16-006862 Palm Beach County School Board vs. Rosa Harrell Status: Closed Recommended Order on Tuesday, April 11, 2017.

Summary: By swinging a belt at or near a student while disciplining the student for unacceptable behavior on a school bus, Petitioner gave her employer, the district school board, just cause to terminate her employment as a bus driver.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 6862

ROSA HARRELL,

Respondent.

_______________________________/

RECOMMENDED ORDE R

This case came before Administrative Law Judge John G.

Van Laningham for final hearing by video teleconference on

January 27 and February 15 , 2017, at sites in Tallahassee and

West Palm Beach , Florida.

APPEARANCES

For Petitioner: Helene K . Baxter , Esquire

Palm Beach County S chool Board

Office of the General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416

For Respondent: Dedrick D. Straghn , Esquire

Dedrick D. Straghn , Attorney

& Counselor a t Law

26 Southwest 5th Avenue

Delray Beach , Florida 3344 4

STATEMENT OF THE ISSU E

The issue in this case is whether Respondent, who swung a

belt at or near a student while disciplining the student for

unacceptable behavior on a school bus, gave Peti tioner ÏÏ her

employer, the district school board ÏÏ just cause to dismiss

Respondent from her position as a bus driver.

PRELIMINARY STATEMENT

At its regular meeting on October 19 , 201 6 , Petitioner Palm

Beach County School Board voted to approve the superintendent's

recommendation that Respondent Rosa Harrell be terminated from

her employment as a school bus driver . The reasons for t his

action had been spelled out in a n Amended Notice of

Recommendation for Termination of Employme nt dated October 10 ,

201 6 . In th at charging document, M s . Harrell i s accused of

misconduct in office "based upon allegations of policy

violations related to Ethical Misconduct, Failure to Safeguard

Student(s), and Failure to Follow Policy, Rule, Directive, or

Statute."

M s . Harrell timely requested a formal administrative

hearing to contest Petitioner's i ntended action. Shortly

thereafter, Petitioner filed a formal Petition with the Division

of Administrative Hearings, which opened a file on November 18 ,

201 6 .

Th e final hearing took place over the course of two days,

January 27 and February 15, 2017. At the start of the hearing,

the undersigned granted Petitioner's outstanding Motion to Amend

Petition and accepted the proposed Amended Petition as the

operative pleading. During the evidentiary phase of the

proceeding, Petitioner called the following witnesses: Matthew

Baxter, Gregory Burrus, Marquis Hargrove, Pam Ambrose, M.M.,

Ms. Harrell, Valentino Harvey, Dianna Weinbaum, and Jodi

Cummings. Petitioner's Exhibits 1, 2A, 2B, 3, 6, 17 through 20,

and 31 were admitted into evidence , and the undersign ed took

official recognition of Petitioner's Exhibits 23, 24A, and 25

through 28.

Respondent returned to the stand during her case to give

additional testimony , and she brought back Valentino Harvey for

a second appearance, this time as a witness for the defense .

She did not offer any exhibits .

T he final hearing transcript , comprising four volumes, was

filed on March 2 , 201 7 . Each party timely filed a Proposed

Recommended Order on March 17 , 201 7 , t he deadline established in

the Order Granting Extension of Time entered on March 9, 2017.

Unless otherwise indicated, citations to the official

statute law of the s tate of Florida refer to Florida Statutes

201 6 , except that all references to statutes or ru les defining

disciplinable offenses or prescribing penalties for committing

such offenses are to the versions that were in effect at the

time of the alleged wrongful acts.

FINDINGS OF FACT

1. The Palm Beach County School Board ("School Board" or

"District" ), Petitioner in this case, is the constitutional

entity authorized to operate, control, and supervise the Palm

Beach County Public School System.

2. At all relevant times and as of the final hearing, the

District employed Respondent Rosa Harrell (" Harrell ") as a bus

driver, a position s he has held since 1998 . To date, her

disciplinary record as a District employee is clear.

3. The events in dispute occurred on the afternoon of

April 27 , 201 6 , as Harrell drove students home from Christa

McAuliffe Middle School . During the run, Harrell not iced that a

student was eating on the bus, which is specifically described

as "unacceptable behavior" on page 31 of the District's School

Bus Drivers and Bus Attendants Handbook (the " Handbook ") , as is

drinking any beverage on the bus .

