18-001212 Miami-Dade County School Board vs. Livingston Wint Status: Closed Recommended Order on Wednesday, August 8, 2018.

Summary: Petitioner did not prove "just cause" to terminate a bus driver involved in an altercation on the bus with a disruptive and violent 8th grade male student, who left his assigned seat and intentionally triggered a bus window alarm in the rear of the bus.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI - DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 1212

LIVINGSTON WINT,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in this case before Administrative

Law Judge Robert L. Kilbride of the Division of Administrative

Hearings by video teleconference on May 8, 2018, in Tallahassee

and Miami, Florida.

APPEARANCES

For Petitioner: Kim M. Lucas, Esquire

Miami Dade Co unty Public Schools

School Board Attorney's Office

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

For Respondent: Livingston Wint , pro se

861 Northwest 179th Street

Miami, Florida 33169

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner has just

cause to terminate Respondent ' s employment for an altercation he

was involved in that occurred on his bus.

PRELIMINARY STATEMENT

Miami - Dad e County School Board (Petitioner or School Board)

employed Livingston Wint (Respondent or Wint) as a school bus

driver. In October 2017, Respondent engaged in a physical

altercation with a middle school student on his bus, a portion of

which was videotap ed by other students. An investigation was

conducted by the School Board and multiple witnesses were

interviewed.

On February 20, 2018, Respondent was notified that the

s uperintendent of s chools would be recommending to the School

Board to suspend Respond ent without pay and to initiate dismissal

proceedings against him.

On February 21, 2018, Petitioner took action to suspend

Respondent without pay and initiate dismissal proceedings against

him for just cause, including but not limited to , violations of

Sch ool Board Policies 4210, Standards of Ethical Conduct;

4210.01, Code of Ethics; 4213, Student Supervision and Welfare;

and 8600, Transportation, in accordance with sections 1001.32(2),

1012.22(1)(f), 1012.40 , and 447.209, Fl orida Stat utes (2017).

Taking ex ception to this proposed course of action,

Respondent requested an administrative hearing regarding his

dismissal from employment. The final hearing was held before the

undersigned on May 8, 2018.

Petitioner presented the testimony of Respondent an d

Susan Detmold, d istrict d irector for Transportation Operation.

Petitioner's Exhibits 1 through 6, 15 , and 16 were admitted into

evidence. Petitioner provided a video of portions of the

altercation on the bus. N o students from the bus testified , nor

did the m ale student who was involved in the altercation.

Petitioner relied instead on the video clips to establish what

occurred during the incident .

Respondent called no witnesses, but testified on his own

behalf. Respondent ' s Exhibits 1 through 3 were admitted into

evidence.

The Transcript was filed with the Division of Administrative

Hearings on July 9, 2018. Both parties ' proposed recommended

orders were timely filed and considered by the undersigned in the

preparat ion of this Recommended Order.

References to the Florida Statutes are to the 2017 version,

unless otherwise stated.

FINDING S OF FACT

Based on the evidence credited by the undersigned at the

hearing, the undersigned makes the following findings of material

and relevant fact:

1. Wint has been emplo yed by the School Board as a school

bus driver for approximately 15 years.

2. There was no evidence presented that Wint had been

disciplined for any prior instances of misconduct as a bus

driver.

3. Wint is covered as an employee under the Collective

Bar gaining Agreement of the American Federation of State, County,

and Municipal Employees, Local 1184 (CBA) , which provides that

rights thus reserved exclusively to the School Board and the

Superintendent . . . include . . . separation, suspension,

dismissal and termination of employees for just cause. Pet.

Ex. 1, § 3.

4. School Board Policies 4210, 4210.01, 4213 , and 8600

were entered as exhibits and apply to Wint' s employment. 1/

Pet. Exs. 2 Î 5 . The School Board issued a Handbook for School Bus

Drivers and Bus Aides (Handbook) for the 2017 - 2018 school year ,

which applies to Respondent' s employment. The Handbook was

admitted into evidence. 2/ Pet. Ex. 6.

