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 for determination is whether just cause exists for termination of Respondent’s employment.
Findings Of Fact Respondent is Henry Harrison, an employee of Petitioner for approximately 16-17 years, the last 10 years as a plumber. Respondent’s job performance and competence are not at issue in this proceeding. On June 17, 1998, while operating a vehicle owned by Petitioner, Respondent was the victim of an accident when another driver ran a stop light and “broad-sided” him. Respondent was not at fault. Respondent’s supervisors, including his immediate supervisor, came to the scene of the accident. Respondent did not appear to these people to be under the influence of alcohol or drugs. Respondent worked the remainder of his shift. The next morning, June 18, 1999, Respondent was directed by Petitioner’s personnel to go to the First Physicians Clinic as a result of discomfort experienced by Respondent the night before. Respondent was aware that he would be asked by Clinic personnel to give a urine sample. Respondent waited for approximately two hours at the Clinic, surrounded by other people, where he handled newspapers, magazines and furniture in the common waiting room. Numerous other persons in the facility that morning were there for the purpose of drug testing. At approximately 10:00 a.m. on June 18, 1999, Laura Byrd, an employee of First Physicians, came to the waiting room and summoned Respondent. Respondent followed Byrd to a counter located in a hallway of the facility adjacent to the restroom used for obtaining urine specimens for drug testing. Bryd asked Respondent to sign a drug-testing chain-of-custody form and to initial labels attached to the form which were to be used to seal the specimen container. Respondent complied with Byrd’s request for signature and initialing. The form stated: I certify that I provided my urine specimen to the collector, that I have not adulterated it in any manner, that each specimen bottle used was sealed with a tamper-evident seal in my presence and that the information provided on this form and on the label affixed to each specimen bottle is correct. At the time of his signing and initialing, Respondent had not yet provided a specimen nor observed any subsequent transfer of the specimen or sealing of specimen containers. Following Respondent’s initialing and signing of the forms, Byrd picked up a “clean catch” container utilized at First Physicians for collection of urine specimens during physical exams and directed Respondent to a restroom to provide a sample of his urine. The “clean catch” container was obtained from the counter in the hallway and was not sealed or packaged in any way. Respondent was not directed by Byrd to wash his hands before providing the sample, instead she directed that he was not to turn on any water in the restroom prior to providing his sample. Respondent provided a urine specimen in the “clean catch” container, vacated the restroom and gave the container to Byrd. She attached a small thermometer strip to the container containing Respondent’s urine sample. Byrd noted the temperature of the specimen, placed the container on the counter in the hallway, and directed Respondent to follow her to the examining room. When Respondent told Byrd that he wanted to wash his hands, she told him that he could do this in the examining room. Byrd left Respondent in the examining room where he remained until the physician arrived to assess Respondent’s condition. Respondent never saw his urine specimen again and did not observe it being transferred from the “clean catch” container to any other containers. He did not observe the previously initialed paper seals being affixed to any container. On July 14, 1998, Petitioner received a report from its Medical Review Officer (MRO) stating that Respondent’s urine specimen had tested positive for marijuana. The MRO did not contact Respondent for an explanation, i.e., whether he was taking medication or had any explanation for the positive test result. The MRO, contrary to requirements of Rule 59A- 24.008(7)(a), Florida Administrative Code, did not contact Petitioner with directions that Respondent contact the MRO. Notably, no efforts to contact Respondent was made during the period June 18, 1998, through August 6, 1998, although Respondent was residing in a trailer at a school site providing security services for Petitioner. Additionally, Respondent was in regular contact with Petitioner's personnel in regard to medical treatments he was receiving as a result of his injury. It is undisputed that Petitioner's employees would have known how to get in touch with Respondent to direct him to contact the MRO, had such contact been requested. Instead, Petitioner’s personnel finally notified Respondent of the positive test result on August 6, 1998, when it provided him a notice of proposed disciplinary action. That notice included a copy of the July 14, 1998 drug test report. On August 11, 1998, armed only with the positive test result, Petitioner terminated Respondent’s employment for violation of the Drug-free Workplace policy and use of illegal drugs while on duty. The only evidence of illegal drug use in Petitioner’s possession was the positive test result. No evidence was adduced at the final hearing of any witness observation of Respondent that he had ever been observed exhibiting behaviors suggesting that he was under the influence of, or using, illegal drugs. Respondent’s testimony in total at the final hearing was candid, direct, and creditable. He did not use illegal drugs, specifically marijuana; he and no one in his home or among his social acquaintances to his knowledge used marijuana or any illegal drugs. The drug test results disclosed an extremely low level of cannaboids present (60ng/ML, where the cutoff is 50ng/ML; 28ng/ML, where the cutoff is 15ng/ML on the confirmation test). Byrd, the employee of First Physicians who collected Respondent’s specimen, had no specific recollection at the final hearing of collection of Respondent’s specimen. Instead, Byrd recited the procedure that she normally followed in obtaining drug test specimens. According to Byrd, her regular collection procedure did not include affixing her own initials to the seal placed on the specimen bottles for transport to the laboratory for analysis, nor was she aware of a requirement to do so. Byrd testified that her regular procedure included having the specimen donor sign the chain-of-custody document and initial the specimen seals before the time when the seals are placed on specimen bottles. Following termination and upon legal advice, Respondent sought a voluntary drug test at another collection facility. The results of that drug test from a specimen collected on August 17, 1998, were negative with regard to disclosing the presence of marijuana or any other illegal substance in Respondent’s body. Respondent’s testimony regarding procedures followed at First Physicians was further bolstered by the testimony of another Petitioner employee, Joe McCormick. McCormick had also previously been sent to First Physicians for drug testing by Petitioner in conjunction with an injury he had received on the job. McCormick confirmed that he was treated similarly to Respondent; he was provided a “clean catch” container that he did not observe to come from a sealed package, he was not present when his specimen was transferred from the “clean catch” container to any other vessel for shipment to the laboratory, and he did not observe the paper seals he had earlier initialed being placed on any specimen container. McCormick also was directed and did sign the chain-of-custody form and initial the paper sealing strips prior to providing a urine specimen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Notice Of Disciplinary Action be dismissed and that Respondent be reinstated to his former position without diminution or loss in pay or benefits. DONE AND ENTERED this 15th day of February, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 15th day of February, 1999. COPIES FURNISHED: Ronald G. Meyer, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Tallahassee, Florida 32302 Joseph L. Hammons, Esquire Hammons and Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501 Jim May, Superintendent Escambia County School Board Post Office Box 1470 Pensacola, Florida 32597-1470 Michael H. Olenick, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
