10-002978TTS Manatee County School Board vs. Ava White-Smith Status: Closed Recommended Order on Thursday, August 26, 2010.

Summary: Failure of bus driver to determine contents of beverage surreptitiously consumed by students being transported is misconduct in office. Students arrived at school in an intoxicated condition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-2978

)

AVA WHITE-SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

On July 28, 2010, a formal administrative hearing was

conducted by video teleconference in Tallahassee and Sarasota,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Martin, Esquire

Manatee County School Board Post Office Box

9069 Bradenton, Florida 34206-9069 For

Respondent: Norman Adam Tebrugge, Esquire

Tebrugge Legal 520 12th Street, West, Suite

203 Bradenton, Florida 34205

STATEMENT OF THE ISSUE

The issue in this case is whether the Manatee County School

Board (Petitioner) has just cause to terminate the employment of

School Bus Operator Ava White-Smith (Respondent).

PRELIMINARY STATEMENT

By an Administrative Complaint dated May 29, 2010, the

Petitioner alleged that, on February 19, 2010, students riding

on the Respondent's bus consumed alcoholic beverages and that

the Respondent failed to take action to prevent the alcohol

consumption or to report the students to appropriate authorities

for discipline. Additionally, the Administrative Complaint

alleged that the Respondent's operation of the bus on

February 23, 2010, created a dangerous traffic situation.

The Respondent denied the allegations and requested a

formal administrative hearing. The Petitioner forwarded the

dispute to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

six witnesses and had Exhibits 1 through 18 admitted into

evidence. The Respondent testified on her own behalf and

presented the testimony of one witness.

No transcript of the hearing was filed. Both parties filed

Proposed Recommended Orders that have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a school bus operator employed by the Petitioner.

2. School bus operators employed by the Petitioner are

responsible for safely operating the vehicle and for maintaining

order among the students being transported.

3. On buses that are equipped with seat belts, students

are to use the seat belts. Whether or not seat belts are

present, students are to remain properly seated, facing forward,

while the bus is in motion.

4. The Petitioner prohibits consumption of all beverages

on school buses. Part of the rationale for prohibiting beverage

consumption by passengers on the bus is the inherent difficulty

in identifying the type of beverage being consumed.

5. At all times material to this case, the Respondent

operated school bus number 611. Her school bus was equipped

with seat belts. A large rearward-facing mirror located above

the driver's position allowed the driver to observe the

passengers. The bus was also equipped with an audio/video

system that recorded the passengers being transported.

6. On the morning of February 19, 2010, the Respondent

transported students to the Manatee School for the Arts (MSA)

and to the "Just for Girls" (JFG) School.

7. The audio/video system recorded the behavior of the

passengers on the Respondent's bus on February 19, 2010. Copies

of the video recordings were admitted as exhibits and were

played during the hearing and narrated by a witness for the

Petitioner. The recordings were also reviewed subsequently by

the Administrative Law Judge.

8. On February 19, 2010, the Respondent first drove the

bus to the MSA, where she discharged the majority of students

being transported that day, and then she drove the remaining

students to the JFG School.

9. As demonstrated by the video recordings, many of the

students on the Respondent's bus were not properly seated and

were not wearing the seat belts. The Respondent made no attempt

to require the passengers to sit in a forward-facing manner or

to require that seat belts be used.

10. During the time that all the students were present on

the bus, the JFG School students sat in the rear of the vehicle.

Some of the JFG School students surreptitiously consumed an

unknown beverage from a container that was passed around by the

students involved in the incident.

11. As the bus trip continued and the beverage was

consumed, the participating students became very loud and

restless.

12. The Respondent was aware that some students were

consuming a beverage on the bus, but she made no attempt to

intervene in the activity. Given the prohibition on consumption

of beverages, and the demeanor of the students involved, the

Respondent should have interceded in the situation.

13. When the Respondent arrived at the MSA, the students

attending that facility exited the vehicle, and the JFG School

students moved to the front of the bus. Before the JFG School

students were seated, the Respondent started to drive the bus

away from the MSA. None of the JFG School students appeared to

use the seat belts after moving.

14. While being transported to the JFG School, some

students sang or spoke loudly and inappropriately, one student

stood and danced to a lewd song on her music player, two

students were excessively affectionate, and a general "party"

mood prevailed.

15. It is inconceivable that the Respondent was unaware of

the JFG School students' behavior after the MSA students were

discharged from the vehicle. The JFG School students were at

the front of the bus, in the immediate proximity of the

Respondent, who on occasion conversed with and about the

students. The Respondent made no significant attempt to require

the students to be seated properly or to correct their behavior.

16. Shortly after the bus arrived at the JFG school,

school administrators discovered that some of the JFG School

students who had been transported by the Respondent were

intoxicated. One of the students had a half-emptied, half-

gallon bottle of gin in her possession. The JFG School

officials took disciplinary action against the students involved

in the incident.

