Deputy Whidden that the

students in the rear would be transported to school on the bus.

As to the others, she stated, "I told them yesterday at the

school they might as well find transportation in the morning.

Well, they came here, and we can't leave them standing out at

the bus stop." In conversation with Deputy Whidden, a female

student confirmed that some of the students had been told they

would not be allowed on the bus for the rest of the year. 11

56. Officer Marston and Mr. Auckerman arrived at the bus

stop at 7:31 a.m. When they arrived, most of the students had

already disembarked. At no time did Mr. Auckerman tell

Ms. Waiters that the students on the bus should call their

parents or be transported by Sheriff's deputies. Ms. Waiters'

testimony to the contrary is not credited.

57. Mr. Auckerman, Officer Marston, and Deputy Whidden

drove students to Palmetto High School.

58. The bus began to run again at 7:37 a.m., 44 minutes

after it stopped at 29th and 9th. The bus made only one more

stop before arriving at Palmetto High School. This stop

occurred at 7:43 a.m. Two students boarded the bus.

59. Bus 537 is scheduled to make five stops after 29th and

9th. Because of the delay, Ms. Waiters called the driver of Bus

534 to cover some of Bus 537's stops. However, not all of Bus

537's stops were covered, and Bus 534 was 15 to 20 minutes late

picking up some of the students. Further, Bus 537 was scheduled

to make an elementary school run after it dropped off students

at Palmetto High School. The bus made only one of its nine

scheduled stops for elementary school students because the

parents of most of those students had given up on the bus and

either driven their children to school or had the children

walk. 12

60. During the 2008-2009 school year, classes began at

Palmetto High School at 7:45 a.m. Bus 537 typically arrived at

Palmetto High School at 7:20 a.m. On Wednesday, February 11,

2009, Bus 537 arrived at Palmetto High School at 7:57 a.m.,

twelve minutes after the final bell.

61. After the bus arrived at Palmetto High School,

Ms. Waiters and Mr. Rodriguez went into the school and spoke to

Mr. Auckerman. They presented him with the list of names that

they had used to identify the misbehaving students on Bus 537.

Mr. Auckerman told them that he would need referrals before he

could take any disciplinary action against the students.

Ms. Waiters and Mr. Rodriguez submitted some referrals on

Wednesday, February 11, then submitted additional referrals on

Thursday, February 12.

62. The referrals described student misbehavior, such as

failing to be silent at railroad crossings and using cell

phones, but gave no indication that either Ms. Waiters or

Mr. Rodriguez ever feared for their safety on Bus 537.

Mr. Rodriguez testified that the only time he feared for his

physical safety was when he had to drive the noisy bus over

railroad crossings. He did not fear any sort of physical

assault by the students on the bus. 13

63. Mr. Auckerman passed on the referrals to Palmetto High

School's parent liaisons, Robert Kelly and Kevin Jackson.

"Parent liaisons" are School Board employees responsible for

general disciplinary referrals and communicating with parents

regarding student behavior and discipline. The principal of

Palmetto High School has delegated the authority to issue bus

suspensions to the parent liaisons.

64. On Friday, February 13, Mr. Kelly interviewed some of

the students. He decided that the referred students would be

suspended from riding the bus, commencing Tuesday, February 17.

However, as Mr. Kelly and Mr. Jackson were about to finalize the

suspensions by entering the referrals into the computer system,

Mr. Auckerman halted the suspension process pending a School

Board investigation into the events of the morning of February

11.

65. Mr. Auckerman was reacting to parent complaints about

Ms. Waiters' actions on Bus 537. Mr. Palmer, the director of

transportation, also began receiving complaints. Mr. Palmer

spoke with Ms. Waiters, safety officer John Searles, and school

personnel, and was unsettled by the inconsistency of their

stories. On or about February 18, 2009, Mr. Palmer referred the

matter to the OPS.

