STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5532

)

JEFFREY L. JONES, )

)

Respondent. )

) SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0506

)

SYLVIA FOSTER, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 11, 12, and 16, 1996, a formal administrative hearing was held in this case in Lake Mary, Florida, before Daniel M. Kilbride, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard Lake Mary, Florida 32773

For Respondents: Thomas F. Egan, Esquire

56 East Pine Street, Suite 300 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Jeffrey Jones reported for work while under the influence of cocaine on or about September 27, 1995.

If so, whether Petitioner Jones should be terminated as an employee of the Seminole County School Board.

Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Sylvia Foster reported for work while under the influence of cocaine on or about January 8, 1996.

If so, whether Petitioner Foster should be terminated as an employee of the Seminole County School Board.

PRELIMINARY STATEMENT

This matter arises out of separate recommendations, submitted by the Superintendent of Public Schools for Seminole County, Florida, to the School Board of Seminole County, Florida, that Jeffrey Jones, a courier driver, and Sylvia Foster, a school bus driver, be terminated, as employees of the Seminole County School Board, because they each tested positive for cocaine, pursuant to Article VIII, Section 5, Section 6.C.1, and Section 10, of the relevant collective bargaining agreement.

Pursuant to the collective bargaining agreement, both Jeffrey Jones and Sylvia Foster were required to submit to random testing for the presence of drugs on or about September 27, 1995, and January 8, 1996, respectively. Upon receipt of a notice that each employee tested positive for cocaine, the Superintendent recommended that each employee be terminated. Each employee, subsequent to receipt of the notice of the recommendation, requested a hearing pursuant to the provisions of Subsection 120.57(1). The cases were consolidated for hearing and the formal hearing was held in Sanford, Florida, on April 11, 12 and 16, 1996.

Petitioner presented the testimony of Dr. Hashim Othman, a forensic toxicologist employed by Corning Clinical Laboratories, Teterboro, New Jersey; Dr. Michael Peat, employed by LabOne, Overland Park, Kansas; Anita Callahan, an employee of Corning Clinical Laboratories, Longwood, Florida; Tanya Pate, an employee of Corning Clinical Laboratories, Maitland, Florida; John Reichert, Ombudsman and Educational Equity Coordinator for the Seminole County School Board; Dennis Blackwell, Supervisor of Transportation Services for the Seminole County School Board; and Jean Crampton, Director of Transportation for the Seminole County School Board. Petitioner also introduced the deposition testimony of Shilpa Joshi, an employee of Corning Clinical Laboratories, Teterboro, New Jersey; Isidoro Lomotan, an employee of Corning Clinical Laboratories, Teterboro, New Jersey; and Jerry Mitchell, an employee of LabOne, Overland Park, Kansas. Nineteen exhibits were admitted in evidence. Petitioner sought to offer the testimony of the Medical Review Officer. The motion was denied, pursuant to Rule 60Q-2.019(4), Florida Administrative Code.

Respondents presented the testimony of Jeffrey Jones and Sylvia Foster, the Respondents; Bobbi Carton, Geraldine Latimore, Michael Vallot, Yvonne Clinton, Thelma Revis, Carolyn Perry, and Carmen Toledo, employees in the School Board's transportation department; Wayne A. Morris, expert witness; and Patrick S. Ng, an expert witness. Four exhibits were admitted in evidence. The transcript was prepared and filed on May 7, 1996.

The parties stipulated to filing proposed recommended orders on or before May 28, 1996. The time was extended to May 31, 1996, by joint motion of the parties, and each party filed its proposals on said date.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 95-5532 and 96-0506.

FINDINGS OF FACT

Facts Common to Both Respondents

1. Petitioner, Seminole County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate control and supervise all public schools and personnel in the Seminole County School District. Paul J. Hagerty is the Superintendent of Public Schools for Seminole County, Florida.

   
   

2. Respondent, Jeffrey Jones, at all relevant times, was an employee in the Transportation Department of the Seminole County School District, including September 27, 1995. His position is bus driver/courier.

   
   

3. Respondent, Sylvia Foster, at all relevant times, was an employee in the Transportation Department of the Seminole County School Board, including January 8, 1996. Her position is bus driver.

