16-003913 Palm Beach County School Board vs. Bobbie Alexander Status: Closed Recommended Order on Friday, December 16, 2016.

Summary: Petitioner demonstrated just cause to terminate Respondent's employment as a bus attendant where Respondent slapped a special needs child on the bus. Recommend 15-day suspension followed by termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 3913

BOBBIE ALEXANDER,

Respondent.

_______________________________/

RECOMMENDED ORDER

On October 21, 2016, Administra tive Law Judge Lisa Shearer

Nelson of the Division of Administrative Hearings conducted a

hearing in this proceeding by video teleconferenc e with sites in

Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Helene K. Baxter, Esquire

Palm Beach County School District

Suite C - 323

3300 Forest Hill Boulevard

West Palm Beach, Florida 334 0 6

For Respondent: Bobbie Alexander, pro se

1972 Marsh Harbor Drive

Riviera Beach, Florida 33404

STATEMENT OF THE I SSUE

The issue to be determined is whether Petitioner, the Palm

Beach County School Board (the School Board or Petitioner), had

just cause to terminate RespondentÓs employment as a school bus

attendant .

PRELIMINARY STATEMENT

On May 16, 2016, Dr. Robert M. Avossa, the s uperintendent of

s chools for the School Board , sent Respondent, Bobbie Alexander,

a Notice of Recommendation for Termination of Employment

(Notice) . The Notice advised Respondent that D r. Avossa would

recommend her suspension without pay and termination from

employment at the June 6, 2016 , School Board meeting. The Notice

further advised Ms. Alexander of her rights to challenge the

proposed action.

On June 27, 2016, the School Board Ós legal office received

some correspondence from Respondent that it interpreted as a

request for hearing, and on July 28, 2016, the School Board

referred the matter to the Division of Administrative Hearings

for assignment of an administrative law judge . The District also

filed a Petition alleging the factual and legal basis for seeking

suspension without pay and termination from employment.

A Notice of Hearing was issued August 8, 2016, scheduling

the hearing for September 23, 2016. At PetitionerÓs request, the

case was rescheduled for October 21, 2016, and comme nced as

rescheduled. At hearing, Petitioner submitted the testimony of

Bobbie Alexander, Vernessa Edwards, Pam Ambrose, Heidy Gonzalez

Melendez, Dr. Christin Ferlita, Dr. Elvis Epps, and Sue Gorby .

PetitionerÓs Exhibits numbered 3 through 11, 13 through 15, 17b,

20a, 20b, and 21 were admitted into evidence, and PetitionerÓs

Exhibits numbered 12 and 16 - 1 9 were officially recognized.

Respondent testified on her own behalf , and RespondentÓs

Exhibit 1 was admitted into evidence.

The one - volume Tran s cript o f the proceedings was filed with

the Division of Administrative Hearings on November 16, 2016.

Both parties timely filed P roposed R ecommended O rders that have

been carefully considered in the preparation of this Recommended

Order. All references to Flori da Statutes are to the 2015

codification unless otherwise indicated.

FINDING S OF FACT

1. Petitioner, Palm Beach County School Board , is the

constitutional entity authorized to operate, control, and

supervise the Palm Beach County Public School System. T he

authority to supervise the school system includes the hiring,

discipline, and termination of employees within the school

district.

2. Respondent has been a School Board e mployee since 2000.

From 2000 to approximately 2007, she worked as a paraprofessi onal

in the classroom, where her duties included assisting with

exceptional education students. In 2007, she moved from the

classroom to a position as a bus attendant, again working with

exceptional education students as they were transported to and

from school. Because of the population she served, her job

included making sure that students were secured in their seats,

including those who are transported in wheelchairs.

3. As a bus attendant, Respondent was required to attend

training each year at the b eginning of the school year. The

training included the transport of students with disabilities and

the management of student conduct. Respondent was also subject

to the guidelines contained in the School District of Palm Beach

County Bus Drivers and Bus Attendant Handbook (Transportation

Handbook), which reflects policies of the Transportation

Department of the School Board and has not changed since 2011.

She received a copy of the Transportation Handbook and was

trained on the rules and procedures it co ntains.