66. Ms. Horne then began her investigation of the

incident. At the conclusion of her investigation, Ms. Horne

presented a written OPS investigatory report to her supervisor

and scheduled a meeting of all persons in Ms. Waiters' chain of

command, up to Mr. Palmer, the transportation director. At a

meeting on March 19, 2009, the School Board personnel met and

recommended to the Superintendent that Ms. Waiters' employment

with the School Board be terminated. The Superintendent

concurred with the recommendation.

67. Aside from contending that she was merely carrying out

suspensions issued by Mr. Auckerman, which was completely at

odds with the credible evidence produced at the hearing,

Ms. Waiters' chief defense was that her actions on February 11,

2009, were consistent with the action she took in an incident

that occurred on Wednesday, January 28, 2009, for which the bus

driver received a laudatory write-up in the local newspaper and

the praise of law enforcement and school officials.

68. In the earlier incident, a substitute driver on a

morning route to Lakewood Ranch High School pulled the bus over

on State Road 64 and refused to continue because she believed

the students' actions were placing her and the students in

danger. In particular, the students were rocking the bus back

and forth to the point that the driver feared losing control.

69. Ms. Waiters drove out to the scene, followed shortly

by at least six Sheriff's deputies. Ms. Waiters described the

students as "out of control," "hanging out of the windows,

yelling and cursing, throwing stuff out of the windows, rocking

the bus." Ms. Waiters boarded the bus and was able to calm some

of the students. The Sheriff's deputies called the parents of

the troublemaking students and gave them the choice of picking

up their children or having them taken to the JDC. According to

Ms. Waiters, some students actually fought with their parents

and had to be forcibly taken to the juvenile detention center.

70. The next day, the local newspaper ran an article

containing praise for the substitute bus driver. The principal

of Lakewood Ranch High School and a spokesman for the Sheriff's

Office were both quoted saying that she "did the right thing."

Though Ms. Waiters was not mentioned in the article, it is clear

from her testimony that she believed the praise was reflected on

her.

71. The differences between the incidents of January 28

and February 11, 2009, are clear. In the earlier incident, law

enforcement was summoned to deal with an immediate, on-going

dangerous situation. Sheriff's deputies took charge of the

matter, with some assistance from Ms. Waiters, and concluded

that the bus driver had done the right thing in stopping the bus

when it became too hazardous to continue.

72. In the February 11 incident, the videotape makes plain

there was no danger whatever. Once allowed to board the bus,

the students took their seats and talked among themselves.

There were no threats, no disturbances, no rocking of the bus.

Ms. Waiters' claim that she felt threatened was unsupported and

not credible. The students, with good reason, appeared mostly

puzzled as to what was happening. From the incident of

January 28, 2009, Ms. Waiters apparently took the lesson that

she was authorized to stop the scheduled running of a school bus

for nearly an hour and to call out Sheriff's deputies to assist

her in disciplining students for misbehavior that occurred on

previous days. This was the wrong lesson.

73. Ms. Waiters acknowledged that she did not have

authority to suspend students from the bus, and claimed that she

was not "suspending" the students; rather, she was restoring

"order and control" on the bus for the students' safety. 14

Ms. Waiters' actions might have been partially justified had

there been some imminent danger such as that on the Lakewood

Ranch High School bus on January 28, 2009, though even in that

situation it was Sheriff's deputies, not Ms. Waiters, who

removed the problem students from the bus. On Bus 537 on

February 11, 2009, in the absence of any immediate threat or

even untoward behavior by the students, Ms. Waiters took it upon

herself to halt the bus and require students to phone their

parents for rides to school well before law enforcement arrived

on the scene. Ms. Waiters' actions were disproportionate to the

situation on the bus, and constituted "suspensions" of the

students under any reasonable understanding of that term.

74. Ms. Waiters' actions on the morning of February 11,

2009, might merit discipline short of termination had Ms.