School Bus Incident on October 10, 2017

5. To summarize, on October 10, 2017, Wint was transporting

a l arge group of middle school students on his school bus. Due

to a disruption by one of the students, Wint felt it was

necessary to pull the bus over.

6. Wint stopped the bus and went to the back to confront a

13 - year - old, 8 th - grade male student who had in tentionally and

unnecessarily opened the bus ' s emergency window, setting off the

bus alarm. 3/ A video of segments of the confrontation was

recorded by students and entered into evidence. Pet. Exs. 15

and 16.

7 . Pet itioner's Ex hibit 16 is video coverage of the first

part of the physical altercation between Wint and the male

student.

8. Petitioner's Exhibit 15 is video coverage of the second

part of the physical altercation, after both had moved back down

the bus aisle to return to their respective seats on the bus. 4/

9 . With respect to the details, the incident unfolded as

follows: w hile the bus was in motion, the male student left his

assigned seat without permission, went to the back of the bus ,

and opened the emergency exit window , causing the bus ' s audible

alarm to sound. 5/

10 . Wint was required to immediately stop the bus to

address the emergency alarm going off. Instead of directly

calling dispatch as stated in the Handbook, Wint went to the back

of the bus to confront the student, order him ba ck to his

assigned seat, assess the situation , and determine the best

course of action. Pet. Ex s . 15 and 16 ; Pet. Ex. 6, § 10.06(c ).

1 1 . Wint went to the back of the bus and confronted the

male student. T he altercation started when the male student rose

up slightly out of the bus seat and punched Wint in the stomach

several times. This evidence was uncontradicted. No other

testimony or documents were offered to rebut this evidence.

( These initial moments of the confrontation are not on the

videos. )

12 . The first part of the cellphone video is shot from an

elevated angle from the rear bus seat and starts by showing the

two locked up , struggling in the back of the bus. Wint has his

hands on the male student pulling him up forcefully and

attempting to p ush the male student back up the aisle way to the

front of the bus where his seat was located , and away from the

other students.

13. The male student pulled free from Wint's grasp and

started up t he aisle way. However, he turned around immediately

and trie d to shove Wint . Another male student interceded and

restrained the male student by temporarily putting him in a

headlock. When this occurred , Wint held back in the aisle way

near the rear of the bus, watching and collecting himself.

14. After the initia l confrontation in the back of the bus,

the second cellphone video picks up the action from a different

angle (shooting from the middle of the bus towards the back).

Several other students intervene d to keep Wint and the male

student separated.

15. The m ale student tried to start up the altercation

again and attempted to break through several students to get back

at Wint . Wint is standing cornered in the back of the bus with

his back to the emergency exit.

16. While all this is going on , there is genera l

pandemonium inside the bus with the other 20 to 25 students

watching, yelling , or jeering at the scene. Notably, s everal of

the other studen ts appear frightened or alarmed and are very

close to the altercation as it unfolds.

17. The mid - bus cellphone v ideo shows the male student

turning aroun d to head back up the bus aisle way. The male

student is visibly angry, very upset , and is seen forcefully

pounding his fists together defiantly as he walks.

18. Wint is off camera, but the undersigned reasonably

i nfers that Wint is behind the male student following him back up

towards the front of the bus.

19. As he walks up the aisle way in front of Wint, in an

overt display of strong aggression and uncontrollable anger, the

male student leans across a bus seat an d violently punches a

school bus window with his clenched fist. 6/ Pet. Ex. 15.

20. As Wint came down the narrow aisle behind the student

and attempted to squeeze past him to continue to the driver ' s

seat, Wint accidentally brushed against the male studen t. 7/

21. At that point, the video shows the male student rapidly

wheel around and the two begin to tussle, hands on each other, in

the bus seat.

22. Wint backs the male student up into the bus seat,

closer to the window. Wint has both hands near, but no t on, the

neck area of the male student. There is no punching or swinging,

just restraining and controlling.

23. The more persuasive and credible evidence does not

support the School Board' s claim that Wint was intentionally

choking the student with a pr essure hold around his neck, nor

holding the male student around the neck with his hands.