4. State law mandates that a "school bus driver shall

require order and good behavior by all students being

transported on school buses." § 1006.10(1), Fla. Stat. To this

end, drivers are invested with "the authority an d responsibility

to control students during the time students are on the school

bus . . . ." § 1012.45(2) , Fla. Stat . The Handbook likewise

requires that drivers "maintain order and appropriate student

behavior while on the school bus at all times ." Han dbook ,

at 28. 1 /

5. Faced with unacceptable student behavior, which driver s

have a duty to subdue , Harrell demanded that the student or

students bring her their " crackers " and "soda too," immediately .

At the time Harrell gave this order , the bus was stopped ,

probably at a red light. The student (s) did not promptly

comply, and Harrell repeated the command, urging them , multiple

times , to "come on!" T he student (s) still failed to obey, and

after about a half - minute, Harrell step ped on the gas pedal ,

causing the bus to accelerate ÏÏ presumably because the light had

turned green. Finally, a student came forward and handed

Harrell some food, which she tossed out the driver's open

window. The student then returned to his seat.

6. Harrell, driving, ag ain ordered the student who had

been seen drinking to "bring [the soda] here." Eventually a boy

came forward and handed Harrell a soda can, which she threw out

the window. This boy tattled on another student, M.M., who had

been eating and drinking on the bus, too. There is no dispute

that M.M., a sixth - grader at the time, engaged in this

unacceptable behavior. The informant suggested that Harrell

slam on the brakes and deal with M.M. right away , but Harrell

indicated that she would take care of M.M. at the next stop.

7. True to her word, after coming to a complete stop at

the next light, Harrell engaged the parking brake, unstrapped

her seat belt, and headed to the rear of the bus to confront

M.M. As she walked back, one of the students removed his clo th

belt, as others shouted, "Take it!" Harrell said to M.M., "You

drinking on the bus with your big ol' self." She took the belt

when it was offered to her.

8. The District argues that Harrell meant to embarrass

M.M. by drawing attention to his size, an d M.M. testified that

the driver's remark about his "big ol' self" had made him feel

uncomfortable . The undersigned rejects the argument, finding

instead that Harrell in fact used the slangy adjective "big ol'"

not to tease the student about his wei ght , 2 / but to intensify the

reference to M.M.'s "self." She was not calling him fat ; she

was calling him self - important . The approximate meaning of her

statement, in other words, was: You think you're such a big

shot, drinking on the bus . T he undersigned is not convinced

that this comment caused M.M. the discomfort he currently claims

to have experienced. 3 /

9. When Harrell reached M.M., who was sitting by himself

on the bench seat, she took his hand, raised his arm, and swung

the belt in M.M.'s direction, striking the side of the seat five

times. The parties sharply dispute whether Harrell intended to

hit M.M. with the belt, and also whether she did so, either on

purpose or by accident.

10. Having considered all o f the evidence, including the

videos, the undersigned finds that, most likely, Harrell did not

intend to strike M.M. The event took place in an atmosphere of

boisterou s laughter, suggesting to the undersigned that the

students did not regard Harrell as a genuine threat to M.M. The

student himself did not react as though he were in fear of being

struck, as he continued to hold up and view his cellphone

throughout the incident. Finally, had Harrell intended to hit

M.M. with the belt, she almost certainly w ould have landed solid

blows , for he was a sitting duck at close range. Such blows

likely would be plain to see on the available videos . B ut the

videos in evide nce do not unambiguously show the belt striking

the student , giving additional grounds for dou bting that Harrell

intended to hit M.M .

11. The best description the undersigned can give for

Harrell's conduct during the "whupping" of M.M. is that it was

one part pantomime, one part burlesque, and one part horseplay ,

a kind of show whose purpose was to discipline M.M., to be sure,

but with parodic violence, not with real violence, d ischarging

her duty to maintain acceptable student behavior while winking,

metaphorically, at the students. Harrell did not act, the

und ersigned believes, with malice or cruelty or the intent to

cause M.M. harm. S he intended to hit the seat in close enough

proximity t o M.M. that it would look like she was "whupping" the

student.