Waiters fully and honestly cooperated in the subsequent

investigation. However, Ms. Waiters stubbornly told a

convoluted and contradictory version of events that made little

sense on its face and was at direct odds with the consistent and

credible testimony of School Board personnel and law enforcement

officers who were present during the relevant events, and at

odds with the direct evidence of the videotape from Bus 537.

Ms. Waiters lack of candor throughout the process, coupled with

the extremely poor judgment she employed in stopping the bus and

suspending students without immediate cause or authority, fully

justifies the School Board's decision to terminate her

employment.

CONCLUSIONS OF LAW

75. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Section 120.569 and Subsections 120.57(1)

and 1012.33(6)(a), Florida Statutes. 15

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

preponderance of the evidence the grounds for disciplining

Ms. Waiters. See , e.g. , McNeill v. Pinellas County School

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

County School Board , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995);

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

3d DCA 1990); Dileo v. School Board of Dade County , 569 So. 2d

883, 884 (Fla. 3d DCA 1990).

77. The School Board Superintendent is authorized to

recommend to the School Board that an employee be suspended

and/or dismissed from employment. § 1012.27(5), Fla. Stat.

78. Pursuant to Sections 1012.22(1)(f) and 1012.40(2)(e),

Florida Statutes, the School Board is authorized to terminate or

suspend school personnel without pay or benefits.

79. Respondent is subject to Section 6.11(1) of the

Policies and Procedures Manual of the School Board, which

provides:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employment,

for just cause including, but not limited

to, immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of the Policies and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

statute, violation of the Code of Ethics and

the Principles of Professional Conduct of

the Education Profession in Florida.

80. Ms. Waiters is not an instructional employee as

defined by Subsection 1012.01(2), Florida Statutes. However,

the quoted language of the Policies and Procedures Manual of the

School Board renders her subject to the Code of Ethics of the

Education Profession in Florida, Florida Administrative Code

Rule 6B-1.001, and to the Principles of Professional Conduct for

the Education Profession in Florida, Florida Administrative Code

Rule 6B-1.006.

81. The School Board alleges that Ms. Waiters has

committed misconduct in office, which is defined as "a violation

of the Code of Ethics of the Education Profession as adopted in

Rule 6B-1.001, F.A.C., and the Principles of Professional

Conduct for the Education Profession in Florida as adopted in

Rule 6B-1.006, F.A.C., which is so serious as to impair the

individual's effectiveness in the school system." Fla. Admin.

Code R. 6B-4.009(3).

82. The Amended Administrative Complaint alleges that

Ms. Waiters violated Florida Administrative Code Rules 6B-

1.001(2) and 6B-1.006(3)(a) and (5)(a).

83. Florida Administrative Code Rule 6B-1.006(3)(a)

requires the employee 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." The

School Board has proven by a preponderance of the evidence that

Ms. Waiters' actions violated Florida Administrative Code Rule

6B-1.006(3)(a). Without need or authority, Ms. Waiters

suspended several students from riding on Bus 537. She verbally

harassed and provoked the students on the bus. She

unnecessarily made all of the students riding Bus 537 late for

school. Her actions caused a safety hazard, with elementary and

high school students left standing at bus stops for an

unreasonably long period of time. Bus 537's late arrival at

Palmetto High School caused a ripple effect that led to

elementary school students missing the bus and parents

scrambling to improvise ways to get their children to school.

84. Florida Administrative Code Rule 6B-1.006(5)(a)

required the employee to "maintain honesty in all professional

dealings." Florida Administrative Code Rule 6B-1.001(2)

requires the employee to "seek to exercise the best professional

judgment and integrity." The School Board has proven by a

preponderance of the evidence that Ms. Waiters used very poor

judgment in stopping Bus 537 and suspending several of the

students on that bus on February 11, 2009. The School Board has

proven by a preponderance of the evidence that Ms. Waiters did

not maintain honesty or integrity during the School Board's

investigation into the events of February 11, 2009. Indeed,

Ms. Waiters' testimony at the final hearing itself was a farrago

of contradiction, confusion, and shifting timelines so

perplexing as to defeat any attempt to construct a clear

narrative of her version of events.

