The Issue Should Respondent's Law Enforcement Certificate be revoked, suspended, or otherwise disciplined?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Commission is the agency of the State of Florida charged with the responsibility for the certification and de- certification of law enforcement officers. At all times pertinent to this proceeding, Respondent was a certified law enforcement officer having been certified by the Commission on January 24, 1992, and issued law enforcement certificate number 20445. At all times pertinent to this proceeding, Respondent was employed by the Cape Coral, Florida Police Department (CCPD). As a certified law enforcement officer, Respondent is sworn to uphold the laws of the State of Florida, in both an on-duty and off-duty capacity, and must follow a personal code of conduct which precludes the use of marijuana in an on-duty or off-duty capacity. Respondent was aware at the time he was hired by the CCPD that law enforcement officers had to abide by the Drug Free Workplace standards. As part of the biannual physical examination required by the CCPD, the Respondent, on June 4, 1999, presented to the Lee Memorial Health Systems, a/k/a Lee Convenient Care, a Collection Site as defined in Rule 59A-24.003(4), Florida Administrative Code, for the purpose of giving a urine specimen for drug testing. Strict procedures were followed in the collection of Respondent's urine specimen taken on June 4, 1999, in order that the integrity and chain of custody of the specimen were maintained. Respondent's urine specimen taken on June 4, 1999, was collected, identified, and forwarded to Diagnostic Services Inc., d/b/a DSI Laboratories (DSI) in accordance with the procedure set forth in Section 112.0455(8), Florida Statutes, and Rule 59A-24.005, Florida Administrative Code, for the purpose of testing for drugs. DSI is a Forensic Toxicology Laboratory as that term is defined in Rule 59A-24.003(8), Florida Administrative Code, and is a certified, state and federally-licensed forensic toxicology laboratory which conducted the tests of Respondent's urine specimen taken on June 4, 1999. Respondent's urine specimen given on June 4, 1999, was given Specimen ID No. 11A, 292409 and Laboratory Accession No. 99- 157-0716. When urine is tested for the presence of marijuana, a positive result is indicated when the nanogram level of cannabinoids, or THC, reaches a level of 50 or higher on the initial screening, or immunoassay test. Rule 59A- 24.006(4)(e)1, Florida Administrative Code. If the immunoassay test is positive, the sample is subjected to a much more specific test, the Gas Chromatography/Mass Spectrometry (GCMS) test. A result of a nanogram level of 15 or higher is a positive test result for the presence of cannabinoids or THC. Rule 59A-24.006(4)(f)(1), Florida Administrative Code. The establishment of the cut-off levels on the immunoassay or GCMS tests eliminates any possibility of positive test results due to accidental ingestion. Respondent's urine specimen of June 4, 1999, was first subjected to the immunoassay test which reported a level of 169 nanograms of THC in Respondent's urine. Respondent's urine sample was then subjected to the GCMS test which reported a result of the presence of 37 nanograms of THC in Respondent's system. Elizabeth Burza, n/k/a Elizabeth Brunelli, the certifying scientist on the two tests conducted on Respondent's urine specimen of June 4, 1999, reviewed and approved the integrity of the chain of custody, that the machines used to test the specimen were operating correctly, and the accuracy of the positive result for cannabinoids in Respondent's system. On June 8, 1999, Ms. Brunelli certified that urine specimen number 11A-292409 tested positive for presence of cannabinoids. The urine specimen number and laboratory accession number were that of Respondent's urine specimen submitted on June 4, 1999. Abel Natali, M.D. was the Medical Review Officer of the tests conducted on the urine specimen number 11A-292409 submitted by Respondent on June 4, 1999. On June 9, 1999, Dr. Natali reviewed and approved the testing procedures and results thereof. Dr. Natali confirmed the conclusions of Ms. Brunelli that the test results as to specimen number 11A, 292409 did not reflect abnormality, and accurately reflected a positive reading of 37 nanograms of THC, cannabinoids, in Respondent's system. On June 10, 1999, Dr. Natali telephoned Respondent to confirm that Respondent had tested positive for cannabinoids. Dr. Natali inquired of Respondent as to any valid reason for the positive test for marijuana, such as: (1) was there a possibility that medical research had exposed Respondent to marijuana and; (2) had Respondent ingested any prescription or over-the-counter drugs which may have contained marijuana. The purpose of these questions was to allow the tested person to admit or deny use, and to allow the Medical Review Officer to follow up on valid explanations for exposure controlled substances. Respondent told Dr. Natali that he had been exposed to marijuana at a party where people were smoking marijuana and that he had smoked marijuana. However, during his testimony at the hearing, Respondent could not recall making that statement to Dr. Natali, and denied smoking marijuana at the party. Dr. Natali advised Respondent that he would be reporting the positive test results for marijuana to his supervisor, and that Respondent could request a retest. Respondent did not request a retest. On June 10, 1999, the positive test results for marijuana were reported to Lieutenant Everly, CCPD. Subsequently, on June 10, 1999, Lieutenant Everly and Lieutenant Furderer requested that Respondent submit another urine sample for testing. Although Respondent was not told that failure to submit another urine specimen would result in his termination from CCPD, he was advised that failure to submit another urine specimen could possibly result in his termination from the CCPD. Respondent agreed to the submission of a second urine specimen, and on June 10, 1999, Lieutenant Furderer transported Respondent to DSI Laboratories where Respondent submitted another urine specimen for testing. The collection and testing of the second urine specimen submitted by Respondent on June 10, 1999, and identified as 11A, 303243, was handled in accordance with the rules and statutes governing the collection and testing of urine specimens for the purpose of determining the presence of illegal drugs in the person's system. Ms. Brunelli, certifying scientist, certified the results of the two tests conducted on Respondent's second urine specimen identified as number 11A,303243. Ms. Brunelli certified specimen 11A, 303243 as being positive for the presence of cannabinoids on the immunoassay test at a level of 209 nanograms, and on the GCMS test at a level of 56 nanograms. Stephen I. Merlin, M.D., Medical Review Officer, reviewed and approved the collection and testing procedures used with Respondent's urine specimen submitted on June 10, 1999, and identified as 11A, 303243, and the positive results of the tests (a nanogram level of 209 for the immunoassay test and a nanogram level of 56 for the GCMS test) as reviewed and approved by Ms. Brunelli. Dr. Merlin informed Respondent that he had tested positive for cannabinoids, and inquired as to whether Respondent had taken any prescription drugs containing marinol, or if Respondent had been exposed to marijuana. Respondent replied in the negative. Respondent did not request a retest. Respondent's only explanation for the presence of cannabinoids in his system was the possible passive inhalation of marijuana smoke at a party in a motel room on the weekend prior to giving the first urine specimen on June 4, 1999. While passive inhalation of marijuana smoke under controlled conditions may possibly result in negigible amounts of cannabinoids being detected in a person's urine, Respondent failed to show that the conditions in that motel room were such that it would have