STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 96-5169
)
DONNELL JONES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a Section 120.57(1) hearing was conducted in this case on March 5, 1997, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Ana Galindo-Marrone, Esquire
The School Board of Dade County
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
For Respondent: Louis Montielh, Qualified Representative AFSCME
2171 Northwest 22nd Court Miami, Florida 33142
STATEMENT OF THE ISSUES
Whether Respondent engaged in the conduct alleged in the Notice of Specific Charges?
If so, whether such conduct provides the School Board of Dade County with just or proper cause to take disciplinary action against her?
If so, what specific disciplinary action should be
taken?
PRELIMINARY STATEMENT
On October 23, 1996, the School Board of Dade County (School Board) suspended Respondent from her position as a school bus driver and initiated a dismissal proceeding against her. Respondent thereafter requested a hearing on the matter. On November 4, 1996, the matter was referred to the Division of Administrative Hearings (Division) for the assignment of a Division Administrative Law Judge to conduct the hearing Respondent had requested.
On or about February 14, 1997, the School Board served on Respondent (by United States Mail) its Notice of Specific Charges alleging that Respondent had engaged in conduct warranting her dismissal in that, "[o]n or about May 24, 1995 and on or about June 4, 1995, Respondent [had] tested positive for cocaine" in violation of School Board Rule 6Gx13-4-1.05 (Count I) and School Board Rule 6Gx13-4A-1.21 (Count II).
As noted above, the final hearing in this case was held before the undersigned on March 5, 1997. At the outset of the hearing, the undersigned granted the School Board's unopposed request that official recognition be taken of the following: Article IX, Section 4(b) of the Florida Constitution; Sections 230.03, 230.23(5)(f), 231.3605. and 447.209, Florida Statutes;
School Board Rules 6Gx13-4-1.05 and 6Gx13-4A-1.21; the School
Board's Drug-Free Work Place Technical Guide (which is incorporated by reference in School Board Rule 6Gx13-4-1.05);
49 U.S.C. Section 31306 (the Omnibus Transportation Employee Testing Act); and various provisions of the current collective bargaining agreement between the School Board and Respondent's collective bargaining representative.
Three witnesses testified at the final hearing: A. Louise Harms, a former executive director in the School Board's Office of Professional Standards (testifying for the School Board); Jerry Klein, the senior executive director of the School Board's Department of Transportation (also testifying for the School Board); and Respondent (testifying on her own behalf). In addition to the testimony of these three witnesses, 14 exhibits were offered and received into evidence: Petitioner's Exhibits 1, 5 through 14, and 221; and Respondent's Exhibits 1 and 2.
At the close of the evidentiary portion of the hearing on March 5, 1997, the parties were advised of their right to file proposed recommended orders and a deadline was established (30 days from the date of the undersigned's receipt of the transcript of the final hearing) for the filing of proposed recommended orders.
The undersigned received the transcript of the hearing on May 9, 1997. On June 6, 1997, the School Board filed its
proposed recommended order, which the undersigned has carefully considered. To date, Respondent has not filed any post-hearing submittal.
FINDINGS OF FACT
Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
The Parties
The School Board
The School Board is responsible for the operation, control and supervision of all public schools (grades K through
12) in Dade County, Florida.
Respondent
Respondent has been employed by the School Board since October 11, 1982.
She is currently under suspension pending the outcome of this disciplinary proceeding.
For the duration of her employment with the School Board, Respondent has held a school bus driver position, the job description for which reads, in pertinent part, as follows:
BASIC OBJECTIVES
Operates a school bus within a designated area to transport students from their assigned stop to a public school and back. The work is performed under the general supervision of a Field Operations Specialist, though the employee is expected to exercise judgment and initiative to ensure the safe and efficient operation of the school
bus. . . .
MINIMUM QUALIFICATION REQUIREMENTS . . .
Must hold a valid Florida Commercial Driver's License . . .
Must be able to pass a prescribed reflex test, physical examination, and drug
test. . .
The duties of a school bus driver are safety-sensitive and involve direct contact with students.
OTETA Training
On January 10, 1995, Respondent received in-service training for School Board employees covered by the Omnibus Transportation Employee Testing Act (OTETA) and was provided a pamphlet describing OTETA's requirements (OTETA Pamphlet),2 which contained the following information:
All eligible drivers/covered employees as defined below will be required to submit to controlled substance and alcohol testing per Federal Regulations, 49 CFR Parts 40 and 382.
Who is a covered employee who is eligible for testing?
A covered employee is one who is required to hold a Commercial Driver's License (CDL) as a condition of employment and drives one of the following:
Vehicle designed to carry 16 or more persons Vehicle weighing over 26,000 lbs
Vehicle carrying hazardous materials
During what part of the day is a driver subject to the provisions of 49 CFR Part 382?
A driver is subject to the provisions of 49 CFR Part 382 whenever the driver is performing a safety-sensitive function, and this includes all on-duty functions performed from the time an employee begins work or is required to be ready to work until he/she is relieved from work and all responsibility for performing work. It includes, but is not limited to, driving;
waiting to be dispatched; inspecting and servicing equipment; supervising, performing, or assisting in loading and unloading; repairing or obtaining and waiting for help with a disabled vehicle; performing driver requirements related to accidents; and performing any other work for the district or paid work for any other entity.
The following alcohol and controlled substance-related activities are prohibited by the Federal Highway Administration's drug use and alcohol misuse rules for drivers of commercial motor vehicles (CMVs): . . .
Reporting for duty or remaining on duty, requiring the performance of safety- sensitive functions, when the driver uses any controlled substance, except when instructed by a physician who has advised the driver that the substance does not adversely affect the driver's ability to operate a CMV safely.
Reporting for duty, remaining on duty, or performing a safety-sensitive function, if the driver tests positive for controlled substances until released by the Substance Abuse Professional (SAP).
Under what circumstances will a driver be subject to testing?
The following are the types of testing required to be performed:
Pre-Employment Testing Random Testing
Annual (DCPS School Board Policy) Reasonable Suspicion Testing
Post-Accident Testing Return-to-Duty Testing Follow-up Testing . . .