85. The combination of extremely poor judgment, usurpation

of the principal's authority, and almost flamboyant dishonesty

could not help but impair Ms. Waiters' effectiveness in the

school system. The School Board has proven by a preponderance

of the credible evidence that Ms. Waiters has committed

misconduct in office as that term is defined in Florida

Administrative Code Rule 6B-4.009(3). This proof of misconduct

in office is sufficient to support the Superintendent's

recommendation that Ms. Waiters' employment be terminated.

86. The Amended Administrative Complaint alleges that

Ms. Waiters violated Section 6.13(4)(a) and (b) of the Policies

and Procedures Manual of the School Board of Manatee County,

which provide that all School Board employees must cooperate

fully with OPS or other appropriate authorities who are

conducting an investigation, and that failure to cooperate

completely and truthfully will subject an employee to

disciplinary action. The preponderance of the evidence

established that Ms. Waiters repeatedly failed to make truthful

statements during her interview with Ms. Horne.

86. The Amended Administrative Complaint alleges that

Ms. Waiters violated Section 1006.10(2), Florida Statutes, and

Sections 3.003(2) and 4.003 of the SOP Manual. Read together,

these provisions state that the school principal has

disciplinary authority over students' bus riding privileges, up

to and including suspension of those privileges, and that the

school principal may delegate this disciplinary authority to

school bus drivers except for the authority to suspend students

from riding the school bus.

87. It could be argued that Ms. Waiters cannot be held to

have violated these provisions because as written, they function

as limitations on the authority of school principals, not as

prohibitions on bus drivers. Further, at the time of the events

at issue, Ms. Waiters was an area coordinator in the

transportation department, not a school bus driver. Therefore,

at least theoretically, the principal of Palmetto High School

might have been authorized to delegate his suspension authority

to Ms. Waiters.

88. However, the preponderance of the evidence established

that no person in the School Board's transportation department

had been delegated the authority to suspend students from riding

the school bus. The preponderance of the evidence established

that Ms. Waiters did not have the authority to suspend students

from riding the school bus, and knew that she did not have this

authority. The preponderance of the evidence established that

on February 11, 2009, Ms. Waiters suspended students from riding

Bus 537.

89. The non-delegation provisions cited above, considered

in light of the facts of the case, establish that Ms. Waiters

could not have believed herself to possess authority to take the

actions she did on the morning of February 11, 2009. Even

taking the strict view that Ms. Waiters cannot be held to have

violated a statute and rule that prohibit principals from

delegating their authority to bus drivers, Ms. Waiters knew that

her actions were unauthorized and therefore she certainly

displayed a failure to "exercise the best professional judgment

and integrity" pursuant to Florida Administrative Code Rule 6B-

1.001(2). This failure further cements the conclusion that she

committed misconduct in office as defined in Florida

Administrative Code Rule 6B-4.009(3).

90. The Amended Administrative Complaint alleged that

Ms. Waiters violated Section 4.005 of the SOP Manual and the

Code of Student Conduct, both of which require the students'

cell phones to be turned off while the students are riding the

school bus. The preponderance of the evidence established that

Ms. Waiters directed the students to use their cell phones to

call their parents from Bus 537 on the morning of February 11,

2009.

91. However, under all the circumstances, it appears that

this violation was de minimus . The bus was not moving, meaning

there was no danger that noise from phone conversations would

distract the driver or that radio signals from the cell phones

might interfere with the functioning of equipment on the school

bus. The somewhat special circumstances of this case do not

appear to present the situation reasonably contemplated by the

cell phone rules. In this case, the students' use of their cell

phones probably had a salutary effect overall, keeping their

parents apprised of the situation on Bus 537.