17. None of the students being transported by the

Respondent to the JFG School had ever been the subject of a

disciplinary report filed by the Respondent.

18. At the hearing, the Respondent testified that she paid

little attention to the behavior of the students on her bus,

because, in her experience, their behavior was not unusual.

However, rather than excuse the Respondent's failure to properly

supervise her bus passengers on February 19, 2010, the testimony

suggests that the Respondent failed on a repeated basis to

enforce rules clearly related to passenger safety.

19. On February 23, 2010, the Respondent was driving the

bus westbound on 30th Avenue in Manatee County, Florida, and

arrived at an intersection with U.S. Highway 301, a well-

traveled four-lane highway. There were no students on the bus.

20. Presumably because the Respondent initially intended

to make a left turn at the signaled intersection, she was in a

left turn lane.

21. The Respondent realized that the traffic signals at

the intersection were not functioning. As required, she

contacted the Petitioner's transportation dispatcher to advise

authorities of the situation and to request permission to make a

right turn; however, she failed to inform the dispatcher that

she was located in the left turn lane or that a right turn would

require her to take the bus across other traffic lanes.

22. The dispatcher approved the Respondent's request, and

she made the turn without incident.

23. The Petitioner subsequently received a complaint from

a "concerned citizen" about the Respondent's turn across the

traffic lanes.

24. There was no evidence presented at the hearing that

there was injury or damage to any person or property by the

turn. There was no credible evidence that the traffic present

at the intersection at the time the Respondent completed the

turn precluded the Respondent from making the right turn in a

safe manner.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2010).

26. The Petitioner has the burden of proving by a

preponderance of the evidence the allegations set forth in the

Administrative Complaint underlying the proposed termination of

the Respondent's employment. McNeill v. Pinellas County School

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

of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

27. At all times material to this case, the Respondent was

employed by the Petitioner as a school bus operator. Manatee

County School Board Policy 6.11(12)(c) states as follows:

Any employee of the School Board may be

terminated from employment for just cause,

including, but not limited to, immorality,

misconduct in office , 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. (Emphasis supplied.)

28. Florida Administrative Code Rule 6B-4.009 provides the

following relevant definition:

(3) Misconduct in office 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. (Emphasis supplied)

29. The Principles of Professional Conduct for the

Education Profession in Florida are set forth at Florida

Administrative Code Rule 6B-1.006 and provide, in relevant part,

as follows:

6B-1.006 Principles of Professional Conduct

for the Education Profession in Florida.

* * *

(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.

30. The evidence established that the Respondent failed to

monitor the activities of students for whom she was responsible

while they rode her bus on February 19, 2010. Several students

riding the Respondent's bus consumed alcohol to the point of

intoxication. Many students were not properly seated and were

not using the available seat belts.

31. The Respondent was aware that students were

surreptitiously consuming some type of beverage while riding her

bus. She made no effort to intervene or to identify the type of

beverage being consumed.

32. Additionally, the Respondent failed to make any

attempt to enforce rules related to proper seating or use of

seat belts.

33. The Respondent failed to make a reasonable effort to

protect the students from conditions harmful to learning and to

the students' health. The failure was of such significance and

seriousness as to impair her effectiveness as an employee of the

school system and to warrant termination from employment.

34. At the hearing, the Respondent denied being aware that

the students were consuming a beverage, but the denial lacked

credibility, particularly since the recordings clearly captured

her discussion with the JFG School students about their

consumption of the unknown beverage.

35. The Respondent also testified that she lacked any

personal background which would have indicated, at least to a

casual observer, that the students were becoming intoxicated.

There was no credible evidence presented to the contrary.

However, the video recordings reveal a group of students clearly

being transported in an unsafe manner and obviously behaving

inappropriately. The Respondent made no effort to enforce bus

rules, to correct the student's behavior, or to determine what

was being consumed.

36. The evidence also established that on February 23,

2010, the Respondent, while driving her assigned bus, made a

right turn from the far left lane at a multilane intersection

and, in doing so, turned across several traffic lanes. The turn

was approved by a dispatcher who was unaware of the Respondent's

location. There were no students present on the bus at the time

of the turn. The evidence fails to establish that traffic

conditions at the time of the incident posed a threat to the

safety of any person or property. The incident was not of such

significance as to warrant discipline against the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Manatee County School Board

enter a final order, terminating the employment of Ava White-

Smith.

DONE AND ENTERED this 26th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 26th day of August, 2010.

COPIES FURNISHED :

Scott A. Martin, EsquireManatee County School BoardPost Office

Box 9069Bradenton, Florida 34206-9069Norman Adam Tebrugge,

EsquireTebrugge Legal520 12th Street, West, Suite 203Bradenton,

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

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34206-9069

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.