Random Controlled Substances Testing
Random controlled substances testing shall be conducted in accordance with the following requirements:
Random controlled substances testing shall be administered at a minimum annual rate of
50 percent of the average number of CDL- covered positions.
The employer shall ensure that random controlled substances tests are unannounced and spread reasonably throughout the calendar year.
The employer shall ensure that drivers selected for random controlled substances tests proceed immediately to the testing site upon notification of being selected. All employees in the Department of Transportation will be transported. . . .
Reasonable Suspicion Alcohol and Controlled Substances Testing
The employer must require a driver to submit to an alcohol or controlled substance test when the employer has reasonable suspicion to believe that the driver has violated the alcohol or controlled substances prohibitions.
"Reasonable Suspicion"- Belief that the driver has violated the alcohol or controlled substances prohibitions, based on documented observations concerning appearance, behavior, speech and/or body odors of the employee.
Testing is authorized only if the observations are made during, just before, or just after the period of the work day the driver is required to be in compliance.
Return-to-Duty and Follow-up Testing Return-to-duty testing: . . .
Each employer shall also ensure that before a driver returns to duty in the performance of a safety-sensitive function, after engaging in prohibited conduct regarding controlled substance use, the driver shall undergo a return-to-duty controlled substances test with a result of a verified negative result for controlled substance use.
In the event a return-to-duty test is required, the driver must also be evaluated by a Substance Abuse Professional (SAP) and participate in any assistance program prescribed.
Follow-up testing: Following a determination that a driver is in need of assistance resolving problems associated with alcohol misuse and/or use of controlled substances, each employer shall ensure the driver is subject to unannounced follow-up alcohol and/or controlled substances testing as directed by the Substance Abuse Professional. The driver shall be subject to a minimum of six follow-up controlled substances and/or alcohol tests in the first
12 months. . . .
What procedures will be used to test for the presence of controlled substances or alcohol?
Controlled Substances
All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme immunoassay or EIA) followed by a confirmation of any positive findings by Gas Chromatography/Mass Spectrometry or GC/MS.
All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS). . . .
What are the consequences for covered employees found to have violated the prohibitions of this rule?
Covered employees who are known to have engaged in prohibited behavior, with regard to alcohol misuse and/or use of controlled substances, are subject to the following consequences:
Covered employees shall not be permitted to perform safety-sensitive functions.
Covered employees shall be advised by the employer of the resources available to them in evaluating and resolving problems associated with the misuse of alcohol and/or use of controlled substances.
Covered employees shall be evaluated by Substance Abuse Professionals who shall determine what assistance, if any, the employee needs in resolving problems associated with alcohol misuse and controlled substance use.
Before a covered employee returns to duty requiring a safety-sensitive function, he or she shall undergo a return to duty test with a result indicating a breath alcohol level of less than 0.02 if the conduct involved alcohol, or a controlled substance test with a verified negative result if the conduct involved controlled substance use.
In addition, each covered employee identified as needing assistance in resolving problems associated with alcohol or controlled substances shall be evaluated by a SAP to determine that the covered employee has followed the rehabilitation program prescribed.
The covered employee shall also be subject to unannounced follow-up alcohol and controlled substance testing. The number and frequency of such follow-up testing shall be
as directed by the SAP, and consist of at least six tests in the first 12 months.
Any employee who refuses to submit to a
post-accident, random, reasonable suspicion, or follow-up test shall not perform or continue to perform safety-sensitive functions. Failure to submit to a test in a timely manner shall be treated the same as a positive screening.
Employees who test positive shall be subject to disciplinary action, up to and including dismissal.
What is the role of the Medical Review Officer (MRO)?
The medical Review Officer (MRO) is a physician provided by the vendor (FirstLab) who is responsible for notifying the covered employees of the positive drug test. The Medical Review Officer conducts all tests and notifications in a totally confidential manner. The Medical Review Officer will contact the employee by telephone; therefore, it is the responsibility of the covered employee to provide current information to the worksite supervisor. . .
.
Following the training session, Respondent was presented with, and signed and dated, the following statement:
IMPLEMENTATION OF THE OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT
I attended a training session presented by Ms. A. Louise Harms at South Dade Senior High School on January 10, 1995, regarding implementation of the Omnibus Transportation Testing Act.
I have received, read, and understand the materials on drug and alcohol testing under
the U.S. Department of Transportation regulations.
The Collective Bargaining Agreement
As a school bus driver employed by the School Board, Respondent is a member of a collective bargaining unit represented by AFSCME and covered by a collective bargaining agreement between the School Board and AFSCME, effective July 1, 1994, through June 30, 1997 (AFSCME Contract).
Article II, Section 3, of the AFSCME Contract provides as follows:
ARTICLE II- RECOGNITION
SECTION 3. The provisions of this Contract are not to be interpreted in any way or manner to change, amend, modify, or in any other way delimit the exclusive authority of the School Board and the Superintendent for the management of the total school system and any part of the school system.
It is expressly understood and agreed that all rights and responsibilities of the School Board and Superintendent, as established now and through subsequent amendment or revision by constitutional provision, state and federal statutes, state regulations, and School Board Rules, shall continue to be exercised exclusively by the School Board and the Superintendent without prior notice or negotiations with AFSCME, except as specifically and explicitly provided for by the stated terms of this Contract. Such rights thus reserved exclusively to the School Board and the Superintendent, by way of limitation, include the following: (1) selection and promotion of employees; (2) separation, suspension, dismissal, and termination of employees for just cause; (3) the
designation of the organizational structure of the DCPS and lines of administrative authority of DCPS.
It is understood and agreed that management possesses the sole right, duty, and responsibility for operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following:
Discipline or discharge of any employee for just cause;
Direct the work force;
Hire, assign, and transfer employees;
Determine the missions of the Board agencies;
Determine the methods, means, and number of personnel needed or desirable for carrying out the Board's missions;
Introduce new or improved methods or facilities;
Change existing methods or facilities;
Relieve employees because of lack of work;
Contract out for goods or services; and,
Such other rights, normally consistent with management's duty and responsibility for operation of the Board's services, provided, however, that the exercise of such rights does not preclude the Union from conferring about the practical consequences that decisions may have on terms and conditions of employment.
