STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF CLEARWATER,

vs.

Petitioner,

Case No. 15-1870

ANDREW POLLOCK,

Respondent.

/

RECOMMENDED ORDER

This matter was heard before the Division of Administrative Hearings (DOAH) by its assigned Administrative Law Judge,

D. R. Alexander, on August 24, 2015, in Clearwater, Florida.

APPEARANCES

For Petitioner: Matthew M. Smith, Esquire

Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33758-4748

For Respondent: John F. McGuire, Esquire

McGuire Law Offices, P.A.

1173 Northeast Cleveland Street Clearwater, Florida 33755-4815

STATEMENT OF THE ISSUE

The issue is whether Respondent, Andrew Pollock (also known as Antone Pollock), should be terminated from employment with the City of Clearwater (City) after testing positive for cocaine, while on duty, as alleged in the City's Termination and Dismissal Notice (Notice) dated March 7, 2015.

PRELIMINARY STATEMENT

By Notice dated March 7, 2015, the City advised Respondent, a Stormwater Technician II, that he was being dismissed from employment effective March 11, 2015, after testing positive for cocaine during a random drug test performed on February 17, 2015. Respondent timely requested a hearing to contest the City's action. Pursuant to a contract, the matter was referred by the City to DOAH to conduct a formal hearing.

At the hearing, the City presented the testimony of two witnesses. City Exhibits 1 through 8 were accepted in evidence.1/ Respondent testified on his own behalf.

A one-volume transcript of the hearing has been prepared. Proposed findings of fact and conclusions of law were filed by the parties, and they have been considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Respondent began working for the City in August 2001.

   
   

   In November 2012 he was reclassified as a Stormwater Technician

   
   

   II. Pursuant to federal Department of Transportation (DOT) safety regulations, this position is considered a safety- sensitive position and requires that Respondent have a commercial driver's license (CDL) and that he submit to random drug testing.

   
   

2. The City has a zero tolerance for drug and alcohol use while on the job. This is explained in the City's Drug/Alcohol Program Policy, also known as Policy No. 3401.2. See City

   Ex. 3, p. 5 ("Any employee covered by this policy who . . . fails an alcohol or drug test . . . will be immediately removed from active duty and subject to discipline, including termination."). Respondent signed documents acknowledging that he was given a copy of the policy and was responsible for complying with its terms and conditions. See City Ex. 1 and 2.

3. Various rules, standards, and policies have been adopted by the City to govern the conduct of its employees. Specifically, the City has adopted a Performance and Behavior Management Program (PBMP) manual, which includes Personal Responsibility, Integrity, Excellence, and Citywide Standards. Pursuant to authority in the Code of Ordinances (Code), the Civil Service Board has adopted Rules and Regulations governing the conduct of all positions in the civil service. Relevant to this case is chapter 13, section 3, Rules and Regulations, which spells out grounds for suspending, demoting, or dismissing an employee. Also, as noted above, DOT safety regulations apply to employees such as Respondent who are performing safety-sensitive functions on the job. Finally, the City has adopted Policy 3401.2, which establishes guidelines and procedures regarding the use or abuse of illegal drugs by employees.

   
   

4. Notably, these standards, rules, policy, and DOT regulations apply only to the use of drugs and alcohol by an employee while on duty. With certain exceptions not relevant here, there is no City prohibition against the use of drugs or alcohol while off-duty. But if an employee fails a drug test administered during regular working hours, it is presumed he is using, or under the influence of, drugs while on the job.

5. In accordance with DOT regulations, on February 17, 2015, Respondent was selected for a random drug test and willingly submitted to the collection procedure that morning. See City Ex. 4, p. 5. Respondent acknowledges that he participated in the collection procedure on that date.

6. The results of the test, conducted by Largo Medical Center, are shown on a copy of a barely legible Verification Report (Report) received in evidence as Exhibit 4. No individual from the testing facility testified, the Report is not signed by the medical review officer, and several significant sections in the Report are not completed or signed. Given these deficiencies, the City agrees that it does not have "admissible drug lab evidence." Tr., p. 77. Without objection the Report was offered only for the purpose of showing "what action [the City took] upon receipt of this document," and not to prove that Respondent failed the drug test. Tr., p. 18.

   
   

7. On February 23, 2015, Respondent was notified that he tested positive for cocaine. While he disputes the laboratory results, he does not dispute the laboratory collection procedure. A recommendation was then made by his department head that he be terminated for violating City rules, policies, and standards, and DOT regulations.

8. Civil Service Board regulations allow an employee to explain the circumstances which led to the positive test results and to provide mitigating facts. See ch. 13, § 8, Rules and Regs. An employee may request a disciplinary determination meeting with the Department of Human Resources; an adverse decision is then subject to review by a hearing officer (administrative law judge). Alternatively, an employee may file a grievance pursuant to the union collective bargaining agreement. If the grievance is denied, the employee may have the matter heard by an arbitration panel, but the cost of arbitration is borne by the employee. Because of financial constraints, Respondent elected to have the matter reviewed by the Department of Human Resources.

9. A disciplinary determination meeting was conducted on March 3, 2015. Respondent was represented at the meeting by a member of his union. After Respondent's explanation was not deemed to be plausible, on March 7, 2015, the City Manager formally notified Respondent that he was being terminated

   
   

   effective March 11, 2015. See City Ex. 6. Respondent then

   
   

   requested a hearing to contest that action.

