STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALACHUA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-0209

)

HENRY L. McKINNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for a disputed fact hearing on May 11, 1999, in Gainesville, Florida, before

Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas L. Wittmer, Esquire

620 East University Avenue Gainesville, Florida 32608

For Respondent: James H. McCarty, Esquire

500 Northwest 16th Avenue Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether Respondent, a non-instructional employee of Alachua County School Board (School Board), should be dismissed for the reasons stated in the notification letter of November 5, 1998.

PRELIMINARY STATEMENT

By a Notice of Recommendation to the School Board of Alachua County for Suspension and Termination, dated November 5,

1998, Respondent was charged with violating his drug rehabilitation contract dated September 3, 1998, and violating Petitioner School Board's drug-free workplace policy.

Respondent requested a disputed fact hearing, and the matter was referred to the Division of Administrative Hearings on or about January 19, 1999.

After two continuances, the disputed fact hearing was convened on May 11, 1999.

The parties' Joint Prehearing Stipulation was admitted in evidence as Joint Exhibit A. It has been utilized as appropriate in preparing this Recommended Order. Some modifications have been made for purposes of correct spelling, to provide full names in place of abbreviations, to correct punctuation and for clarity of expression pursuant to the format guidelines of the Division of Administrative Hearings.

Petitioner's Exhibits 1-21 were admitted in evidence. Petitioner presented the oral testimony of Catherine

Birdsong, Supervisor of Personnel; Synester P. Jones, retired Superintendent for Human Resources; Pamela Love-Knerr, retired counselor at Sid Martin Bridge House; and Larry Faulkner, counselor at Sid Martin Bridge House.

Respondent instructed his attorney to present no oral testimony or exhibits.

Prior to the close of formal hearing, the parties stipulated that their respective post-hearing proposals would be filed with

the Division of Administrative Hearings no later than 15 days from the date of filing of the transcript.

A Transcript of Proceedings was filed May 24, 1999.

A post-hearing order of instructions was mailed to the parties on May 25, 1999.

Petitioner's Proposed Recommended Order was filed one day late, on June 9, 1999.

On June 17, 1999, Petitioner filed a letter from its attorney with copies of cases attached. The letter did not indicate that these materials had been served upon Respondent, so on June 28, 1999, the undersigned mailed copies of to Respondent.

On June 30, 1999, Respondent's Proposed Recommended Order was filed. It did not indicate that a copy had been served upon Petitioner's attorney. Therefore, on July 8, 1999, the undersigned mailed a copy of Respondent's Proposed Recommended Order and its cover letter to Petitioner.

Because both submittals were late and neither party has raised an objection, both proposed recommended orders have been considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner is the governing body of the School District of Alachua County, Florida. It operates 43 public schools and centers in Alachua County and employs approximately 4,000 persons.

2. At all times material, Respondent was employed by Petitioner in the position of maintenance helper. He is a member of Petitioner's career service bargaining unit.

3. Petitioner has a "drug free workplace policy" which is part of the collective bargaining agreement with a non- instructional bargaining unit. The policy was implemented in June 1993. Before that time, Petitioner gave notice to its employees of the drug-free workplace policy.

4. Petitioner's drug-free workplace policy requires that, as a condition of continued employment, employees submit to drug screening when there is reasonable suspicion of substance abuse. Following a positive drug screening, the employee is given an opportunity to participate in a treatment program. The policy also provides that, after completion of the treatment program, the employee may return to work, but if there is a second positive drug test, the employee may be disciplined up to and including termination of employment.

5. Petitioner's Human Resources Division has attempted to be consistent in administering the drug-free workplace policy. Any employee having a second positive drug test has been recommended for termination.

6. Pertinent to this case, Petitioner's drug-free workplace policy provides:

   It is the intent of the Board to provide a drug-free Workplace.

   
   

   Drug-Free Workplace Guidelines

   
   

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

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

   
   

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

* * *

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

1. Respondent's drug test reported on September 2, 1998, was positive for cannabinoids-THS and cocaine metabolites.

2. Respondent entered into a rehabilitation contract with Petitioner on September 3, 1998.

3. Respondent's entry into a rehabilitation program was not "voluntary," in that Respondent was required to enter a rehabilitation program in order to retain his public employment.

4. The contract Respondent signed provided, in pertinent part, as follows.

   2. Following release from the rehabilitation clinic/counselor and for a period of one year from that release, the employee agrees to random breath analysis or blood alcohol test upon notification and/or urine analysis within 24 hours of notification from the Director of Employee Relations. Positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County. (Emphasis supplied)

5. In order to enter the agreed residential drug treatment program, Respondent twice applied for leave, which Petitioner granted. The last date that his leave would run out was

   October 30, 1998.

   
   

6. Ms. Pamela Love-Knerr conducted an initial evaluation/screening of Respondent in September 1998, in preparation for his admission to the residential treatment program at Bridge House, a residential treatment program operated by Meridian Behavioral Health Care, Inc. She was a counselor at Bridge House until November 1998. However, she did not conduct group sessions at Bridge House after January 1998, when, due to

   her health problems, she was assigned to the night shift. In August 1998, she was assigned to the evening shift.