Findings Of Fact In early August of 1992, petitioner Howard D. Kline began work as a waiter for respondent, making at least $189 per week. Fearing he might be infected, he gave blood samples on September 21, 1993, at the Bay County Public Health Unit and asked that they be tested for human immunodeficiency virus (HIV). The samples were sent to Jacksonville, and one was forwarded to the Center for Disease Control in Atlanta, Georgia. On September 28, 1992, a report of diagnostic testing done on petitioner's blood in Jacksonville, Petitioner's Exhibit No. 1, was mailed to the health department in Panama City. It reached Nancy S. Nichols, who worked at the Bay County Public Health Unit, on or before October 6, 1992. She had seen the results by the time she talked to Mr. Kline on October 6, 1992, and advised him that he had tested positive. The following day Mr. Kline stopped by the Four Winds restaurant to speak to Barbara Zaleski; wife of (one of) respondent's owners (and possibly herself a co-owner.) Although the restaurant had both a manager and an assistant manager, Ms. Zaleski had authority to hire and fire staff. When Mr. Kline told her of his affliction, she wept sympathetically, then told him he could no longer work at the restaurant because it was bad for business. On October 8, 1993, word reached Mrs. Nichols that the diagnostic testing of petitioner's blood done in Atlanta confirmed the earlier, positive diagnosis. Approximately a week later petitioner stopped by the restaurant to pick up his final paycheck. Two weeks elapsed after his discharge before he found another job. During the two-week hiatus, he lost wages totalling $378. The restaurant hired a waitress to take petitioner's place. The evidence did not reveal her status as regards human immunodeficiency virus. Respondent employed (a) cook(s) and (a) bookkeeper(s) as well as serving staff, an assistant manager and a manager, until it closed, more than three months after petitioner's discharge. The total number of respondent's employees was not proven, nor the total number of people respondent employed at any one time. Services of an attorney worth $4,700 have reasonably been required in the presentation of this claim, but these services would, except for $125 have also been necessary for the presentation of the same claim in court.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR dismiss the petition, without prejudice to petitioner's proceeding in circuit court on any claim not predicated on the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes (1993). DONE AND ENTERED this 14th day of December, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of December, 1993. COPIES FURNISHED: David L. Jernigan 3020 Kingswood Drive Panama City, Florida 32405 Nancy L. Jones Post Office Box 2062 Panama City, Florida 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Petitioner, Frank W. Fender, should have received a passing grade on the March 1997 Clinical Chemistry Technologist examination.
Findings Of Fact Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination in March 1997 (hereinafter referred to as the "Examination"). The Examination consists of fifty multiple choice questions. The instructions for the Examination specifically informed persons taking the examination that they were to "[a]lways choose the BEST answer." It was determined that Mr. Fender had answered twenty- seven of the Examination questions correctly. Mr. Fender was, therefore, awarded a score of 349. A score of 350 or more was required for a passing score. If Mr. Fender were determined to have answered one more question correctly, he would receive a passing score. Mr. Fender was informed that he had not passed the Examination. By letter dated July 25, 1997, Mr. Fender requested a formal administrative hearing to contest his failing score. In particular, Mr. Fender challenged the determination that he did not answer questions 3, 9, 16, and 21 correctly. Question 3: Question 3 involved obtaining "true serum triglyceride results." Mr. Fender selected answer "D" which was: "measure a blank in which the dye-coupling is omitted." The answer considered correct was "B." The evidence failed to prove that answer "D" was the best answer. While the use of blanks in triglyceride methodologies is correct, "dye-coupling" is not. Therefore, answer "D" is not a correct response. The evidence failed to prove that answer "D" was the best answer for question 3. Question 9: Question 9 asks which enzyme listed in the answers is found to be elevated in the majority of alcoholics. Mr. Fender selected "B," ALT, as the correct response. The evidence failed to prove that answer "B" was the best answer. While ALT may be raised in an alcoholic, it also may not be. GGT is the most sensitive indicator of alcoholism. Even if ALT is normal, GGT will be raised in an alcoholic. The best answer to question 9 was, therefore, "C," GGT. The evidence failed to prove that answer "B" was the best answer to question 9. Question 16: Question 16 asks why one must wait approximately 8 hours to draw a blood sample after administering an oral dose of digoxin. Mr. Fender selected "D" as the correct response. This answer indicates that the reason one must wait is because "all" of the digoxin "will be in the cellular fraction." Mr. Fender's response was not the best response because of the use of the work "all" in the answer he selected. The most digoxin that could be in the cellular fraction is approximately twenty-five percent, because approximately seventy-five percent is excreted through the kidneys. The evidence failed to prove that answer "D" was the best answer to question 16. Question 21: Question 21 asks the best way to test for suspected genetic abnormalities in an unborn fetus. Mr. Fender selected answer "B," "performing L/S ratios" as the best answer. While the evidence proved that L/S ratios will measure immature fetal lungs, this condition results in respiratory distress syndrome. Respiratory distress syndrome is an "acquired" disorder and not a "genetic" abnormality. While an L/S ratio can be used to test for acquired disorders, a "chromosome analysis," answer "C," is used to test for genetic abnormalities. The evidence failed to prove that answer "B" was the best answer to question 21. The evidence failed to prove that Mr. Fender should have received a score higher than 349 on the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination. DONE AND ORDERED this * day of March, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 Filed with the Clerk of the Division of Administrative Hearings this * day of March, 1998. * Mailed 3/2/98 undated. -ac COPIES FURNISHED: Frank W. Fender 7603 North Laura Street Jacksonville, Florida 32208 Anne Marie Williamson, Esquire Department of Health Office of the General Counsel 1317 Winewood Boulevard Building 6, Room 106 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issue for determination at the formal hearing was whether Respondent failed to maintain good moral character by unlawfully and knowingly possessing cocaine and introducing cocaine into his body in violation of Subsections 943.13(7) and 943.1395(5), (6), Florida Statutes. 1/