Article IX, Section 14.F., of the AFSCME Contract essentially recites the provisions of School Board Rule 6Gx13-4-
, which is the School Board's "Drug Free Work Place General
Policy Statement." It provides, in pertinent part, as follows:
DCPS [Dade County Public Schools] and AFSCME recognize that substance abuse in our nation and our community exacts staggering costs in both human and economic terms. Substance abuse can be reasonably expected to produce impaired job performance, lost productivity, absenteeism, accidents, wasted materials, lowered morale, rising health care costs, and diminished interpersonal relationship skills. DCPS and AFSCME share a commitment to solve this problem and to create and maintain a drug-free work place.
DCPS is responsible for the instruction and well-being of the students entrusted to its care. A consistent message needs to be communicated to DCPS students: the use of illegal drugs, the abuse of alcohol, and the misuse of prescription drugs is unacceptable.
Policy Objectives
To promote a healthy, safe working and learning environment;
To seek the rehabiliation of employees with a self-admitted or detected substance abuse problem;
To eliminate substance abuse problems in the work place;
To provide a consistent model of substance-free behavior for students;
To provide a clear standard of conduct for DCPS employees; and
To hire drug-free employees.
Policy Statement- Illegal Drugs
Drug abuse by employees interferes with the educational and work process and compromises the safety and well-being of staff and students. Employees are expected to conduct themselves in a manner consistent with the following provisions:
a. Employees on duty or on School Board property will not manufacture, distribute, dispense, possess, or use illegal drugs, nor will they be under the influence of such drugs. . . .
Policy Statement- Employee Physical Examination/Screening Health Services
Drug screening will be included in all physical examinations; existing employees and contracted persons in covered positions will be screened under the Omnibus Transportation Employee Testing Act (OTETA) of 1991, and as required under existing labor contracts, statutes, State Board Rules, and Dade County Public Schools Board Rules.
Circumstances under which testing may be considered include, but are not limited to, the following:
observed use of illegal drugs and/or abuse of alcohol during work hours;
apparent physical state of impairment of motor functions;
marked changes in personal behavior on the job not attributable to other factors;
employee involvement in serious or repetitive accidents on the job causing personal injury to self or others and/or significant property damage;
employee involvement in any accident requiring medical treatment or the vehicle
to be towed away from the scene of the accident; and
any vehicular fatality.
Drug and/or alcohol screening shall be conducted by Board approved, independent, certified laboratories utilizing recognized techniques and procedures as described in the DCPS Drug-Free Work Place Technical Guide, which is incorporated by reference into this Contract, and made a part thereof. The protocol for drug screening shall include a split sample and chemical immunoassay screening procedure. In the event initial test results are screened positive, such results will be confirmed and verified by the Gas Chromatography Mass Spectrometry (GC/MS) Test.
Medical records and information relating directly thereto will be maintained in strict confidentiality. Any laboratory contract shall provide that the contractor's records are to be kept confidential under provisions of Florida laws. DCPS shall establish a system of maintaining records to include both the district's and the contractor's record of applicant and employee urinalysis and blood alcohol results.
The contract and the record maintenance system must have specific provisions that require that employee records are maintained and used with the highest regard for employee privacy consistent with Florida's Public Records Act and the purpose of achieving a drug-free work place.
DCPS recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of DCPS, where possible, to seek rehabiliation of employees with a self-admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board
believes will not be assisted by rehabiliation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to School Board policy, applicable Florida Statutes, State Board of Education Rules, Omnibus Transportation Employee Testing Act (OTETA) of 1991, and applicable provisions of collective bargaining agreements.
Article XI of the AFSCME Contract addresses the subject of "disciplinary action."
Section 1 of Article XI is entitled "Due Process." It provides as follows:
Unit members are accountable for their individual levels of productivity, implementing the duties of their positions, and rendering efficient, effective delivery of services and support. Whenever an employee renders deficient performance, violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the deficiency or rule, regulation, or policy violated. An informal discussion with the employee shall occur prior to the issuance of any written disciplinary action. Progressive discipline steps should be followed:
verbal warning;
written warning (acknowledged); and,
Conference-for-the-Record.
Conference-for-the-Record shall be held as the first step when there is a violation of federal statutes, State Statutes, defiance of the administrator's authority, or a substantiated personnel investigation.
The parties agree that discharge is the extreme disciplinary penalty, since the employee's job, seniority, other contractual benefits, and reputation are at stake. In recognition of this principle, it is agreed that disciplinary action(s) taken against AFSCME bargaining unit members shall be consistent with the concept and practice of progressive or corrective discipline (i.e., in administering discipline, the degree of discipline shall be reasonably related to the seriousness of the offense and the employee's record).
The employee shall have the right to representation in Conferences-for-the-Record held pursuant to this Article. Such a conference shall include any meeting where disciplinary action will be initiated.
The employee shall be given two days' notice and a statement for the reason for any Conference-for-the-Record, as defined above, except in cases deemed to be an emergency.
The Board agrees to promptly furnish the Union with a copy of any disciplinary action notification (i.e., notification of suspension, dismissal, or other actions appealable under this Section) against an employee in this bargaining unit.
Section 2 of Article XI is entitled "Dismissal, Suspension, Reduction-in-Grade." It provides as follows:
Permanent employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer. The employee shall be notified of such action and of his/her right to appeal by certified mail. The employee shall have 20 calendar days in which to notify the School Board Clerk of the employee's intent to appeal such action. The Board shall appoint an impartial Hearing Officer, who shall set
the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. The Board shall set a time limit, at which time the Hearing Officer shall present the findings. The findings of the Hearing Officer shall not be binding on the Board, and the Board shall retain final authority on all dismissals, suspensions, and reductions-in-grade. The employee shall not be employed during the time of such dismissal or suspension, even if appealed.