resulted in passive inhalation of marijuana smoke by Respondent to the degree that his urine would have reflected, upon testing, even negigible amounts of cannabinoids, let alone the levels found in Respondent's urine. Respondent offered no evidence to demonstrate that he may have accidentally ingested marijuana during this period of time. Respondent's June 4, 1990, and June 10, 1999, urine specimens were disposed of on July 5, 2000. Prior to their disposal, Respondent did not contact anyone and request that the specimens be retain for retesting. Subsequent to being notified of the results of the second urine test, the CCPD terminated Respondent. However, after the CCPD held an informal hearing, CCPD reinstated Respondent. At the time of this hearing, Respondent was still working with the CCPD, apparently in an administrative capacity. Respondent presented no evidence of complete rehabilitation or substantial mitigating circumstances. The nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 4, 1999, and the nanogram levels for cannabinoids reported for the initial and confirmation tests for the urine specimen given by Respondent on June 9, 1999, exceeded the nanogram levels for cannabinoids set out in Rule 59A-24.006(4)(e)1.(f)l., Florida Administrative Code, for positive testing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order revoking Respondent's Law Enforcement Certificate number 20445. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM R. CAVE 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Robert B. Burandt, Esquire 1714 Cape Coral Parkway, East Cape Coral, Florida 33904-9620 A. Leon Lowry, II, Program Director Division of Criminal Justice Professional Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. On February 23, 1983, the horse "Rock Steady" owned by Petitioner, Russell Michael, Jr., and trained by Ronnie Warren, ran in the seventh race at Gulf Stream Park. The horse finished first. Subsequent to the running of the aforementioned race, and in accordance with standard procedure, "Rock Steady" was led over to the state detention barn for the taking of a urine specimen. The specimen was placed in a sealed container and transported to the Division's laboratory with other specimens. Upon reaching the Division's laboratory, the specimen was logged in, assigned a number and subjected to various preliminary tests. Based on those preliminary tests, further tests were made and on March 3, 1983, the Division's laboratory reported that the specimen taken from "Rock Steady" contained at least 182 micrograms of phenylbutazone and/or its derivatives per milliliter of urine. (Respondent's composite Exhibit 1) "Rock Steady" was administered phenylbutazone in oral paste form at some time prior to the seventh race on February 23, 1983. (Post-hearing stipulation of the parties entered pursuant to a joint telecon on July 25, 1984) On April 28, 1983, Dr. Wayne C. Duer, 3/ Chief of the Division's Bureau of Laboratory Services, sent a split sample from the urine specimen taken from "Rock Steady" to Dr. Thomas Tobin in accordance with instructions of Respondent's counsel. (Petitioner's Exhibit 8) On or about that same date, Dr. Duer sent another split sample from "Rock Steady" to Dr. George A. Maylin, Director of the New York State Racing and Wagering Board Drug Testing and Research Program. Dr. Tobin reported an average amount in the sample of 125.1 micrograms of phenylbutazone per milliliter of urine. Dr. Maylin reported a sum total of 154.4 micrograms of phenylbutazone per milliliter of urine. (Petitioner's Exhibit 10) The methods employed by the Division laboratory, and which were utilized by Chief Duer, liquid chromatography, thin laver chromatography and ultraviolet spectrophotometry, are methods recognized as the "state of the art" for quantitating phenylbutazone in urine. Based on analysis of the specimen here in question on March 1 by Dr. Duer, an average amount of 182 micrograms of phenylbutazone per milliliter of urine was indicated. In reporting his results, Dr. Duer reported his findings by factoring in the various results and averaging to report the concentration of phenylbutazone in "Rock Steady's" urine specimen. All of the Division's analyses were conducted under Dr. Duer's direction and supervision. Dr. Duer has noted a variance of approximately 3 - 4 percent when analyzing any given sample. Samples can vary based on the exposure to air for long periods of time; samples left unsealed for long periods of time; samples analyzed over various time periods; the amount of alkaline in a urine sample and the physiology of an animal - all of which may fluctuate the phenylbutazone levels in the blood plasma of a given animal. However, as noted, a specimen analyzed soon after a race is apt to be more reliable than subsequent analyses. THE PETITIONER'S DEFENSE Petitioner takes the position that it should not be required to return the purse money because the sample analyzed is different from the sample taken from the horse owned by Petitioner, "Rock Steady"; that the testing procedures utilized by the Respondent are unreliable and the analyses show widely varying concentrations of the drug phenylbutazone and based on the varying calculations, there is no competent and substantial evidence upon which a finding or a requirement can be made herein requiring Petitioner to return the purse money for using the drug phenylbutazone. Respecting Petitioner's claim that the sample analyzed was not the sample taken from the Petitioner's horse "Rock Steady" or that somehow the samples were mishandled or otherwise confused, the evidence herein reveals that Dr. Duer analyzed the urine sample taken from the horse "Rock Steady" and it remained under his custody and control until he personally apportioned the sample such that it could be analyzed by independent laboratories at Cornell University in New York and at the University of Kentucky in Lexington, Kentucky. The analytical methods employed by the Respondent, under the direction of Dr. Duer, appear reliable and are generally recognized as the state of the art in analytical procedures for measuring the drug phenylbutazone. Based on the methods utilized and the fact that the urine sample was analyzed within a short period after "Rock Steady" ran in the seventh race on February 23, 1983, I find that the testing procedures and the results of the analysis were reliable. Finally, as to Petitioner's claim that the methods employed by Respondent lend to varying results, all of the experts herein related that the calculations may vary from one laboratory to the next in a range of approximately 3 - 4 percent. Given that degree of variance as the range within which a given sample may vary, that degree of variance does not alter the conclusion herein by Respondent that the Petitioner's horse competed with an excessive amount of a permitted drug in its system in violation of Rule 7E- 1.0612, Florida Administrative Code. It is so found.