   
   

4. Respondents, Jeffrey Jones and Sylvia Foster, are members of the bargaining unit, the Bus Driver Association, who entered into a collective bargaining agreement with their employer, the Seminole County School Board.

   
   

5. Article XXXIII of the collective bargaining agreement provides that Seminole County School Board will implement and abide by all aspects of the Federal Omnibus Transportation and Employee Testing Act.

   
   

6. The Federal Omnibus Transportation and Employee Testing Act was applicable to bargaining unit members who hold a Commercial Driver's License (hereinafter CDL).

   
   

7. Corning MetPath has a contract with Seminole County School Board to conduct urine sampling. In addition to taking urine samples from school bus drivers, Corning MetPath collects hundreds of other types of sampling at its facility in Longwood, Florida, for other clients.

   
   

8. Prior and following entering into a contract with Corning MetPath, the Seminole County School Board did not provide blind test samples for quality control before contracting with Corning MetPath to perform federally required drug testing.

   
   

9. John Richert, the director of Petitioner's "Anti-Drug and Alcohol Program", initiated the sampling designated by receipt of a list of persons who were to take the sample for the quarter.

   
   

10. Once every three months, John Richert sent a packet of materials containing names of individuals who were to submit to urine testing by the week to Jean Crampton, Director of Transportation.

    
    

11. Upon receipt of that list, Jean Crampton, who supervised the bus drivers, selected each person to be tested that week and provided them with a time and date to report for testing.

    
    

12. That information was not provided by John Richert, but was left up to Mrs. Crampton.

    
    

13. The Director of Transportation was responsible for passing on the list of sample providers, and ultimately for recommending termination of an employee whose test result was verified as positive.

    
    

14. Anita Callahan operates the Corning MetPath facility in Longwood, Florida, and is an employee of Corning Clinical Laboratories. During most times

    of operation, Anita Callahan operates the collection facility by herself, without assistance. Each month, this facility conducts or takes between 500 and 760 samples.

    
    

15. Prior to the relevant time, Anita Callahan received training in urine collection from her employer, and she relied on two Corning MetPath office manuals provided for use by personnel for reference. Neither manual contained copies of the Federal Regulations that apply to the specific procedures required under the federal testing act.

    
    

16. The regulations call for the collection of urine samples, as follows:

    
    

    1. An employee is to report to the testing facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form).

    2. The employee must be identified to the technician by photo identification.

    3. The employee selects a sealed box containing a urine sample collection cup

       and two sample bottles from a large box.

    4. The employee is directed to wash his/her hands.

    5. The employee is directed to a bathroom to give a urine sample.

    6. The collection room is to have no other water source operating and the toilet is to contain a bluing agent.

    7. The sample is brought to the technician and the temperature is checked.

    8. To initiate the chain of custody, a portion of the urine sample is then poured into each of the collection bottles.

    9. The employee then dates and initials the seals and places them on each sample bottle.

    10. The technician then places the specimen bottles in a separate plastic bags and places them into the box from which they were originally packed, along with the original and three copies of the completed and signed Federal Drug Testing and Control Form.

    11. The box, which becomes the shipping box

        to transmit specimens to the laboratory in New Jersey, is sealed.

    12. The specimens are sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis.

17. Anita Callahan did not always strictly follow this procedure because she did not want to be touching the hands, paper or pen of people who had not washed their hands after obtaining the sample. Anita Callahan did not wear gloves when collecting and handling samples.

    
    

18. In other respects the practices and procedures used at the Corning MetPath facility varied from the procedures its personnel were to follow:

    1. At times, there was other water sources

       in the collection area and collection closet, including running water in the bathroom sink and a water fountain in the hall.

    2. The sample containers that were used were sometimes unsealed and opened before the sample providers arrived.

    3. At times, the toilet in the collection closet did not contain a bluing agent.

    4. The sample containers were, at times, themselves visibly contaminated.

    5. Some drivers were not given a choice as

       to the sample container that was to be used.

    6. At times, if she was busy, Anita Callahan directed drivers to leave samples on the counter to be split and sealed outside the presence of the driver, at a later time.

    7. More than one person providing a sample was allowed in the sampling area during collection.

       
       

19. Unless sample containers are clean and then sealed, all hands are washed and surfaces are kept clean, contamination is possible.