If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any longevity or be charged with a break in service due to said dismissal, suspension, or reduction-in- grade. Dismissal, suspension, reduction-in- grade, and non-reappointments are not subject to the grievance/arbitration procedures.
Section 3 of Article XI is entitled "Cause for Suspension." It provides as follows:
In those cases where any employee has not complied with Board policies and/or department regulations, but the infraction is not deemed serious enough to recommend dismissal, the department head may recommend suspension up to 30 calendar days without pay. All suspensions must be approved by the Superintendent.
Section 4 of Article XI is entitled "Types of Separation." It provides, in pertinent part, as follows:
Dissolution of the employment relationship between a permanent unit member and the Board may occur by any four distinct types of separation. . . .
C. Disciplinary-- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job
responsibilities. Such action occurs at any necessary point in time. . . .
The School Board's Rules
As a School Board employee, Respondent was obligated to act in accordance with School Board rules and regulations,3 including the aforementioned Rule 6Gx13-4-1.05, as well as Rule 6Gx13-4A-1.21,4 which provides, in pertinent part, as follows:
Permanent Personnel RESPONSIBILITIES AND DUTIES
I. EMPLOYEE CONDUCT
All persons employed by The School Board of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a manner that will reflect credit upon themselves and the school system.
Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.
The May, 1995, Drug Test and its Aftermath
On May 24, 1995, Respondent submitted to an annual drug test in accordance with School Board policy.
The urine specimen collected from Respondent tested positive for cocaine. The test results were verified by a Medical Review Officer.
The School Board was advised of the results of the test on or about June 6, 1995.
On June 7, 1995, Respondent was presented with, and
signed and dated, the following statement:
I have been advised that, effective immediately, I may no longer perform safety- sensitive duties and that I will be contacted by the designated DCPS Substance Abuse Professional for follow up actions, as needed.
Ms. Sandra Ivey is the DCPS Substance Abuse Professional and may be reached at 588-2334 (Voice Mail) or 287-9596 (Pager).
On June 12, 1995, Respondent was presented with, and signed and dated, the following additional statement:
The regulations require the employer (DCPS) to follow specific guidelines but also seek to assist the driver by requiring the driver to be referred to a substance abuse professional to determine if counseling and/or treatment for a substance abuse problem is necessary.
I, Donnell Warren,5 d[o] hereby read and understand the following rules and stipulations must be followed before and after my return to work:
The driver must be evaluated by a substance abuse professional who shall determine what assistance, if any, the driver needs in resolving problems associated with substance abuse.
Before returning to duty the driver must under-go a return-to-duty controlled substance test with a verified negative result and if the initial evaluation by the substance abuse professional indicates a need for assistance in resolving substance abuse problems, the driver must be re- evaluated by a substance abuse professional to ensure that the driver has properly followed any rehabilitation program
prescribed by the substance abuse professional.
Once back to work in a safety sensitive function, the driver is subject to, and the employer must provide a minimum of six (6) follow-up tests during the first twelve (12) months following the driver[']s return-to- duty. If so indicated by the substance abuse professional, the follow-up testing may continue for up to 60 months.
I have read or have had read to me and fully understand all guidelines and stipulations.
On June 23, 1995, David Simpson-Scott, the program coordinator at LifeLine of Miami, Inc., wrote Sandra Ivey the following letter concerning Respondent:
Please be advised that Donnell[] Warren met with me on 6/14/95 for an assessment to determine appropriateness for addiction treatment. Client was cooperative throughout the session, and based on the limited information of a drug history, it was not possible to substantiate a current substance abuse problem. It was recommended that Ms. Warren submit to a second urinalysis. Ms. Warren provided a Urine Drug Screen on 6/15/95. Ms. Warren's UDS was returned with a Negative result[].
Based on the results of the UDS and the substance abuse assessment, I recommend that Ms. Warren be able to return to work and be subject to random urine drug screens as appropriate.
If you need any further information, please feel free to contact me.
On June 26, 1995, Ivey sent a memorandum to Rodolfo Mestre, the director of the School Board's Professional Standards Administration, and Jerry Klein, senior executive director of the School Board's Department of Transportation, in which she stated the following about Respondent:
Employee is ready to return to work. Clinical Second Evaluation concurs. Please administer Drug Screen prior to reinstatement.
"Drug Screens" were administered on July 7, 1995, February 7, 1996 and May 6, 1996. The results of each of these "Drug Screens" were negative.
On May 14, 1996, Respondent was presented with, and signed and dated, the following statement:
DRUG-FREE WORK PLACE POLICY
OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT EMPLOYEE ACKNOWLEDGEMENT FORM
I, DONNELL JONES, do hereby read and understand that, in accordance with Federal Regulations (49 CFR Parts 40 and 382) and School Board Rule 6Gx13-4-1.05, Drug-Free Work Place and in order to be eligible for continued employment, I must meet the following prerequisites and conditions before and after returning to duty in a position requiring the performance of safety-sensitive functions:
I was evaluated by the SAP who determined what assistance, if any, I needed in resolving problems associated with controlled substances use or alcohol misuse. If the initial evaluation by the SAP indicated a need for continued assistance in resolving problems associated with controlled substances use or alcohol misuse, I must be re-evaluated by the SAP to ensure that I have properly followed any rehabilitation program prescribed by the SAP.
If the SAP determines, in accordance with Section 382.605(c)(2)(ii), return to duty testing and follow-up testing for both alcohol and controlled substances are necessary, I will comply with the SAP's determination and undergo the appropriate test(s).
Before returning to duty, I must undergo a return-to-duty alcohol test with a result indicating an alcohol concentration of less than 0.02 and/or a controlled substance test with verified negative results.
I will not be eligible to return to duty in a position requiring the performance of safety-sensitive functions unless I have followed the rehabilitation program prescribed by the SAP and completed all rehabilitation requirements determined by the SAP.