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a certified correctional officer in the State of Florida having been issued certificate # 84145 on April 23, 1991. Respondent was employed as a correctional officer with the Metro-Dade Corrections and Rehabilitation Department ("M-D CR") beginning in April 1991. Prior to obtaining her certification as a correctional officer, Respondent worked for the State Corrections Department for approximately seven (7) years as a clerk and later as a technician. No evidence has been presented in this case as to any prior disciplinary action taken against Respondent or any other job related problems. By memorandum dated July 9, 1993, Respondent was notified of her biannual physical which was to include a drug/alcohol screening. The scheduled date for the physical and screening was August 5, 1993 at 9:00 a.m. On August 5, 1993, Respondent presented at Mount Sinai Medical Center for her physical. She filled out and signed a Consent & Release Form and a Specimen Collection Checklist & Chain of Custody Form. She then submitted a urine sample for testing. Respondent's urine sample was handled in accordance with a standard set of procedures for dividing, labelling and sealing the specimen. Respondent had an opportunity to observe the splitting of the sample and she initialed the containers after they were sealed. Respondent's urine specimens were transported by courier to Toxicology Testing Service ("TTS") for routine screening. The evidence established that TTS has adopted adequate procedures to track the chain of custody of the urine samples it receives and protect the integrity of the samples. There is no evidence in this case that there are any gaps or breaks in the chain of custody for Respondent's samples, that the integrity of the samples was ever compromised, that the testing procedures were not followed and/or that the equipment was contaminated or not working properly. After Respondent's samples were received at TTS, an immunoassay screening test was performed on a portion of one of the samples. That screening test was positive for the presence of cocaine at a level that was barely over the minimum threshold level of 50 Nanograms per milliliter. 1/ After the initial screening test was determined to be positive, Respondent's sample was analyzed with a confirmatory testing procedure which utilized gas chromatography/mass spectrometry ("GCMS"). 2/ On or about August 10, 1993, Dr. Terry Hall, Director of TTS, issued a final report indicating that Respondent's urine had tested positive for cocaine. Specifically, the Report stated that, upon analysis, the urine sample provided by Respondent tested positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 71 Nanograms per milliliter. The TTS test results of Respondent's urine are consistent with the ingestion of cocaine because cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. While the testing by TTS demonstrated the presence of cocaine metabolite in Respondent's system, it does not establish how ingestion occurred. Absent proof that the drug was possessed or administered under the authority of a prescription issued by a physician or that the presence of cocaine metabolite could otherwise be lawfully explained, unlawful ingestion is a reasonable inference. However, it is also possible that the ingestion was involuntary and/or unknowing. 3/ M-D CR and Respondent were notified on August 11, 1993 that the urine sample Respondent provided on August 5, 1993 tested positive for cocaine. Respondent has not worked as a correctional officer since that date. Upon notification of the test results, Respondent vehemently denied using drugs. She took immediate steps to try to prove her innocence. Respondent contacted the Dade County Police Benevolent Association (the "PBA") which arranged for Consulab of Cedars of Lebanon Hospital to do a drug screen at the 50 Nanogram per milliliter level on a urine sample provided by Respondent. On August 12, 1993, Respondent provided a urine sample to Consulab. Respondent claims that the results of that test did not reveal the presence of cocaine or cocaine metabolite in her urine. 4/ The Consulab test result reported by Respondent is not necessarily inconsistent with the results reported by TTS because the levels detected by TTS were relatively small and any cocaine in Respondent's system could have been fully metabolized during the time between the two tests. On September 2, 1993, the PBA, on behalf of Respondent, requested a retest of Respondent's August 5, 1995 urine sample. Prior to the retest, Respondent was present and able to inspect the seal on the container from the split sample of her August 5, 1993 urine specimen. On or about September 9, 1993, Dr. Terry Hall issued a final report on the retest of Respondent's August 5 urine sample. The retest was positive for cocaine metabolite at a level of 67 Nanograms per milliliter. This result is consistent with the earlier GC/MS test result. On or about August 19, 1993, Respondent's employer, the M-D CR, issued a Disciplinary Action Report to Respondent based on the TTS reports. The Report advised Respondent that proceedings were being initiated to dismiss her from employment. On or about November 5, 1993, Director Charles A. Felton of the M-D CR dismissed Respondent from her employment with the M-D CR. By letter dated November 9, 1993, Commander Miriam Carames, Employee Discipline Coordinator for the M-D CR advised the Florida Department of Law Enforcement ("FDLE") of Respondent's termination. On or about November 22, 1993, Respondent wrote a personal letter to Director Felton explaining her side of the events leading to her termination and proclaiming her innocence. In accordance with the PBA's collective bargaining agreement, Respondent requested an arbitration hearing on her dismissal. The arbitration hearing on Respondent's termination was conducted on December 21, 1993. The decision of Arbitrator Charles A. Hall of the American Arbitration Association was rendered on February 1, 1994 and issued by letter dated February 9, 1994. That decision found that Respondent should be returned to full duty, without loss of pay, providing she agreed to six months of random drug testing. By letter dated May 3, 1994, Metro-Dade County Manager Joaquin Avino overturned the decision of Arbitrator Charles A. Hall and ordered Respondent dismissed from her employment with the M-D CR. That decision is currently being appealed. There is no evidence that Respondent has had any problems or difficulties in carrying out her responsibilities as a correctional officer. From Respondent's initial employment as a clerk with the state corrections department through her employment as a correctional officer beginning in 1991, Respondent has consistently been recognized as a professional, loyal and dedicated employee. Her job evaluations have always been satisfactory or better. Respondent received the State of Florida Department of Corrections, Circuit 11, Employee of the Year Award for 1988. She has further demonstrated dedication to her profession through continued training in the law enforcement field. Respondent's coworkers and supervisors testified that Respondent has a reputation for integrity, honesty and fairness in the treatment of inmates and coworkers. They also testified that she respects the rights of others, respects the law and has a reputation for overall good moral character and has never been observed to be impaired, or known to use drugs. Respondent is the mother of 3 teenage girls and has been very active in her Church. She has devoted substantial personal time and resources to community service. Respondent strongly denies taking or ingesting cocaine. Respondent provided no explanations at hearing for the positive test results. She was at a loss to provide a plausible explanation for what she perceives to be an aberration. Respondent presented the testimony of a number of witnesses who know her well to lend credence to her denial. Those witnesses testified credibly that Respondent is a person of good moral character who, among other qualities, has the ability to differentiate between right and wrong and the character to observe the difference, has respect for the rights of others, has respect for the law, and can be relied upon in a position of trust and confidence. Those witnesses, who have known Respondent for an extended period of time commencing well before the incident in question, believe it is the antithesis of Respondent's character to have ingested or used cocaine. In summary, the results of the urinalysis create a suspicion of unlawful drug use. However, the test results alone do not conclusively establish unlawful use. The results could have been due to some unknown test failure or inadvertent ingestion. After considering the nominal amount of cocaine metabolite disclosed by testing, the evidence presented regarding Respondent's character, as well as her employment record, the evidence is not clear and convincing that Respondent has unlawfully ingested cocaine. While no conclusion can be reached, with any degree of certainty, as to the reason for the positive test results, the test results cannot and should not be ignored. Without a plausible explanation for the test results, those results do raise some unanswered questions and doubts as to Respondent's character which do provide a basis for action by the Commission under its rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that there are some doubts regarding Respondent's moral fitness for continued service in accordance with Rule 11B-27.0011(4)(c)4. In view of this finding, Respondent should be placed on probation for two years subject to random drug testing. DONE AND RECOMMENDED this 18th day of August, 1995, in Tallahassee, Leon County, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1995.