92. Chapter 6.11 of the Policies and Procedures Manual of

the School Board of Manatee County allows for termination of

employment if there is just cause to believe that Ms. Waiters

has committed misconduct in office. The preponderance of the

evidence established that she did commit misconduct in office.

The undersigned would nonetheless be inclined to recommend a

lesser penalty, such as suspension without pay and/or demotion

to the bus driver, had Ms. Waiters acknowledged that her actions

of February 11, 2009, were unauthorized and that she alone was

responsible for the cascade of events that followed. However,

under all the facts and circumstances discussed above,

termination is appropriate in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner, the Manatee County School

Board, enter a final order that terminates the employment of

Respondent, Stephanie Waiters.

DONE AND ENTERED this 1st day of February, 2010, in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 1st day of February, 2010.

ENDNOTES

1 / The testimony was unclear as to why Mr. Rodriguez was

assigned to Bus 537. Mr. Rodriguez testified that Ms. Waiters

told him the regular driver had the flu. However, Ms. Hindman

actually drove the bus the next day, February 6, 2009.

Ms. Waiters recalled assigning Mr. Rodriguez to the bus on

February 5, but did not state specifically why she was

substituting him for Ms. Hindman, who did not testify at the

hearing. This detail is not especially significant in itself,

but is indicative of the overall inconsistency and unreliability

of the testimony offered by Ms. Waiters and Mr. Rodriguez.

2 / All witnesses agreed that there are often situations in which

the suspended student presents himself to ride the bus and does

not have the pink copy of the referral form. The witnesses also

agreed that the driver is required to allow that student to ride

the bus, with or without the pink copy. The school bus operator

does not, under any circumstances, possess the authority to

unilaterally suspend a student from riding the bus. When the

suspended student rides without a pink copy of the referral, the

driver should take the matter up with the school's liaison.

In her defense, Ms. Waiters pointed out that some of the

students involved in the incidents described in this Recommended

Order lived within two miles of Palmetto High School, and that

state law does not require the School Board to provide

transportation to students who live within two miles of the

school. See Florida Administrative Code Rule 6A-3.001(3),

providing that two miles is a "reasonable walking distance" for

any student not otherwise eligible for transportation under

Section 1011.68, Florida Statutes, which provides the criteria

for state funding of student transportation. Granting

Ms. Waiters' proposition, she cites to no statute, state rule,

or local policy giving the bus driver or the area coordinator

the authority unilaterally to deny a student access to the bus

because the student lives within two miles of the school. The

consensus of the testimony at the hearing was that the driver is

not to leave a student standing on the side of the road under

any circumstances.

3 / An accurate chronology is key to Ms. Waiters' defense. The

School Board alleges that on Wednesday, February 11, 2009, she

suspended students from riding on Bus 537 while lacking any

authority to do so. During the School Board's investigation,

Ms. Waiters claimed that these students had already been

suspended from the bus by Mr. Auckerman on Tuesday, February 10.

(Alternatively, and less coherently, she claimed that she was

not "suspending" students but merely ensuring the safety of the

bus by preventing some students from riding.) Mr. Auckerman

testified, with support from the documentary evidence, that he

issued no suspensions until after the events of the morning of

Wednesday, February 11, 2009.

4 / Ms. Horne's interview notes do indicate that she frequently

shifted from inquiring about the incidents on Bus 537 involving

students from Palmetto High School to questions about other

incidents, also involving Ms. Waiters, that are not at issue in

this proceeding. However, it is not plausible to blame

Ms. Horne for Ms. Waiters' inability to get her story straight

about events in which she participated. Ms. Horne testified

that the interview was confusing because Ms. Waiters easily went

off-task, discussing irrelevant matters, and that Ms. Waiters

constantly changed her story. This description is consistent

with Ms. Waiters' testimony at the hearing.

5 / The camera was stationary and provided a view down the center

aisle of the bus. Neither the driver nor the front door to the

bus was visible.

