STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

JOHN C. COLEMAN,

Respondent.

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) Case No. 07-1593

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RECOMMENDED ORDER

The Administrative Law Judge assigned to this case by the Division of Administrative Hearings (DOAH) conducted the final hearing on June 15, 2007, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3916

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089 STATEMENT OF THE ISSUES

The issues for determination are whether the undisputed actions of Respondent constitute just cause to terminate his employment as an educational support employee, and, if not, what penalty is reasonable.

PRELIMINARY STATEMENT

On April 3, 2007, Petitioner suspended Respondent without pay and notified Respondent that Petitioner intended to terminate Respondent's employment. Respondent requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner called no live witnesses and submitted 13 exhibits for admission into evidence, including the deposition of one witness submitted in lieu of live testimony without objection from Respondent. Respondent testified and submitted 15 exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the one-volume Transcript of the hearing filed with DOAH on July 5, 2007. Petitioner and Respondent filed their respective Proposed Recommended Orders on July 16 and 17, 2007.

FINDINGS OF FACT

1. Most of the material facts in this proceeding are undisputed. The parties dispute the reasonableness of the proposed termination of Respondent's employment.

2. From December 3, 2001, through April 3, 2007, when Petitioner suspended Respondent without pay, Petitioner employed Respondent as an educational support employee, defined in Subsection 1012.40(1)(a), Florida Statutes (2006).1 Petitioner

   employed Respondent as an Electrician in Petitioner's Maintenance Services Department. The terms of employment are governed by the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (the CBA).2

3. Respondent is a recovering alcoholic, but his alcoholism has not previously affected his job performance. That changed on January 12, 2007.

4. After receiving work assignments on the morning of January 12, 2007, Respondent became loud and agitated. Respondent's supervisor asked Respondent what was wrong, and Respondent indicated he was having problems at home.

5. The supervisor asked if Respondent had been drinking alcohol. Respondent denied the implicit accusation.

6. After the encounter with the supervisor, Respondent drove one of Petitioner's vans to his home and consumed vodka for most of the day. At about 3:00 p.m. that day, Respondent returned the van to the parking lot of the Maintenance Department and had difficulty parking, according to the observations of Respondent's supervisor.

7. Respondent stopped the van and got out. He was unable to walk without staggering. His eyes were red and watery. He had difficulty standing, and his shirt was soiled with vomit. The supervisor asked Respondent again if Respondent was

   intoxicated, and Respondent voluntarily reported his alcohol- related problem.

8. Respondent's supervisor and two zone service managers called for assistance from the Fort Myers Police Department (the police). The police first attempted to have Respondent admitted to the Detoxification Unit, but the Unit was full. The police drove Respondent to the hospital, and the hospital admitted Respondent.

9. The incident on January 12, 2007, was not the first time Respondent had voluntarily reported his alcohol-related problem to a member of management. In November of the previous year, Respondent experienced some personal problems and resumed the compulsive consumption of alcohol. Respondent voluntarily reported the alcohol-related problem to his supervisor and to his department director and obtained a 30-day leave of absence to complete a 28-day residential alcohol treatment program.

10. Respondent completed only 17 days of the 28-day program. Respondent exhausted his insurance benefits after

    17 days and could not afford the daily rate of $833 to complete the remaining 11 days.

11. Respondent returned to duty sometime between

    
    

    January 8 and 10, 2007. Respondent informed his supervisor that Respondent had not completed the residential treatment program

    because he had exhausted his insurance benefits. Petitioner did not refer Respondent to another treatment program.

12. After the incident on January 12, 2007, Respondent voluntarily entered an outpatient treatment program with Southwest Florida Addiction Services. Respondent successfully completed the program on March 30, 2007.

13. Petitioner paid for the outpatient program and Respondent kept Petitioner notified of his progress. Respondent has maintained after-care treatment with a physician who specializes in addiction disorders and has regularly attended Alcoholic Anonymous meetings.