24. Rather, the more persuasive evidence shows, and the

undersigned find s , that Wint is attempting to control and

restrain the student by holding him firmly by the c ollar of his

jacket/sweatshirt . 8/

25. At the end , when a female student jumped in to separate

the two, Wint abruptly released his hold and headed back to his

driver ' s seat. The cellphone video ends at that point.

26. Although the evidence was conflictin g, it revealed, and

the undersigned credits , that Wint had previously notified the

Miami - Dade County School District (District) in writing that this

particular male student had been repeatedly disruptive on his

bus.

27. Specifically, Wint complained in wr iting on or about

October 4, 2017 , that the same male student had been improperly

opening the window and throwing objects outside the bus. His

report was on a standard reporting form required by the School

Board . It is called Student Case Management Refe rral,

No. 723119 . This other reported incident occurred on or about

September 29, 2017, several days before the altercation. Resp.

Ex. 1 .

28. The Student Case Management Referral form turned in by

Wint was initialed by a District employee on October 4 , 2 017,

just days before this bus incident on October 10, 2017. 9/

29 . Susan Detmold is the d istrict d irector for

Transportation Services since 2013.

30. Detmold viewed the two videos of the altercation

between Respondent and the male student . Pet. Exs. 15 and 16.

3 1. Detmold opined that it was inappropriate behavior for a

bus driver to engage in the behavior exhibited in the videos.

32. Detmold testified that if a student is not sitting in

his assigned seat , then the school bus driver should give

warning s and provide a misconduct referral to the District . 10/

33. She also testified that in accordance with State Board

R ule , only the school principals have the authority to discipline

students. 11/

34. Detmold testified that the Handbook provides drivers

wit h procedures to follow when handling student misconduct on the

bus. Pet. Ex. 6, §§ 10.06 - 10.07, p p . 94 - 96.

35. The Handbook states that school bus drivers can stop

the bus if the behavior is a serious one. Drivers will

immediately contact their Dispatch Office by two - way radio and

provide them with details of the situation. Drivers are to await

the aid of the f ield o perations s pecialist or s chool p olice.

Pet. Ex. 6, § 10.06(c), p. 94.

36 . Wint disregarded this guideline in the Handbook and

testified t hat he stopped the bus, went to the back of the bus to

confront the student , but did not call Dispatch for school police

until after the physical altercation with the male student had

ended .

37. The Handbook states in accordance with Florida

Administrativ e Code Rule 6A - 3.0171 , State Board Rule, it is the

responsibility of the bus driver [t]o maintain order and

discipline, under the direction of the school principal, on the

part of every passenger. Pet. Ex. 6, § 2.03(i), p. 13.

38. The videos show , and th e undersigned finds, that Wint

attempted, by his actions, to maintain order and safety on the

bus in the face of a very unruly, aggressive , and violent male

student who was putting the safety of the bus, the bus driver,

and other students at risk . Pet. Ex s. 15 and 16.

39 . The Handbook states , in pertinent part , the school bus

driver is responsible for the safety of the children in his/her

care. A driver should place the safety, health, and well - being

of his/her passengers above everything else while they are on the

bus. Drivers shall maintain a professional attitude. Drivers

should be patient, firm , fair, and friendly. Pet. Ex. 6,

§ 2.05(e), p.15.

40 . The Handbook also states , in part , the school bus

drivers will make a reasonable effort to deal with infractions of

the rules of student conduct and will, to the best of their

ability, maintain order and good behavior by students on their

buses. Pet. Ex. 6, § 2.05(o), p. 17. The videos show , and the

undersigned finds, that Wint attempted during this inc ident to

maintain order and safety on the bus. Pet. Exs. 15 and 16.

41 . The Handbook states , in pertinent part , the school bus

drivers must not touch or put [their] hands on students. Pet.

Ex. 6, § 2.06(a), p. 21. The videos show that Wint did indeed

l ay his hands on the student, but the undersigned finds that this

was done to restrain and control a very unruly and violent

student, who presented a safety risk to the operation of the bus

and other students on the bus. Pet. Exs. 15 and 16.

42. The Handb ook states , in pertinent part , school bus

drivers will not physically discipline . . . any student. Pet.

