STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALACHUA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 96-4365

)

ISAIAH SMITH, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on June 30, 1997, in Gainesville, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

Alachua County School Board 620 East University Avenue Gainesville, Florida 32601

For Respondent: Francisco M. Negron, Jr., Esquire

Florida Education Association/United

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.

PRELIMINARY STATEMENT

By letter dated June 19, 1996, the assistant superintendent of schools for Petitioner Alachua County School Board informed Respondent Isaiah Smith, Jr., of the superintendent's intent to recommend that Petitioner terminate Respondent's employment as a school bus driver. Respondent requested a formal hearing by letter dated June 24, 1996. Petitioner referred this case to the Division of Administrative Hearings on September 16, 1996.

After receiving responses to the Initial Order, the undersigned issued a Notice of Hearing dated October 23, 1996. Said notice scheduled the case for hearing on February 26, 1997. However, the parties filed an Agreed Motion for Continuance on February 18, 1997. The undersigned subsequently entered an order rescheduling the case for hearing on June 30, 1997.

Before the hearing, Respondent filed two motions in limine.

On June 25, 1997, Respondent filed a Motion in Limine to Exclude/Limit Expert Testimony of Bruce Goldberger, Ph.D. On June 26, 1997, Respondent filed a Motion in Limine to Exclude Similar Fact Evidence.

At the final hearing, the undersigned denied Respondent's motion to exclude Dr. Goldberger's expert testimony. The undersigned specifically ruled that Dr. Goldberger could not offer a legal opinion but that he could testify concerning the accepted standards in the industry for collecting urine to be used in a drug screen test. That ruling is hereby confirmed.

After hearing oral argument on Respondent's motion to exclude similar fact evidence at the hearing, the undersigned reserved ruling on the admissibility of testimony and documents related to drug tests that Respondent took prior to June 10, 1996. This motion is hereby denied. Pursuant to Sections 440.102(5)(k) and 440.102(5)(n), Florida Statutes, Petitioner may not discharge, discipline, or discriminate against any employee for a first-time positive drug test, if the employee voluntarily seeks treatment. The evidence in question here is relevant and admissible because it relates directly to the charge that Respondent violated his rehabilitation contract with Petitioner. The evidence was not offered, and has not been considered, to show any kind of bad character or propensity on the part of the Respondent contrary to Section 90.404, Florida Statutes. Its probative value by far outweighs any prejudicial effect on Respondent in accordance with Section 90.403, Florida Statutes.

During the hearing, Petitioner presented the testimony of five witnesses: (a) Synester P. Jones, Petitioner's assistant superintendent for Human Resources; (b) William E. Beaty, Ph.D., clinical psychologist; (c) Carl Fogleman, phlebotomist at Doctors' Laboratory, Inc., in Gainesville, Florida; (d) Bruce A. Goldberger, Ph.D., Assistant Professor of Toxicology at the University of Florida, expert in forensic toxicology; and (e) Debra Martin, Petitioner's transportation employee. Petitioner also presented the deposition testimony of five out-of-state

witnesses: (a) Robert H. Miller, M.D., medical review officer from Brunswick, Georgia; (b) Martin Provaznik, Ph.D., Director of Toxicology at Doctors' Laboratory, Inc., in Valdosta, Georgia;

1. Anil Chokshi, certifying scientist at Doctors' Laboratory, Inc., in Valdosta, Georgia; (d) Pat Richburg, accessioner at Doctors' Laboratory, Inc., in Valdosta, Georgia; and (e) Elizabeth Verbeke, former phlebotomist for Doctors' Laboratory, Inc., in Gainesville, Florida, now living in Strongsville, Ohio. Petitioner offered twelve exhibits which were accepted in evidence.

   Respondent testified on his own behalf and presented the testimony of Albert Losch, Jr., President of the Alachua County Education Association and expert in chemistry. Respondent also introduced the deposition testimony of Patrick S. Ng, Ph.D., Director of Forensic Sciences and Toxicology at Wuesthoff Hospital, Rockledge, Florida. Respondent offered four exhibits which were accepted in evidence.

   The court reporter filed a transcript of the hearing on July 21, 1997. Respondent filed a proposed recommended order on

   August 11, 1997. Petitioner filed its proposed recommended order on August 14, 1997.

