STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1939

)

ARLENE MURRAY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on August 30, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County Schools

301 4th Street Southwest Post Office Box 2942 Largo, Florida 34649-2942

For Respondent: Eduardo LaTour, Esquire

905 East Martin Luther King, Jr. Drive Tarpon Springs, Florida 34684-4815

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the School Board has cause to discharge Respondent, Arlene Murray, from her duties as a bus driver with the Board because of a positive result for cocaine obtained in a drug screening.

PRELIMINARY MATTERS

By letter dated march 23, 1995, Dr. J. Howard Hinesley, Superintendent of the Pinellas County Schools, advised the Respondent, Ms. Murray, that she was suspended with pay effective March 23, 1995, and that he would recommend to the School Board at its next meeting that she be dismissed because of the fact the results of a random drug screening done on March 10, 1995 showed positive. By letter dated April 12, 1995, Ms. Murray requested a formal hearing and this hearing ensued.

At the hearing, Petitioner presented the testimony of Ashar S. Deshpande, a lab technician with Doctors' Walk-in Clinic in Clearwater; Max Loden, supervisor of support services for the Board and program coordinator for the school system's drug testing program for personnel in sensitive positions; Dr. Martha O'Howell, administrator in the Office of Professional Standards of the Pinellas

County Schools; and, by deposition, Edward A'Zary, Ph.D., a manager for Corning- Metpath Clinical Laboratories in Boundbrook, New Jersey, admitted over objection by counsel for Respondent. Petitioner also introduced Petitioner's Exhibits 1 through 9. Respondent testified in her own behalf but introduced no exhibits.

No transcript of the hearing was provided. Subsequent to the hearing, only counsel for Petitioner submitted Proposed Findings of Fact. These have been approved and are incorporated herein as appropriate.

FINDINGS OF FACT

1. At all times pertinent to the issues herein the Petitioner, Pinellas County School Board, was the agency in Pinellas County responsible for the provision of public education and educational support services in the county. Respondent, Arlene Murray, was employed by the Petitioner as a school bus driver. The position of school bus driver is a sensitive position and subject to the additional requirements pertinent to employment in such a position. One of these requirements is to undergo random drug screening from time to time. There is a decided safety purpose inherent in this requirement.

   
   

2. By letter issued in October, 1994, the Board notified all its school bus drivers, including the Respondent, that, consistent with federal law, all employees who were required to hold a commercial driver's license and who perform sensitive functions for the Board, would be subject to drug urinalysis testing and/or breath alcohol testing. Respondent operated a school bus which transported more than 15 persons and was, therefore, subject to this requirement.

   
   

3. Sometime thereafter, in December, 1994, the Board adopted Section 6Gx52-5.27, "Drug-free and Alcohol-free Workplace", as a formal Board policy. One purpose of this policy was to comply with the federal requirement. Consistent with this action, the Board contracted with FirstLab, a medical testing organization, to conduct the drug screenings, and FirstLab contracted with Corning-Metpath Clinical Laboratories, (Corning Metpath), a certified clinical laboratory, to conduct the actual analyses of the specimens gathered from subject employees.

   
   

4. School Board policy and the pertinent federal regulations require that drug testing be conducted un-announced on a random selection basis and must equal or exceed fifty percent of the total number of individuals in each subject class.

   
   

5. Consistent with the policy and federal requirement, sometime prior to January 23, 1995, Max Loden, the Board's supervisor of support services and its project coordinator for drug testing, compiled a list of all subject employees which he thereafter furnished to FirstLab. FirstLab, in turn, through use of its computers, generated a random list of those subject employees who were to be drug tested in calendar year 1995. The list for the first quarter of calendar year 1995 was telefaxed by FirstLab to Mr. Loden on January 23, 1995. Respondent's name appeared on that list.

   
   

6. Also, sometime during January 1995, the Board conducted one-hour workshops for all bus drivers to inform them of its policy regarding drug testing. At those training sessions, a handbook describing the program was furnished to each driver. Each driver who received such a handbook signed a

   receipt to that effect. On January 26, 1995, Ms. Murray signed a receipt indicating she had received the information handbook describing the Board's drug policy.

   
   

7. As a part of its implementation of the testing program, some time before March 1995, the Board contracted with Doctors Walk-In Clinic, (Clinic), located on US 19 North in Clearwater, to be a drug testing site. A complete and detailed collection procedure was developed which, all available evidence indicates, is designed to preserve the confidentiality of the donor, and to ensure that the integrity of each sample is maintained to guarantee a match of sample with donor and against contamination by any outside source. This procedure was followed in Ms. Murray's case.

   
   

8. On the morning of March 10, 1995, Respondent was notified by a Board representative that she was to report to Doctors Walk-In Clinic for a drug test before 9:35 AM that day. Ms. Murray reported to the proper location for testing as instructed, where the sample was collected according to the defined collection procedure, by Ashar Deshbande, a lab technician at the Clinic. Once the sample was collected, Ms. Deshbande completed the required portions of the federal drug testing custody and control form for shipment of the sample to Corning-Metpath for analysis. Portions of this form are completed by both the technician and the donor, and a detailed procedure is prescribed and followed for the securing, packaging and transmission of the sample from the collection site to the laboratory. This procedure, which was followed in this case, is designed to insure that the sample collected from the individual donor is properly identified, secured and transmitted to the lab without any reasonable possibility of contamination.