Both prior to and after my return to duty in a safety sensitive function, I shall continue to meet with the SAP, as necessary, and follow all recommendations from the SAP, which may include education and/or treatment. It is understood that I will be responsible for all treatment expenses incurred and that every effort will be made to match treatments with my Fringe Benefits Package.
Once I have returned to active status duty as a driver, in readiness to perform safety-sensitive functions, I will be subject to a minimum of six (6) unannounced controlled substances and/or alcohol follow- up tests during the first twelve (12) months following my return to duty in a safety sensitive function. If the SAP determines that continued testing is necessary, the unannounced follow-up testing may continue for up to 60 months from the date of my return to duty as a driver.
I will remain subject to all other types of testing as required and authorized by OTETA regulations (49 CFR Parts 40 and 382) and School Board Rule 6Gx13-4-1.05, Drug- Free Work Place (i.e., random, reasonable suspicion, pre-duty, post-accident, and annual).
I further understand and acknowledge that, subsequent to my return to duty, any additional violation of the Drug-Free Work Place Policy6 and/or non-compliance with rehabilitation and other requirements shall subject me to disciplinary action, up to and
including dismissal from all employment with the School Board of Dade County, Florida.
I have read and I fully understand all guidelines and stipulations. I acknowledge receipt of this document.
The June, 1996, Drug Test and its Aftermath
On June 4, 1996, Respondent provided a urine specimen for follow-up testing.
The bottle containing the specimen was labeled and sealed in a manner that made it highly improbable that the sample could be tampered with without the tampering being obvious. It was then sent, along with a partially filled out (by the collector and donor) Federal Drug Testing Custody and Control Form, to Corning Clinical Laboratories (Corning)7 for analysis and testing.
The labeled and sealed container with the specimen and accompanying form were received by Corning on June 5, 1996.
Adequate procedures were employed to ensure that the specimen was properly identified, that the chain of custody was properly maintained, and that there had not been any tampering with the specimen.
An initial immunoassay screening of Respondent's urine specimen indicated the presumptive presence of the unique metabolite which is produced when cocaine is ingested and metabolized in the body.
Additional laboratory testing of the specimen was then performed to verify the results of the immunoassay screen previously performed. Gas chromatography-mass spectrometry, an exceptionally reliable and accurate method of confirmatory testing, was utilized.
The gas chromatography-mass spectrometry analysis of Respondent's urine specimen was positive for the presence of the cocaine metabolite in a concentration consistent with, and indicative of, Respondent's ingestion of cocaine prior to the collection of her urine specimen.
The test results were reported to the School Board and the Medical Review Officer on June 8, 1996.
On June 12, 1996, after examining the documentation with which he had been furnished (the Federal Drug Testing Custody and Control Form and the laboratory report) and speaking with Respondent, the Medical Review Officer verified the test results. He determined, based upon his conversation with Respondent, that there was no "legitimate medical explanation" for the presence of the cocaine metabolite in the urine specimen Respondent had provided.8
Respondent was informed of her right to "split sample" testing (at her expense), but declined to exercise such option.
On June 13, 1996, the School Board's Rodolfo Mestre sent Respondent the following letter:
The purpose of this notification is to advise you that you are not authorized to perform safety-sensitive functions or work in any other active duty status as an employee of the Dade County Schools.
This notification is provided pursuant to 49 CFR part 382 of the Omnibus Transportation Employee Testing Act of 1991 which is incorporated in School Board Rule 6Gx13-4- 1.05, Drug-Free Work Place.
Pursuant to Section 382.605, you are hereby referred to a Substance Abuse Professional designated by the Dade County Public Schools so that you may learn of the resources available for evaluating and resolving problems associated with the use of controlled substances. Ms. Sandra Ivey is the DCPS Substance Abuse Professional (SAP) and may be reached at 588-2334 (Voice Mail) or 287-9595 (Pager). You are encouraged to contact Ms. Ivey as soon as possible.
Questions regarding this notification should be directed to this administrator at 995- 7217.
By letter dated June 17, 1996, A. Louise Harms of the School Board's Office of Professional Standards advised Respondent of the following:
Effective June 13, 1996, you are not authorized to perform a safety-sensitive function or any other function as an employee of Dade County Public Schools. Therefore, you may not be employed as a school bus driver.
As stated in 49 CFR part 382 of the Omnibus Transportation Employee Testing Act of 1991:
"No driver shall report to duty or remain on duty requiring the performance of safety- sensitive functions when the driver uses any controlled substance, except when the use is pursuant to the instructions of a physician who has advised the driver that the substance does not adversely affect the driver's ability to safely operate a commercial motor vehicle."
"No employer having actual knowledge that a driver has used a controlled substance shall permit the driver to perform or continue to perform a safety-sensitive function."
The Omnibus Transportation Employee Testing Act is incorporated in School Board Rule 6Gx13-4-1.05, Drug-Free Work Place.
A conference-for-the-record in the Office of Professional Standards will be scheduled to address your current status. In the interim, you may utilize accrued leave; otherwise, your absences will be recorded as leave-without-pay-authorized.
Questions should be directed to this administrator a 995-7108.
On July 13, 1996, Sandra Ivey sent a memorandum to
Rodolfo Mestre advising him of the following:
Per your request, Ms. Donnell Jones was assessed by me today. Employee denied any controlled substance use and cannot give any reason how she tested positive again.
Employee was referred to a treatment center for further evaluation. I have referred Ms. Jones back to Professional Standards to answer any questions pertaining to her job status.
A conference-for-the-record was scheduled to address Respondent's "violation of School Board Rule 6Gx13-4-1.05,
Drug-Free Work Place and the future of [her] employment status with Dade County Public Schools."
The conference-for-the-record was held on July 19, 1996.
