STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA GADSON, )

)

Petitioner, )

)

vs. ) Case No. 98-4967RU

) ESCAMBIA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case on December 2, 1998, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons and Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: Thomas W. Brooks, Esquire

Meyer and Brooks, P.A. Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding is whether the Board's disciplinary policy on violation of its drug-free workplace policy is an invalid unpromulgated rule.

PRELIMINARY STATEMENT

On or about December 5, 1997, Respondent received a Notice of Disciplinary Action stating she would be dismissed from

employment in bad standing for misconduct. The recommendation was based on Respondent's violation of the Board's drug-free workplace policy. The Notice of Disciplinary Action advised Respondent that she could request a formal hearing on the superintendent's recommendation.

By letter dated June 10, 1998, Respondent requested a formal hearing. Respondent's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner presented the testimony of three

1. witnesses and offered eleven (11) exhibits into evidence. Respondent testified in her own behalf, but did not offer any exhibits into evidence.

   FINDINGS OF FACT

   
   

   1. The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months.

   2. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work.

   3. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing.

      Ms. Gadson was assigned as the sole administrative secretary for

      six departments working for four different supervisors.

      
      

      Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use.

   4. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997.

   5. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to

      December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug.

   6. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated.

   7. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract.

   8. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union.

   9. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination.

   10. Illegal drug use in a school setting is a serious misconduct. Such behavior in this instance, the Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Escambia County Civil Service Board and the collective bargaining agreement for Escambia County. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline.

   11. Respondent's use of cocaine violated the Board's policy and her employment contract.

   12. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration.

   13. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.

       CONCLUSIONS OF LAW

       
       

   14. 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.

   15. In this case, it is undisputed that the Respondent, Patricia Gadson, possessed and used crack cocaine.

   16. Section 231.02, Florida Statutes, provides all school district employees shall be of good moral character.

   17. Section 440.102, Florida Statutes, prescribes the Florida Drug-Free Work Place Act. Violation of the provisions of that act constitute cause for termination of employment.

   18. Section 440.101 states in pertinent part:

       
       

       1. It is the intent of the Legislature to promote drug-free workplaces in order that employers in the state be afforded the opportunity to maximize their levels of productivity, enhance their competitive positions in the marketplace, and reach their desired levels of success without experiencing the costs, delays, and tragedies associated with work-related accidents result from drug abuse by employees. It is further the intent of the Legislature that drug abuse be discouraged and that employees who choose to engage in drug abuse face the risk of unemployment and the forfeiture of workers' compensation benefits.

          
          

       2. If an employer implements a drug-free workplace program in accordance with s.

          440.102 which includes notice, education, and procedural requirements for testing for drugs and alcohol pursuant to law or to rules developed by the Agency for Health Care Administration, the employer may require the employee to submit to a test for the presence of drugs or alcohol and, if a drug or alcohol is found to be present in the employee's

          system at a level prescribed by rule adopted pursuant to this act, the employee may be terminated and forfeits his or her eligibility for medical and indemnity benefits. However, a drug-free workplace program must require the employer to notify all employees that it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body and, if an injured employee refuses to submit to a test for drugs or alcohol, the employee forfeits eligibility for medical and indemnity benefits.

          
          

          * * *

          
          

       3. NOTICE TO EMPLOYEES AND JOB APPLICANTS.

          (a) One time only, prior to testing, an employer shall give all employees and job applicants for employment a written policy statement which contains:

          1. A general statement of the employer's policy on employee drug use, which must identify:

             1. The types of drug testing an employee or job applicant may be required to submit to, including reasonable-suspicion drug testing or drug testing conducted on any other basis.

             2. The actions the employer may take against an employee or job applicant on the basis of a positive confirmed drug test result.

          * * *

          
          

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

          
          

          * * *

          
          

          (n) An employer shall not discharge, discipline, or discriminate against an employee solely upon the employee's voluntarily seeking treatment, while under 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 use, entered an employee assistance program 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 employee's participation in the program.

          
          

          * * *

          (b) An employer who discharges or disciplines an employee or refuses to hire a job applicant in compliance with this section is considered to have discharged, disciplined, or refused to hire for cause.

          
          

          * * *

          
          

          (d) Nothing in this section shall be construed to prevent an employer from establishing reasonable work rules related to employee possession, use, sale, or solicitation of drugs, including convictions for drug-related offenses, and taking action based upon a violation of any of those rules.

          
          

   19. Section 112.0455, Florida Statutes, states in pertinent part:

       1. SHORT TITLE. – This section shall be known and may be cited as the "Drug-Free Workplace Act."

          
          

       2. PURPOSE. – This section is intended to:

          1. Promote the goal of drug-free workplaces within government through fair and reasonable drug-testing methods for the protection of public employees and employers.

          2. Encourage employers to provide employees who have drug use problems with an opportunity to participate in an employee assistance program or an alcohol and drug rehabilitation program.

          3. Provide for confidentiality of testing results.

       3. FINDINGS. – The Legislature finds that:

          1. Drug use has serious adverse effects upon a significant portion of the workforce, resulting in billions of dollars of lost productivity each year and posing a threat to the workplace and to public safety and security.

          2. Maintaining a healthy and productive workforce, safe working conditions free from the effects of drugs, and quality products and services is important to employers, employees, and the general public in this state. The Legislature further finds that drug use creates a variety of workplace problems, including increased injury on the job, increased absenteeism, increased financial burden on health and benefit programs, increased workplace theft, decreased employee morale, decreased productivity, and a decline in the quality of products and services.