4. In c hapter 2, section 8 of the Transportation Handbook,

it states, Ð[t]he Bus Driver or Bus Attendant do not have the

authority to strike or hit a student or to retaliate if struck or

hit, but does have the right to reasonably prevent harm to

h im/herself.Ñ Chapter 6 , section 20 includes the following

direction s :

When you are interacting with special needs

students it is important to find out if the

student understands that her/his actions are

inappropriate or unsafe. It may be that the

behavio r is related to the particular

disability and is not willful or intended

behavior. If the disability is at the root

of the studentÓs beha v ior, discipline may not

be appropriate.

* * *

The bus attendant, as well as the B us D river,

should learn the na mes of all students on the

bus. Greet them kindly each day. Inquire

about how they are feeling, how that did in

school that day, etc. Let them know you care

about them as people. This helps to set a

pleasant and positive tone for the bus trip.

5. Re spondent also received training on the School BoardÓs

Code of Ethics Policy, as well as receiving a copy of the policy

itself. On April 27, 2010, Respondent electronically signed the

Code of Ethics Acknowledgement Receipt indicating that she had

received the training and read, understood, and agreed to comply

with School Board Policy 3.02, the Code of Ethics.

6 . Policy 3.02 specifically defines unethical conduct as

including committing any act of child abuse, including physical

or verbal abuse; committing any act of cruelty to children or any

act of child endangerment ; and engaging in misconduct that

affects the health, safety, and welfare of a student .

7 . Respondent worked on the Royal Palm School route. Royal

Palm School is a school that is restricted to special needs

students with significant cognitive and physical impairments.

All bus routes for Royal Palm School require the use of bus

attendants to assist with the students. Respondent chose the

Royal Palm School bus route in order to work with Vern essa

Edwards , a bus driver with wh om Respondent worked for over two

an d a half years. She was working with Ms. Edwards the day of

the incident giving rise to these proceedings.

8 . M.S.H. is a special needs student on the Royal Palm

School bus route. M .S.H. is approximately 18 years old and

suffers from an autism spectrum disorder. He is a large,

muscular young man and is non - verbal. At the time of the

incident giving rise to this case, M.S.H. was a fairly new

student on RespondentÓs bus. However, in the short time that he

had ridden the bus, he had exhibited some disruptive behavior and

both Respondent and Ms. Edwards were somewhat afraid of him.

9 . His prior behavior had led Ms. Edwards and Ms. Alexander

to request that he ride the bus with a harne ss in order to

restrict his movement. Their request had been added to his IEP

(Individual Education Plan), but the harness provided was too

small for M.S.H. As a result, while his movement was restricted,

it was not as restricted as it would have been if the harness had

fit him properly. M. S . H .Ós shoes also we re removed while he was

on the bus in order to prevent him from throwing them to get

attention.

10 . On October 29, 2015, M.S.H. was a student on the Royal

Palm School route in the afternoon . Ms. E dwards had instructed

Respondent not to seat any student in front of M.S.H. because of

his aggressive behavior. Despite this instruction, Respondent

placed a younger female student on the bench directly in front of

M.S.H.

1 1 . Bus attendants are instruc ted to sit at the back of the

bus, s o that the adults on the bus are in different locations.

This policy is implemented so that, in the event that there is a n

accident, at least one adult would be likely to be available to

assist the students. Respondent did not follow this policy, but

instead sat near the front of the bus, next to the younger

student on the bench in front of M.S.H.

1 2 . At the beginning of the bus route , M.S.H. was fairly

quiet. He was carrying a baggie filled with cereal, and seemed

co ntent. However, several minutes into the bus route, M.S.H.

started rocking back and forth in his seat, and then began

banging on the bus window.

1 3 . M.S.H. started flailing his arms around, and tried to

reach toward Respondent to hit her with his baggi e of cereal .

Ms. Edwards called the dispatch officer to report the behavior.

At first Respon dent ignore d him, and st ood up to let other

students off the bus. When she s at down, she continue d to ignore

him until he hit her with the cereal baggie . Respon dent then

snatche d the baggie out of his hand, look ed at him and after a

moment return ed the baggie to him. M.S.H. then sat in his sea t ,

relatively quiet, for the next two minutes : h owever, while

Respondent and Ms. Edwards assist ed a wheelchair - bound stu dent to

exit the bus, M.S.H. resumed hit ting the window.

1 4 . Soon after the bus resume d forward motion , M.S.H. once

again hit the window, and then start ed reaching for Respondent

with both hands. Respondent ma de no attempt to soothe him.