   FINDINGS OF FACT

   
   

   1. Petitioner is a Florida public school district.

      
      

   2. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his

      suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position.

   3. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part:

      The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace.

      
      

      * * *

      
      

   4. Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers.

      
      

   5. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical.

      
      

   6. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . .

* * *

1. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for

   Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the

   U. S. Department of Health and Human Services . . . .

   
   

2. The procedures established by the laboratory shall be followed in administering drug tests to employees.

* * *

1. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . .

   
   

2. Random testing of employees shall not be conducted.

1. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows:

   1. All pre-employment applicants will be drug-tested prior to being hired.

      
      

   2. All employees who require fitness-of-duty examination will be drug-tested at least once annually.

      
      

   3. An employee will be drug-tested when reasonable suspicion of substance abuse exists.

      
      

   4. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage.

      
      

   5. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program.

      Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits.

2. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time.

3. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education.

4. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part:

The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988,

34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace.

* * *

1. Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers.

   
   

   * * *

   
   

2. Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical.

   
   

   * * *

   
   

3. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . .

   
   

   * * *

   
   

4. When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed.

   
   

5. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug

   Abuse and Mental Health Administration of the

   U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit.

   
   

6. The procedures established by the laboratory shall be followed in administering drug tests to employees.

1. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness.

   
   

2. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination.

   
   

3. Random testing of employees shall not be conducted except as required by state or federal law . . . .

1. On December 13, 1994, Respondent signed the following statement:

   I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations.

   
   

2. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program.

   Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it.

3. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing.

4. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation.

5. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing;

   1. return-to-duty testing; and (f) follow-up testing.

      
      

6. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test.

7. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law."

8. In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test.

9. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows:

   . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida.

   Respondent subsequently took leave to attend to his rehabilitation.

10. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were

    negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment.

11. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program."

12. Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative.

13. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test.

14. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test:

    1. The front desk checks the donor's photographic identification, such as a driver's license.

       
       

    2. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter.

       
       

    3. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor.

       
       

    4. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door.

       
       

    5. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form.

       The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color.

       
       

    6. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and

       also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle.

       
       

    7. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one

       through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation.

       
       

    8. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor.

       
       

    9. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory.

       
       

    10. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process.

        
        

    11. Once a collector begins the collection process, he or she completes the process

        alone. No other collector at the site may perform any of the required steps or safeguards.

        
        

15. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form:

    I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct.

    
    

16. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist.

17. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing.

    She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case.

18. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind.

19. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine

    specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters.

20. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month.

21. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork.

22. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis.

23. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the

    remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded.

24. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate.

25. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure.

26. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group.

27. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number

    01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner.

28. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive.

29. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained

    303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive.

30. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of

    17 milligrams per deciliter (mg/dl). Any creatinine level below

    
    

    20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the

    specific gravity of Respondent's sample to determine whether the sample was adulterated.

31. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity.

32. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection.

33. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid.

34. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here.

35. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen

    were performed in conformity with all applicable testing guidelines.

36. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc.

37. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative.

38. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a

    prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result.

39. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result.

40. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed.

41. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine.

42. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test.

43. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc.

44. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent

    indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996.

45. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water.

46. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test.

47. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.

    CONCLUSIONS OF LAW

    
    

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

49. Petitioner has the responsibility to provide for the safety of its students. Section 230.23(6), Florida Statutes. In order to accomplish this mission, Petitioner must ensure the safe operation of all school buses. Section 230.23(8), Florida Statutes.

50. Petitioner has authority to suspend or dismiss its employees for proper cause or legitimate reasons. Sections 230.23(5)(f) and 447.209, Florida Statutes. Petitioner's Superintendent is required to make recommendations to Petitioner concerning the suspension or dismissal of school employees. Section 230.33(7)(e), Florida Statutes.

51. A member of Petitioner's transportation department is an "educational support employee" as defined in Section 231.3605(1), Florida Statutes. Section 231.3605(2), Florida Statutes (1995), states as follows:

    (2)(a) Each educational support employee shall be employed on probationary status for a period to be determined through the appropriate collective bargaining agreement or by school rule in cases where a collective bargaining agreement does not exist.