    
    

20. Unless the sample containers are split in front of the sample provider, signed by both the technician and the provider, and sealed in front of the provider, a proper chain of custody has not been initiated and the possibility of mislabeling exists.

    
    

21. If a collection site does not strictly follow those procedures set out in the Federal Regulations as to collection, chain of custody and testing, the test result is not scientifically reliable.

    
    

    Facts Relating to Case No. 95-5532

    
    

22. Respondent, Jeffrey Jones, was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida on September 27, 1995, prior to beginning work, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances.

    
    

23. The process followed by Anita Callahan, in the collection of the urine sample of Jeffrey Jones was as follows:

    
    

    1. The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form.)

    2. The Respondent was identified.

    3. The Respondent selected a box containing the urine sample collection cup and the two samples bottles from a box.

    4. The Respondent washed his hands.

    5. The Respondent went to the bathroom as directed and returned with a urine sample.

    6. The temperature of the samples was checked.

    7. A portion of the urine sample was poured into each of the collection bottles.

    8. The Respondent then dated and initialed the seals which were to be placed on the specimen bottles, referred to as split samples.

    9. The specimen bottles were then placed in separate plastic bags and placed into the box from which they were originally packed along with the original and three copies of the Federal Drug Testing and Control Form.

    10. The box, which becomes the shipping box in which the specimens are shipped to the laboratory in New Jersey, was sealed.

    11. The Respondent then signed the copy of the Federal Drug Testing and Control Form

        which acknowledges that the urine sample is his urine sample.

        j. The specimens were then sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis.

        
        

24. At the time Jeffrey Jones was obtaining his urine sample he dropped his key chain in the toilet and then retrieved it. He did not inform the technician of this event.

    
    

25. The first sample bottle remained sealed until it was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Shilpa Joshi.

    
    

26. The urine sample of Jeffrey Jones (second bottle) was sealed upon collection at the Corning Clinical facility at Longwood, Florida and remained sealed until it was opened for confirmation testing at LabOne in Overland Park, Kansas.

    
    

27. Laboratory analysis of urine for the presence of drugs/controlled substance, as prescribed by 49 C.F.R. Subsection 40.29 is to be done in two phases. The initial test (screening) shall employ immunoassay and the second phase (confirmation testing) shall employ gas chromatography/mass spectrometry (GC/MS).

    
    

28. The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Jeffrey Jones was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS).

    
    

29. The GC/MS process for analysis of urine for the presence of controlled substances is generally accepted in the scientific community.

    
    

30. Laboratory analysis of the urine sample submitted by Jeffrey Jones, by Corning Clinical Laboratories, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine.

    
    

31. The second sample was then sent to LabOne for confirmation testing. Laboratory analysis of the urine sample submitted by Jeffrey Jones to LabOne of Overland Park, Kansas, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine.

32. There is no substance that will cause a person's urine to test positive for benzoylecgonine, a metabolite of cocaine, other than cocaine.

    
    

33. Both Corning Clinical Laboratories and LabOne were properly certified as required by 49 C.F.R. Subsection 40.39.

    
    

34. Murray Lappe, M. D., was the designated medical review officer (MRO) for the drug testing of Jeffrey Jones.

    
    

35. The MRO did not contact Jeffrey Jones or otherwise communicate with Mr. Jones after the putative positive test result.

    
    

36. Jean Crampton, Director of Transportation was informed by telephone from Corning Labs that Jeffrey Jones had tested positive for cocaine in his urine.

    
    

37. Neither Jean Crampton, nor anyone else in the School Board, contacted Respondent Jones about his result to inquire into possible alternative medical explanations for the result. Jean Crampton believed that alternate medical explanations was the province of the MRO and should have already happened.

    
    

38. False positive test results can occur for cocaine either in certain prescription medications, creams, and certain consumer goods, such as teas and drinks, although such teas and drinks have been banned for sale in the U. S.

    
    

39. Respondent Jones, prior to and at the time of taking the urine screening, was a care-giver for his two elderly parents, both of whom lived with him, were bedridden, and required extensive medications.