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission (the "Commission") on April 4, 1982. Respondent was employed as a police officer by the Metro- Dade Police Department for approximately seven and a half years as of September 15, 1988. 2/ During 1988, Respondent was assigned to the Miami International Airport. Metro-Dade police officers were subject to annual physical examinations as part of the terms of their employment. The examinations were routinely scheduled on an alphabetical rotation system. Respondent was notified by his employer approximately three weeks prior to the date of his annual physical for 1988. Respondent reported to Mount Sinai Medical Center, Industrial Medicine, for his annual physical on March 2, 1988. In the course of his physical, Respondent was given a sterile specimen cup by Nurse Linda Arama for collection of a urine sample. Respondent provided the urine sample as directed. Respondent's urine sample was processed in a routine manner and tested at about 10 p.m. on March 2, 1988. At the time it was given, Respondent's urine sample was poured into two smaller cups and capped (the "two smaller sample cups"). Each cap was sealed with special security evidence tape designed to disclose any evidence of tampering. Respondent's urine sample was assigned a unique identification number (116958). Respondent's name, date of birth, social security number and identification number were placed on each of the two smaller sample cups and entered on a chain of custody transmittal form. The two smaller sample cups were then stored in a locked metal specimen box. The specimen box was picked up by courier and transferred to Toxicology Testing Service on the afternoon of March 2, 1988. Israel Sanchez, a forensic toxicologist technician employed at Toxicology Testing Service, inspected the two smaller sample cups at about 10 p.m. on March 2, 1988. Mr. Sanchez assigned an additional number (30658) to the two smaller sample cups and noted that the sealed special security evidence tape was in tact. Mr. Sanchez opened one of the two smaller sample cups and dispensed a small portion of Respondent's urine for drug testing. Mr. Sanchez used a Hitashi 705 screening instrument to conduct the drug test. Respondent's urine tested positive for cocaine in two separate tests conducted by Mr. Sanchez. Urine samples that screen positive using the Hitashi 705 screening instrument are also tested by the gas chromatography mass spectrometry method (the "chromatorgraphy test") as a routine procedure at Toxicology Testing Service. John de Kanel, an expert in forensic toxicology, performed the analysis of Respondent's urine sample using the chromatography test. The chromatography test revealed that Respondent's urine sample contained cocaine metabolite ecgonine methyl ester, which is also known as methyl ecgonine. This metabolite is a unique by-product of the processing of cocaine by the human body. Respondent's urine sample contained approximately 225 nanograms per milliliter of cocaine and its metabolites. The results of the chromatography test were consistent with cocaine use. Respondent was notified on March 11, 1988, that he had tested positive for cocaine during his annual physical. The same day, Respondent submitted two urine samples for drug testing on his own initiative. One sample was given to Toxicology Testing Service. The other sample was given to North Shore Hospital where Respondent was referred by Dr. Benton Perry, Respondent's personal physician. Respondent tested negative for both urine samples given on March 11, 1988. It is not likely that an habitual user would have no positive nanogram readings nine days after the habitual use had stopped. Nanogram readings of a sustained user would be approximately 80,000 to 100,000 if use was continued up to the time of testing. Patients undergoing drug rehabilitation typically have positive test results in the low 1000 ng/ml. The quantity of a substance found in a urine sample is estimated by comparing the numerical value found in the sample with the numerical value of a drug screening from a control sample. Control samples are run at 100 nanograms per milliliter (ng/ml). A numerical value of 225 ng/ml indicates cocaine was ingested in some way but neither indicates the method of ingestion nor whether cocaine was knowingly ingested. The ingestion of milligram quantities of cocaine approximately 14 hours before a urine sample was given could produce a numerical value of 225 ng/ml. The Commission requires the employing agency to use an immunoassay screen that is capable of a minimum of 300 ng/ml of cocaine or cocaine metabolites. Screening tests are sold commercially with a minimum screening level of 300 ng/ml. The Metro Dade County maximum acceptable level for cocaine or cocaine metabolites is 50 ng/ml. Respondent has never knowingly used drugs or alcohol, and does not smoke cigarettes. Respondent never tested positive for drug use in any of his previous physical examinations during his seven and a half years as a police officer for the Miami Dade Police Department. Respondent never tested positive for drug use as a result of eight random drug tests administered to him after testing positive on March 2, 1988. 3/ Respondent did not drink excessive amounts of water or indulge in excessive exercise either before or after his test on March 2, 1988. The totality of the evidence refuted any inference that Respondent knowingly or unlawfully ingested cocaine prior to his annual physical on March 2, 1988. Respondent's testimony was credible and persuasive. Respondent's actions and conduct before and after his test on March 2, 1988, were not consistent with the actions and conduct of one who knowingly and unlawfully used cocaine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Criminal Justice Standards and Training Commission issue a Final Order finding the Respondent not guilty of the charges in the Administrative Complaint. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of September, 1990. DANIEL MANRY 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 7th day of September, 1990.
The Issue The issue is whether Respondent, a certified law enforcement officer, tested positive for marijuana metabolites, indicating the unlawful use of a controlled substance, as Petitioner alleges; if so, whether and what discipline should be imposed against Respondent’s certificate?
Findings Of Fact Respondent is a certified law enforcement officer, having been issued certificate number 240412 on May 17, 2004. At all times material hereto, Respondent was employed by the Town of Palm Beach Police Department (the Town). On June 24, 2012, at approximately 1:20 a.m., Respondent responded to an alarm call. As he was leaving the scene, Respondent, who was driving a city police vehicle, pulled into a private driveway and failed to see a low hanging metal chain hanging across the driveway attached to two concrete pillars. The chain struck the front end of the vehicle, and, as Respondent continued forward, the chain rode up the front hood and struck the windshield. As a result, the vehicle sustained multiple scratches across the hood, a cracked windshield, a broken side view mirror, and a cracked front lens plate. Watch commander, Captain Curtis Krauel (Krauel), was on the scene at the time the accident occurred. Krauel estimated the damage to the vehicle to be approximately $500.00. However, it was very dark and this was a rough estimate only. In relevant part, the Town’s comprehensive alcohol and drug abuse policy, procedure number 1-06-5(d), provides that the Town may require an employee to submit to tests for the presence of alcohol or illegal drugs: Whenever an employee is involved in an accident while operating a town vehicle or while working for the town, which results in one or more of the following: A citation issued to the employee; Total property damage in excess of $1,000; Filing of a notice of injury under Workers Compensation. Because Krauel was not certain of the amount of damage to the vehicle, he instructed Respondent to report back to the station for drug and alcohol testing. Krauel had no concerns prior to the accident regarding any illicit drug use by Respondent. However, he knew that this accident would require a property damage report and that the Town’s policies mandate testing. This was Respondent’s first accident in seven years, and he was upset. Krauel told Respondent he believed the damage was minor. Respondent disputed that an alcohol or drug test was necessary. Respondent had been studying for the sergeant’s exam and was aware that the policy had a minimum $1,000.00 damage threshold. Krauel contacted his sergeant and both believed the threshold necessary for testing was $500.00 worth of damage. However, as Krauel explained at the final hearing, he is not a property appraiser, and he needed to make a ballpark estimate in the dark. Krauel knew that he could not really tell the damage until the morning; therefore, the most prudent option was for him to send Respondent for drug and alcohol testing. Property Damage