Instead, she st ood up and sa id to him, in an angry voice, Ðkeep

your hands to yourself ! Ñ M.S.H. respond ed by hitting her with

the baggie of cereal and by reaching forward over the back of

RespondentÓs seat toward the young girl sitting next to

Respondent .

1 5 . Once again, there wa s no attempt by Respondent to calm

M.S.H. To the contrary, Respondent respond ed by punching M.S.H. ,

three to four times and yelling at him.

1 6 . While Respondent does not dispute hitting M.S.H., she

does not take responsibility for her ac tions and does her best to

minimize them . S he claims that hitting the student was not

intentional and that it was Ðjust a tap.Ñ The undersigned has

viewed the videos of the bus trip several times. It was no tap ,

and the action taken was definitely delib erate . Respondent hit

M.S.H. so forcefully that the sound of the impact could be heard

clearly on the bus surveillance tape s, as taken from the front,

back, and middle of the bus .

1 7 . Respondent claimed that she was defending the little

girl sitting in front of M.S.H. because he had hit her , and the

child had cried out. While M.S.H. did reach over the seat toward

the younger student, he did not make contact with her because of

his harness, and she did not cry out.

1 8 . Respondent also stated that she h ad never before hit a

child on the bus. Respondent has a short memory. The District

also presented the bus video from October 21, 201 5 , slightly more

than a week earlier. On that day, Respondent was strapping the

wheelchair of another disabled student i nto place. While she was

securing the wheelchair, she was standing to the side of the

childÓs wheelchair, leaning over him with her arms on either side

of him. In short, while perhaps necessary, Respondent was

definitely invading the childÓs personal spa ce. The child pushed

against RespondentÓs hand, and Respondent slapped him, telling

him not to touch her. There was nothing soothing in the way she

reacted to this child, just as there was nothing soothing in the

way she reacted to M.S.H.

1 9 . When Respo ndent denied at hearing that she had ever

slapped a child before hitting M.S.H., she was asked about the

encounter with the wheelchair - bound child from the week before.

The following exchange took place:

Q. So, Ms. Alexander, you admit that you hit

stude nt M.S.H.?

A. Yes.

Q. And you hit him more than once?

A. Yes.

Q. And although you claim itÓs not

intentional; that it was a reflex, you

actually hit him four times?

A. I didnÓt know how many time I hit him.

Like his, to myself I counted four time. I

donÓt know how many time I did it. It was a

quick reaction. I donÓt know how many time I

did. But I do admit it, that I hit him.

Q. But you saw the video?

A. I saw it. I was shocked.

Q. And you had the opportunity to view the

entire video?

A. With you, yes.

Q. And based on what you saw, it wasnÓt a

reflex, was it?

A. Yes. Lord as my witness, yes.

Q. So your reflex was to hit him. But you

saw the video. It was more Î it was more Î

A. I know it. When it happened I didnÓt

know until I saw the video because I did it

so fast.

Q. You just testified that you were shocked?

A. I was shocked. Lord as my witness, I was

shocked.

Q. You were shocked by your own behavior?

A. My own behavior, yes.

Q. You testified earlier that youÓve never

slap ped a student before?

A. Never slapped a student before, yes.

Q. But in my office you also saw the video

thatÓs been introduced into evidence as

Exhibit 20 - B where you said the other student

in the wheelchair, M, and the video show s you

slap his hand and you said donÓt touch me?

A. I didnÓt hear that, but if you said it,

it happen.

Q. But you saw the video, and you slapped

his hand?

A. IÓm always hitting him like that. IÓm

with him like that, and he like to kick his

feet like that.

Q. So itÓs your no rmal course to slap the

students like that?

A. No, no. I play with hi m, tease with him.

I donÓt k now - Î it just a way I interact with

him.

20 . There was nothing playful about the way Respondent

slapped this childÓs hand.

2 1 . Moreover, Ms. Edwards Ó reaction when Respondent hit

M.S.H. does not reflect the surprise or shock that one would

expect if Respondent had in fact never previously slapped a child.

Instead, Ms. EdwardsÓ expression could be described as resigned

dismay, more indicative of someo ne who had, sadly, seen this

behavior before , and was hoping not to see it again .

2 2 . Ms. Edwards reported the incident with M.S.H. to her

superiors. As a result, Respondent was reassigned from her

position as a bus attendant and had no further contact with

students.