14. Respondent has no prior disciplinary history. During the period of employment that began on December 3, 2001, Respondent received one probationary performance assessment and four annual performance assessments. Petitioner consistently evaluated Respondent at an "effective level of performance" in all areas targeted for assessment, with the exception that the assessment for the 2002-2003 school year scored two areas as "focus for development/feed back." The comment section in three annual assessments provides that Respondent "continues to do an excellent job." The department director recommended renewal of Respondent's contract for the five school years ending in 2007.

    CONCLUSIONS OF LAW

    
    

15. DOAH has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. The parties received adequate notice of the administrative hearing.

16. The burden of proof is on Petitioner. Petitioner must show by a preponderance of evidence that just cause exists to terminate Respondent's employment for the reasons stated in the charging document and that termination is an appropriate penalty. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

17. Petitioner showed by a preponderance of evidence that Respondent committed the acts alleged in the charging document. Respondent's actions violated relevant prohibitions against: misconduct in Subsection 1012.33(6)(b) and Florida Administrative Code Rules 6B-4.009(3); drunkenness defined in Florida Administrative Code Rule 6B-4.009(5)(a); Petitioner's Alcohol, Drug and Tobacco-Free Workplace Policy 4.70; Personal Business on School Time Administrative Regulation 2.71; and Driving and Replacing District Vehicles Administrative Regulation 3.62.

18. The CBA does not define "just cause" and does not prescribe a plan of progressive discipline. Respondent argues that "just cause" does not exist because Subsections

    112.0455(8)(n)1. and (8)(t) prohibit the termination of Respondent's employment.

19. Subsections 112.0455(8)(n)1. and (8)(t) provide in relevant part:

    (n)1. . . . no employer may discharge [or] discipline . . . 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 program, an employee

    assistance or alcohol and drug rehabilitation program. . . .

    
    

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    (t) No employer shall discharge [or] discipline . . . an employee solely upon 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 an alcohol and drug rehabilitation program. . . .

    
    

20. It is undisputed that the statutory reference to a "drug-related problem" includes alcohol addiction. It is also undisputed that voluntarily reporting alcohol addiction to a member of management satisfies the statutory requirement of a "positive confirmed drug test."

21. The relevant statutory provisions apply to state agencies. The parties dispute the issue of whether a school board is a state agency. However, a determination of whether the

    relevant statute precludes termination of Respondent's employment does not require a finding that Petitioner is a state agency.

22. Assuming arguendo that Petitioner is a state agency, Respondent does not satisfy the literal prerequisites for protection under Subsections 112.0455(8)(n)1. and (8)(t). The incident on January 12, 2007, was not Respondent's "first positive confirmed drug test" within the meaning of Subsection 112.0455(8)(n)1. Respondent first tested positive in November of 2006 when Respondent voluntarily reported his alcohol-related problem to a member of management. For the same reason, Respondent fails to satisfy the requirement in Subsection 112.0455(8)(t) that he "has not previously tested positive for drug use. "

23. Respondent argues that the residential program in 2006 was not "an opportunity to participate in . . . an alcohol . . .

    rehabilitation program." § 112.0455(8)(n)1. Respondent argues that the exhaustion of insurance benefits prevented Respondent from completing that alcohol rehabilitation program.

24. Respondent's argument misconstrues the literal terms of the statute. The statute does not require an employer to give an employee an opportunity to participate in an alcohol rehabilitation program at the employer's expense. The statute requires only that the employee has an opportunity to participate in an alcohol rehabilitation program "at the employee's own

    expense or pursuant to coverage under a health insurance program."

    
    

    § 112.0455(8)(n)1. If coverage under a health insurance program is unavailable, the remaining alternative under the statutory disjunctive is an opportunity to participate in an alcohol rehabilitation program at the employee's expense. In 2006, Respondent declined the opportunity to participate in a residential alcohol rehabilitation program at his own expense.

