STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF ALACHUA )

COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 96-4364

)

OLIVER WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on February 25, 1997, in Gainesville, Florida.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

620 East University Avenue Gainesville, Florida 32601-5498

For Respondent: Douglas G. Porter, Esquire

Post Office Box 2655 Gainesville, Florida 32602

STATEMENT OF THE ISSUE

The issue is whether respondent should be dismissed as an employee for the reasons given in the termination letter dated June 19, 1996.

PRELIMINARY STATEMENT

This matter began on June 19, 1996, when petitioner, School

Board of Alachua County, issued a notice that it intended to dismiss respondent, Oliver Williams, for misconduct. More specifically, the letter alleged that "after testing positive for an illegal substance and signing a rehabilitation contract, (respondent) for the second time, tested positive for cannibinoids." Respondent denied this allegation and requested a formal hearing to contest the agency's proposed action. The matter was referred by petitioner to the Division of Administrative Hearings on September 16, 1996, with a request that an Administrative Law Judge be assigned to conduct a formal hearing. By Notice of Hearing dated October 23, 1996, a final hearing was scheduled on February 25, 1997, in Gainesville, Florida. On February 24, 1997, the case was transferred from Administrative Law Judge Suzanne F. Hood to the undersigned.

At final hearing, petitioner presented the testimony of Vivian Jeannette Dees, its former transportation manager; Carl Fogelman, a phlebotomist and physican’s assistant at Doctor’s Laboratory, Inc.; Synester P. Jones, assistant superintendent for human resources; and Dr. Bruce A. Goldberger, assistant professor of toxicology at the University of Florida and accepted as an expert in forensic toxicology. Also, it offered petitioner's exhibits 1-10. All exhibits were received in evidence. Exhibit

8 is the deposition testimony of Dr. Martin Provasnik.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by petitioner on March 7,

1997, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. At all times relevant hereto, respondent, Oliver Williams, was employed as a bus aide for petitioner, School Board of Alachua County (Board). As such, he is an educational support employee within the meaning of the law.

2. In a charging document dated June 19, 1996, the Board alleged that respondent had violated the Board's "DrugFree Workplace" policy by "testing positive for an illegal substance" a second time. For this alleged misconduct, the Board proposed to terminate his employment. Effective July 17, 1996, respondent was suspended without pay pending the outcome of this proceeding. Respondent disputes these allegations and has initiated this proceeding to challenge his termination.

3. In his position as a bus aide, respondent is required to undergo an annual physical, including a five-panel drug screen through urinalysis for amphetamines, cannabinoids, cocaine, PCP and opiates. The testing is required since the Board has adopted a policy/guideline of maintaining a drug-free workplace. The policy/guideline has been in effect since at least May 16, 1989,

   and all employees are on notice that controlled substances may not be used in the workplace.

4. On June 14, 1995, respondent provided a urine speciman to Doctor’s Laboratory, Inc., a Gainesville, Florida firm which has contracted with the Board to provide drug screening for certain Board employees. That test revealed a positive reading for Cannabinoids-THC (marijuana), which violated a Board policy prohibiting the “use of a controlled substance” in the workplace.

5. On June 26, 1995, respondent was invited to a conference to discuss the test results. At that conference, respondent executed a rehabilitation contract in which he agreed to undergo patient counseling and to refrain from using “all illegal mind- altering substances.” He also agreed to have “random urinalysis” for a period of one year following release from the rehabilitation clinic/counselor. The contract provided that if he violated the agreement, he would be subject to termination as a Board employee.

6. On August 16, 1995, and March 4, 1996, respondent tested negative in follow-up drug tests. On June 10, 1996, however, respondent again tested positive for Cannabinoids-THC. The validity and accuracy of the latter test has not been challenged.

7. At a pre-termination conference held on June 18, 1996, respondent was asked what would cause his test to be positive. He responded that a fourteen year old niece who lived in his home regularly smoked marijuana with her friends and the passive smoke

   may have caused the positive reading. Through expert testimony of Dr. Goldberger, however, this theory was discredited.

8. Because respondent’s conduct violates Board policy and the agreement which he signed, he should be terminated. Termination of employment is consistent with actions taken by the Board in the cases of other employees who have tested positive a second time. It is likewise found to be appropriate in this case.

   CONCLUSIONS OF LAW

   
   

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

10. Because respondent holds no teaching certificate, and only his job is at risk, petitioner bears the burden of proving the allegations in its charging document by a preponderance of the evidence. Compare Allen v. School Bd. of Dade County, 571 So.2d 568 (Fla. 3rd DCA 1990).

11. Section 231.3605(1)(a), Florida Statutes, defines an educational support employee as including "a member of the transportation department," such as respondent. Paragraph (2)(c) of the same statute provides that:

    In the event a superintendent seeks termin- ation 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.

    
    

    While the statute does not state the reasons for which a non- instructional employee can be terminated, it may reasonably be assumed that an employee can be terminated for proper or just cause, including a violation of the employer’s prohibition against the use of drugs in the workplace.

12. By a preponderance of the evidence, petitioner has established that respondent violated his rehabilitation contract and Board policy by twice testing positive for marijuana. Because termination is explicitly provided for in both the rehabilitation contract and Board guidelines, he should be terminated as a Board employee.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the School Board of Alachua County enter a final order finding respondent guilty of violating Board policy regarding the use of drugs in the workplace and that he be terminated as a Board employee.

DONE AND ENTERED this 13th day of March, 1997, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 13th day of March, 1997.

COPIES FURNISHED:

Robert W. Hughes, Superintendent of Schools School Board of Alachua County

620 East University Avenue Gainesville, Florida 32601-5498

Thomas L. Wittmer, Esquire 620 East University Avenue

Gainesville, Florida 32601-5498

Douglas W. Porter, Esquire Post Office Box 2655 Gainesville, Florida 32602

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within fifteen days from the date of this recommended order. Any exceptions to this recommended order should be filed with the School Board of Alachua County.

Docket for Case No: 96-004364

Orders for Case No: 96-004364