2 3 . It does not matter whether RespondentÓs behavior toward

M.S.H. was the first time or the fortieth time she had acted this

way . A single case of slapping a child in the manner that

Respondent slapped M.S.H. is just cause for terminatio n.

2 4 . While the School BoardÓs collective bargaining agreement

provides for progressive discipline , there is authority for

termination where the conduct for which discipline is sought is

sufficiently egregious . Respondent had no prior formal

discipline , although she had on two occasions received formal

counseling and directives regarding aggressive behavior toward co -

workers that would violate the School BoardÓs Code of Ethics

Policy.

2 5 . Dr. Elvis Epps, the School BoardÓs h uman r esources

m anager, tes tified that based on the investigation into

RespondentÓs behavior toward M.S.H., the superintendent

recommended that she be terminated because her actions represented

a real and immediate danger to the students in the school district

and a flagrant and pur poseful violation of the reasonable rules of

the School Board.

2 6 . Dr. Robert Avossa was hired as s uperintendent of s chools

for the school district in June 2015. Since his employment as

s uperintendent, the School Board has consistently terminated

employ ees who have hit a student. It is common knowledge for

employees of the School Board that hitting a student is grounds

for termination.

CONCLUSIONS OF LAW

2 7 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this

proceeding pursuant to Article 17 of the Collective Bar gaining

Agreement between the School District of Palm Beach County,

Florida, and the Service Employees International Union/Florida

Public Services Union (CBA), as well as sections 120.57(1),

120. 65(9), 1012.33(1)( a ), and 1012.40, Florida S tatutes (2016).

2 8 . The School Board is seeking to terminate Respondent

from employment. Normally, the burden of proof in an employment

case such as this one would be a preponderance of the evidence

standard. Allen v. Sch . Bd . of Dade Cnty . , 571 So. 2d 568, 569

(Fla. 3d DCA 1990); § 120.57(1) (j), Fla. Stat. However,

Article 17(1) of the CBA requires Petitioner to prove its case by

clear and convincing evidence.

2 9 . As stated by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts at issue. The evidence mu st be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

v. Walke r , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden

of proof may be met where the evidence is in conflict, but it

Ðseems to preclude evidence that is ambiguous.Ñ Westinghouse

Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991).

30 . In the Petition filed in this proceeding, the School

Board charges that Respondent violated a variety of School Board

policies, as well as policies contained within the Transportation

Handbook and Article 17 of the CBA. It alleges generally that

Responde nt Ós behavior provides Ðjust causeÑ for her termination.

3 1 . Respondent is an educational support employee as

defined in section 1 012.40( 1 )( a ) . Section 1012.40 (2)(c)

provides:

(c) In the event a district school

superintendent seeks termination of an

emp loyee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice and

shall have the opportunity to appeal the

termination. The appeals process shall be

determined by the appropriate collective

barga ining process or by district school

board rule in the event there is no

collective bargaining agreement.

3 2 . The CBA provides that Ðwithout the consent of the

employee and Union, disciplinary action may not be taken against

an employee except for just c ause and this must be substantiated

by clear and convincing evidence which supports the recommended

disciplinary action.Ñ The CBA does not define Ðjust cause.Ñ

3 3 . The parties in this proceeding did not address what

constitutes Ðjust causeÑ for discip line . However, a reasonable

interpretation of the term would be the definition provided for

instructional personnel in section 1012.33(1)(a), which provides:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the S tate Board of Education: Immorality,

misconduct in office, incompetency, . . .

gross insubordination, willful neglect of

duty, or being convicted or found guilty of,

or entering a plea of guilty to, regardless

of adjudication of guilt, any crime involving

moral turpitude.

3 4 . Florida Administrative Code Rule 6A - 5.056 further

defines the terms used in section 10 1 2.33(1)(a), with respect to

Ðjust cause.Ñ The term Ðmisconduct Ñ includes a violation of the

adopted school board rules, as well as behavior tha t disrupts the

studentÓs learning environment. ÐGross insubordinationÑ means

Ðthe intentional refusal to obey a direct order, reasonable in

nature, and given by and with proper authority; misfeasance, or

malfeasance as to involve failure in the performanc e of the

required duties.Ñ ÐWillful neglect of dutyÑ means Ðintentional or

reckless failure to carry out required duties.Ñ Fla. Admin. Code

R. 6A - 5.056( 2)(c) and (d); (4), and (5). The authority cited in

the School BoardÓs Petition is viewed through th is lens with

respect to the definition of Ðjust cause.Ñ

3 5 . The Petition asserts that Respondent violated

Policy 1.013(1), Responsibilities of the School District

Personnel and Staff , which provides :

It shall be the responsibility of the

personnel employ ed by the district school

board to carry out their assigned duties in

accordance with federal laws, state statutes,

state board of education rules, school board

policy, superintendentÓs administrative

directives and local school and area rules.