Appraisers Fort Pierce examined the vehicle and provided a repair estimate of $1,844.24. Respondent, in compliance with the order issued by his supervisor, reported back to the station on June 24, 2012, at approximately 2:11 a.m., and gave a specimen of his urine, by urinating in a sterile, previously unused specimen cup provided to him by Nancy O’Dette (O’Dette)(formally Nancy Richards) of NMS Management.1/ After Respondent urinated into the specimen cup provided to him, he handed it to O’Dette who put Respondent’s specimen into a tube, immediately sealed the tube, had Respondent initial and date the seal, and then completed the chain of custody form. O’Dette labeled Respondent’s specimen with his Social Security number and also assigned it a unique specimen number, 9263743, making it uniquely identifiable as Respondent’s June 24, 2012, urine sample. The vial containing Respondent’s urine specimen was sealed with a label that would not allow the vial to be opened again without breaking the seal created by the label. O’Dette packaged the vial containing Respondent’s urine specimen in a bag which she also sealed and labeled as Respondent’s June 24, 2012, urine sample. She then placed the bag in a pickup box at NMS Management to await pickup by a courier for delivery to laboratories of Quest Diagnostics (Quest). Specimen number 9263743 was received at the laboratories of Quest in Tucker, Georgia, on June 26, 2012, where it was assigned the unique laboratory accession number 328410K for purposes of drug testing analysis by Quest. Quest maintained chain of custody procedures in handling Respondent’s specimen until it was unsealed by qualified laboratory personnel at the Quest laboratory and subjected to screening and confirmatory analysis for evidence of the presence of controlled substances in the urine. Quest conducts initial testing of urine samples by immunoassay, and confirmation testing by "GC-MS" or gas chromatography-mass spectrometry. It is the regular practice of Quest to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and is broken down by the liver, producing the marijuana metabolite, which is excreted through the kidneys. Quest conducted immunoassay and confirmation testing on specimen number 9263743. Quest’s confirmatory laboratory analysis of Respondent’s urine specimen was found by qualified Quest personnel to be positive for the marijuana metabolite in a concentration of over 1500 ng/mL. Any quantitative level of the marijuana metabolite detected above 15 ng/mL using the "GC-MS" methodology is considered a positive test result. Dr. Benjamin Droblas, a medical doctor and the medical review officer for Healthcare Center of Miami, reviewed the report from Quest reflecting the results of the analysis of Respondent’s urine specimen. On June 29, 2012, Dr. Droblas discussed the test result by telephone with Respondent. Dr. Droblas’ purpose for contacting Respondent was to ascertain if he could provide any legitimate explanation for the positive test result. Respondent did not provide Dr. Droblas with any explanation for the positive test result and denied using marijuana. The test results from the analysis of Respondent’s urine specimen are consistent with Respondent’s illicit cannabis use prior to providing his urine specimen. Respondent did not request additional confirmatory testing on a split sample from Quest.2/ No evidence was introduced regarding any prior discipline against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Criminal Justice Standards and Training Commission enter a final order finding Respondent guilty of failure to maintain good moral character, as required by section 943.13(7), Florida Statutes. It is further recommended that Respondent’s certification as a corrections officer be suspended for a period of six months, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random drug testing and substance abuse counseling, as contemplated by Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 20th day of June, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 20th day of June, 2014.
The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
The Issue The issue is whether Petitioner, Clay County School Board (“School Board”), may terminate Respondent's employment as an non-instructional employee based upon the conduct alleged in the document titled “Charges and Recommended Action” (the “Charge”) issued by the Superintendent of Schools, Addison Davis, to Respondent dated April 17, 2018.
Findings Of Fact Article IX, section 4 of the Florida Constitution, establishes that each county constitutes a school district. The School Board is the constitutional entity authorized to operate, control, and supervise the public schools for Clay County. § 1001.42, Fla. Stat. A Collective Bargaining Agreement (“CBA”) between the School Board and CESPA governs the relationship between the School Board and its educational support employees. Respondent Carrie Williams was hired by the School Board in 1998. At all material times, Ms. Williams worked for the School Board as a non-instructional Exceptional Student Education (“ESE”) assistant at Bannerman Learning Center, an elementary school within the Clay County school district. Ms. Williams was an “educational support employee” as that term is defined by section 1012.40(1)(a), Florida Statutes (2018). Educational support employees working for the School Board are covered by the CBA. Ms. Williams remained employed by the School Board from 1998 until May 3, 2018, when the School Board terminated her employment for just cause after she tested positive for cocaine and marijuana metabolites on a random drug test. Ms. Williams had been subject to no prior discipline as a School Board employee. As an ESE assistant, Ms. Williams had job responsibilities that included transporting exceptional students in vehicles owned by the School Board. Ms. Williams was required by the School Board to have a valid Florida driver’s license and a safe driving record while employed. Because of her student transportation job duties and driving-related job qualifications, Ms. Williams was subject to random drug testing under the School Board’s Alcohol and Substance Abuse Policy (“Substance Abuse Policy”), rule 6GX-10- 2.17B. Language in Article XII(B) of the CBA reflects the Substance Abuse Policy’s random drug testing requirements. The Substance Abuse Policy, in conjunction with the CBA, establishes standards for the School Board’s drug testing of support employees. For employees who operate commercial motor vehicles (“CMV”) and, as such, perform “safety sensitive functions,” as defined by Federal regulations, the Substance Abuse Policy and CBA require random drug testing that complies with the Omnibus Transportation Employee Testing Act of 1991 (“OTETA”). The Federal Department of Transportation (“DOT”) requirements for this testing regime are codified at 49 C.F.R. Part 40. The tests are colloquially referred to as “DOT tests.” School Board employees such as Ms. Williams, who are not covered by OTETA, but whose job descriptions require a valid driver’s license other than a CMV license, are also subject to random drug testing under the Substance Abuse Policy and the CBA. The Substance Abuse Policy states, at 6GX-10-2.17 B.10.a.(2), that the procedures used for testing and review of test results for these non-OTETA employees “shall be the same as those established for CMV operators as specified in [Substance Abuse Policy] 2.17 B.9,d.,e.” The cited Substance Abuse Policy specifications provide as follows: Drug Testing Procedures: With respect to drug testing procedures OTETA requires the use of a “split sample” approach, which provides employees an option for a second screening test following positive findings on the primary sample.