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples. An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed. An initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause; Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling. DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ms. Linda Bass 18101 Northwest 32nd Avenue Miami, Florida 33055 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, Wade Ragland, when notified by his transportation dispatcher that he had been selected for a random drug substance test, did not immediately report for testing because he had scheduled a prior maintenance appointment at his home, constitutes a refusal to be tested in violation of School Board Policy, state law, or contractual agreement. If so, was his failure to report immediately for random drug testing just cause for termination.
Findings Of Fact Petitioner, Pinellas County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Pinellas County School District. Dr. J. Howard Hinesley is the Superintendent of Public Schools for Pinellas County, Florida. Respondent, Wade Ragland, at all relevant times, was an employee of the Pinellas County School Board in its Transportation Department. Ragland was employed as a substitute school bus driver on July 20, 1998, and became a regular bus driver on August 17, 1998. On April 24, 2001, Ragland was acting as a school bus driver for the Board. He was tested for drugs in January 2001, and the test was performed after his first run, which was the Board's policy and standard procedure. Ragland's drug test result was negative. Pursuant to the Board's Policy 8.23 and Title 49 of the Code of Federal Regulations (CFR) as of January 1, 1995, all employees who are required to hold a Commercial Drivers License (CDL) as a condition of employment and who perform safety- sensitive functions, which include operating a vehicle designed to transport more than 15 persons, shall be subject to drug urinalysis testing and/or breath alcohol testing via sample collection, through random testing. The Federal Omnibus Transportation Act (The Federal Act) was at all times relevant, including April 24, 2001. Four times a year, once every three months, and on or before the 15th day of the month preceding the beginning of the quarter, a random list of drivers will be requested by a contract testing facility. The Federal Act does not require termination of a CDL employee who either fails or refuses to take a random drug test. The School Board Policy 8.23 is incorporated as Article 32 of the Agreement between the Pinellas County School Board and the School Employees Union, the exclusive collective bargaining representative for bus drivers. Under Section 8.23(3)(a) 3 of the Board's policy, random drug testing must be unannounced and shall be conducted during the selected driver's on-duty time. The Board's internal normal operating procedures for the selection of drivers to be tested in each quarter is accomplished in the following manner. Theresa Hooker, Personnel Technician and Drug Testing Program Manager since July 2, 2000, is responsible for drug testing of all personnel and maintenance of their confidential drug test records. FirstLab, the contract testing facility, is responsible for the selection of employees who will be tested during a given quarter from the list of names provided by the Board. Ms. Hooker is solely responsible for the determination of the date each of the selected employee will be tested. Upon receiving the quarterly list from FirstLab, Ms. Hooker sends the names of 20-25 selected bus drivers to Joyce Hefty, personnel technician in the Transportation Department. It is Ms. Hefty's responsibility to notify each driver, directly or through one of three dispatchers, of the selection for drug testing during a driver's first or second morning bus run. Once the selected driver reports to her office, she checks the driver's identification, provides the driver with the necessary testing paperwork and gives the location of a Board-approved testing facility. All dispatchers and bus drivers know that drivers who have been notified by dispatcher(s) that their names came up for testing are to report immediately, after completion of their first or second morning run, to Ms Hefty's office for identification check, completion of paper work, and instructions to report to a Board-approved test site for testing during their on-duty time for which they are paid. Equally known by dispatchers and drivers, is the meaning of on-duty time under School Board's Policy 8.23. On-duty time is the time required for a driver to complete his last morning run. Included is the time required for each driver to return to his/her assigned transportation compound. In those instances where a driver has permission to take the bus home, on-duty time is computed from check-out time of the first run to the time it would take a driver to return from the first or second morning run to the assigned compound. Each compound dispatcher maintains records and time sheets of assigned drivers. Should a driver selected for random drug testing not be tested, refuse to be tested, or experience the inability to provide a specimen and therefore has to wait hours to complete testing, Ms. Hefty is notified. She in turn notifies Ms. Hooker. Ms. Hooker notifies Mr. Gene Bessette, Administrator, Office of Personnel Standards. Mr. Bessette has discretionary decisional authority touching upon every facet of a particular situation. He is informed of each situation and determines whether an individual situation requires further action and, if so, what action should be taken. He determines the appropriate discipline based upon the totality of circumstances, disciplinary guidelines, and aggravating and mitigating factors, if any, and submits his final recommendations to the Superintendent of Pinellas Public Schools, Dr. Hinesley. Dr. Hinesley has authority to accept, reject or modify Mr. Bessette's recommendations. Dr. Hinesley's decision is presented to the Pinellas County School Board for final modification or approval. The chain of command would be for Ms. Hooker, upon receipt of information from Ms. Hefty, to contact Mr. Bessette. On April 24, 2001, at 9:34 a.m., Ms. Hooker received an e-mail from Ms. Hefty regarding Respondent, Wade Ragland. Ms. Hooker, however, was not in her office and did not speak with Ms. Hefty or Mr. Bessette on that day. On April 24, 2001, Ragland was acting as a school bus driver for the Board. The agreement between the Board and School Employees Union Local 1221, Firemen and Oilers, an affiliation of Service Employees International Union, which governs Ragland, provides, as does Board's Policy 8.23, that random drug testing "shall be during on-duty time." The Board's "normal random testing procedure," in effect since 1998, was to notify drivers during their first run in the morning that they are going to be sent for a random test after the completion of the first morning run. Dispatch would send a relief driver and bus to cover the second and third runs of the selected driver's route. Under the Board's normal procedure, notification to drivers would occur during a driver's first morning run. A