3 6 . Viol ation of Policy 1.013(1) is dependent on the School

Board establishing a violation of federal or state law or rule,

another school board policy or rule, or superintendentÓs

administrative directive . As found below, the School Board has

proven such a viola tion.

3 7 . The Petition alleges that Respondent violated several

provisions within the School BoardÓs Code of Ethics Policy. The

relevant portions of the Policy 3.02, Code of Ethics, are as

follows:

3. Making Ethical Decisions

While this Code of Ethics provides general

guidance, it does not provide a complete

listing or a definitive answer to every

possible ethical situation. It is the

intention of the Board in enacting this

policy that the use of good j udgment, based

on high ethical principles and foll owing such

precedent a may be established by the Florida

Commission on Ethics and Florida Education

Practices Commission, will serve as a guide

in determining appropriate conduct in any

circumstance. When making decisions, the

Superintendent and District employees should

use good judgment to fulfill the spirit as

well the letter of this Code of Ethics and

should:

a. Evaluate the situation and identify

ethical issues.

* * *

4. Accountability and Compliance

Each employee agrees and pledges:

a. To pr ovide the best example possible:

str iving to demonstrate excellence, integrity

and responsibility in the workplace.

b. To obey local, state and national laws,

codes and regulations.

* * *

d. To treat all students and individuals

with respect and to strive to be fair in all

matters.

* * *

f. To take responsibility and be accountable

for his or her acts or omissions.

* * *

j. To be efficient and effective in the

delivery of all job duties.

5. Ethical Standards

a. Abuse of Students Î We are committed to

ensuring that employee - student relationships

are positive, professional and non -

exploitive. We will not tolerate improper

employee - student relationships. Each

employee should always maintain a

professional relationship with students, both

in and outside of the classroom. Unethical

conduct includes but is not limited to:

(i) Committing any act of child abuse,

including physical and verbal abuse.

(ii) Committing any act of cruelty to

children or any act of child endangerment.

* * *

(vii) Engaging in misconduct which affects

the health, safety and welfare of a

student(s).

3 8 . By striking M.S.H. as evidenced in the bus surveillance

video, Respondent violated the Ethics Code as alleged in the

P etition. By doing so, Respondent a lso violated Policy 1.013(1),

and committed misconduct as contemplated by

section 1012.33(1)(a).

3 9 . The Petition also charged Respondent with violating

Policy 3.10(6), Conditions of Employment with the District, which

provides:

6. The District requires its employees to

carry out their responsibilities in

accordance to School Board Policy 1.013 (as

may be amended), their job descriptions and

reasonable directives from their supervisors

that do not pose an immediate serious hazard

to health and safety or clearly violate

established law or policy.

40 . This policy does not provide a separate, independent

means for imposing discipline. It, however, supports the

imposition of discipline where violations of the Transportation

Handbook or other reasonable di rectives are proven.

41 . Also cited as a basis for discipline and termina tion is

School Board Policy 3 .27, entitled Ð Suspension and Dismissal of

Employees.Ñ This policy does not provide substantive violations,

but describes the procedure by which disc iplinary matters are

handled. This case has been handled in accordance with

Policy 3.27.

4 2 . The most direct basis for disciplining Respondent that

is alleged in the Petition , other than the Code of Ethics Policy

at section 5, is the violation of the pr ovisions within the

Transportation Handbook . The Transportation Handbook contains

the policies and procedures of the Transportation Department and ,

by extension , are policies of the School Board. The Petition

alleges that Respondent violated the direc tiv es contained in

c hapter 2, s ection 8(A); c hapter 3, s ection 2 1/ ; and c hapter 6,

s ection 20 of the Transportation Handbook . The relevant

provisions within these sections state , as follows:

Chapter 1, Section 2: Duties and

Responsibilities of Bus Drivers a nd Bus

Attendants:

There are many very important duties and

responsibilities that you have as a bus

driver and bus attendant. Students and their

parents/guardians, as well as school

personnel count on you to be polite,

courteous, and on time. They expec t that you

will get the students to and from school

safely and supervise them well.