Ex. 6, § 10.07(d), p. 96. The videos do not show that Wint

physically disciplined a student. Rather, he justifiably

attempted to control a violent, angry , and uncontrollable student

who placed his safety and the safety of other students at risk.

Pet. Exs. 15 and 16.

Ultimate Findings of Fact

43. Under the facts outlined herein, the undersigned finds

that Wint' s actions and conduct during this incid ent conf ormed

with sections 1006.10 and 1012.45 , Florida Statutes .

44. The undersigned finds that the School Board ' s rules,

policies , and Handbook provisions proscribe conduct authorized or

required by sections 1006.10 and 1012.45 for a bus driver dealing

with an unruly and violent student in an emergency situation . To

the extent they do so, they are invalid and not controlling.

CONCLUSIONS OF LAW

45. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of thes e

proceedings. § § 120.569 and 120.57(1), Fla. Stat. (2018).

4 6 . Petitioner alleges that Respondent ' s conduct violated

several rules and policies that establish standards of conduct

for bus drivers namely, r ule 6A - 3.0171, Responsibilities for

School Distr ict s for Student Transportation; sections 1006.10 and

1012.45 ; School Board Policies 4210 ( Standards of Ethical

Conduct ) , 4210.01 ( Code of Ethics ) , 4213 ( Student Supervision and

Welfare ) , and 8600 ( Transportation ) ; and the Handbook for the

2017 - 2018 school year . 12/

47. Petitioner is required to prove its allegations and its

proposed disciplinary action against Respondent by a

preponderance of the evidence. § 120.57(1)(j), Fla. Stat.

48. The preponderance of the evidence standard requires

proof by the gre ater weight of the evidence or evidence that more

likely than not tends to prove a certain proposition. In this

case, that proposition would be whether or not there is

sufficient evidence to establish just cause to terminate

Respondent. See Gross v. Lyon s , 763 So. 2d 276, 280 n.1

(Fla. 2000).

49. A hearing at the Division of Administrative Hearings

before an A dministrative L aw J udge is a de novo hearing. This

means that evidence must be presented at the administrative

hearing and credited by the A dminis trative L aw J udge to justify

the action contemplated by the agency. See generally

§ 120.57(1)(j) , (k), Fla. Stat. (All proceedings conducted under

this subsection shall be de novo.)

50. F urther, a de novo administrative proceeding is

intended to formulat e and determine action by the agency, not

simply to review proposed action taken earlier. Beverly Enters. -

Fla., Inc. v. Dep't of HRS , 573 So. 2d 19 (Fla. 1st DCA 1990).

51. Petitioner is the duly - constituted governing body of

the District pursuant to a rt icle IX, section 4, Fl orida

Const itution , and sections 1001.20 and 1001.33, Florida Stat utes ,

with the statutory authority to adopt rules governing personnel

matters pursuant to section 1001.42(5).

52. Notably, however, any rules providing for the

appoint ment, compensation, promotion, suspension, and dismissal

of employees are subject to the requirements of chapter 1012. 13/

53. Just cause for discipline or terminations for cause

permits removal or termination for misconduct, some violation of

the law , or delict of duty on the part of the officer or employee

affected. State ex. rel. Hathaway v. Smith , 35 So. 2d 650

(Fla. 194 8) . See also Comprehensive Care Corp. v. Katzman , 2010

U.S. Dist. LEXIS 77121 (Mid. Dist. Fla. 2000) ( using the word

dereliction to re place delict ) .

54. The s uperintendent of Miami - Dade County Public Schools

has the authority, under appropriate circumstances, to recommend

that an employee be terminated for just cause under section

1012.40 and the applicable CBA.

55. Section 2.03(i) of the Handbook (Pet. Ex. 6) states , in

accordance with r ule 6A - 3.0171 , it is the responsibility of the

bus driver [t]o maintain order and discipline, under the

direction of the school principal, on the part of every

passenger.