Harms prepared, and subsequently furnished to Respondent, a memorandum (dated August 15, 1996) in which she summarized what had transpired at the conference. In those portions of the memorandum addressing the "Action Taken" and the "Action To Be Taken," Harms stated the following:
Action Taken
This administrator advised you that the disciplinary action recommended by Mr. Jerry Klein, Senior Executive Director, Department of Transportation is dismissal for violation of School Board Rule 6Gx13-4-1.05, Drug-Free Work Place, specifically for testing positive for a controlled substance(cocaine) for a second time, after you signed the Employee Acknowledgment Form on May 14, 1996.9
On behalf of AFSCME, Mr. Davis referred to the Contract and requested that you be referred to the Employee Assistance Program in lieu of the recommendation for dismissal. This administrator reminded Mr. Davis and you that you have been referred to the SAP twice by Mr. Mestre and, as previously explained, per federal regulations OTETA- Covered employees are referred to the Substance Abuse Professional not to the Employee Assistance Program.10 Mr. Mestre stated, "We have complied with all federal regulations regarding rehabilitation and referral to the SAP. What we are dealing with now is your violation of the district's Drug-Free Work Place Policy as Ms. Harms has indicated."
Action To Be Taken
You were advised that the information presented in this conference as well as subsequent documentation would be reviewed with the Associate Superintendent, Bureau of Support Operations and the Associate Superintendent, Bureau of Labor Relations and Professionalization.
Upon completion of the conference summary, a legal review by the School Board attorney will be requested. At the conclusion of this process, a recommendation will be made to the Superintendent and eventually to the School Board at a subsequent meeting. This administrator explained the appeal process to you.
You were apprised of your right to clarify, explain and/or respond to any information recorded in this conference by this summary, and to have any such response appended to your record.
At its October 23, 1996, meeting, the School Board suspended Respondent and initiated a dismissal proceeding
against her "for just cause, violation of Drug-Free Work Place
Policy."
CONCLUSIONS OF LAW
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Fla. Stat.
Such authority extends to personnel matters. Section 231.001, Fla. Stat.("[e]xcept as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and responsibilities for all district employees"). "[R]ules governing personnel matters" that have been adopted by the School Board include Rule 6Gx13-4-1.05 (which, among other things, prohibits School Board employees, while "on duty or on School Board property," from "possess[ing] or us[ing] illegal drugs," or being "under the influence of such drugs") and Rule 6Gx13-4A-1.21(I) (which requires School Board employees, as "representatives of the Dade County Public Schools," to "conduct themselves in a manner that will reflect credit upon themselves and the school system").11
A district school board is deemed to be the "public
employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." Section 447.203(2), Fla. Stat.
As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons." Section 447.209, Fla. Stat.
It, however, must exercise these powers in a manner that is consistent with the requirements of law.
"Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."12 Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
A district school board employee against whom a dismissal proceeding has been initiated must be given written notice of the specific charges prior to the Section 120.57(1) hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule[, regulation, policy, or collective bargaining provision] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade
County, 426 So.2d 1149, 1151 (Fla. 3d DCA 1983)(concurring
opinion of Judge Jorgenson).
Any disciplinary action taken against the employee may be based only upon the conduct specifically alleged in the written notice of specific charges. See Kinney v. Department of
State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v.
Department of Professional Regulation, 458 So.2d 842, 844 (Fla.
2d DCA 1984).
At the Section 120.57(1) hearing, the burden is on the district school board to prove the allegations contained in the notice. Inasmuch as it is a disciplinary proceeding that does not involve licensure, the district school board's proof need only meet the preponderance of the evidence standard. See Section 120.57(1)(h), Fla. Stat. ("[f]indings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute"); see also Allen v. School Board of Dade County, 571 So.2d 568, 569 (Fla. 3d DCA 1990)("[w]e . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in [School Board employee] dismissal proceedings was a preponderance of the evidence;" "[t]he instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard"); Dileo v.
School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA
1990)("[w]e disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard").
Where the employee sought to be terminated is an "educational support employee," the district school board must also act in accordance with the provisions of Section 231.3605, Florida Statutes,13 which provides, in part, as follows:
(1) As used in this section:
"Educational support employee" means any person employed by a district school system who is so employed as . . . a member of the transportation department . . ., or any other person who by virtue of his or her position of employment is not required to be certified by the Department of Education or school board pursuant to s. 231.1725. This section does not apply to persons employed in confidential or management positions. This section applies to all employees who are not temporary or casual and whose duties require 20 or more hours in each normal working week.
"Employee" means any person employed as an educational support employee.
"Superintendent" means the superintendent of schools or his or her designee.
(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 board rule in cases where a collective bargaining agreement does not exist.
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 or employees on a districtwide basis for financial reasons.
In the event the 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.
Respondent is an "educational support employee," within the meaning of Section 231.3605, Florida Statutes, who is covered by a collective bargaining agreement (the AFSCME Contract).
Pursuant to Section 231.3605, Florida Statutes, her employment may be terminated only "for reasons stated in the collective bargaining agreement."
An examination of the provisions of the AFSCME Contract (and Article XI thereof in particular) reveals that a
bargaining unit member covered by the agreement may be disciplined for "deficient performance," "non-performance of job responsibilities," "violation of federal statutes [and] State Statutes," "violat[ion of] any rule, regulation or policy," or "defiance of the administrator's authority," provided that the disciplinary action taken is "consistent with the concept and practice of progressive or corrective discipline" (as described in the agreement).
The Notice of Specific Charges served on Respondent alleges that Respondent's dismissal is warranted under the provisions of the AFSCME Contract because, "[o]n or about May 24, 1995 and on or about June 4, 1996, Respondent tested positive for cocaine." According to the Notice, in testing positive for cocaine on these two occasions, Respondent violated School Board Rules 6Gx13-4-1.05 (Count I) and 6Gx13-4A-1.21
(Count II).
The preponderance of the record evidence establishes that, as alleged in the Notice of Specific Charges, these violations were committed by Respondent14 and they are offenses for which a bargaining unit member may be disciplined under the AFSCME Contract, which provides (in Article IX, Section 14.F.) that second time violators of the School Board's drug-free work place policy, like Respondent, "who have previously been referred for assistance" for their "drug problem" or who are
"unwilling or unable to rehabilitate may be subject to appropriate [disciplinary] action." Furthermore, it does not appear that there has been any material departure from the procedural requirements (prescribed by Section 231.3605, Florida Statutes, and the AFSCME Contract) which must be followed before the School Board may take final action to impose "disciplinary action" (as that term is used in Article XI of the AFSCME Contract) against Respondent.