    
    

40. There were times that Respondent Jones' father provided headache and toothache medicine to him.

    
    

41. The supervisors of Jeffrey Jones were trained to recognize signs of drug or alcohol abuse.

    
    

42. The supervisors of Jones, who saw him daily, saw no evidence of drug or substance abuse in his work performance.

    
    

    Facts Relating to Case No. 96-0506

    
    

43. Respondent Sylvia Foster was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida, after her first run, on January 8, 1996, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances.

    
    

44. The process followed by Anita Callahan, in the collection of the urine sample of Sylvia Foster was as follows:

    
    

    1. The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form).

    2. The Respondent was identified by her School Board Badge.

    3. The technician selected a box containing the urine sample collection cup and the two

       sample bottles from a box and gave it to the

       Respondent.

    4. The Respondent washed her hands.

    5. The Respondent went to the bathroom, as directed, and returned with an empty urine sample. She was not able to urinate.

    6. The Respondent drank some water and

       returned to the bathroom. She returned with a urine sample.

    7. The technician was across the hall with another person on whom she was conducting a diabetic time test. Respondent was directed to leave her urine sample on the counter and leave; Respondent had previously signed and initialed the documents and labels. Respondent left the sample and departed.

    8. The technician later split the sample, sealed them and placed them into the box with the documentation for shipping to the laboratory in New Jersey.

    9. The specimens were then sent by courier

       to the Corning lab in Teterboro, New Jersey for analysis.

       
       

45. The urine sample shipped under the name of Sylvia Foster from the Corning Clinical facility at Longwood, Florida, remained sealed until the first sample bottle was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Isidoro Lomotan.

    
    

46. The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Sylvia Foster was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS).

    
    

47. The laboratory analysis of the urine sample submitted under the name of Sylvia Foster, by Corning MetPath, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine.

    
    

48. Sylvia Foster, on January 9, 1996, the day after submitting her urine sample at the Corning MetPath facility, complained to her supervisors that she was taking a lot of different prescription medications and was worried about the result.

    
    

49. Murray Lappe, M. D. was the designated MRO for the drug testing of Sylvia Foster.

    
    

50. Someone who identified himself as working with the MRO contacted Sylvia Foster, by telephone, after the putative positive test result.

    
    

51. The person on the telephone informed Sylvia Foster that she had a drug problem and needed help.

    
    

52. The person on the telephone did not make any inquiry into Respondent Foster's medical condition or history, nor that she would be able to produce information and medical records to substantiate an alternate medical explanation.

53. Jean Crampton, Director of Transportation, was informed by telephone from Corning MetPath that Sylvia Foster had tested positive for cocaine in her urine.

    
    

54. Neither Mrs. Crampton, nor anyone else in the School Board, contacted Respondent Foster about possible alternative medical explanations for the result.

    
    

55. The supervisors of Sylvia Foster, who saw her daily, did not see any evidence of drug or substance abuse in her work performance.

    
    

56. Respondent Foster's testimony as to sequence of events is credible.

    
    

    CONCLUSIONS OF LAW

    
    

57. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this cause, pursuant to Section 120.57(1), Florida Statutes.

    
    

58. The School Board, through its superintendent, pursuant to Sec. 230.33(7), is responsible for directing the work of personnel in their positions, qualifications, compensations, suspension, and dismissal. See Sec. 230.33(7)(e), Florida Statutes.

    
    

59. Disciplinary action, especially termination against a regular status school board employee, must be taken in accordance with the provisions and terms of employment. Williams vs. Department of Transportation, 531 So.2d 994 (Fla. 1st DCA 1988).

    
    

60. The burden is on Petitioner to establish by a preponderance of the evidence that the disciplinary action it proposes is justified. Dileo vs. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990). See also, Department of Health and Rehabilitative Services vs. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974).

    
    

61. The Collective Bargaining Agreement between the School Board and Bus Driver Association permits the termination of an employee who is required to submit to random testing for the presence of drugs and controlled substances and who test positive.

    
    

62. The Rules and Regulations governing the administration of drug testing of individuals who drive commercial vehicles is set out in 49 C.F.R. Part 40, Subparts a and b.

    
    

63. If properly and correctly conducted, EMIT and GC/MS testing procedures are highly reliable and accurate to identify the presence of alcohol and drugs. Skinner vs. Railway Labor Executive Ass'n., 489 U. S. 602, 109 S. Ct. 1402, 1409 n. 3 (1989).