driver's drug test, conducted at an approved testing site, would occur during the time the driver would normally be driving a second and third morning run. Under this procedure, selected drivers would not receive additional pay. Should, however, the actual drug test extend beyond a driver's normal scheduled time for morning runs, including compound check-in time, additional time would be added when computing the driver's total hours for that week. Under the operative terms of the Board's procedure, bus drivers are on non-paying "down-time" after completion of the final morning run. Down-time would continue until a driver began their evening run usually about 1:00 p.m. or later, depending on their selected bus route. "Down-time" is equal to "off-duty" time for which drivers receive no pay. The Board, at all times, was fully aware that drivers held other jobs during their down-time, a few cared for their elderly relatives, some, as did Ragland, scheduled personal appointments with service providers and others engaged in various other activities. Under the Board's procedure, "over-time," for over-time pay purposes, is the time drivers work beyond and over a predetermined time for each route. Drivers, at the beginning of each year, bid for a specific bus route. Each bus route has its own, per-week pay schedule based upon the number of morning/evening runs, the combined distance of the runs, plus any required over-time work in excess of their route time. The School Employees Union Agreement and the Board's policy mandate that drivers could be required to work over-time, when and if, the driver was requested by a dispatcher or supervisor to work over-time while the driver was on duty. For special trips, weekends, nights, etc., dispatchers or supervisors would first seek a volunteer driver. If no volunteer is found, a dispatcher would select a driver to work over-time who would receive over-time pay for the over-time work. Faced with a shortage of regular bus drivers for 2000- 2001 school year, the Board changed its herein above "normal random drug testing procedures" as described above. The intent of the Board was to comply with its Federal drug-testing requirements and to minimize expenditure of over-time pay for bus drivers. Accordingly, on August 31, 2000, Susan Detmold- Collins, Assistant Director, Transportation Department, issued a memo to "All School Bus Drivers" outlining a "Temporary Change To Random Drug/Alcohol Testing Procedure." In pertinent part the memo stated: To: ALL SCHOOL BUS DRIVERS Every year, at this time, we run into a bit of a problem with meeting our quotas for random drug/alcohol testing. As many of you know, we are required, by Federal Law, to randomly test 25 percent of our drivers each quarter. The current quarter started in July and will end in September. We always start out the school year somewhat behind in meeting our testing quotas, because many of our drivers do not work for summer school, and therefore can not be sent for testing during July and August. This year, because of our shortage of drivers, and the number of drivers we are required to send for testing, we decided to enact a temporary change to our usual procedures . . . First, I wanted to make sure all drivers were made aware of this temporary change we are making to our normal procedure and the reasons for it. Second, I wanted to reassure all drivers that we will pay them for any extra time they may end up working as a result of this change in procedure. (Since random drug/alcohol testing is usually conducted during a period of time when drivers would normally be doing their second and third runs, drivers do not usually receive any additional pay.) Third, I wanted to let drivers know we fully recognize that many of them have scheduled appointments and other things which they count on being able to do during the middle of the day, on what would normally be their "their down-time." If drivers let us know about these things, in advance, we will take steps to make sure they are not called to drug test when doing so would cause a scheduling conflict for the driver. Since a refusal to take a drug/alcohol test can have very severe consequences under Federal Law and School Board Policy, I wanted to reassure all drivers that we will work cooperatively with them and make every effort not to pull them for testing if they have made us aware that they have a doctor's appointment or other appointment or activity scheduled during their "down-time" on a particular day. Mr. Fleming and I greatly appreciate your cooperation and support during this period. . . . We are working hard with Supporting Services Personnel to recruit and train additional drivers as quickly as possible. We hope we'll have things back to "normal" by October at the latest, if not sooner. [emphasis added] By March 2001, the Transportation Department had hired sufficient bus drivers to cover the above-cited need. It is unclear, however, whether the Transportation Department made the administrative staff, dispatchers and bus drivers aware of the fact that a sufficient number of bus drivers had been hired. It is equally unclear, from the collective testimony of the Board's employees, whether the temporary change in the drug- testing procedure herein above outlined had been retracted, and if so, on what date. It is clear that as of April 24, 2001, the Transportation Department had not issued a written retraction of its August 31, 2000, temporary procedural change memoranda. From the testimony of a dispatcher, Masone, and the comments of a bus driver, Ragland, it is clear that neither Masone, nor Ragland, knew whether the normal drug-testing procedure or the temporary drug-testing procedure was in effect on April 24, 2001. It is therefore, a reasonable conclusion that some dispatchers, Masone for instance, assumed the temporary drug testing procedure was in effect wherein drivers would be required to undergo random drug-testing on down-time. Others, however, drivers like Ragland, assumed the normal drug- testing procedure was in effect and drivers could only be required to undergo random drug testing during on-duty time. This conflicting and confusing situation resulted in a misunderstanding of what was required of the drivers by dispatchers and what was required of dispatchers by drivers as it related to random drug testing procedures on April 24, 2001. It is certain, that bus drivers, dispatchers, the transportation personnel technician, the drug-testing program manager, and the professional standards office were not informed that the Board's temporary drug testing policy procedure was in effect on April 24, 2001, some six months past October 2000. On April 24, 2001, Ragland had driven to Palm Harbor University, then to Brooker Creek University and was driving to Safety Harbor Middle School, the third and last stop of his morning runs. Completion of the last morning run and the driving time required for Ragland to report back to the Tarpon Springs transportation compound checkpoint is considered on-the- clock time for pay purposes. The time of Ragland's arrival at the Tarpon Springs compound would begin his down-time. On that day, according to dispatcher Masone, Ragland's down-time began at 9:56 a.m. He would remain on down-time until his evening runs began at 1:00 p.m. later that same day. At 9:18 a.m. on April 24, 2001, Masone notified Ragland that he had been randomly selected for drug testing that morning. Ragland informed Masone that he had a prearranged service appointment at his home with an exterminator at 10:00 a.m. and he would go for testing "as soon as my appointment is over with." When asked by Masone why he did not tell his supervisor that morning when he checked in that he would not be available during his down-time, Ragland's reply was "I did not know I had to report" planned down-time activities. On this point Ragland is right. According to Gene Bessette, before the August 30, 2000, temporary change memo, there was never a written policy