56. Section 2.05(e) of the Han dbook (Pet. Ex. 6)

specifically states that the school bus driver is responsible for

the safety of the children in his/her care. A driver should

place the safety, health, and well - being of his/her passengers

above everything else while they are on the bus . 14/

57. Based on the facts which the undersigned credit s ,

Respondent ' s behavior , as exhibited in the videos , was due t o his

responsibility and authority to control a violent and disruptive

male student and protect the safety, health, and well - being of

ot her student passengers.

58. Section 2.05(o) of the Handbook (Pet. Ex. 6)

specifically states that the school bus drivers will make a

reasonable effort to deal with infractions of the rules of

student conduct and will, to the best of their ability, maintai n

order and good behavior by students on their buses.

59. Based on the facts which the undersigned credit s ,

Respondent ' s behavior , as exhibited in the videos , was due to his

intent , and obligation , to restore order, safety , and discipline

on the bus as re quired and authorized by section s 1006.10 and

1012.45 . Pet. Exs. 15 and 16 .

60. Section 2.06(a) of the Handbook (Pet. Ex. 6)

specifically states that school bus drive rs must not touch or put

their hands on students. However , based on the male student ' s

disruptive conduct, Respondent found it immediately necessary to

take action and make physical contact with the male student to

defend himself, gain control of the bus , and protect other

students. The undersigned concludes that his actions conformed

to se ctions 1006.10 and 1012.45 . Pet. Exs. 15 and 16 .

61. Section 10.06(c) of the Handbook (Pet. Ex. 6) states

that school bus drivers can stop the bus if the behavior is a

serious one. Drivers will immediately contact their Dispatch

Office by two - way radio and provide them with details of the

situation. Drivers are to await the aid of the f ield o perations

s pecialist or s chool p olice.

6 2 . However, based on the facts that the undersi g n e d

credit s , Respondent was not able to immediately call dispatch ,

since he first had to reasonably control and restrain a very

unruly and disruptive student in an emergency situation caused by

the male student triggering the exit window alarm while the bus

was moving. This course of action wa s immediately necessary to

deal with an emergency, to reasonably control the male student ,

and to protect the other students on the bus. §§ 1006.10 and

1012.45 , Fla. Stat .

63. Section 10.07(d) of the Handbook (Pet. Ex. 6)

specifically states that school bus drivers will not physically

disc ipline any student. Respondent did not violate this

provision because his actions did not constitute discipline of

the male student. See Williams v. Cotton , 346 So. 2d 1039 (Fla.

1st DCA 1977).

64. The policies and Handbook cited by the School Board

are , in ef fect, rules as contemplated by c hapter 120. They are

school board or agency statements of general applicability that

implement, interpret, or prescribe law or policy or describe the

procedure or practice requirements of an agency. § 120.52(16) ,

Fl a. Stat .

Applicable Statutes

65. Ther e are two unique Florida S tatutes pertaining to the

responsibilities and authority of school bus drivers. Both are

applica ble and probative and useful in deciding the proper

disposition of this case.

66. S ection 1006.10 , entit led " Authority of school bus

drivers and district school boards relating to student discipline

and student safety on school buses, " obligates bus drivers to

take the following action to protect their bus passengers:

(1) The school bus driver shall require

order and good behavior by all students being

transported on school buses.

(3) The school bus driver shall control

students during the time the students are on

the school bus

(4) If an emergency should develop due to

the conduct o f students on the bus, the

school bus driver may take such steps as are

immediately necessary to protect the students

on the bus.

(5) School bus drivers shall no t be required

to operate a bus under conditions in which

one or more students pose a clear an d present

danger to the safety of the driver other

students, or the safety of the bus while in

operation.

67. Another similar provision of the Florida Education Code

applies. Section 1012.45 is , entitled " School bus drivers;

requirements and duties . " It outlines the authority possessed by

bus drivers:

(2) Each school bus driver has the authority

and responsibility to control students during

the time students are on the school bus

pursuant to section 1006.10

(4) If an emergency should develop due to

the conduct of students on the bus, the

school bus driver may take such steps as are

immediately necessary to protect the students

on the bus.

(5) School bus driver shall not be required

to operate a bus under conditions in which

one or more students pose a clear and present

danger to the safety of the driver or other

students, or the safety of the bus while in

operation.