   
   

9. Respondent's sample was received at Corning Metpath, a facility licensed to conduct this type of laboratory analysis by both the appropriate federal and Florida authorities, on March 14, 1995. When inspected at Corning Metpath, the sample was found to have all security seals intact and undisturbed. The identification number on the specimen was compared with the number on the requisition form submitted by the Clinic and found to be identical. It is found, therefore, that the sample collected from Respondent on March 10, 1995, immediately secured, identified and prepared shipment to Corning Metpath, and thereafter shipped by air to Corning Metpath, was the same sample as received by the laboratory on March 14, 1995 and it had not been contaminated by any outside source at time of receipt by the lab. A tracking number to be used for laboratory internal tracking was also assigned at that time.

   
   

10. Several distinct tests were run at Corning Metpath on the instant specimen collected from Respondent. The first was a screening test, conducted on March 15, 1995. In this test, the sample is placed within a batch of control samples used to insure the instrumentation is properly functioning during the process of analysis. This screening process tests for five drug classes. These include amphetamines, phincyclatine, PCP, opiates and marijuana. In the course of the test, only a small portion of the sample is utilized. The remainder of the collected sample is placed in a locked cage for temporary storage. The sample to be used is then taken the preparation room to the screening room where instrumentation reads the identifying bar code on the containers, performs the analysis and produces a print out. Once the process is completed, this tested sample portion is discarded.

    
    

11. In the instant case, the screening test indicated Respondent's specimen showed a numerical value of 370. This is more than twice the minimal indicator calibrated for indicating the presence of cocaine. When the specimen

    tested positive for cocaine, the sample was removed from the test batch and secured in a locked refrigerator for confirmation testing.

    
    

12. The next day, March 16, 1995, the Respondent's positive sample was removed from the locked refrigerator and subjected to confirmation testing. Confirmation testing is accomplished by a staff team entirely different from those individuals who made up the screening test personnel. The confirmation testing is done on only one specimen at a time and no more than that sample under test is opened. In a confirmation test, the standards of which are even more stringent than those for the screening test, Respondent's sample again tested positive for cocaine.

    
    

13. The test results indicating a positive result of the laboratory analysis were received from FirstLab by Mr. Loden at the Board on March 23, 1995. Mr. Loden immediately notified the Board's Office of Professional Standards that a positive result had been received on Ms. Murray's sample, and a decision was then made to suspend Ms. Murray, with pay, until dismissal action could be considered by the Board at its next regularly scheduled meeting.

    Before the Board meeting could be held, Ms. Murray requested formal hearing.

    
    

14. Ms. Murray denied under oath ever using cocaine and affirmatively stated she did not use drugs. She could not, however, give any explanation as to how cocaine metabolite could have been present in her urine.

    
    

15. Ms. Murray has lived in Pinellas County for 32 years and has been employed by the Board as a bus driver for six years. Prior to the instance under consideration here, she claims, she has never been in any trouble with the Board and has never been convicted of a crime. When interviewed by Dr. O'Howell on the day the test results were received, she was advised of the results and that if she resigned, the incident would not appear in the papers. Because, she claims, she has not used drugs for at least one year prior to this incident, Ms. Murray declined to resign and was dismissed. She asserts that in briefings given to employees, they were told that if they were to come to their supervisor and indicate they needed help, they would not be fired. She knows of at least one other employee who tested positive for drugs and was not fired. That individual was not identified.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Under the provisions of Section 230.22, Florida Statutes, the Board has the authority to adopt rules and regulations which will contribute to the efficient operation of the school system. Consistent therewith, the Board adopted Section 6Gx52-5.27, Policy Manual of Pinellas County School Board, dated December, 1994. This policy states that as of January 1, 1995, all Board employees who are required to hold a commercial driver's license as a condition of employment and who perform safety sensitive functions, which includes operating a vehicle designed to carry more than 15 persons, shall be subject to drug urinalysis testing and/or breath alcohol testing. Disciplinary action up to and including termination of employment may be taken against employees who violate the standards of conduct set out in that policy.

    
    

18. The burden of proof to establish Respondent's misconduct and a basis for termination of her employment rests with the Board which must establish her

    misconduct by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3DCA 1990); Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3DCA 1990).

    
    

19. In the instant case, the evidence establishes the Board's authority to establish rules for the safe operation of its school busses, and in this case set up a program, consistent with state and federal law and requirements, calling for the random testing of school bus drivers. Respondent was identified, by a computer-generated roster, for random urinalysis, and, consistent with the program established, was referred to a contract facility for the taking of the sample. This sample was thereafter secured against contamination and mis-labeling and forwarded to another facility, a contract laboratory, for analysis. In a several step test, scientifically valid as to methodology and preservation technique and standards, the Respondent's specimen was determined to contain cocaine, a proscribed substance. When this information was furnished through official channels to the Board, Respondent was afforded an opportunity to explain or resign. When she declined to do either, she was suspended with pay pending termination from employment.

    
    

20. The above evidence, absent any showing of mistake, failure of the system, or inappropriate procedure being followed, unexplained by the Respondent, is adequate to establish that cocaine metabolite was in her system, indicating her use of cocaine, which is grounds for termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Respondent, Arlene Murray, be terminated for cause from employment as a school bus driver with the Pinellas County Schools.

RECOMMENDED this 27th day of October, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 27th day of October, 1995.

COPIES FURNISHED:

Keith B. Martin, Esquire Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942

Eduardo LaTour, Esquire Tarpon Tower, Suite 400

905 East Martin Luther King, Jr. Drive Tarpon Springs, Florida 34689-4815

Dr. J. Howard Hinesley Superintendent

Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Barbara J. Staros General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-001939

Orders for Case No: 95-001939