that required drivers to notify dispatchers or anyone else if they had a prearranged appointment during their down-time. Masone, not sure whether the temporary procedure or the normal procedure was in effect, informed Ragland that he "could" lose his job if he did not go for drug testing. Ragland replied he would go for testing after his appointment was finished, probably within the next one-half hour or approximately 10:30 a.m. At approximately 9:25-9:30 a.m. and after his conversation with Ragland, Masone called Joyce Hefty and informed her of his conversation with Ragland. Ms. Hefty asked Masone to call Ragland and have him call her. When Ragland arrived home, he called Ms. Hefty. At approximately 9:31 a.m. and after her conversation with Masone, Ms. Hefty e-mailed Susan Collins regarding Ragland's selection for random drug test at 9:18 a.m. and relayed the information as she received it from Masone regarding Ragland's position of his down-time status. Ms. Hefty does not recall if Masone told her Ragland said he would come for testing after his appointment was finished. Unable to reach Ms. Collins by telephone, Ms. Hefty called Mike Bessette regarding Ragland's situation. Bessette concluded the conversation by instructing Ms. Hefty to give Ragland another 40 minutes to cool off and see if he showed up at her office. As Masone had requested, Ragland called Ms. Hefty from his home between 9:32 a.m. and 9:44 a.m. Ms. Hefty asked if he was going for his drug test, Ragland replied that he could not come to her office at that time, but he would come as soon as his exterminator finished his work. The exterminator, Craig Schultheis, was in the house at the time of this telephone conversation and overheard Ragland's comments. Ragland's offer to Ms. Hefty to speak with his exterminator for verification was refused. Mr. Schultheis, the exterminator, arrived at Ragland's home approximately 9:40 a.m. completed his task and departed at approximately 10:05 a.m. While there, he overheard the telephone conversation and Ragland say, "When I'm done I can come in." He did not know at that time that Ragland was talking to Ms. Hefty. During the above telephone conversation, Ms. Hefty failed to inform Ragland that Mr. Bessette had given him an additional 40 minutes to report to her office. Had Ms. Hefty obeyed Mr. Bessette's instruction, Ragland would have had the option of immediately driving from his home to her office, should he chose to do so. Instead, at 9:44 a.m. Ms. Hefty, without further consultation with Mr. Bessette, her superior, concluded her conversation with Ragland by informing him that he was terminated. A few minutes later, she called the North County Dispatcher and requested that they send two drivers to pick up Ragland's bus and return it to the motor pool. Because Ragland drove from Safety Harbor Middle School directly to his home rather than driving directly to her office, Ms. Hefty testified it was too late for him to take the drug test. To her, his conduct constituted in part his refusal. This was Ms. Hefty's first occasion to encounter the situation where a driver who has been notified by a dispatcher of selection for random drug testing responded with, "No I can't; I have an (prearranged) appointment and will go when its finished." Ms. Hefty did not know whether Ragland was on "down- time" or "on-the-clock" status when he called her from his home. At the time she determined that Ragland's responses, "will go when my appointment is finished" or "not on my own time," coupled with his failure to immediately report to her office, was a refusal under her understanding of the rules. She did not know nor could she articulate the procedure or rule she relied on in reaching her conclusion. She testified she was merely doing what Polly Frush, who had the job before, had taught her. Ragland took a drug test at 1:00 p.m., on April 24, 2001, at Atlantis Clinic with a negative result. This drug test was not accepted by the Board as a substitute drug test. Under its policy, the Board accepts drug test results from only its approved and designated drug-testing facilities. Atlantis is not an approved facility. No Board employee, with whom Mr. Bessette spoke on April 24, 2001, informed him of Ragland's statement that he would be willing to go immediately to take the drug test after his appointment was concluded. If he had been made aware of Ragland's statement, he testified he would have taken that into consideration when determining whether or not Ragland's action was a refusal to take the random drug test. Assuming that Board staff had provided him with all the facts, and following the no exceptions policy (refusal equals automatic termination), Mr. Bessette made his recommendation of Ragland's termination to Dr. J. Hinesley, Superintendent of Public Schools, Pinellas County. This is a case of first impression for the Board's staff, wherein the Board issued two procedures for random drug testing, Policy 28.3 and the August 30, 2001, Memo to Bus Drivers; first impression where Board staff members and employees were not certain which one of the two procedures was in effect on April 24, 2001; and first impression where the conduct of the Board's administrative staff and the conduct of a bus driver employed the Board was reasonable given the circumstances on April 24, 2001. Petitioner's evidence in this case does not demonstrate insubordination by Ragland. The evidence does not prove that Ragland engaged in flaunting the Board's authority, repeatedly failed to heed the Board's instructions to take a drug test, openly refused to take the drug test, or failed to follow the Board's recently changed random drug testing procedure. Just the opposite is evident. On April 24, 2001, at approximately 1:00 p.m., during his normal on-duty time, Ragland took a drug test with a negative result. The facts here demonstrate, at most, Ragland's exercise of poor judgment based on the confusion created by a lack of clear directions from the Board. The confusion resulted from the Board's temporary random drug-testing procedure termination date and its normal random drug-testing procedure resumption date. Petitioner failed to produce evidence in any form to establish with reasonable certainty, which one of its two procedures was in effect on April 24, 2001. I find that on April 24, 2001, the Board's staff, at the very least, did not have a working knowledge of the applicable random drug testing procedure.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Pinellas County School Board enter a final order finding Respondent, Wade Ragland, was not insubordinate and did not violate Board Policy 8.25(1)(u). Further finding that Respondent, Wade Ragland, did not violate School Board Policy 8.25(1)(x) by failing to comply with an existing School Board Policy. Further Recommended that Respondent, Wade Ragland be reinstated to his former position as a bus driver. DONE AND ENTERED this 4th day of December, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 4th day of December, 2001. COPIES FURNISHED: Andrew J. Salzman, Esquire Zimmet, Unice, Salzman & Feldman, P.A. Two Prestige Place 2650 McCormick Drive, Suite 100 Clearwater, Florida 33759 Jacqueline M. Spoto, Esquire School Board of Pinellas County 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County 301 Fourth Street, Southwest Largo, Florida 33770-3536 Honorable Charlie Crist Commissioner of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Jeffrey Jones reported for work while under the influence of cocaine on or about September 27, 1995. If so, whether Petitioner Jones should be terminated as an employee of the Seminole County School Board. Whether, during the course of the random drug testing program, it was appropriately determined that Petitioner Sylvia Foster reported for work while under the influence of cocaine on or about January 8, 1996. If so, whether Petitioner Foster should be terminated as an employee of the Seminole County School Board.