[1/] All testing for controlled substances shall be performed on urine specimens and be accomplished by means of an initial screen (Enzyme Immunoassay or EIA), followed by a confirmation of any positive findings by Gas Chromotography/Mass Spectrometry or GC/MS. All controlled substances testing will be carried out at a laboratory certified by the Department of Health and Human Services (DHHS). Urine spectrometry shall be screened for amphetamines, cannabinoids, cocaine, phencyclidine, and opiates. Review of Controlled Substance/Alcohol Test Results: All laboratory results generated by the District’s drug testing program shall be reviewed by a medical review officer (MRO). The MRO is a licensed physician (medical doctor or doctor of osteopathy) having knowledge of substance abuse disorders and having appropriate medical training to interpret and evaluate an individual’s confirmed positive test result, together with his/her medical history and any other relevant biomedical information. Prior to verifying a “positive” result, the MRO shall make every reasonable effort to contact the employee (confidentially), and afford him/her the opportunity to discuss the test result. If, after making all reasonable efforts and documenting them, the MRO shall contact the District’s key contact, who shall direct the employee to contact the MRO as soon as possible (within 24 hours).[2/] Under split-sample collection procedures, the employee has seventy-two (72) hours following notification of a positive result to request the secondary sample be analyzed. Analysis of the split-sample specimen shall be at the employee’s expense and shall be paid in advance with a money order or certified check.[3/] Article XII(B)(2) of the CBA likewise provides that non-OTETA employees who hold a position for which a driver’s license is required “shall be subject to random drug testing.” It goes on to provide: “The method used to generate the list of randomly selected employees and all other aspect of the drug testing for this group of employees shall be the same as for OTETA covered employees. Specifically, this shall require that Federal standards be met with regard to specimen collection and handling, testing procedures, the use of a Medical Review Officer (MRO) to review all test results, and reporting procedures.” At all times relevant to this proceeding, Ms. Williams was aware of the School Board’s Substance Abuse Policy and that she could be subjected to random drug testing. She also understood that the School Board could take disciplinary action up to and including termination of her employment as a consequence of a failed drug test. In spite of the clear language of the Substance Abuse Policy providing that non-OTETA employees, such as Ms. Williams, shall be subjected to the same testing procedures as OTETA employees, i.e., the DOT test, the School Board conceded at hearing that its long established practice has been to provide a “non-DOT” drug test to employees in Ms. Williams’s position. David Broskie, assistant superintendent for Human Resources, testified that for as long as he could remember the School Board’s practice has been to require employees with commercial driver’s licenses (“CDLs”) to take the DOT test, and to require employees with regular driver’s licenses to take the non-DOT test. Mr. Broskie stated that neither CESPA nor any individual employee has ever filed a grievance or otherwise challenged the School Board’s practice. Both the DOT and non-DOT tests are subjected to the same five-panel drug screen set forth in 49 C.F.R. § 40.85, i.e., marijuana metabolites, cocaine metabolites, amphetamines, opiate metabolites, and phencyclidine (“PCP”). Both tests employ the same standardized cutoff levels for the presence of drugs in the urine. Evidence provided at the hearing established that the chief difference is that the DOT test employs the split specimen technique, whereby the urine sample is divided into two specimens at the point of collection. In the non-DOT test, a single urine specimen is sent to the lab, which may then retain a portion of the specimen for potential retesting. On the morning of November 28, 2017, School Board personnel alerted Ms. Williams that she had been selected for a random drug test. She went to the School Board’s administrative office and completed the School Board’s consent form for a non- DOT drug test. The consent form required her to submit to a random drug screen at ClayMed of North Florida (“ClayMed”), the School Board’s drug screening service provider, no later than 8:30 a.m. ClayMed’s facility is less than two minutes from the School Board’s administrative office. Ms. Williams arrived there at 8:15 a.m., and recorded her name and arrival time on the patient sign-in sheet. Amanda Johns has been employed by ClayMed as a collector, phlebotomist, and a breath alcohol technician for four years, and has 19 years’ experience in the drug screening collection industry. Ms. Johns was on duty at ClayMed on the morning of November 28, 2017. She witnessed Ms. Williams sign in and then assisted her in the sample collection process. Ms. Johns testified, consistent with the sign-in sheet, that Ms. Williams was the first patient to sign in that morning, and that the next patient did not arrive until 8:45 a.m. After Ms. Williams signed in, Ms. Johns took her back to a desk and chair approximately five feet from a bathroom in the rear of ClayMed’s office where urine samples are given. Ms. Williams provided Ms. Johns with the School Board’s consent form. Ms. Johns verified Ms. Williams’s identification and the accuracy of her paperwork, made appropriate notations on it, had Ms. Williams empty her pockets, gave her a cup for the urine sample collection, and sent her to the nearby bathroom to provide the specimen. Ms. Johns remained at the collection desk directly facing the bathroom for the entire time Ms. Williams was in the bathroom. Ms. Johns was at the desk when Ms. Williams exited with her urine sample. At the hearing, Ms. Williams testified that after she exited the ClayMed bathroom, and was standing with her urine sample at the collection desk, she received a telephone call concerning her mother’s medical condition. Ms. Williams testified that she told Ms. Johns that she had an emergency and needed to leave. She testified that she set her urine sample on the corner of the collection desk and left ClayMed before the collection process was completed. She stated that there were other urine samples on the desk at the time she placed her sample there. Ms. Williams’s testimony on this point is contradicted by Ms. Johns and by the documentary evidence. Ms. Johns testified that Ms. Williams did not receive a call and did not leave ClayMed before completing the collection process. Ms. Williams turned over her urine sample to Ms. Johns at 8:23 a.m., as indicated on the non-DOT Custody and Control Form that Ms. Johns completed at the time of collection. The Custody and Control Form identified Ms. Williams as the donor, and connected her to the sample container via matching specimen numbers. After Ms. Williams placed her urine sample on the collection desk, Ms. Johns removed one of the two tamper seal labels from the bottom of the Custody and Control Form, affixed it over the top of the sample bottle, dated the label, and provided it to Ms. Williams for her initials. In fact, Ms. Johns had to go through this process twice in Ms. Williams’s presence because she inadvertently dated the first label “11/27.” Ms. Johns removed the first label, put on the second of two tamper seal labels from the Custody and Control Form, dated it correctly, and had Ms. Williams initial the sample a second time. Ms. Williams signed the Custody and Control Form, certifying (a) that she provided her urine specimen to the collector, (b) that Ms. Williams had not altered her urine sample in any way, (c) that the specimen bottle used was sealed with a tamper-evident seal in her presence, and (d) that the information provided on the Custody and Control Form and on the corollary label affixed to the specimen bottle was correct. Ms. Johns testified that Ms. Williams left ClayMed immediately after completing the collection process. Ms. Williams departed ClayMed before the next patient arrived and signed in at 8:45 a.m. As to her claim that other urine samples were sitting on the collection desk when she left her sample, Ms. Williams could offer no specific description as to how many there were or whether they were labeled. Ms. Johns unequivocally stated that there were no other urine samples on the collection desk when she took Ms. Williams’s sample. Ms. Johns’ testimony is supported by the fact that Ms. Williams was the first