          * * *

          
          

          (6) NOTICE TO EMPLOYEES. –

          1. Employers with no drug-testing program shall ensure that at least 60 days elapse between a general one-time notice to all employees that a drug-testing program is being implemented and the beginning of actual drug testing. Employers with drug-testing programs in place prior to the effective date of this section are not required to provide a 60-day notice period.

          2. Prior to testing, all employees and job applicants for employment shall be given a written policy statement from the employer which contains:

          1. A general statement of the employer's policy on employee drug use, which shall identify:

             1. The types of testing an employee or job applicant may be required to submit to, including reasonable suspicion or other basis; and

             2. The actions the employer may take against an employee or job applicant on the basis of a positive confirmed drug test result.

          * * *

          1. No employer may discharge, discipline, refuse to hire, discriminate against, or request 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.

          2. In addition to the limitation under paragraph (m):

             1. Except as provided in subparagraph 3., no employer may discharge discipline, or discriminate against an employee on the sole basis of the employee's first positive confirmed drug test, unless the employer has first given the employee an opportunity to participate in, at the employee's own expense or pursuant to coverage under a health insurance plan, an employee assistance program or an alcohol and drug rehabilitation program, and: . . .

             
             

             * * *

             
             

          3. Upon successful completion of an employee assistance program or an alcohol and drug rehabilitation program, the employee shall be reinstated to the same or equivalent position that was held prior to such rehabilitation.

          
          

          * * *

          
          

          (b) An employer who discharges or disciplines an employee or refuses to hire a job applicant in compliance with this section shall be considered to have discharged, disciplined, or refused to hire for cause.

          
          

          * * *

          
          

          (h) An employer shall refer an employee with a first-time positive confirmed drug test result to an employee assistance program or an alcohol and drug rehabilitation program, unless such employee is discharged as provided in subparagraph (8)(n)3. If the results of a subsequent confirmed drug test are positive, the employer may discharge or discipline the employee.

   20. Section 120.52, Florida Statutes, states in pertinent part:

       1. 'Agency' means:

          1. The Governor in the exercise of all executive powers other than those derived from the constitution.

          2. Each state officer and state department, departmental unit described in s. 20.04, commission, regional planning agency, board, multicounty special district with a majority of its governing board comprised of non- elected persons, and authority, including, but not limited to . . . and those entities described in chapters 163, 298, 373, 380, and

          582 and s. 186.504, except any legal entity or agency created in whole or in part pursuant to chapter 361, part II, an expressway authority entity created by an interlocal agreement pursuant to s. 163.01(7), unless any party to such agreement is otherwise an agency as defined in this subsection.

   21. Section 230.03, Florida Statutes, states in pertinent part:

       1. DISTRICT SYSTEM. – The district school system shall be considered as part of the state system of public education. All actions of district school officials shall be consistent and in harmony with state laws and with rules and minimum standards of the state board and the commissioner. District school officials, however, shall have the authority to provide additional educational opportunities, as desired, which are authorized, but not required, by law or by the district school board.

   22. Section 230.22, Florida Statutes, states in pertinent part:

       General powers of school board. – The school board, after considering recommendations submitted by the superintendent, shall exercise the following general powers: . . .

       * * *

       
       

       1. Adopt such rules and regulations to supplement those prescribed by the state board and the commissioner as in its opinion will contribute to the more orderly and efficient operation of the district school system.

          
          

       2. Prescribe and adopt standards as are considered desirable by it for improving the district school system.

       
       

   23. Section 230.23, Florida Statutes, states in pertinent part:

       Powers and duties of school board. – The school board, acting as a board, shall exercise all powers and perform all duties listed below:. . .

       
       

       * * *

       
       

       (5) PERSONNEL. – Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:

       
       

       * * *

       
       

       (f) Suspension and dismissal and return to annual contract status.—Suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, remove, or returned to annual contract except as provided in chapter 231.

   24. The zero tolerance policy is nothing more than an imposition of discipline on an employee under the Board's disciplinary rules. See Escambia County Civil Service Board

       Rules and the collective bargaining agreement for Escambia County. That rule already adequately defines the discipline which can be imposed on the Board's employees. Specific instances or factual scenarios resulting in certain discipline need not be specifically defined in a rule. Accordingly, the failure of the School Board to adopt this policy as a specific rule pursuant to the provisions of Section 120.54, Florida Statutes, does not constitute a failure of the School Board to follow Chapter 120, Florida Statutes.

   25. In this case, the Respondent engaged in serious misconduct sufficient to support cause for termination of her employment with the Escambia County School Board. Therefore the Respondent's termination must be upheld.

ORDER

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

ORDERED that the zero tolerance policy of the School Board of Escambia County, is not an invalid, unpromulgated rule and the challenge as such is dismissed.

DONE AND ORDERED this 2nd day of March, 1999, in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1999.

ENDNOTE

1/ The School Board acted on this date to approve Ms. Gadson's termination retroactively to December 5, 1997, an action which Gadson claims was ineffective.

COPIES FURNISHED:

Joseph L. Hammons, Esquire Hammons and Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Thomas W. Brooks, Esquire Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Tallahassee, Florida 32301

Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470

Michael H. Olenick, General Counsel Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 323989-0400

Tom Gallagher, Commissioner of Education Department of Education

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

Carroll Webb, Executive Director

Joint Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32399-1300

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of the notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 98-004967RU

Orders for Case No: 98-004967RU