12. Just because Harrell did not intend to hit M.M. with

th e belt , however, does not mean that she missed him when she

swung in his direction. M.M. testified that Harrell caught him

o n the leg. The video evidence is inconclusive but does not

clearly contradict M.M.'s testimony . Ultimately, b ased on the

totality of the evidence, including the videos, the undersigned

cannot find without hesitation that Harrell struck M.M. with the

belt. While evidence of such contact is less than clear and

convincing, a preponderance of the evidence persuades the

undersigned that the belt , more likely than not, clipped M.M. on

one of its passes. Fortunately for all concerned , M.M. was not

injured.

13. Although Harrell's intentions were good, or at least

not bad, her judgment in this instance was very poor. M .M.'s

hands were not clean, of course, because he had engaged in

unacceptable student conduct, but a driver should not swing a

belt at a student ÏÏ even without the intent to impose actual

corporal punishment ÏÏ just for eating on the bus . Harrell's

actions create d a n indefensible risk o f accidental harm that

outweighed all reasonable disciplinary justifications. Thus,

e ven without clear and convincing proof t hat Harrell hit a

student, the D istrict has convinced the undersigned to

determine, without hesitat ion, that Harrell engaged in

misconduct affecting the health, safety , or welfare of M.M. , in

contravention of a written District policy .

14. Ha d Har rell's actions clearly constitute d a real and

immediate danger to the District , the District would have had a

factual basis not to administer progressive discipline , which is

otherwise generally a requirement under the applicable

collective bargaining agreement . H er actions , however,

immediately affected , not the District as a whole , but only one

person , M.M., and even he was not placed in real and immediate

danger. To explain , while Harrell unreasonably exposed M.M. to

a risk of accidental harm , which is just cause for disciplinary

action, she did not intend to hurt him : harm was foreseeable ,

but not imminent. If Harrell had intended to cause injury

( which she did not ) , the n harm would have been, not only

foreseeable, but nearly inevitable. In that hypothetical case,

her conduct would have constituted an immediate danger to M.M.

In the event, it did not.

15. Nor did Harrell's actions constitute a clearly

flagrant and purposeful violation of any District policies or

rules , which ultimate fact, were it true , would have supplied an

alternative basis for skipping progressive disc ipline . A

veteran driver with a previously spotless disciplinary record,

Harrell suffered a momentary lapse of judgment and , in a

misguided effort to discipline a student for engaging in

unacceptable behavior, committed a disciplinable offense

herself. H er conduct was ill - advised but not obviously and

willfully contumacious.

CONCLUSIONS OF LAW

16 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 1012.40 (2) (c) , 120.569, and 120.57(1), Florida

Statutes.

17 . A district school board employee against whom a

disciplinary proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the allegations "need not be set forth with th e technical nicety

or formal exactness required of pleadings in court," Jacker v.

School Board of Dade County , 426 So. 2d 1149, 1150 (Fla. 3d DCA

1983), the charging document should " specify the rule the agency

alleges has been violated and the conduct whi ch occasioned the

violation of the rule , " i d. a t 1151 (Jorgenson, J. concurring).

18 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

suspension or termination, those are the only grounds upon wh ich

such action may be taken . See Lusskin v. Ag . for Health Care

Admin . , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep ' t

of Ins . , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v.

Dep ' t of Bus . & Prof ' l Reg . , 625 So. 2d 1237, 1238 - 39 (Fla. 2d

D CA 1993); Delk v. Dep ' t of Prof ' l Reg . , 595 So. 2d 966, 967

(Fla. 5th DCA 1992); Willner v. Dep ' t of Prof ' l Reg ., B d . of

Med . , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576

So. 2d 295 ( Fla. 1991).

19 . In an administrative proceeding to suspend or dismiss

a n employee , the school board ordinarily bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense(s). See, e.g. , McNeill v. Pinellas Cnty. Sch.

Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996). If the sc hool

board has agreed, through collective bargaining, to a more

demanding standard, however, then it must act in accordance with

the applicable contract. See Chiles v. United Faculty of Fla. ,

615 So. 2d 671, 672 - 73 (Fla. 1993).

2 0 . Article 17 , paragraph 1 , of the applicable Collective

Bargaining Agreement ("CBA") provides that "disciplinary action

may not be taken against an employee except for just cause, and

this must be substantiated by clear and convincing evidence

which supports the recommended disci plinary action." The School

Board's burden, accordingly, is to prove the facts al leged as

grounds for terminating Harrell 's employment by clear and

convincing evidence at a hearing before the Division of

Administrative Hearings, if timely requested . Ar t. 17, ¶ 8 ,

CBA.