    
    

64. Where regulations and rules as to taking urine samples are violated, test results are unreliable and in violation of test providers constitutional rights, namely the Fourth Amendment requirement of reasonableness. See e.g., Egloff v. New Jersey Air National Guard, 648 F. Supp. 1275 (D. N. J. 1988); Miciotta v. McMickens, 118 A. D. 2d 489, 499 N. Y. S. 2d 960, leave to appeal denied, 68 N. Y. 2d 601, 505 N. Y. 2nd 1025 (1986) (testing procedure is flawed where samples are improperly handled and collected); O'Connor v. Smithkline Bio- Science Labs, Inc., 36 Mass. App. Ct. 360, 631 N.E. 2d 1018, review denied 418

    Mass. 1106, 639 N. E. 2d 1082 (1994) (failure to follow company rules in handling samples).

    
    

65. Where there is prelabeling of samples, sealing samples outside the presence of employees and a failure to strictly adhere to sample collection regulations, the testing procedure is fraught with the danger of mishaps and false positive readings. National Treasury Employees Union vs. Von Raab, 649 F. Supp. 380 (E.D.La. 1986); See also, Harvey vs. Johnson, 95 Ohio App. 3rd 51, 629 N E 2nd 1066 (1993) (Per curiam). Balappert vs. Dept. of Police, 647 So.2d 139 (La.Ct.App. 1994) (unrebutted evidence of sloppy labeling of samples occurred and exemplary employee record justified reinstatement).

    
    

66. 49 C.F.R. Part 40, Subparts a and b provide mandatory procedures governing the drug testing of bus drivers and employers, including this school board.

    
    

67. Petitioner was responsible to see that regulations are enforced and testing is done in compliance with those regulations. See, 49 C.F.R. Subpart A, Sec. 40.1.

    
    

68. Pertinent parts of 49 C.F.R. Part 40, Subpart B, require the following be done.

    
    

    1. That the employer and the laboratory shall develop and maintain clear and well- documented procedures for collection and shipment of urine specimens pursuant to these federal regulations. See Sec. 40.232.

    2. The collection site shall use a single use specimen collection bottle, securely wrapped, and the collection container must be provided to the employee still sealed in its wrapper, or unwrapped in the presence of the employee. See Subsection 40.23.

    3. The person conducting the test shall have successfully completed training to carry out sampling, or shall be a licensed medical professional or technician who has been provided instruction for the collection under this part and certifies completion as

       required in this part. See Subsection 40.23(d)(2).

    4. The collection facility must be dedicated solely to the drug testing or the facility

       used for testing shall be secured during drug testing. See Subsection 40.25(b)(1).

    5. In order to establish chain of custody, the collection site person shall have only one donor under his or her supervision at

       any time. See Subsection 40.25(d).

    6. Where sampling is done, there shall be placed in the toilet tank a bluing agent, and there shall be no other source of water in the enclosure. See Sec. 40.25(f)(2).

    7. When the individual enters the collec- tion site, the collection site personnel is required to have the person positively

       identify themselves with a photo identifi- cation. See Subsection 40.25(f)(2).

    8. Where a collection container is used at collection site, the laboratory person, in the presence of a donor, shall split the urine to specimen bottles. See Subsection 40.25(f)(10)(b)(1).

    9. Both the individual being tested and the collection site person shall keep the speci- men in view at all times while the samples

       are being sealed and labeled. See Subsection 40.25(f)(17).

    10. The collection site person and the sample provider must be present during the initialing of the specimen bottles after collection.

        The collection site person and sample provider sign the custody and control from, with the individual's signature on the custody control form after the samples were sealed. See Subsection 40.25(f)(18-22).

    11. Quality Assurance. Before setting up a drug testing program, the employer is required to use blind test and quality procedures as provided under the regulations. See Subsection 40.31(d).

    12. The MRO is required to review and confirm positive test results and report those results. See Subsection 40.33.

    13. The duties of the MRO with respect to positive test results are to verify and confirm those test results. In so doing, the MRO shall:

    1. Review the chain of custody and the test procedures.

    2. Contact the individual directly on a confidential basis and gather information from the employee.

    3. Examine all alternate medical explanations for any positive test results, including conducting a medical interview in review of the individual's medical history.