Taking into consideration (as Article XI, Section 1.B., of the AFSCME Contract mandates) the seriousness of Respondent's offenses (particularly when they are viewed in light of her duties as a school bus driver responsible for the safety of the children she transports) and her employment record with the School Board, it is the recommendation of the undersigned that the School Board exercise its authority to terminate Respondent's employment for having committed these offenses.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing her as an employee of the School Board.
DONE AND ENTERED this 12th day of June, 1997, in
Tallahassee, Florida.
STUART M. LERNER
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 12th day of June, 1997.
ENDNOTES
1 Petitioner's Exhibit 22 was the deposition of Dr. Jeffrey Tipton, which was offered and received into evidence, without objection, in lieu of Dr. Tipton's live testimony.
2 Respondent was provided with additional copies of the OTETA Pamphlet on February 15, 1996, and May 6, 1996. On each of these occasions she was presented with, and signed and dated, the following statement:
IMPLEMENTATION OF OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT
I have received, read and understand the materials on drug and alcohol testing under the U.S. Department of Transportation regulations.
3 These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action.
4 An employee who does not meet his responsibility of complying with School Board rules and regulations is guilty of "non- performance of job responsibilities," as that term is used in Article XI, Section 4.C., of the AFSCME Contract.
5 Respondent was known as Donnell Warren at the time.
6 This constitutes an admission on Respondent's part that she committed an initial ”violation of the Drug-Free Work Place Policy." Respondent testified at hearing that, when she signed the statement containing this admission, she "understood what [she was] signing" and "was "not in disagreement with anything that[ was in t]here."
7 At all times material to the instant case, the School Board used certified laboratories as part of its employee drug testing program
.
8 During his conversation with her, the Medical Review Officer
asked Respondent if she had been on any prescription medicine when she had provided the urine specimen. Respondent responded in the negative; however, even if Respondent had taken prescription medicine immediately prior to having provided the urine specimen (as she later claimed during her testimony at the final hearing in this case), having done so would not have produced false positive test results since, as the record evidence clearly and convincingly establishes:
There is no prescription medicine under any circumstance that will show positive for cocaine. There are no combinations of medicine. There are no over-the-counter products. There is nothing else out there that will show positive for cocaine.
There's nothing that will show a false positive for cocaine. There's just simply nothing else out there other than cocaine. Novocain doesn't cause a positive test for cocaine. Lidocaine doesn't cause a positive test for cocaine. Only cocaine shows a positive test for cocaine.
9 This recommendation of dismissal for testing positive a second time for cocaine was consistent with established School Board practice.
10 Although Respondent was not required to also seek help through the School Board's Employee Assistance Program, she had the option of doing so, as she should have been aware.
11 Rule 6Gx13-4A-1.21(I), which imposes a reasonable standard of employee conduct, is not beyond the scope of the School Board's personnel rule-making authority simply because it seeks to regulate not only on-duty conduct, but off-duty conduct as well. The School Board is entitled to require its employees to adhere
to standards of social conduct that the School Board deems to be acceptable, provided these standards are reasonable. See Kennett v. Barber, 31 So.2d 44, 46-47 (Fla. 1947); Seminole County Board of County Commissioners v. Long, 422 So.2d 938, 940 (Fla. 5th DCA 1982); Richter v. City of Tallahassee, 361 So.2d
205 (Fla. 1st DCA 1978); Metropolitan Dade County v. Mingo, 339 So.2d 302, 304 (Fla. 3d DCA 1976).
12 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
13 Notwithstanding the holding in Rosario v. Burke, 605 So.2d 523, 524 n.1 (Fla. 2d DCA 1992), the termination of a non- certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non- certified district school board personnel:
We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd.of Leon County, 405 So.2d
183 (Fla. 1st DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning nonprofessional supervisory school personnel, that change should occur in the legislature.
Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a
collective bargaining agreement does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.
14 The undersigned has considered, but rejected as unworthy of belief in light of the compelling evidence to the contrary, Respondent's testimony that she has "never a day in [her] life" "used cocaine." The record is devoid of any plausible explanation for Respondent having tested positive for cocaine in May of 1995, and again in June of 1996, other than her having used this "illegal drug."
COPIES FURNISHED:
Ana Galindo-Marrone, Esquire The School Board of Dade County
1450 Northeast 2nd Avenue, Suite 400
Miami, Florida 33132
Louis Montielh, Qualified Representative AFSCME
2171 Northwest 22nd Court Miami, Florida 33142
Roger C. Cuevas Superintendent of Schools
The School Board of Dade County
1450 Northeast 2nd Avenue, Suite 403
Miami, Florida 33132
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.
1 Petitioner's Exhibit 22 was the deposition of Dr. Jeffrey Tipton, which was offered and received into evidence, without objection, in lieu of Dr. Tipton's live testimony.
2 Respondent was provided with additional copies of the OTETA Pamphlet on February 15, 1996, and May 6, 1996. On each of these occasions she was presented with, and signed and dated, the following statement:
IMPLEMENTATION OF OMNIBUS TRANSPORTATION EMPLOYEE TESTING ACT
I have received, read and understand the materials on drug and alcohol testing under the U.S. Department of Transportation regulations.
3 These rules and regulations are referred to in Article XI of the AFSCME Contract. Pursuant to Article XI, violation of these rules and regulations can lead to disciplinary action.
4 An employee who does not meet his responsibility of complying with School Board rules and regulations is guilty of "non- performance of job responsibilities," as that term is used in Article XI, Section 4.C., of the AFSCME Contract.
5 Respondent was known as Donnell Warren at the time.
6 This constitutes an admission on Respondent's part that she committed an initial ”violation of the Drug-Free Work Place Policy." Respondent testified at hearing that, when she signed the statement containing this admission, she "understood what [she was] signing" and "was "not in disagreement with anything that[ was in t]here."