    
    

    1. Upon successful completion of the probationary period by the employee, the employee's status shall continue from year to year unless the superintendent terminates the employee for reasons stated in the collective

       bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist, or reduces the number of employees on a district wide basis for financial reasons.

       
       

    2. In the event a superintendent seeks termination of an employee, the school board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination. The appeals process shall be determined by the appropriate collective bargaining process or by school board rule in the event there is no collective bargaining agreement.

52. Petitioner has the burden of proving by a preponderance of the evidence that the disciplinary action it proposes is justified. Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3rd DCA 1990).

53. Petitioner's first drug-free workplace policy and guidelines became effective on June 15, 1992. The ACEA ratified these guidelines in January of-1993. They are incorporated into the Collective Bargaining Agreement between Petitioner and the ACEA of which Respondent is a member.

54. The express purpose of the guidelines was to comply with the federal Drug-free Workplace Act of 1988. 34 CFR Part 85, Subpart F, requires federal grantees to certify that they will maintain a drug-free workplace.

55. On April 15, 1992, Respondent received notice that, if he violated Petitioner's drug-free workplace policy and guidelines, he could be terminated and that he would forfeit his eligibility for workers' compensation medical and indemnity

    benefits. He also received a copy of the guidelines which provide that an employee who tests positive after participating in a rehabilitation program could be terminated.

56. Employers who implement a drug-free workplace program pursuant to Sections 440.101 and 440.102, Florida Statutes, receive reduced rates on their workers' compensation insurance. Section 627.0915, Florida Statutes. Employees who violate a drug-free workplace program established under Sections 440.101 and 440.102, Florida Statutes, forfeit their eligibility for workers' compensation medical and indemnity benefits. Section 440.101(2), Florida Statutes.

57. In order to qualify as an established drug-free workplace program pursuant to Sections 440.101 and 440.102, Florida Statutes, employers are required to conduct the following tests:

    1. Job applicant testing.

    2. Reasonable suspicion testing.

    3. Routine fitness-for-duty testing.

    4. Follow-up testing. Section 440.102(4)(a), Florida Statutes.

58. Section 440.102(4)(a)3, Florida Statutes, states as follows:

    3. Routine fitness-for-duty drug testing. An employer must require an employee to submit to a drug test if the test is conducted as part of a routinely scheduled

    employee fitness-for-duty medical examination that is part of the employer's established policy or that is scheduled routinely for all members of an employment classification or group.

59. The procedures for collecting specimens and testing for drugs are set forth in Section 440.102(5), Florida Statutes. Rule 38F-9.015, Florida Administrative Code, requires employers to use the standards set forth in Chapter 59A-24, Florida Administrative Code, for all drug testing pursuant to

    Chapter 440, Florida Statutes. The statutes and rules applicable to drug testing under Chapter 440, Florida Statutes, do not require employers to use split samples in the collection process. They do not require random testing or post-accident testing.

60. Section 440.102(5)(k), Florida Statutes, states as follows:

    (k) An employer may not discharge, discipline, refuse to hire, discriminate against, or request or require rehabilitation of an employee or job applicant on the sole basis of a positive test result that has not been verified by a confirmation test and by a medical review officer.

    
    

61. Section 440.102(5)(n), Florida Statutes, provides as follows:

    (n) An employer shall not discharge, discipline, or discriminate against an employee solely upon the employee's voluntarily seeking treatment, while under the employ of the employer, for a drug- related problem if the employee has not previously tested positive for drug-related problems, or entered a drug rehabilitation program. Unless otherwise provided by a collective bargaining agreement, an employer may select the employee assistance program or drug rehabilitation program if the employer pays the cost of the employee's participation in the program.