68. These state laws are controlling and prevail over the

School BoardÓs rules, policies , or Handbook. Said another way,

to the extent a school board rule, policy , or Handbook provision

enlarges, modifies , or contravenes the provisions of

sections 1006.10 and 1012.45 , or are un promulgated rules, they

are invali d and unsustainable. § § 120.52 (8) and 120.57(1)(e) ,

Fla. Stat . See also Dep't of Envtl. Reg. v. Manasota - 88, Inc. ,

584 So. 2d 133 (Fla. 1st DCA 1991 ) .

69. In analyzing and carefully ap plying these two key

statutes, the undersigned conclude s that RespondentÓs conduct on

the bus on October 10, 2017 , complied wit h both, and any action

he took and conduct on his part was authorized and/or required

under both statutes.

70. In short, these two statutes, sections 1006.10 and

1012.45, controlled over the rules, policies , and Handbook

provisions cited by the Scho ol Board, and his actions and conduct

that day did not violate these controlling and preemptive

statutes.

Applicable Case Law

71. In addition to these specific statutes relating to the

conduct and authority of school bus drivers, there is a fairly

si gnificant body of case law addressing the use of reasonable

physical force by a teacher or other staff member, including bus

drivers.

72. One Flori da case, cited by several other courts around

the nation, addresses the au thority of Florida teachers to

control unruly students in the classroom.

73. In the seminal case of Williams v. Cotton , 346 So. 2d

at 1039 , the district court considered a civil lawsuit naming a

teacher, Williams, as a defendant for certain injuries received

by one of his stud ents during a classroom altercation. The

district court examined former section 232.27 , Florida Statute s ,

which requir ed teachers to control their pupils and keep good

order in the classroom.

74. As background, the case revealed that the student,

C otton, was unruly, boisterous , and wa s disturbing the other

students . After repeated requests by the teacher to quiet down

and take a seat, Williams and the student engaged in a physical

confrontation necessitated, according to the teacher, by his

attempt to restore order in his classroom. Apparently, Cotton

was physically injured during this confrontation and sued.

75. Although the primary issue in the case was whether the

evidence supported the juryÓs verdict of liability, the district

court felt it necessary to discuss the extent of a teacherÓs

authority and duties in Florida. The c ourt commented that

teachers have the power and clear duty under the law to control

their classroom and restore order. Of particular interest is the

following quote f rom the court:

This statute (F.S. 232.27), in authorizing Î

in fact requiring Î a teacher to keep good

order in his classroom necessarily implies a

power to the teacher to use reasonable

physical force (not amounting to corporal

punishment) to do so. With out such

reasonably imp lied power, the requirement to

keep good order would be meaningles s.

76. The Cotton case was subsequently cited by the Supreme

Court of Nebraska in Daily v. Bd. of Educ. , 588 N.W. 2 813

(Nebraska 1999). Although the Daily dec ision dealt with the

issue of what did or did not constitute corporal punishment in a

school setting , it cited and emphasized the Cotton courtÓs

comments:

The Florida court found th at a Florida

statute requiring teachers to keep good order

in the classroom necessarily implies a power

to the teacher to use reasonable physical

force (not amounting to corporal punishment)

to do so. The court found that without such

reasonably implied power, the requirement to

keep good order would be meaningless.

77. Fi nally, in Daniels v. Gordon , 503 S.E. 2d 72 ( Ga.

Dist. Ct. of Appeals 1998) , Cotton was cited again for the

proposition that the use of reasonable physical force may be

appropriate under some situations that arise when a teacher seeks

to restore order and regain control of the classroom. See also

Peterson v. Baker , 504 F.3d. 1331 (11th C.A. 2007).

78. In short, sections 1006.10 and 1012.45 are clear that a

school bus driver is obligated to take reasonable steps to

control the students o n his bus and is authorized to take such

steps as are immediately necessary to pr otect the students on the

bus. § § 1006.10(4) and 1012.45(4) , Fla. Stat . This is exactly

what the bus driver did. He met force with force to control a

violent student and prevent increasi ng chaos and danger o n the

bus , and protect himself and the other students.