Findings Of Fact Facts Common to Both Respondents Petitioner, Seminole County School Board, is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate control and supervise all public schools and personnel in the Seminole County School District. Paul J. Hagerty is the Superintendent of Public Schools for Seminole County, Florida. Respondent, Jeffrey Jones, at all relevant times, was an employee in the Transportation Department of the Seminole County School District, including September 27, 1995. His position is bus driver/courier. Respondent, Sylvia Foster, at all relevant times, was an employee in the Transportation Department of the Seminole County School Board, including January 8, 1996. Her position is bus driver. Respondents, Jeffrey Jones and Sylvia Foster, are members of the bargaining unit, the Bus Driver Association, who entered into a collective bargaining agreement with their employer, the Seminole County School Board. Article XXXIII of the collective bargaining agreement provides that Seminole County School Board will implement and abide by all aspects of the Federal Omnibus Transportation and Employee Testing Act. The Federal Omnibus Transportation and Employee Testing Act was applicable to bargaining unit members who hold a Commercial Driver's License (hereinafter CDL). Corning MetPath has a contract with Seminole County School Board to conduct urine sampling. In addition to taking urine samples from school bus drivers, Corning MetPath collects hundreds of other types of sampling at its facility in Longwood, Florida, for other clients. Prior and following entering into a contract with Corning MetPath, the Seminole County School Board did not provide blind test samples for quality control before contracting with Corning MetPath to perform federally required drug testing. John Richert, the director of Petitioner's "Anti-Drug and Alcohol Program", initiated the sampling designated by receipt of a list of persons who were to take the sample for the quarter. Once every three months, John Richert sent a packet of materials containing names of individuals who were to submit to urine testing by the week to Jean Crampton, Director of Transportation. Upon receipt of that list, Jean Crampton, who supervised the bus drivers, selected each person to be tested that week and provided them with a time and date to report for testing. That information was not provided by John Richert, but was left up to Mrs. Crampton. The Director of Transportation was responsible for passing on the list of sample providers, and ultimately for recommending termination of an employee whose test result was verified as positive. Anita Callahan operates the Corning MetPath facility in Longwood, Florida, and is an employee of Corning Clinical Laboratories. During most times of operation, Anita Callahan operates the collection facility by herself, without assistance. Each month, this facility conducts or takes between 500 and 760 samples. Prior to the relevant time, Anita Callahan received training in urine collection from her employer, and she relied on two Corning MetPath office manuals provided for use by personnel for reference. Neither manual contained copies of the Federal Regulations that apply to the specific procedures required under the federal testing act. The regulations call for the collection of urine samples, as follows: An employee is to report to the testing facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form). The employee must be identified to the technician by photo identification. The employee selects a sealed box containing a urine sample collection cup and two sample bottles from a large box. The employee is directed to wash his/her hands. The employee is directed to a bathroom to give a urine sample. The collection room is to have no other water source operating and the toilet is to contain a bluing agent. The sample is brought to the technician and the temperature is checked. To initiate the chain of custody, a portion of the urine sample is then poured into each of the collection bottles. The employee then dates and initials the seals and places them on each sample bottle. The technician then places the specimen bottles in a separate plastic bags and places them into the box from which they were originally packed, along with the original and three copies of the completed and signed Federal Drug Testing and Control Form. The box, which becomes the shipping box to transmit specimens to the laboratory in New Jersey, is sealed. The specimens are sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis. Anita Callahan did not always strictly follow this procedure because she did not want to be touching the hands, paper or pen of people who had not washed their hands after obtaining the sample. Anita Callahan did not wear gloves when collecting and handling samples. In other respects the practices and procedures used at the Corning MetPath facility varied from the procedures its personnel were to follow: At times, there was other water sources in the collection area and collection closet, including running water in the bathroom sink and a water fountain in the hall. The sample containers that were used were sometimes unsealed and opened before the sample providers arrived. At times, the toilet in the collection closet did not contain a bluing agent. The sample containers were, at times, themselves visibly contaminated. Some drivers were not given a choice as to the sample container that was to be used. At times, if she was busy, Anita Callahan directed drivers to leave samples on the counter to be split and sealed outside the presence of the driver, at a later time. More than one person providing a sample was allowed in the sampling area during collection. Unless sample containers are clean and then sealed, all hands are washed and surfaces are kept clean, contamination is possible. Unless the sample containers are split in front of the sample provider, signed by both the technician and the provider, and sealed in front of the provider, a proper chain of custody has not been initiated and the possibility of mislabeling exists. If a collection site does not strictly follow those procedures set out in the Federal Regulations as to collection, chain of custody and testing, the test result is not scientifically reliable. Facts Relating to Case No. 95-5532 Respondent, Jeffrey Jones, was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida on September 27, 1995, prior to beginning work, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances. The process followed by Anita Callahan, in the collection of the urine sample of Jeffrey Jones was as follows: The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form.) The Respondent was identified. The Respondent selected a box containing the urine sample collection cup and the two samples bottles from a box. The Respondent washed his hands. The Respondent went to the bathroom as directed and returned with a urine sample. The temperature of the samples was checked. A portion of the urine sample was poured into each of the collection bottles. The Respondent then dated and initialed the seals which were to be placed on the specimen bottles, referred to as split samples. The specimen bottles were then placed in separate plastic bags and placed into the box from which they were originally packed along with the original and three copies of the Federal Drug Testing and Control Form. The box, which becomes the shipping box in which the specimens are shipped to the laboratory in New Jersey, was sealed. The Respondent then signed the copy of the Federal Drug Testing and Control Form which acknowledges that the urine sample is his urine sample. j. The specimens were then sent by courier to the Corning Clinical Laboratory in Teterboro, New Jersey for analysis. At the time Jeffrey Jones was obtaining his urine sample he dropped his key chain in the toilet and then retrieved it. He did not inform the technician of this event. The first sample bottle remained sealed until it