62. Section 112.0455, Florida Statutes, provides for a drug-free workplace program in which employers may voluntarily participate. Such employers do not have a legal duty to conduct workplace drug testing. Section 112. 0455(4), Florida Statutes. However, all drug testing must be performed in accordance with standards and procedures set forth in Section 112.0455(8), Florida Statutes, and Chapter 59A-24, Florida Administrative Code. Section 112.0455(4), Florida Statutes. Those standards permit employers to conduct the following types of tests:

    1. Job applicant testing.

    2. Reasonable suspicion testing.

    3. Routine fitness-for-duty testing.

    4. Follow-up testing.

       
       

       Section 112.0455(7), Florida Statutes. The standards and procedures set forth in Section 112.0455(8), Florida Statutes, and Chapter 59A-24, Florida Administrative Code, do not require employers to use split samples in the collection process. They do not require random testing or post-accident testing.

63. In January of 1995, Petitioner implemented a second drug-free workplace program for transportation employees in compliance with the federal Omnibus Transportation Employee Testing Act (OTETA). Respondent signed a notice that he had received, read, and understood the training materials on drug and alcohol testing under U. S. Department of Transportation regulations prior to the implementation of the program.

64. Petitioner does not have a written policy or guidelines relating to a drug-free workplace for transportation employees.

    The Collective Bargaining Agreement between Petitioner and the ACEA does not refer to OTETA or the regulations implementing it.

65. Section 234.091, Florida Statutes, and Chapter 6A-3, Florida Administrative Code, require school bus drivers to have the physical qualifications, medical examinations, and controlled substance testing set forth in 49 C.F.R. Parts 382 and 391.

    These regulations require grantees of funds administered by an agency of the U. S. Department of Transportation to conduct the following transportation workplace drug tests:

    1. Pre-employment testing.

    2. Post accident testing.

    3. Reasonable suspicion testing.

    4. Random testing.

    5. Return-to-duty testing.

    6. Follow up testing.

       
       

       49 C.F.R. Sections 382.301 through 382.311. A routine fitness- for-duty drug test is not required under the U. S. Department of Transportation regulations.

66. Pursuant to 49 C.F.R. Parts 382 and 391, an employer must follow the procedures set forth in 49 C.F.R. Part 40, Subparts A and B, when testing transportation employees for drugs. 49 C.F.R. Section 40.25(f)(10)I(B) mandates that drug tests of transportation employees must be conducted using a split specimen in the collection process.

67. In the instant case, Respondent's drug test on June 10, 1995, was a routine fitness-for-duty test that was a part of his annual physical examination. It was not conducted pursuant to the OTETA regulations.

68. The drug-free workplace programs established pursuant to 34 C.F.R. Part 85, Subpart F, and Chapters 112 and 440, Florida Statutes, are distinct from the OTETA testing requirements. OTETA and the regulations implementing it are not applicable here. Therefore, Petitioner was not required to utilize a split sample in collecting a specimen for Respondent's drug test.

69. Drug tests performed under Chapters 112 and 440, Florida Statutes, must conform with the requirements of

    Chapter 59A-24, Florida Administrative Code. That rule chapter sets forth drug testing standards and procedures using criteria established by the following:

    1. U. S. Department of Health and Human Services Mandatory Guidelines for Federal Workplace Drug Testing Programs as contained in Volume 59, Number 110, of the Federal Register published June 9, 1994.

       
       

    2. National Laboratory Certification Program Guidance Document for Laboratories and Inspectors as published by the Substance Abuse and Mental Health Services Administration Center for Substance Abuse Prevention, August 29, 1994.

       
       

       Rules 59A-24.002 and 59A-24.003(7), Florida Administrative Code.

       
       

70. Rule 59A-24.005(3)(c)22, Florida Administrative Code, does not prohibit the utilization of a split specimen in the collection process. That rule states as follows:

    22. This rule chapter does not prohibit the use of split samples provided that such samples are collected in accordance with the provisions of the Mandatory Guidelines for Federal Workplace Drug Testing Programs as defined in section 59A-24.003(7), F.A.C.

    
    

    Rule 59A-24.005(3)(c)22, Florida Administrative Code. However, the rule does not require a split sample in order for a drug test to be valid and reliable.

71. Employers must conduct drug tests in substantial compliance with the statutory and rule requirements for urine drug testing. Florida Department of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994).

72. The greater weight of the evidence indicates that the urine testing procedures used for Respondent's June 10, 1996, drug test substantially complied with the requirements of Chapter 59A-24, Florida Administrative Code. These procedures included, but were not limited to, the following summarized parts of Chapter 59A-24, Florida Administrative Code:

    1. Each laboratory shall provide collection sites and training for collectors, who are responsible for implementing collection and chain-of-custody procedures. Rule 59A- 24.005(1), Florida Administrative Code.