79. Based on a careful review of the credible facts and

app lying the applicable statutes, the undersigned conclude s that

Respondent did not violate sections 1006.10 and 1012. 45, the

controlling law. In fact, the physical action he took to protect

himself and the other students from a violent and unruly student

was not only authorized, but required, by the statutes under the

circumstances .

80. There can be no real dispu te that Respondent was

confronted with an emergency caused by a student who triggered

the bus alarm while the bus was in operation and moving. The

student became violent in a confined space while pandemonium

broke out inside the bus.

81. Had Respon dent done nothing and allowed the situation

to escalate, he would have been accused of ignoring his

obligations under the controlling statutes.

82 . Under these unique circumstances , and the emergency

confrontin g the bus driver, the undersigned concl ude s that there

is not just cause to terminate RespondentÓs employment. To do so

would be contrary to the law.

83. Since his conduct and actions complied with the

controlling statutes, there was no violation proven and no just

cause to terminate him.

RE COMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED th at a final order be entered by t he

Sc hool Board of Miami - Dade County immediately reinstating

Respondent, Livin g ston Wint, to his position as school bus drive r

and provide him with back pay and other accumulated benefits

since his suspension.

DONE AND ENTERED this 8th day of August , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Divis ion 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 8th day of August , 2018 .

ENDNOTE S

1/ Since they are part of the record, it is generally not

necessary to repeat or restate them in this Recommended Order.

2/ Likewise, since it is part of the record, it is not necessary

to repeat or restate portions of it in this Rec ommended Order .

3/ No emergency, real or imagined, existed which would have

justified the student ' s actions.

4/ Each video shows a segment of the confrontation, and at a

different angle. However, there are portions of the

confrontation that were not r ecorded, particularly the initial

moments of the confrontation at the back of the bus.

5/ Wint had complained to school administration about this

particular male student ' s disruptive behavior on previous

occasions. As a result, school security had assig ned the student

to a seat closer to the front of the bus , presumably so Wint

could keep a closer eye on him.

6/ The undersigned reasonably infers from these facts that Wint

observed this aggressive conduct because he was following the

male student back u p the bus aisle towards the front of the bus.

He is close to other students when this occurs.

7/ It is notable that as Wint tried to pass , he did so calmly and

without shoving the male student or acting aggressively. Since

the situation had calmed down , Wint was simply heading back to

his driver ' s seat.

8/ No medical evidence was presented to support a finding that

the male student was choked or injured . The male student was not

called during the hearing, nor were any bus students called as

witnesses for the undersigned to observe or question.

9/ The form persuades the undersigned that Wint had, along with

verbal complaints, taken reasonable steps to resolve the

student ' s disruptive behavior. Wint understandably had a

heightened sense of needing to take control to quell the repeated

problems caused by this male student and to provide for the

safety of the bus operation and his bus students.

10/ As found previously , the undersigned conclude s that this was

done by way of the Student Case Management Referral form filed by

Wint prior to the incident .

11/ Based on the undersigned ' s review of the video evidence, the

undersigned d o es not believe Wint' s physical contact or hands on

the male student on the bus constituted discipline . Rather, it

was neces sary and appropriate action he took to protect himself

and other students from the unruly and angry male student.

12/ These laws, policies , and the Handbook provisions are set

forth in detail in the applicable statutes and documents admitted

by the parti es, and do not generally require repeating here.

13/ This would include section 1012.45 , whic h spells out, as

explained herein , the duties of school bus drivers.

14/ These two sections of the Handbook appear to be consistent

with the law.

COPIES FUR NISHED:

Kim M. Lucas, Esquire

Miami Dade County Public Schools

School Board Attorney's Office

1450 Northeast Second Avenue , Suite 430

Miami, Florida 33132

(eServed)

Livingston Wint

861 Northwest 179th Street

Miami, Florida 33169

Alberto M. Carvalho, Superintendent

Miami Dade County Public Schools

1450 Northeast Second Avenue, Suite 912

Miami, Florida 33132 - 1308

Matthew Mears, General Counsel

D epartment of E ducation

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 040 0

(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 th e Final Order in this case.