patient of the day, making it highly unlikely that other samples would be on the desk. Ms. Johns testified that there was no chance that Ms. Williams’s urine sample was switched with someone else’s. Ms. Johns’ version of events on the morning of November 28, 2017, is credited. Chain of custody over Ms. Williams’s urine sample was appropriate at all material times. Ms. Williams’s urine sample was sent to Laboratory Corporation of America (“LabCorp”) in Southaven, Mississippi, for testing. LabCorp received the urine sample on November 29, 2017, with no material deficiencies noted. The lab specifically noted on the Custody and Control Form that the primary specimen bottle seal for Ms. Williams’s urine sample was intact on November 29, 2017. On November 30, 2017, LabCorp conducted an initial immunoassay test on Ms. Williams’s urine sample that yielded a presumptive result positive for marijuana and cocaine metabolites. LabCorp then performed a confirmation test using gas chromatography/mass spectrometry (“GC/MS”), which resulted in Ms. Williams’s urine sample being confirmed positive for marijuana metabolite and cocaine metabolite. A laboratory report was issued that same day. The positive results were forwarded to First Source Solutions, the School Board’s MRO service provider, and were reviewed there by MRO Philip A. Lopez, M.D. On December 1, 2017, Dr. Lopez called Ms. Williams twice, once at 9:28 a.m. and again at 12:57 p.m.,4/ to discuss the positive results of the tests, but was unable to reach her. At 3:26 p.m. on the same day,5/ Dr. Lopez’s office contacted Jacqueline Cory, the School Board’s director of Support Personnel and Human Resources, advising that Dr. Lopez had been unable to reach Ms. Williams. Dr. Lopez’s office asked Ms. Cory to call Ms. Williams and give her Dr. Lopez’s contact information. Ms. Cory spoke with Ms. Williams on the afternoon of December 1 and told her that she needed to contact Dr. Lopez that day. Ms. Williams did not call Dr. Lopez that day. On December 3, 2017, Dr. Lopez determined that Ms. Williams’s drug screen was positive for cocaine and marijuana. On December 4, 2017, at 8:19 a.m., First Source Solutions contacted Ms. Cory to inform her that they were releasing Ms. Williams’s drug test results to the School Board as “no contact, positive for marijuana and cocaine.” Shortly thereafter, Ms. Cory accessed the MRO’s report with a final verification of positive for cocaine and marijuana and took it to Mr. Broskie. Mr. Broskie instructed Ms. Cory to call Ms. Williams and set up an appointment for them to meet with her the following day. When Ms. Cory called Ms. Williams, she told her that the School Board had received a positive report from her random drug screen and that Mr. Broskie wanted to meet with her about it the following day. Ms. Williams agreed to meet, but stated to Ms. Cory that she could not understand the test result. Also on December 4, 2017, at 2:38 p.m., Ms. Williams phoned Dr. Lopez. Ms. Williams denied that she had used marijuana or cocaine, but admitted to what Dr. Lopez characterized as “passive exposure.” Dr. Lopez asked her a series of questions designed to probe whether there was an alternative, medically reasonable explanation for the presence of marijuana and cocaine in Ms. Williams’s drug screen. However, Ms. Williams’s answers provided no such explanation. Consequently, Dr. Lopez advised Ms. Williams that her drug test result would be set as positive for cocaine and marijuana. A meeting between Ms. Williams, CESPA union representative Betsy Reagor, Ms. Cory, and Mr. Broskie was held on December 5, 2017. Mr. Broskie explained to Ms. Williams that the School Board had received a drug test report positive for cocaine and marijuana and that, consistent with School Board practice, Ms. Williams was being suspended with pay, pending an investigation. Ms. Williams denied drug use and stated that she did not think it was her urine that was tested. She offered to give another urine sample. Mr. Broskie advised Ms. Williams that School Board policy provided her 72 hours from the time she was notified of the test result to request that the urine sample she gave on November 28, 2017, be retested.6/ Mr. Broskie further informed Ms. Williams that she would be responsible for the cost of retesting.7/ On December 6, 2017, Ms. Williams spoke again with Dr. Lopez by telephone. She again denied drug use, but provided Dr. Lopez with no new medical information to justify a change in her positive drug test. Ms. Williams did not contact Dr. Lopez and First Source Solutions to request a retest of her urine sample until the morning of December 8, 2017. This was more than 72 hours after she received notice of her positive drug test result from Ms. Cory and Dr. Lopez on December 4, 2017. A timeline of events provided to the School Board in January 2018 by First Source Solutions indicates that problems with a money order and later a check submitted by Ms. Williams to pay for the retest prevented it from being done. Ms. Williams first attempted payment in mid-December 2017 and finally gave up on January 4, 2018. In January 2018, the School Board transitioned Ms. Williams from “suspended with pay” to “suspended without pay.” Mr. Broskie testified that the School Board normally would move immediately for termination of an employee with a positive drug result. However, the School Board wished to give Ms. Williams the benefit of the doubt because she had denied drug use and had spoken of asking for a retest. The School Board decided to proceed cautiously while it investigated the matter. In mid-January 2018, Ms. Cory communicated with First Source Solutions about obtaining the above-referenced timeline of events. Ms. Cory also confirmed with First Source Solutions that Ms. Williams’s urine sample had been available for retesting, as well as the length of time the specimen would remain available and whether the company could conduct a DNA test on Ms. Williams’s urine. After receiving the timeline from First Source Solutions, Ms. Cory passed it on to Mr. Broskie as part of the investigatory process. They took special note of the timeline entry in which Dr. Lopez wrote that Ms. Williams had admitted “passive exposure.” Ms. Cory testified that she took this to mean that Ms. Williams acknowledged she had been around marijuana and cocaine. Ms. Cory also obtained information from ClayMed concerning Ms. Williams’s drug screen. This included, among other things, obtaining a copy of the non-DOT Custody and Control Form signed by Ms. Williams on November 28, 2017, and ClayMed’s Patient Sign-In sheet for that day. On February 7, 2018, Ms. Williams independently submitted to a hair follicle drug test. A single hair was collected from Ms. Williams’s head at that time and sent to United States Drug Testing Laboratories, Inc.’s (“USDTL”) for testing. USDTL performed a five-panel drug screen on Ms. Williams’s hair specimen on February 13, 2018, and reported negative test results for cocaine and cannabinoids. Ms. Williams offered the hair follicle test results to the School Board as evidence that the November 2017 drug screen was erroneous. Both parties presented expert evidence on the efficacy of hair follicle testing generally, and on the particular question of whether a negative hair follicle test on February 7, 2018, could call into question the result of the urine drug test of November 28, 2017. Ms. Williams introduced the deposition testimony of Donald E. Palm, III, Ph.D., an expert in pharmacology with a professional focus in neuropharmacology. Dr. Palm opined that the hair follicle test was a valid indicator of whether cocaine and marijuana were present in Ms. Williams’s system on November 28, 2017. Dr. Palm stated that, because hair is a stable matrix to preserve a drug, samples of drugs can be detected in hair “up to three to even six months” after ingestion. A urine screen is capable of detecting cocaine metabolites for three or four days after ingestion and cannabinoids for perhaps six days. Dr. Palm cited research indicating that an African American’s hair is thicker and richer in melanin, factors that provide a “perfect matrix” for preserving drugs in the system. Ms. Williams is African American. The School Board