25. Petitioner does not propose termination of employment "on the sole basis of the employee's first positive confirmed drug test" within the meaning of Subsection 112.0455(8)(n)1. The incident on January 12, 2007, was not Respondent's first positive confirmed drug test. Respondent previously tested positive when he voluntarily reported his alcohol-related problem to a member of management in November of 2006. For the same reason, Respondent fails to satisfy the prerequisite in Subsection 112.0455(8)(t) that Respondent did not previously test positive for drug use.

26. Petitioner does not propose termination of employment solely on the basis of an alcohol-related problem. Petitioner also proposes termination on the grounds that Respondent conducted personal business on school time and drove a school vehicle for personal use.

27. Several aggravating factors are evidenced in this case.

    
    

    Driving vehicles while intoxicated endangers Respondent and others, including students. The use of public vehicles during

    working hours for personal purposes effectively converts public funds for private purposes.

28. Several mitigating factors are evidenced in this case.

    
    

    This is the first time Respondent's alcohol-related problem has adversely affected his job performance. No person suffered any actual harm. Respondent voluntarily reported the alcohol-related problem to management and sought medical intervention and outpatient treatment at his own expense. Respondent has maintained his medical and outpatient treatment at his own expense. Respondent has no disciplinary history and has been an effective employee.

29. The penalty in this proceeding should be imposed in a manner that serves legislative intent for drug abuse in the workplace. The legislature intends to encourage self-reporting and proactive treatment by those afflicted with addiction.

30. Legislative preference for self-reporting and proactive treatment of addiction is evident in the express terms of Subsection 112.0455(8) as well as Petitioner's own Policy 4.70, which Petitioner adopted to implement Section 440.102. The policy limits termination of employment to employees who have not sought voluntary assistance.

31. Respondent is not an employee who has not sought voluntary assistance. From November of 2006 through the date of the hearing, Respondent has addressed his addiction proactively

    by: voluntarily seeking assistance in a residential alcohol rehabilitation program; successfully completing an outpatient rehabilitation program; maintaining after-care treatment from a physician; and regular intervention from Alcoholics Anonymous. Unfortunately for Respondent, the only hiatus in Respondent's proactive effort to treat his addiction included the ill-fated events of January 12, 2007.

32. The proposed termination of Respondent's employment would frustrate legislative intent for employees to self-report and proactively treat their addiction. It would establish a precedent of terminating employment for employees such as Petitioner who self-report their addiction before the addiction affects their employment by terminating those employees if and when the addiction affects their work because the work-related incident is not the first positive drug test. Employees who conceal their addiction and do not self-report until the addiction affects their work would not be terminated, under the proposed discipline, because the work-related incident is the first positive drug test.

33. The Legislature does not intend for employers to implement a policy that terminates employees such as Respondent, who self-report their addictions before it affects their work and retain employees who conceal their addictions until it affects their work. Such a policy would effectively encourage a workplace

practice that may be fairly described as "don't ask, don't tell until you must." The Legislature intends for employers to encourage employees to voluntarily report their addiction and to proactively seek treatment. Respondent has done so, and Petitioner should impose a discipline that is consistent with legislative intent for the employer's response.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order suspending Respondent from his employment without pay for four months from April 3, 2007, as a penalty for personal business on school time and driving a school vehicle for personal use, and requiring Respondent, as a condition of his continued employment, to maintain his current regimen of addiction treatment with a physician and regular intervention from Alcoholics Anonymous.

DONE AND ENTERED this 23rd day of August, 2007, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 23rd day of August, 2007.

ENDNOTES

1/ All references to subsections, sections, and chapters are to Florida Statutes (2006), unless otherwise stated.

2/ The CBA is also identified in the record as the SPALC agreement.

COPIES FURNISHED:

Robert J. Coleman, Esquire Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

Robert Dodig, Jr., Esquire School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3916

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Jeanine Blomberg

Interim Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. James W. Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3988

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: 07-001593

Orders for Case No: 07-001593