       
       

    2. The chain-of-custody form shall provide a unique identifier which shall not be used to identify any other Florida Drug Free Workplace specimen. Rule 59A-24.005(2)(c), Florida administrative Code.

       
       

    3. Handling and transportation of a specimen from one authorized individual or place to another shall always be accomplished

       through the chain-of-custody form and procedures. Rule 59A-24.005(2)(g), Florida Administrative Code.

       
       

    4. Once the specimen arrives at the laboratory, an internal chain-of-custody form shall be used by the laboratory. Rule 59A- 24.005(2)(h), Florida Administrative Code.

       
       

    5. After the laboratory results are finalized, the original chain-of-custody form shall be executed, specifying the test results. The second copy of the form shall be sent to the MRO. Rule 59A-24.005(2)(i), Florida Administrative Code.

       
       

    6. Bluing agents shall be placed in the toilet tanks at the collection site. Rule 59A-24.005(3)(c)1.a, Florida Administrative Code.

       
       

    7. The collector shall request the donor to present photo identification. Rule 59A- 24.005(3)(c)2, Florida Administrative Code.

       
       

    8. The donor shall remove any unnecessary outer garments such as a hat and empty all clothing pockets. Rule 59A-24.005(3)(c)5, Florida Administrative Code.

       
       

    9. The donor shall wash and dry his hands prior to urination. After washing his hands, the donor shall not have access to any water or other materials which could be used to adulterate the specimen. Rule 59A- 24.005(3)(c)6, Florida Administrative Code.

       
       

    10. The donor shall provide a specimen that contains at least 30 ml of urine. Rule 59A- 24.005(3)(c)8.a, Florida Administrative Code.

        
        

    11. Within four minutes of collection, the collector shall measure and record the temperature of the urine specimen on the chain-of-custody form. Rule 59A- 24.005(3)(c)10, Florida Administrative Code.

        
        

    12. If the temperature of the specimen is outside the range of 90-100 degrees Fahrenheit, the donor may have altered or

        substituted the specimen. In that case, another specimen shall be collected under direct observation of an observer of the same gender as the donor. Reasons for the observation and the identity of the observer shall be noted on the chain-of-custody form. Rule 59A-2.005(3)(c)11, Florida Administrative Code.

        
        

    13. After collection of the specimen, the collector shall examine the specimen to determine its color and look for any signs of contaminants. Any unusual findings shall be noted on the chain-of-custody form.

        
        

    14. The donor, the collector, and the observer, if one is used, shall keep the specimen in view at all times prior to its being sealed and labeled. Rule 59A- 24.005(3)(c)14, Florida Administrative Code.

        
        

    15. The collector shall place an identification label on the bottle containing the donor's specimen number, which matches the specimen number on the chain-of-custody form and the date. The donor and the collector shall initial the identification label to certify that it is the donor's specimen. Rules 59A-24.005(3)(c)15 and 59A- 24.005(3)(c)16, Florida Administrative Code.

        
        

    16. The collector shall enter all required information on the chain-of-custody form. Rule 59A-24.005(3)(c)17, Florida Administrative Code.

        
        

    17. The collector shall request the donor to sign a statement on the chain-of-custody form certifying that the specimen identified as having been collected from him or her is in fact that specimen he or she provided. Rule 59A-24.005(3)(c)18, Florida Administrative Code.

        
        

    18. The collector shall arrange to send the collected specimens by express shipment, courier, or U. S. Mail to the drug testing laboratory. Prior to shipping, the collector shall ensure that the specimen container is sealed with forensic tamper-proof tape; that

        the tape contains the initials of the donor and the date the specimen was sealed in the specimen container; and that the completed chain-of-custody form and specimen container are enclosed and sealed in a tamper-proof sealable plastic bag before packaging for shipment to the drug testing laboratory.

        Rule 59A-24.005(3)(c)21, Florida Administrative Code.

        
        

    19. Laboratories shall use internal chain- of-custody procedures to maintain control and accountability of specimens from receipt through completion of testing, reporting of results, during storage, and continuing until final disposition of specimens. Rule 59A- 24.006(4)(a)2. Florida Administrative Code.