7. Respondent entered the Sid Martin Bridge House on October 2, 1998, and was discharged or transferred from the residential program on Friday, October 23, 1998.

8. Also on Friday October 23, 1998, Respondent telephoned the office of Catherine L. Birdsong, Petitioner's personnel supervisor, and her secretary made him an appointment to see Ms. Birdsong the following Monday about returning to work.

9. On October 23, 1998, Respondent's Bridge House counselor of record was Larry Faulkner, not Ms. Love-Knerr. However, since the time of her initial evaluation/screening of Respondent, Ms. Love-Knerr had been the only counselor at Bridge House who maintained regular contact with Ms. Birdsong. On October 23, 1998, Ms. Birdsong believed that Ms. Love-Knerr was the counselor assigned to Respondent.

10. While at Bridge House, Respondent had attended therapy meetings every day, and his urine tests had been drug-free. On October 18, 1998, Respondent and his counselor, Larry Faulkner, had agreed upon an "after care" program, to begin on November 1, 1998, consisting of a schedule of meetings of a men's group, an anger management group, Narcotics Anonymous, and Alcoholics Anonymous. It was planned that Respondent would not return to work until a week or two had passed, so that he could "get [himself] together." The period from October 23, 1998, to

    November 1, 1998, was intended by Respondent and his counselor, Larry Faulkner, as an interim between residential treatment and "after care." Normally, a client of Bridge House would participate in an "after care" program even after he returned to work.

11. On October 23, 1998, after learning that Respondent wanted to return to work, Ms. Birdsong telephoned Bridge House and spoke to Pamela Love-Knerr.

12. Ms. Love-Knerr told Ms. Birdsong that Respondent had completed the Bridge House residential program; that she was recommending an "after care" program for him; and that she was releasing him for work.

13. Mr. Faulkner may not have been aware that Ms. Love- Knerr and Ms. Birdsong had spoken by telephone on October 23, 1998. Ms. Love-Knerr shared office space with Mr. Faulkner at that time, and because Bridge House was under-staffed, Ms. Love- Knerr was assisting him in getting caught up on his paperwork.

14. Ms. Birdsong considered the written continuing care contract for Respondent, together with her October 23, 1998, telephone conversation with Ms. Love-Knerr, and determined that Respondent had completed the residential part of his rehabilitation; that he was in or would be in a "after care" program; and that he would be able to return to work immediately.

15. Petitioner's decision to return an employee to work is normally made by the Petitioner's District Drug Free Workplace

    Coordinator after discussing it with the returning employee's drug/alcohol counselor.

16. On Monday, October 26, 1998, at approximately

    
    

    9:00 a.m., Respondent met, in person, with Ms. Birdsong at her office. They discussed his impressions of the Bridge House program and his desire to return to work. Because his leave was only approved through the end of that work-week, October 30, 1998, it was arranged, through a speaker-phone conversation with Respondent's immediate supervisor, that Respondent would return to work on Monday, November 2, 1998. Ms. Birdsong then sent Respondent for a follow-up drug test for return to duty.

17. Ms. Birdsong informed Respondent that he should report for a drug test by 10:00 a.m., that morning, October 26, 1998.

18. It is Petitioner's normal practice to require employees who are returning from a rehabilitation program to take a drug test prior to returning to work.

19. Respondent went to Doctor's Laboratory of Gainesville as instructed, and provided a urine specimen for drug testing at 10:00 a.m. on October 26, 1998.

20. Respondent's specimen was transported by courier to Doctor's Laboratory in Valdosta, Georgia, where it was tested and confirmed positive for cocaine metabolites as benzozlecgonine.

21. Doctor's Laboratory reported the test result to MRO Services, Inc., in Brunswick, Georgia. After a review of the test results and a telephone consultation with Respondent, the

    Medical Review Officer, Robert H. Miller, M.D., reported to Petitioner that Respondent's drug test was positive for cocaine metabolites.1

22. On November 2, 1998, Respondent met again with

    
    

    Ms. Birdsong. She explained to him that because of the positive result of his October 26, 1998, drug test, he might be recommended for termination. She gave him written notice to schedule a pre-termination conference within five days.

23. On November 5, 1998, Respondent and his mother met with Synester P. Jones, Petitioner's Assistant Superintendent for Human Resources, in a pre-termination conference. Ms. Jones explained the procedure for drug testing. She also informed Respondent in writing that, based on his second positive drug test, she would recommend suspension and termination.