Based on the testimony at hearing and the vehicle activity

report for Bus 537, which is drawn from GPS information, it is

found that the time stamp of the videotape was 14 minutes behind

the actual time that events occurred. The actual time of the

events is referenced in the Findings of Fact.

6 / Mr. Palmer recalled a conversation with Ms. Waiters about a

substitute driver having problems on Bus 537. The conversation

occurred at a daily noon meeting on either February 9 or 10,

2009. Mr. Palmer didn't recall the specifics of the

conversation, but rejected any idea that he had given

Ms. Waiters carte blanche to suspend students from the bus,

pointing out that he himself lacks the authority to issue such

suspensions. Mr. Palmer left for a three day conference in

Tallahassee at about 10 a.m. on Wednesday, February 11.

Although she had Mr. Palmer's cell phone number and had been

encouraged to use it, Ms. Waiters never called him about the

events on Bus 537 that morning. Mr. Palmer only heard about the

situation upon his return to the office on February 16.

7 / Not all of the children on the bus at 6:30 a.m. were Palmetto

High School students. Some were Ms. Hindman's children and

grandchildren. Mr. Rodriguez' daughter was riding the bus with

him. In another odd bit of faulty memory at the hearing,

Mr. Rodriguez was unable to recall whether his daughter was with

him on the morning of February 11 until he actually saw her in

the video.

8 / While reading the names on the list, Ms. Waiters stopped to

yell, "[J.P.], get off the bus. Get your butt down off this

bus." Her demeanor betrayed no fear of J.P., whom she

eventually allowed to board the bus. Further, the video shows

that Ms. Waiters and Mr. Rodriguez returned to the bus at 8:41

a.m. They discussed how to word the referrals that Mr.

Rodriguez was writing. Ms. Waiters, Mr. Rodriguez, and Ms.

Hindman specifically discussed J.P., but no mention was made of

any weapon.

9 / At the hearing, both Ms. Waiters and Mr. Rodriguez claimed to

have felt endangered and threatened by this banter, none of

which was directed towards either of them. These claims are not

credible.

1 0/ See Findings of Fact 67 through 70, infra , for a description

of the incident to which Ms. Waiters referred.

1 1/ It must be recalled that at the time this student heard

about the supposed year-long suspensions, no person at Palmetto

High School with authority to suspend students from the bus was

even aware of the problems on Bus 537.

1 2/ Mr. Palmer testified that students not being picked up on

time is a major safety issue, because a child left at a bus stop

on the side of the road could walk away and "anything could

happen." At least in Mr. Palmer's mind, this safety issue was

the primary reason for recommending Ms. Waiters' termination.

13 / He did claim to have felt vaguely threatened by joking

comments made by a few students after Ms. Waiters told them to

phone their parents. See endnote 9, supra .

1 4/ Ms. Waiters also denied that she "suspended" students from

the bus because the Standard Operating Procedures Manual of the

Transportation Department of the School Board of Manatee County

("SOP Manual") does not define the term "suspend." "Suspension"

is a common term meaning temporary removal of a student from the

classroom or, in this instance, from a school bus. There is no

requirement that the Legislature, or the School Board in

implementing legislation, provide a detailed definition of words

in common usage. Dadeland Depot, Inc. v. St. Paul Fire and

Marine Insurance Co. , 945 So. 2d 1216, 1225 (Fla. 2006).

Ms. Waiters understood that she had no authority to suspend

students, and understood what the term "suspension" meant in the

context of her job.

1 5/ Unless otherwise indicated, references to the Florida

Statutes are to the 2009 edition.

COPIES FURNISHED :

Adam Tebrugee, Esquire

2337 Ixora Avenue

Sarasota, Florida 34234

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore, Gonzalez & Hearing, P.A.

201 North Franklin Street, Suite 1600

Tampa, Florida 33602

Tim McGonegal, Superintendant

School Board of Manatee County

215 Manatee Avenue West

Bradenton, Florida 34205

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

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.