offered testimony and a written expert opinion at the final hearing from Raymond M. Pomm, M.D., a board-certified physician specializing in addiction psychiatry; a certified MRO; and chief medical officer for Gateway Community Services, an addiction treatment facility in Jacksonville. Dr. Pomm has been involved in hair follicle testing and assessing drug screens involving hair follicle specimens for many years. He developed the protocols standardizing the utility of hair follicle testing for the State of Florida’s impaired professionals program. Dr. Pomm testified that hair follicle testing has been around for a long time but has limitations. A hair test might or might not show a positive for three months or longer, depending on circumstances. Excessive washing, hair treatments, or hair straightening can disrupt the bonds of hair follicles and invalidate test results. Dr. Pomm testified that marijuana is not easily taken up into the hair follicle, especially in hair with high melanin content. He agreed with Dr. Palm that African American hair may be optimal for a cocaine test, but noted research indicating that the rate for positive cocaine tests is only 40 percent after a couple of months. Dr. Pomm described urinalysis testing at the GC/MS level as the “gold standard” in the industry. It tests at the molecular level. If the molecule is there, the test detects it. The GC/MS test does not detect something that is not there. Cocaine and marijuana metabolites are detected in a urinalysis only when the drugs have been ingested; “passive exposure” is not enough to generate a positive GC/MS result. Dr. Pomm opined that he could not medically conclude from Ms. Williams’s negative hair follicle test that her November 2017 urinalysis was erroneous. In his words, “a negative hair follicle testing has absolutely no relevance to the original test through urinalysis that was positive.” In the “Frequently Asked Questions” portion of its public webpage, USDTL has published the following questions and answers: Q. Can a hair test be manipulated by the donor? A. Yes. Bleaching, perming, dyeing and straightening can affect the outcome of a hair test. Commercially treated hair should not be collected. Q. Can a hair test be used to prove that a previously taken urine test was inaccurate? A. No. The results of any second collected specimen have absolutely no bearing on the validity of the results of the first collected specimen. Furthermore, each matrix has its own advantages, disadvantages and limits of interpretation. The preponderance of the evidence establishes that Ms. Williams’s hair follicle test of February 7, 2018, does not invalidate the results of the random urine drug test that Ms. Williams took on November 28, 2017. Dr. Pomm further opined that nothing in this case suggests that the School Board’s deviation from DOT protocols in collecting Ms. Williams’s November 2017 urine sample adversely affected the reliability of the test result: “The urine is the urine. Whether it’s split or not, it’s still the urine.” Whether the specimen is split at the collection site or later at the lab makes no clinical difference. The same five-panel drug screen, with the same standard cutoff levels, is used in both DOT and non-DOT drug tests. In a document titled “Fact Finding Memorandum,” dated April 16, 2018, Mr. Broskie wrote as follows: The recommendation to terminate Carrie Williams’s employment with the Clay County School District is based on her having submitted to a urinalysis test which came back positive for marijuana and cocaine use. As an ESE Assistant, one of the essential functions of Ms. Williams’s job was to transport students in a motor vehicle, and as a result of that, she is considered to be in a safety sensitive position subjecting her to random drug testing under the School Board’s Alcohol and Substance Abuse policy. She was randomly selected for such testing on November 28, 2017, and the district received positive test results for her marijuana and cocaine use on or about December 4, 2017 (copy attached). She was placed on unpaid suspension on January 8, 2018. Under the School Board’s Alcohol and Substance Abuse policy, Ms. Williams could have elected within 72 hours to have her split sample retested at her expense,[8/] but she chose not to exercise that right though she delayed for weeks in making a decision. Rather, through her attorney, she has contended that when she gave her urine sample in November 2017, several other patients were at the collection facility and that multiple samples were setting out on a counter unmarked so hers must have been mixed up with someone else’s sample. Then, in early February 2018, approximately two and a half months after she was tested, she provided a urine and hair sample for testing at a laboratory she selected, and the results came back negative. Her attorney contends that while the urinalysis test would only detect the presence of illegal drugs recently ingested, the hair sample provides a record of drug use going back 90 days, thus proving the sample taken in November 2017 was not Ms. Williams’s. The union and her attorney have also claimed that Ms. Williams does not fit the profile of a drug user and that she has consistently maintained she never ingested any illegal drugs. I investigated the above and have determined that Ms. Williams’s defense to the positive drug test to be insufficient based on the following: Two certified medical review officers (“MRO’s”), one of whom is a certified addiction psychiatrist retained to advise the School District on drug testing, have given the District an opinion that a single episode of illegal drug use will not result in a positive hair sample drug test, particularly one more than 60 days after the illicit drug use. The collection site and testing laboratory have confirmed they properly followed specimen collection and chain of custody protocols, including properly marking and sealing Ms. Williams’s sample. Also, the sign-in sheet at the collection site (copy attached) documents that Ms. Williams was the first to give a sample on November 28, 2017 and that the next patient did not even sign in until more than 20 minutes after she already had donated her sample, directly contradicting her claim that others were there at the same time and that multiple samples were setting on the counter. The contemporaneous notes of the MRO who certified the initial drug test result document that Ms. Williams admitted to passive exposure, contrary to her later denial of any ingestion of illegal drugs (see attached). The certified addition psychiatrist/MRO disputes that drug use can be determined by profiling individuals. Given that students’ safety is of utmost concern to the District and Superintendent, and the risk of a negligent retention claims of employing someone who tested positive to drive children, employment termination is recommended. The Substance Abuse Policy prohibits a School Board employee from reporting to work with illegal drugs in his or her system. The Substance Abuse Policy further prohibits School Board employees’ use of illegal drugs off duty and off School Board property because such use “may adversely affect on-the-job performance and the confidence of the public in the School district’s ability to meet its responsibilities.” Employees who violate the Substance Abuse Policy are subject to discipline, up to and including termination. The School Board’s Discipline Policy (“Discipline Policy”), 6GX-10-2.17 and Article X of the CBA provide that the School Board may dismiss any employee for just cause. The Discipline Policy establishes that “[j]ust cause shall include, but is not limited to” a variety of violations, among them “misconduct in office” and “non-compliance with regulations and policies of the School Board, State Board of Education, or the laws of Florida.” The Discipline Policy and the Substance Abuse Policy are communicated to School Board employees through the School Board’s Employee Handbook. It is undisputed that Ms. Williams was aware of the School Board’s drug testing policy and that she was subject to random drug testing during her employment. The Substance Abuse Policy and CBA do not provide for mandatory termination for employees who fail