21 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

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 explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such 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 a llegations sought to be

established.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 98 6, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

22 . Pursuant to s ection 1012.40(2)(b), Florida Statutes,

the employment status of an "educational support employee" such

as Harrell 4 / m ust continue "from year to year unless the district

school superintendent terminates the employee for reasons stated

in the collective bargaining agreement . . . ." (Emphasis

added).

23 . As mentioned above, the CBA prohibits the District

from taking disc iplinary action against an employee without just

cause. The CBA does not define "just cause," but the term is

well - k nown in Florida education law. The definition provided in

section 1012.335(5), which governs directly in matters

concerning contracts with instructional personnel but is

applicable here as persuasive authority , states that "just cause

includes, but is not limited to: "

(a) Immorality.

(b) Misconduct in office.

(c) Incompetency.

(d) Gross insubordination.

(e) Willful neglect of duty.

(f) Being convicted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

24. The District did not, in its Amended Petition ,

identify which of the foregoing offenses it contends Harrell

committed, but instead charged Harrell with violations of

numerous state rules and District policies. This prosecutorial

focus implies that the District must have had in mind

"misconduct in office" because the regulatory definition of this

offense includes, as relevant here, acts which constitute "[a]

violation of adopted school board rules." Fla. Admin. Code

R. 6A - 5.056(2)(c).

25. Among other things, the District charged Harrell with

a violation of School Board Policy 3.02(5)(a)(vii) , which makes

it a violation of the District's ethical standards to engage "in

misconduct which affects the health, safety and welfare of a

student. " The driver's guilt or innocence is a question of

ultimate fact to be decided in the context of each alleg ed

violation. Cf. McKinney v. Castor , 667 So. 2d 387, 389 (Fla.

1st DCA 1995); Langston v. Jamerson , 653 So. 2d 489, 491 (Fla.

1st DCA 1995). As found above, H arrell did, in fact, commit the

referenced ethical violation, which makes her guilty of

miscond uct in office, an offense constituting just cause for

disciplinary action.

26. The remaining alleged violations will be addressed in

abbreviated fashion. The District accused Harrell of violating

School Board Policy 1.013(1), which states: "It shall be the

responsibility of the personnel employed by the district school

board to carry out their assigned duties in accordance with

federal laws, rules, state statutes, state board of education

rules, school board policy, superintendent's administrative

direct ives and local school and areal rules." This policy is

not independently violable , at least as a general rule, because

it merely prohibits the violation of other laws . 5 / In other

words, a ll it says, in effect, is that an employee must obey

applicable law s while on the job ÏÏ a proposition that would be no

less true in the absence of this policy . To take disciplinary

action against Harrell , the District must allege and prove a

violation of the underlying applicable law, not this anodyne

policy which merely articulates a truism.

27. School Board Policy 3.02(4) deals with "accountability

and compliance" and contains a list of obviously aspirational

goals to which each employee "agrees and pledges," such as "[t]o

provide the best example possible" and "[t]o tr eat all students

and individuals with respect and to strive to be fair in all

matters." These are best practices as opposed to minimum

standards of conduct. The undersigned doubts that the District

takes seriously the notion of punishing an employee for, e.g.,

failing to provide the best possible example. To the extent

that it is aspirational in nature, this policy cannot reasonably

be regarded as independently violable for purposes of

determining just cause to take disciplinary action. The

undersigned concludes that policy 3.02(4) does not define a

disciplinable offense relevant to any conduct alleged in the

Amended Petition.

28. School Board Policy 3.02(5)(a)(i) and (5)(a)(ii)

proscribe, respectively, "any act of child abuse" and "any act

of cruelty t o children or any act of child endangerment." The

District failed to prove, as a matter of fact, that Harrell

committed any such prohibited act.

29. School Board Policy 3.21(3)(1) requires bus operators

"to safely drive all district school buses." The D istrict

neither alleged nor proved that Harrell failed to safely drive

her school bus.

30. School Board Policy 3.21(3)(6) requires drivers to

observe all the procedures set forth in the Handbook . The

District failed to prove by clear and convincing evide nce that

Harrell violated any such procedure.

31. School Board Policy 3.21(3)(12) provides that drivers

"have the responsibility to study and observe all laws and state

board of education rules relating to the safe operation of

school buses." The Distr ict failed to prove by clear and

convincing evidence that Harrell abdicated this responsibility. 6 /

32. The District charged Harrell with violating several

provisions of Florida Administrative Code Rule 6A - 3.0171(2)(g)3.