7 At all times material to the instant case, the School Board used certified laboratories as part of its employee drug testing program
.
8 During his conversation with her, the Medical Review Officer asked Respondent if she had been on any prescription medicine
when she had provided the urine specimen. Respondent responded in the negative; however, even if Respondent had taken prescription medicine immediately prior to having provided the urine specimen (as she later claimed during her testimony at the final hearing in this case), having done so would not have produced false positive test results since, as the record evidence clearly and convincingly establishes:
There is no prescription medicine under any circumstance that will show positive for cocaine. There are no combinations of medicine. There are no over-the-counter products. There is nothing else out there that will show positive for cocaine.
There's nothing that will show a false positive for cocaine. There's just simply nothing else out there other than cocaine. Novocain doesn't cause a positive test for cocaine. Lidocaine doesn't cause a positive test for cocaine. Only cocaine shows a positive test for cocaine.
9 This recommendation of dismissal for testing positive a second time for cocaine was consistent with established School Board practice.
10 Although Respondent was not required to also seek help through the School Board's Employee Assistance Program, she had the option of doing so, as she should have been aware.
11 Rule 6Gx13-4A-1.21(I), which imposes a reasonable standard of employee conduct, is not beyond the scope of the School Board's personnel rule-making authority simply because it seeks to regulate not only on-duty conduct, but off-duty conduct as well. The School Board is entitled to require its employees to adhere to standards of social conduct that the School Board deems to be acceptable, provided these standards are reasonable. See Kennett v. Barber, 31 So.2d 44, 46-47 (Fla. 1947); Seminole County Board of County Commissioners v. Long, 422 So.2d 938, 940 (Fla. 5th DCA 1982); Richter v. City of Tallahassee, 361 So.2d
205 (Fla. 1st DCA 1978); Metropolitan Dade County v. Mingo, 339 So.2d 302, 304 (Fla. 3d DCA 1976).
12"A county school board is a state agency falling within Chapter
120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So.2d 374, 377 (Fla. 5th DCA 1993).
13 Notwithstanding the holding in Rosario v. Burke, 605 So.2d 523, 524 n.1 (Fla. 2d DCA 1992), the termination of a non- certified School Board employee is not governed by the provisions of Section 231.36(6)(b), Florida Statutes. In Rosario, the Second District Court of Appeal provided the following explanation for its holding that the provisions of Section 231.36(6)(b), Florida Statutes, were applicable to non- certified district school board personnel:
We are not completely convinced that the legislature initially intended the narrow grounds for dismissal described in section 231.36(6)(b) to apply to nonprofessional supervisory staff, as compared to principals, assistant superintendents and other certified positions. Nevertheless, the statute was interpreted to include such public employees in 1981, after the enactment of section 447.201-.609, which applies generally to public employees. See Smith v. School Bd.of Leon County, 405 So.2d
183 (Fla. 1st DCA 1981). Section 231.36 was amended after the Smith decision without any disapproval of that decision. If the statute requires modification or clarification concerning nonprofessional supervisory school personnel, that change should occur in the legislature.
Subsequent to the Second District's decision in Rosario, the 1994 Florida Legislature enacted Section 231.3605, Florida Statutes, which provides that an "educational support employee" may be terminated "for reasons stated in the collective bargaining agreement, or in school board rule in cases where a collective bargaining agreement does not exist" and further prescribes the procedure that must be followed "[i]n the event a superintendent seeks termination of an [educational support] employee." In view of the enactment of Section 231.3605, Florida Statutes, the provisions of Section 231.36(6)(b), Florida Statutes, can no longer be reasonably construed as being directly applicable to non-certified school board personnel.
14 The undersigned has considered, but rejected as unworthy of belief in light of the compelling evidence to the contrary, Respondent's testimony that she has "never a day in [her] life"
"used cocaine." The record is devoid of any plausible explanation for Respondent having tested positive for cocaine in May of 1995, and again in June of 1996, other than her having used this "illegal drug."
| Issue Date | Proceedings |
|---|---|
| Jul. 15, 1997 | Final Order of the School Board of Dade County filed. |
| Jun. 12, 1997 | Recommended Order sent out. CASE CLOSED. Hearing held 03/05/97. |
| Jun. 06, 1997 | Petitioner School Board`s Proposed Recommended Order (filed via facsimile). |
| Mar. 05, 1997 | Video Hearing Held; applicable time frames have been entered into the CTS calendaring system. |
| Mar. 05, 1997 | (PSC) Family Profile (filed via facsimile). |
| Mar. 05, 1997 | (Petitioner) Notice of Filing the Deposition of Expert Witness Dr. Jeffrey Tipton; Deposition of Dr. Jeffrey Tipton filed. |
| Mar. 04, 1997 | (Joint) Stipulation of Introduction of Deposition Testimony; Petitioner`s Request for Official Recognition (Attachments, tagged) filed. |
| Mar. 03, 1997 | (Joint) Stipulation of Introduction of Deposition Testimony; Notice of Filing Petitioner`s Exhibits; Exhibits filed. |
| Feb. 20, 1997 | Amended Notice of Hearing sent out. (hearing set for 03/05/97;9:15a.m.;Video) |
| Feb. 17, 1997 | (Petitioner) Notice of Specific Charges (filed via facsimile). |
| Dec. 06, 1996 | Notice of Hearing sent out. (hearing set for 3/5/97; 9:00am; Miami) |
| Nov. 25, 1996 | Letter to DOAH from Donnell Jones (RE: request to reopen file with Dade County) (filed via facsimile). |
| Nov. 22, 1996 | Petitioner`s Response to Initial Order (filed via facsimile). |
| Nov. 12, 1996 | Initial Order issued. |
| Nov. 04, 1996 | Agency referral letter; Request for a Hearing, letter form; Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 10, 1997 | Agency Final Order | |
| Jun. 12, 1997 | Recommended Order | Just cause existed to dismiss school bus driver who twice tested positive for cocaine |