   
   

10. At hearing, Respondent essentially repeated the explanation he gave at the disciplinary determination meeting. He testified that while at a local bar with his brother on the evening of February 15, 2015, or two days before the random drug test and while off-duty, he asked a long-time friend, Eric "Red Rock" Gibson, for a "black and mild" (a cigar). After smoking the cigar, Respondent said that something seemed different about the cigar, his tongue was numb and tingling, and he was mumbling words. However, he attributed this to being drunk at the time and gave it no further thought. After receiving the results of the random drug test, and being told that he was terminated, Respondent spoke to Gibson and learned that Gibson always laced his cigars with cocaine, including the one given to Respondent. The City relies on this admission, and not the drug test, to prove the charges in the Notice.

11. Thus, the sum of the case is that Respondent admitted that he unknowingly smoked a cigar laced with cocaine on February 15, 2015. There is, however, no competent evidence to support the charge that he flunked a drug test two days later, as charged in the Notice, or that cocaine was in his system when he reported to work that day.

    
    

12. Respondent testified credibly that he does not use drugs and he unknowingly injested the cocaine. He pointed out that, except for this test, he has never failed a drug test while employed by the City. Shortly after the random testing, he paid for a follow-up drug test, which produced negative results. He desires to return to work in order to reinstate his health insurance benefits and to provide a source of income for his family. It is undisputed that Respondent has a blemish-free record working for the City over the last 14 years and, among other awards, he has received over 17 certifications for exceling in his work. His last evaluation in February 2015 was "Excellent."

13. Policy 3401.2, the City's Administrative Policy and Procedure Manual, states that an employee in a safety-sensitive position who fails a drug test "may be demoted to a non-CDL or non-safety sensitive position in accordance with the procedures outlined in this document." City Ex. 3, p. 6. Even assuming arguendo that Respondent failed a drug test, which has not been proven here, Respondent testified that he is willing to accept a demotion to a non-CDL position.

    CONCLUSIONS OF LAW

    
    

14. Section 2.285 of the Code authorizes the Civil Service Board to contract with DOAH to provide a hearing officer

    
    

    (administrative law judge) "to review employee appeals resulting from alleged adverse employer action," including dismissal.

15. Section 2.285(2) provides that at the hearing, "[t]echnical rules of evidence shall not apply," and that each party "shall have the right to be heard publicly," to be "represented by a person of his choice," and "to present evidentiary facts." Section 2.285(3) requires that "in conducting administrative hearings," the hearing officer "shall utilize a procedure similar to that set out in F.S. §§ 120.57(1) and 120.58."2/ He shall then "transmit the proposed order composed of proposed findings of fact and conclusions to the civil service board." § 2.285(4). No provision is made for filing exceptions to the proposed order, but both parties may appear before the Civil Service Board when it considers the proposed order.

16. The Code does not spell out the standard of proof in an appeal by a discharged employee. Ordinarily, except where otherwise provided by statute, an employer seeking to terminate an employee must prove the charges by a preponderance of the evidence. See, e.g., Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3rd DCA 1990). This standard has been used. Accordingly, the City bears the burden of proving by a preponderance of the evidence that Respondent should be terminated for the reasons stated in the Notice.

    
    

17. The Specifications portion of the Notice alleges that "[o]n February 17, 2015, [Respondent was] sent for a random drug test in accordance with [DOT] regulations. On February 24, 2015, the City received notification [from the testing laboratory] . . . that [his] specimen tested positive for cocaine. The above offense represents personal responsibility and integrity issues of such a serious nature that termination of your employment is required."

18. The evidence shows, through Respondent's admission, that while off-duty on February 15, 2015, he unknowingly smoked a cigar laced with cocaine. However, there is no competent evidence to support the charge that he failed a drug test given on February 17, 2015, or that cocaine was even in his system when he reported to work that day. This being so, the charges should be dismissed and Respondent reinstated to his Stormwater Technician II position, with back pay.

RECOMMENDATION

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

RECOMMENDED that the Civil Service Board enter an order dismissing all charges against Respondent and reinstating him, with back pay, to his position as a Stormwater Technician II.

DONE AND ENTERED this 1st day of October, 2015, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2015.

ENDNOTES

1/ Because the City has the burden of proving the charges in the Notice, the style of the case was changed to reflect Mr. Pollock as Respondent. Although the City's exhibits were pre-marked as Respondent's Exhibits 1 through 8, they are referred to in this Recommended Order as the City Exhibits.

2/ Former section 120.58 was repealed in 1996. See Ch. 96-159,

§ 23, Laws of Fla. It is suggested that this language in the Code be amended to reflect the correct statutory citations (sections 120.569 and 120.57) to the procedure that should be followed in an appeal.

COPIES FURNISHED:

Matthew M. Smith, Esquire Assistant City Attorney Post Office Box 4748

Clearwater, Florida 33758-4748 (eServed)

John F. McGuire, Esquire McGuire Law Offices, P.A.

1173 Northeast Cleveland Street Clearwater, Florida 33755-4815 (eServed)

Rosemarie Call, City Clerk City of Clearwater

112 South Osceola Street, 2nd Floor Clearwater, Florida 33758-4748

NOTICE OF RIGHTS

Civil Service Board regulations do not authorize the filing of exceptions to this Recommended Order. The Recommended Order will be considered by the Civil Service Board at a meeting to be noticed at a later time and place. At that meeting, the Civil Service Board will make a determination on the disposition of this matter and thereafter send its order and proposed penalty, if any, to the City Manager. See § 2.285(4), Code of Ordinances.

Docket for Case No: 15-001870

Orders for Case No: 15-001870