        
        

    20. Upon receipt of specimens, laboratory personnel shall inspect each package for evidence of possible damage or tampering and compare information listed on specimen bottles within each package to the information on the accompanying chain-of- custody forms. Rule 59A-24.006(4)(b), Florida Administrative Code.

        
        

    21. The initial screen for all drugs except alcohol shall be an immunoassay; for cocaine (benzoylecgonine), levels on initially screened specimens equal to or exceeding 300 ng/ml shall be considered to be presumptively positive and submitted for confirmation testing. Rule 59A-24.006(4)(e), Florida Administrative Code.

        
        

    22. Specimens identified as presumptively positive on the initial test shall be confirmed using gas chromatography/mass spectrometry (GC/MS); confirmation shall be done by quantitative analysis; for cocaine (benzoylecgonine), levels on confirmation specimens which are equal to or exceed 150 ng/ml shall be reported as positive. Rule 59A-24.006(4)(f), Florida Administrative Code.

        
        

    23. The laboratory shall report test results to the medical review officer (MRO) indicated on the chain-of-custody form; before any test

        result is reported by the laboratory, the results of initial tests, confirmation tests and quality control data shall be reviewed by the certifying scientist and the test certified as an accurate report. Rule 59A- 24.006(4)(g)1, Florida Administrative Code.

        
        

    24. During a 180 day-period after notification of a positive test result, the employee who provided the specimen may have a portion of the specimen re-tested at the employee's expense. Rule 59A-24.006(4)(h)2, Florida Administrative Code.

        
        

    25. Persons serving as MROs shall be licensed medical or osteopathic physicians; the MRO shall have knowledge of substance disorders, laboratory testing procedures, chain-of-custody procedures, collection procedures, and have the appropriate medical training to interpret and evaluate an individual's drug test result together with the individual's medical history or any other biomedical information. Rules 59A- 24.008(1)(a) and 59A-24.008(1)(b), Florida Administrative Code.

        
        

    26. The MRO shall evaluate the drug test result to verify it by checking the chain-of- custody form that the specimen was collected, transported, and analyzed under proper procedures, and to determine if any alternative medical explanations caused a positive test result. Rule 59A-24.008(2), Florida Administrative Code.

        
        

        (aa) The MRO shall contact the donor within three working days of receipt of the test results from the laboratory; prior to providing an employee with the opportunity to discuss a test result, the MRO shall confirm the identity of the employee. Rules 59A- 24.008(7) and 59A-24.008(8), Florida

        Administrative Code.

        (ab) After the MRO reviews the chain-of- custody form and, in the case of a positive test result, has contacted the donor who tested positive, the MRO shall send a letter to the employer revealing the final verified test result. Rule 59A-24.008(10)(c), Florida Administrative Code.

        
        

73. If properly and correctly conducted, immunoassay and GC/MS testing procedures are highly reliable and accurate to identify the presence of drugs. Skinner v. Railway Labor Executive Association, 489 U. S. 602, 109 S. Ct. 1402, 1409 n.3 (1989). In this case, Respondent's drug test was conducted in conformity with the normal and routine practices of Doctors' Laboratory, Inc., and with the requirements of state law and rules. The positive test result was a valid and correct analysis of the Respondent's urine collected on June 10, 1996.

74. Petitioner has met its burden of showing by a preponderance of the evidence that Respondent should be terminated for testing positive for cocaine in violation of Petitioner's drug-free workplace policy and for violating his rehabilitation contract with Petitioner.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED:

That Petitioner enter a Final Order, terminating the employment of Respondent.

DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997.

COPIES FURNISHED:

Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601

Francisco M. Negron, Jr., Esquire Florida Education Association/United

118 North Monroe Street Tallahassee, Florida 32399-1700

Robert W. Hughes, Superintendent Alachua County School Board

620 East University Avenue Gainesville, Florida 32601-5498

Michael H. Olenick, Esquire Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Frank T. Brogan, Commissioner Department of Education

The Capitol

Tallahassee, Florida 32399-0400

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.

Docket for Case No: 96-004365

Orders for Case No: 96-004365