You are also expected to follow the

established rules, guidelines, policies,

procedures, and practices of the School

District of Palm Beach County, Florida, and

o f our Tra nsportation Department. Needless

to say it is expected that you will be

courteous and respectful to your supervisors,

facility employees, and your coworkers.

Getting along with others is a very important

part of the job. Respect earns respect!

* * *

Chapter 2, Section 8 : Approved Procedures

for Student Management

A. Bus Driver and Bus Attendant

Responsibilities: Rules, Regulations, and

Student Conduct

* * *

Hitting or Striking Students: The Bus Driver

or Bus Attendant do not have the auth ority to

strike or hit a student or to retaliate if

struck or hit, but does have the right to

reasonably prevent harm to him/herself.

* * *

Chapter 6, ÐSpecial NeedsÑ Students

Section 20 . Behavior Management (If Needed)

It is important for all passe ngers on the

school bus to follow rules established by the

school district. Behavior that puts the

safety, health and welfare of other students,

the bus driver, bus attendant, or the

community at risk should not be permitted or

tolerated. . . .

Interacti ng with Special Needs Students

When you are interacting with special needs

students it is important to find out if the

student understands that her/his actions are

inappropriate or unsafe. It may be that the

behavior is related to the particular

disabilit y and is not willful or intended

behavior. If the disability is at the root

of the studentÓs behavior, discipline may not

be appropriate. Behavior problems are

usually a form of communication. It is

important to understand why students are

acting out. Corrective steps can then be

taken to correct the studentÓs particular

situation.

* * *

Facilitating Student Management on the Bus

The Bus Attendant, as well as the Bus Driver,

should learn the names of all students on the

bus. Greet them kindly e ach day. Inquire

about how they are feeling, how they did in

school that day, etc. Let them know that you

care about them as people. This helps to set

a pleasant and positive tone for the bus

trip.

4 3 . Respondent clearly violated these requirements b y

yelling at and striking student M.S.H. Petitioner has proven that

Respondent did so by clear and convincing evidence.

4 4 . Finally, the Petition cites to the CBA, Article 17,

related to Progressive Discipline. Article 17, paragraph seven

provides that there shall be progressive discipline, Ð[e]xcept in

cases which clearly constitute a real and immediate danger to the

District or the actions/inactions of the employee constitute such

clearly flagrant and purposeful violations of reasonable School

Board r ules and regulations.Ñ

4 5 . It is noted that many of the provisions cited are

somewhat duplicative: they reiterate that violation of

reasonable directives, School Board policies, and Florida and

federal law are ba ses to establish just cause for discipl ine.

While some of the provisions cited appear to be aspirational in

nature, there is no question that hitting a child is absolutely

prohibited. Striking a child in anger is an action that is

Ðclearly flagrant and purposeful.Ñ

4 6 . While Respondent admi tted striking M.S.H., she claimed

it was just a reflex, caused perhaps by her fear of his size and

ability to cause harm. However, Respondent is the adult in this

situation , charged with caring for a student with special needs .

A bus attendant is placed on the bus with special needs students

to insure that these students come to no harm. Under no

circumstances can the School Board allow a bus attendant who

strikes out at a student, whether as a reflex or not, to remain

employed in a setting where constan t interaction with students is

required.

4 7 . Petitioner has proven the allegations in the Petition

by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board o f Palm Beach County

enter a final order determining that just cause exists for a

15 - day suspension without pay and termination of employment.

DONE AND ENTERED this 1 6 th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of December , 2016 .

ENDNOTE

1/ W hile Petitioner cites to c hapter 3, section 2, ÐDuties and

Responsibilities of School Bus Drivers and School Bus Attendants Ñ

is actually found in c hapter 1 at section 2 .

COPIES FURNISHED:

Helene K. Baxter, Esquire

Palm Beach County School District

Suite C - 323

3300 Forest Hill Boulevard

West Palm Beach, Florida 334 0 6

(eServed)

Bobbie Alexander

1972 Marsh Harbor Drive

Riviera Beach, Florida 33404

Dr. Robert Avos sa, Superintendent

Palm Beach County School District

3300 Forest Hill Boulevard, C - 316

West Palm Beach, Florida 33406 - 5869

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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

wi ll issue the Final Order in this case.