    
    

    See Subsection 40.33(a)(3)(C)(1 and 2).

    
    

69. Under Florida Law, scientific tests shall be performed pursuant to statutory requisites. When the agency fails to show substantial compliance with those statutory guidelines, the test results are not admissible. See Fla. Dept. of Highway Safety and Motor Vehicles vs. Fairly, 633 So.2d 69 (Fla. 5th DCA 1994); Robinson vs. State, 604 So.2d 783 (Fla. 2d DCA 1993); State vs. Hill, 618 So.2d 42 (Fla. 2d DCA 1993).

    
    

70. Under Federal Law, the only person competent to testify, and therefore verify a positive drug test, is a licensed physician who is responsible for receiving the laboratory results. Then the appropriately medically trained

    person is to evaluate and confirm positive test results, together with the medical history and other biomedical information. See 49 C.F.R. Part 40, Subsection 40.3.

    
    

71. From the evidence, the procedures required by the federal regulations at the Corning/MetPath laboratory for collection of urine samples for drug testing were generally followed. However, it appeared that, because of the large number of tests and collections being made on the premises and the small staff at the facility, quality control suffered when the staff became rushed or over-whelmed with work. Therefore, whether the collection lab substantially complied with the regulations must be examined on a case by case basis.

    
    

72. In the case of Jeffrey Jones, the evidence indicated that the collection lab substantially complied with the regulations for proper collection of his urine sample. Although Respondent Jones suggested that his urine sample may have become contaminated when he dropped his keys in the toilet on September 27th, Respondent present no competent evidence that his urine sample was, in fact, contaminated in the process.

    
    

73. In the case of Sylvia Foster, after Respondent produced a urine sample, the testimony is credible that she was asked to sign and initial the forms in advance and was told to leave the urine sample on the counter and leave before the split was accomplished and the samples sealed for shipment. This is not substantial compliance with the regulation. Therefore, the test results for Respondent Foster was not reliable.

    
    

74. There was no evidence introduced which would indicate that the Corning Lab in Teterboro or LabOne in Kansas improperly tested the samples sent to them with the Respondent's name on it. However, an essential step in the process was not proven in either case. The evidence did not prove that the MRO physician received and confirmed the positive test results and reported those results, as required by 49 C.F.R. 40.33(a)(3), (e)(1 and 2).

    
    

75. Therefore, under Florida and Federal law, the School Board has failed to show substantial compliance with the regulations and the test results cannot be relied upon in either case. The quality control procedures in regard to the collection of Sylvia Foster's urine was unreliable; and it was not proven that the MRO reviewed and confirmed the test results of either Respondent.

RECOMMENDATION

Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED tht the School Board dismiss the Superintendent's request to

terminate the employment of Jeffrey Jones and Sylvia Foster, and the Respondents

should be reinstated to their former positions.

DONE and ENTERED this 29th day of July, 1996, in Tallahassee, Florida.

DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-5532 and 96-0506

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6 (except as to the

year), 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 (as to Jeffrey

Jones only), 24, 25, and 27.

Rejected as against the greater weight of the evidence: paragraphs 23 and

26.

Respondent's Proposed Findings of Fact.

Accepted in substance: paragraphs 1, 2, 3, 4 (except as to the year), 5,

6, 7, 8, 9, 10, 11, 12, 16, 17 (except for the year), 18, 19, 20, 21, 22, 23,

24, 25, 26, 27, 28, 29 (in part), 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41,

42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54 (in part), 55 (in part), 56, 53

[No. 3], 54 [No. 2], 55 [No. 2], 56 [No. 2].

Rejected as irrelevant and immaterial: paragraphs 13, 14, 15, 45.

Rejected as against the greater weight of the evidence: paragraphs 29 (in part), 54 (in part), 55 (in part).

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Seminole County School Board

400 East Lake Mary Boulevard Lake Mary, Florida 32773

Thomas F. Egan, Esquire

56 East Pine Street, Suite 300 Orlando, Florida 32801

Dr. Paul Hagerty, Superintendent 1211 South Mellonville

Sanford, Florida 32771

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 95-005532

Orders for Case No: 95-005532