This rule, however, directs school districts to adopt policies

setting forth the responsibilities of bus drivers, among other

personnel, and prescribes minimum requirements for such

policies. It does not regulate the conduct of drivers and hence

cannot be violated by a driver.

33. Becaus e Harrell is guilty of misconduct in office, the

District's progressive discipline policy must be consulted to

determine the appropriate penalty. In pertinent part,

Article 17 of the CBA provides as follows:

6. Where just cause warrants such

disciplinary action(s) and in keeping with

the provisions of this Article, an employee

may be reprimanded verbally, reprimanded in

writing, suspended without pay, or dismissed

upon the recommendation of the immediate

supe rvisor to the Superintendent and final

action taken by the District. Other

disciplinary action(s) may be taken with the

mutual agreement of the Parties.

7. Except in cases which clearly constitute

a real and immediate danger to the District

or the act ions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of reasonable School

Board rules and regulations, progressive

discipline shall be administered . . . .

34. The progression of penalties, from least to most

severe, is: (A) verbal reprimand with written notation;

(B) written reprimand; (C) suspension without pay; and

(D) termination of employment. The plain language of the CBA

circumscribes the District's discretion to impose the ultimate

penalty, dismissal, restric ting its use to only those cases

where an employee has (i) previously been suspended without pay,

or (ii) is found guilty of an offense which clearly constituted

a real and immediate danger to the District or involved conduct

that constitute d a clearly fla grant and purposeful violation of

reasonable District policy (hereafter, an Exceptionally Serious

Violation or "ESV"). If neither of those conditions is met,

dismissal is not an available disciplinary action.

35. This means that a first offender such as Harrell

cannot be dismissed unless he or she has committed an ESV. 7 / The

question of whether an employee's conduct falls within the

definition of an ESV is a matter of ultimate fact for the

undersigned to determine based up on competent substantial

evidenc e. This is the teaching of Quiller v. Duval County

School Board , 171 So. 3d 745 (Fla 1st DCA 2015), where the court

of appeal reversed a final order rejecting an Administrative Law

Judge's recommendation that an employ ee be suspended without

pay , instead of dismissed. This recommendation was based on

findings that t he employee in question had not previously been

suspended without pay pursuant to the progressive discipline

policy, and that there was "no evidence of 'severe acts of

misconduct'" wa rranting a departure from the prescribed

progression of penalties. Id. at 745. The court noted that

under section 120.57(1)( l ), the school board could increase the

recommended penalty (suspension without pay ) if it stated with

particularity, in the final order, its reasons for doing so ÏÏ as

it appeared to have done. Id. at 746. But the board was bound

by the finding of ultimate fact that the employee's use of

profanity in front of students (the wrongdoing at issue) was not

a severe act of misconduct. 8 / In view of this fact, the board

did not have the authority, under its progressive discipline

policy, to dismiss the employee, which meant that the board

could not increase the penalty to dismissal. Id. Thus, the

final order was reversed with instructions to adopt the

recommended penalty. Id.

36. As found above, Harrell is not, in fact, guilty of an

ESV. Therefore, the District is without authority under the CBA

to terminate her employment in this proceeding.

37. The question remains whether, under the CBA, the

District is limited to imposing no more serious penalty than a

verbal reprimand, or whether the several pen alties short of

dismissal ( up to and including suspension without pay) are

cumulative depending on the circumstances. Paragraph 6 states

that "disciplinary action(s)" may be taken in accordance with

article 17, which leads the undersigned to conclude that the

District retains the d iscretion to impose two or more penalties

in the progression, as appropriate, to match the severity of the

sanction to the gravity of the offense.

38. The undersigned believes that Harrell's offense, while

not an ESV under the CBA, is yet too serious to receive a mere

verbal reprimand or even a combination of verbal and written

reprimands. Swinging a belt at a student, even without the

intent to cause harm; even when done in a good - faith, albeit

ill - advised, attempt to reprimand the student lighthearted ly for

unacceptable conduct on the bus, poses an unreasonable risk of

accidental injury and thus deserves a stiff penalty.

39. The undersigned recommends that Harrell receive verbal

and written reprimands , plus a 30 - day suspension without pay.