was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Shilpa Joshi. The urine sample of Jeffrey Jones (second bottle) was sealed upon collection at the Corning Clinical facility at Longwood, Florida and remained sealed until it was opened for confirmation testing at LabOne in Overland Park, Kansas. Laboratory analysis of urine for the presence of drugs/controlled substance, as prescribed by 49 C.F.R. Subsection 40.29 is to be done in two phases. The initial test (screening) shall employ immunoassay and the second phase (confirmation testing) shall employ gas chromatography/mass spectrometry (GC/MS). The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Jeffrey Jones was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS). The GC/MS process for analysis of urine for the presence of controlled substances is generally accepted in the scientific community. Laboratory analysis of the urine sample submitted by Jeffrey Jones, by Corning Clinical Laboratories, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. The second sample was then sent to LabOne for confirmation testing. Laboratory analysis of the urine sample submitted by Jeffrey Jones to LabOne of Overland Park, Kansas, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. There is no substance that will cause a person's urine to test positive for benzoylecgonine, a metabolite of cocaine, other than cocaine. Both Corning Clinical Laboratories and LabOne were properly certified as required by 49 C.F.R. Subsection 40.39. Murray Lappe, M. D., was the designated medical review officer (MRO) for the drug testing of Jeffrey Jones. The MRO did not contact Jeffrey Jones or otherwise communicate with Mr. Jones after the putative positive test result. Jean Crampton, Director of Transportation was informed by telephone from Corning Labs that Jeffrey Jones had tested positive for cocaine in his urine. Neither Jean Crampton, nor anyone else in the School Board, contacted Respondent Jones about his result to inquire into possible alternative medical explanations for the result. Jean Crampton believed that alternate medical explanations was the province of the MRO and should have already happened. False positive test results can occur for cocaine either in certain prescription medications, creams, and certain consumer goods, such as teas and drinks, although such teas and drinks have been banned for sale in the U. S. Respondent Jones, prior to and at the time of taking the urine screening, was a care-giver for his two elderly parents, both of whom lived with him, were bedridden, and required extensive medications. There were times that Respondent Jones' father provided headache and toothache medicine to him. The supervisors of Jeffrey Jones were trained to recognize signs of drug or alcohol abuse. The supervisors of Jones, who saw him daily, saw no evidence of drug or substance abuse in his work performance. Facts Relating to Case No. 96-0506 Respondent Sylvia Foster was directed to report to the Corning Clinical Laboratory/MetPath facility in Longwood, Florida, after her first run, on January 8, 1996, for the purpose of providing a urine sample for analysis for the presence of drugs/controlled substances. The process followed by Anita Callahan, in the collection of the urine sample of Sylvia Foster was as follows: The Respondent came to the facility with a notice for testing and a collection form (Federal Drug Testing Custody and Control Form). The Respondent was identified by her School Board Badge. The technician selected a box containing the urine sample collection cup and the two sample bottles from a box and gave it to the Respondent. The Respondent washed her hands. The Respondent went to the bathroom, as directed, and returned with an empty urine sample. She was not able to urinate. The Respondent drank some water and returned to the bathroom. She returned with a urine sample. The technician was across the hall with another person on whom she was conducting a diabetic time test. Respondent was directed to leave her urine sample on the counter and leave; Respondent had previously signed and initialed the documents and labels. Respondent left the sample and departed. The technician later split the sample, sealed them and placed them into the box with the documentation for shipping to the laboratory in New Jersey. The specimens were then sent by courier to the Corning lab in Teterboro, New Jersey for analysis. The urine sample shipped under the name of Sylvia Foster from the Corning Clinical facility at Longwood, Florida, remained sealed until the first sample bottle was opened for the purpose of testing at Corning Clinical Laboratories in Teterboro, New Jersey by Isidoro Lomotan. The analysis, by Corning Clinical Laboratories, of the urine sample submitted by Sylvia Foster was conducted in two phases. The first phase was screening employing an enzyme multiplied immunoassay test (EMIT) followed by confirmatory testing employing analysis by gas chromatograph/mass spectrometry (GC/MS). The laboratory analysis of the urine sample submitted under the name of Sylvia Foster, by Corning MetPath, determined that the urine sample tested positive for the presence of a cocaine metabolite, benzoylecgonine. Sylvia Foster, on January 9, 1996, the day after submitting her urine sample at the Corning MetPath facility, complained to her supervisors that she was taking a lot of different prescription medications and was worried about the result. Murray Lappe, M. D. was the designated MRO for the drug testing of Sylvia Foster. Someone who identified himself as working with the MRO contacted Sylvia Foster, by telephone, after the putative positive test result. The person on the telephone informed Sylvia Foster that she had a drug problem and needed help. The person on the telephone did not make any inquiry into Respondent Foster's medical condition or history, nor that she would be able to produce information and medical records to substantiate an alternate medical explanation. Jean Crampton, Director of Transportation, was informed by telephone from Corning MetPath that Sylvia Foster had tested positive for cocaine in her urine. Neither Mrs. Crampton, nor anyone else in the School Board, contacted Respondent Foster about possible alternative medical explanations for the result. The supervisors of Sylvia Foster, who saw her daily, did not see any evidence of drug or substance abuse in her work performance. Respondent Foster's testimony as to sequence of events is credible.
Recommendation Based on the foregoing Finding of Fact and Conclusions of Law, it is RECOMMENDED tht the School Board dismiss the Superintendent's request to terminate the employment of Jeffrey Jones and Sylvia Foster, and the Respondents should be reinstated to their former positions. DONE and ENTERED this 29th day of July, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-5532 and 96-0506 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6 (except as to the year), 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, 22 (as to Jeffrey Jones only), 24, 25, and 27. Rejected as against the greater weight of the evidence: paragraphs 23 and 26. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4 (except as to the year), 5, 6, 7, 8, 9, 10, 11, 12, 16, 17 (except for the year), 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29 (in part), 30, 31, 32, 33, 34, 35, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 54 (in part), 55 (in part), 56, 53 [No. 3], 54 [No. 2], 55 [No. 2], 56 [No. 2]. Rejected as irrelevant and immaterial: paragraphs 13, 14, 15, 45. Rejected as against the greater weight of the evidence: paragraphs 29 (in part), 54 (in part), 55 (in part). COPIES FURNISHED: Ned N. Julian, Jr., Esquire Seminole County School Board 400 East Lake Mary Boulevard Lake Mary, Florida 32773 Thomas F. Egan, Esquire 56 East Pine Street, Suite 300 Orlando, Florida 32801 Dr. Paul Hagerty, Superintendent 1211 South Mellonville Sanford, Florida 32771 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