24. At its regular meeting on November 17, 1998, Petitioner School Board suspended Respondent without pay, effective

    November 18, 1998, pending disposition of the instant proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

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

26. Petitioner School Board's burden of proof is by a preponderance of the evidence.

27. Petitioner, as employer of Respondent, may impose discipline for proper cause.

28. Petitioner has a valid and duly adopted drug-free workplace policy, pursuant to Section 440.102, Florida Statutes.

29. Respondent, as Petitioner's employee, is subject to Petitioner's drug-free workplace policy.

30. All required procedures were substantially complied- with in the collection and handling, laboratory screening, confirmation testing, and review and reporting of Respondent's October 26, 1998 drug test.2

31. In this case, the drug testing procedures used and results reported are not in dispute. The only defense asserted by Respondent is that on October 26, 1998, he was still "in treatment" and therefore Petitioner's personnel supervisor,

    Ms. Birdsong, should not have instructed him to go for a drug test.

32. Petitioner's proposal relies on Section 440.102(4)(a), Florida Statutes, which authorizes four types of drug testing: job applicant, reasonable suspicion, routine fitness-for-duty, and follow-up. The provision for follow-up testing states:

    4. Follow-up Drug Testing. If the employee in the course of employment enters an employee assistance program for drug-related problems, or a drug rehabilitation program, the employer must require the employee to submit to a drug test as a follow-up to such program, unless the employee voluntarily entered the program. In those cases, the employer has the option to not require follow-up testing. If follow-up testing is required, it must conducted at least once a year for a 2-year period after completion of the program. Advance notice of a follow-up

    testing date must not be given to the employee to be tested. (Emphasis supplied)

    
    

33. Section 440.102(4)(a), Florida Statutes, is irrelevant to these proceedings. Employers who implement a drug-free workplace program pursuant to Sections 440.101 and 440.102, Florida Statutes, receive reduced rates on their workers' compensation insurance. See Section 627.0915, Florida Statutes. Employees who violate a drug-free workplace program forfeit their eligibility for workers' compensation medical and indemnity benefits. See Section 440.101(2), Florida Statutes. However, this case does not involve those issues.

34. Nor is Section 112.0455, Florida Statutes, cited in one of Petitioner's cases, relevant to the instant situation. That statute permits an employer to establish a drug-free workplace with different testing criteria.

35. The fact that Respondent was still on annual leave on October 26, 1998, when the urine sample was collected is likewise without significance.

36. When Respondent notified Petitioner that he was ready to return to work, Petitioner was within its rights to take him at his word and consider reassigning him to the work force. Here, Ms. Birdsong went one step further. She attempted to verify Respondent's oral representation that he was ready to go back to work by contacting someone in authority at Bridge House. The information that Ms. Love-Knerr relayed, and that

    Ms. Birdsong relied upon, was essentially correct. Even if

    Respondent's "paperwork" had not caught up with his actual situation, and even if he were in a "resting interim" between mandatory residence at the treatment facility and attendance at various "after care" group meetings during non-work hours after he had returned to work, both he and the professionals treating him had agreed that he was not currently involved in any intensive therapy on October 26, 1998.

37. It was anticipated, even by Mr. Faulkner, Respondent's counselor, that Respondent would return to work while participating in the "after care" group meetings.

38. I conclude that the controlling event for a follow-up drug test of this employee was the completion of a structured rehabilitation program and his presentation to the employer as ready to return to work, not the employee's actual date of return to work. I further conclude that follow-up testing of an employee for drugs prior to placing him in proximity to school children is a prudent and reasonable practice.

39. That brings us to the discrepancy between the drug-free workplace policy incorporated in Respondent's union's collective bargaining agreement with Petitioner and the rehabilitation contract signed by Respondent. The Petitioner's policy/union contract requires 24-hour notice before a drug test may be administered (see Finding of Fact 6), and the Respondent's

    rehabilitation contract requires that the drug test be administered within 24 hours of notification to the employee (see Finding of Fact 10).

40. Respondent signed the rehabilitation contract. It applied specifically to him. It is too late to raise as a defense any deviation of that rehabilitation contract from the provisions of the collective bargaining agreement. Therefore, Ms. Birdsong's one-hour notice on October 26, 1998, was acceptable under the circumstances. Moreover, Respondent undoubtedly was aware Friday, October 23, 1998, when he represented himself as ready to return to work, that Ms. Birdsong would have him tested for drugs when he reported to her on Monday, October 26, 1998, for reassignment to his supervisor.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Alachua County School Board enter a final order terminating Respondent for violating its drug-free workplace policy and his rehabilitation contract.

DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 3rd day of August, 1999.

ENDNOTES

1/ At formal hearing, Respondent objected to Dr. Miller's report, Exhibit P-15, after not raising any objection thereto in the Joint Prehearing Stipulation. The exhibit was admitted over objection. This finding of fact constitutes the parties' stipulation of fact.

2/ Conclusions of Law 33-36 constitute stipulations of law by the parties.

COPIES FURNISHED:

Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601

James H. McCarty, Esquire

500 Northwest 16th Avenue Gainesville, Florida 32601

Tom Gallagher, Commissioner Department of Education

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

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Robert W. Hughes, Superintendent Alachua County School Board

620 East University Avenue Gainesville, Florida 32601-5498

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-000209

Orders for Case No: 99-000209