RECOMMENDAT ION

Based on the foregoing Findings of Fact and Conclusions of

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

enter a final order finding Harrell guilty of misconduct in

office and imposing the following penalties therefor:

(a) verbal rep rimand; (b) written reprimand; and (c) 30 - day

suspension without pay .

DONE AND ENTERED this 11th day of April , 201 7 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th da y of April , 20 1 7 .

ENDNOTES

1 / Pursuant to School Board Policy 3.21(3)6, drivers must

"observe" "[a]ll procedures" set forth in the Handbook .

2 / It should perhaps be noted that at hearing M.M. did not

appear, at least to the undersigned, to be particularly

heavyset, much less obese, or uncommonly large.

3 / The undersigned has not fully accepted M.M.'s testimony,

especially as it relates to wholly s ubjective matters such as

his feelings, because a hint of unseemly calculation taints

M.M. ' s credibility, arising from the undisputed facts that

(i) this young student and his friends began, almost immediately

after the incident, precociously to discuss th e opportunity M.M.

now had to sue the District, and that (ii) M.M. and his parents

actually initiated such a lawsuit, which was pending at the time

of the hearing. It is not the lawsuit, per se, that gives the

undersigned pause about M.M.'s truthfulness, but rather the

obvious financial incentive it provides M.M. to paint Harrell in

the worst possible light wherever possible.

4 / The term "educational support employee" includes any person

employed by a school board as a member of the district's

transporta tion department. See § 1012.40(1)(a), Fla. Stat.

5 / Perhaps policy 1.013(1) might be independently violable in

the unlikely event that the violation of an underlying

applicable law is not, itself, the gravamen of a misconduct in

office charge. Such is not the case here, however, because a

violation of the substantive norm, policy 3.02(5)(a)(vii),

constitutes misconduct in office. A violation of policy

3.02(5)(a)(vii) necessarily violates policy 1.013(1), for the

latter prohibits the violation of any Di strict policy. But it

would be impermissibly duplicative to punish an employee for

misconduct in office based on such a violation of policy

1.013(1), which would rest on the very same facts that

established the violation of policy 3.02(5)(a)(vii).

6 / In its Proposed Recommended Order, the District argues that

Harrell violated section 403.413 , Florida Statutes (the Florida

Litter Law) , by throwing food and a soda can out the window of

the bus while driving. The District, however, does not have

jurisdicti on to enforce the Florida Litter Law; violations

thereof must be established elsewhere. The District can, of

course, adopt its own rule forbidding drivers from throwing

trash from their busses if it wants to make littering a

disciplinable offense in situa tions, such as this, where the

driver has not been cited for, and convicted of, a violation of

section 403.413.

7 / Because there is no penalty to progress to following

termination of employment, the exception set forth in

paragraph 7 ÏÏ not to mention the concept of progressive

discipline itself ÏÏ would be eviscerated if a first offender

were subject to dismissal for committing an offense other than

an ESV.

8 / The court unfortunately referred to this finding as a

"conclusion of law" ÏÏ perhaps because it had been so labeled in

the Recommended Order and had been adopted as such by the school

board. Clearly, however, the court treated the dispositive

determination as a matter of fact, as it obviously was, for

otherwise the school board probably would not have been so

tightly bound by it, as conclusions of law are relatively

vulnerable to agency modification. (Although, it might be

debated whether a school board has jurisdiction to

authoritatively construe the ambiguous terms of a collective

bargaining agreemen t, where the meaning of its relevant

provisions is genuinely in dispute, given that contract

interpretation is typically regarded as a fundamental judicial

function reserved for the courts; that issue was not addressed

in Quiller , however, and need not be reached here.) To be

clear, an explanation of the meaning or interpretation of the

term "severe acts of misconduct" would be a conclusion of law.

But a determination ÏÏ made after applying the law to the

historical facts ÏÏ that an employee's conduct was or was not a

"severe act of misconduct" is a finding of ultimate fact.

COPIES FURNISHED :

Helene K . Baxter, Esquire

Palm Beach County School Board

Office of the General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416

(eServed)

Dedrick D. Straghn, Esquire

Dedrick D. Straghn , Attorney

& Counselor at Law

26 Southwest 5th Avenue

Delray Beach, Florida 33444

(eServed)

Dr. Robert Avossa, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard, Suite 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

will issue the Final Order in this case.