drug tests, but the School Board’s established practice is to terminate employees testing positive for illegal drugs. Superintendent Davis testified that the rationale for the School Board’s practice is safety-based. He stated that student safety is the School Board’s greatest priority. Employees who transport students and test positive for cocaine and marijuana will face termination “100 percent of the time.” Prior to this case, Mr. Broskie had been involved in disciplining five or six other School Board employees who tested positive for illegal drugs. Each case resulted in either termination of employment by the School Board or the employee’s voluntary resignation in lieu of termination. When questioned as to why the School Board did not employ progressive discipline in light of Ms. Williams’s prior spotless record, Superintendent Davis responded that the School Board’s “progressive discipline menu” was in fact consulted and that the appropriate consequence for the circumstance was selected. On April 17, 2018, Superintendent Davis provided Ms. Williams with written notice of his recommendation that the School Board terminate her employment based on her misconduct in office and violations of School Board policies. On May 3, 2018, the School Board accepted the Superintendent’s recommendation and terminated Ms. Williams’s employment for just cause effective May 17, 2018. Ms. Williams had the remaining portion of her November 28, 2017, urine sample retested by a Quest Diagnostics Incorporated laboratory between May 10 and May 13, 2018. The retest reconfirmed the presence of cocaine and marijuana metabolites in Ms. Williams’s urine sample. On May 15, 2018, Dr. Lopez reviewed the retest of Ms. Williams’s urine sample and reconfirmed that it was positive for cocaine and marijuana. Mr. Broskie testified that his opinion that Ms. Williams’s employment should be terminated is unchanged by the fact that she was given a non-DOT drug test. Echoing Dr. Pomm, Mr. Broskie stated that the lack of split sampling at the point of collection had no effect on the ultimate test result because the same five-panel drug screen is administered in both DOT and non-DOT drug tests. Ms. Williams counters that the Federal DOT's rules are explicit and detailed, providing for security measures at the test site, procedures for the taking of the urine samples, chain of custody for urine samples, and guarantees of privacy for employees. 49 C.F.R. pt. 40. For example, urine collectors are required to do all of the following before each collection: Secure any water sources or otherwise make them unavailable to employees (e.g., turn off water inlet, tape handles to prevent opening faucets); Ensure that the water in the toilet is blue; Ensure that no soap, disinfectants, cleaning agents, or other possible adulterants are present; Inspect the site to ensure that no foreign or unauthorized substances are present; Tape or otherwise secure shut any movable toilet tank top, or put bluing in the tank; Ensure that undetected access (e.g., through a door not in your view) is not possible; Secure areas and items (e.g., ledges, trash receptacles, paper towel holders, under-sink areas) that appear suitable for concealing contaminants; and Recheck items in paragraphs (b)(1) through (7) of this section following each collection to ensure the site’s continued integrity. 49 C.F.R. § 40.43(b). The evidence produced at the hearing did not establish that these exemplar procedures or the other collector procedures prescribed by 49 C.F.R. Part 40, Subparts D & E were followed by ClayMed. Obviously, the many provisions specific to split specimen testing were not followed due to the School Board’s initial instruction that Ms. Williams be given a non-DOT test. The DOT rules provide that in undertaking the verification process, an MRO must not consider any evidence from tests of urine samples or other body fluids (e.g., blood or hair samples) that are not collected or tested “in accordance with this part.” 49 C.F.R. § 40.151(a). The MRO is required to make reasonable efforts to reach the employee to notify him or her of positive test results. “Reasonable efforts include, at a minimum, three attempts, spaced reasonably over a 24-hour period, to reach the employee” at the numbers the employee has provided. These efforts must be documented, including dates and times, before the MRO may contact the Designated Employer Representative (“DER”) and direct that person to contact the employee. 49 C.F.R. § 40.131(c). If the DER becomes the first point of contact, the DER must attempt to contact the employee immediately and inform the employee of the consequences of failing to contact the MRO within the next 72 hours, which are that the MRO may verify the test as positive. 49 C.F.R. § 40.131(d). After verifying a drug test as positive, the MRO is required to inform the employee of his or her right to have the split specimen tested, as follows: You must inform the employee that he or she has 72 hours from the time you provide this notification to him or her to request a test of the split specimen. You must tell the employee how to contact you to make this request. You must provide telephone numbers or other information that will allow the employee to make this request. As the MRO, you must have the ability to receive the employee’s calls at all times during the 72 hour period (e.g., by use of an answering machine with a “time stamp” feature when there is no one in your office to answer the phone). You must tell the employee that if he or she makes this request within 72 hours, the employer must ensure that the test takes place, and that the employee is not required to pay for the test from his or her own funds before the test takes place. You must also tell the employee that the employer may seek reimbursement for the cost of the test (see § 40.173). You must tell the employee that additional tests of the specimen (e.g., DNA tests) are not authorized. 49 C.F.R. § 40.153. The evidence produced at hearing established multiple failures by the School Board and its MRO to comply with the DOT testing requirements. In even considering the non-DOT test, Dr. Lopez, the MRO, acted in contravention of the DOT requirement that he consider only evidence from tests of urine samples collected in accordance with 49 C.F.R. Part 40. Dr. Lopez made only two attempts in a three-hour period to contact Ms. Williams on December 1, 2017, the first at 9:28 a.m., the second at 12:57 p.m. At 3:26 p.m., Dr. Lopez phoned Ms. Cory (the presumptive DER) to ask her to call Ms. Williams and give her his contact information. Ms. Cory spoke with Ms. Williams that afternoon and told her she needed to contact Dr. Lopez that day. The record is silent as to whether Ms. Cory informed Ms. Williams of the significance of the following 72-hour period. In any event, Dr. Lopez reported the test “no contact, positive for marijuana and cocaine” at 8:19 a.m., on December 4, 2017. This was slightly sooner than 72 hours after Dr. Lopez’s first, unsuccessful attempt to phone Ms. Williams and much sooner than 72 hours after Ms. Cory actually contacted Ms. Williams on the afternoon of December 1, 2017. Ms. Williams phoned Dr. Lopez on December 4, 2017, at 2:38 p.m. Dr. Lopez testified as to what he and Ms. Williams discussed but did not state whether he gave her the information required by 49 C.F.R. § 40.153, particularly the notification that she was not required to pay for any retest from her own funds before the test took place. In urging that its failure to follow the DOT testing procedure mandated by its own policy was harmless error, the School Board narrowly focuses on the laboratory test result without considering the myriad procedural and substantive protections denied to Ms. Williams by the failure of the School Board to use the DOT test protocols. In addition to the initial, fatal flaw of failing to require a split sample, the School Board’s MRO failed to make reasonable efforts to contact Ms. Williams about her test result. The MRO also denied Ms. Williams the proper 72-hour notice before her test was verified as “positive, no contact.” The School Board denied Ms. Williams a retest because of her inability to pay for it, despite a clear DOT requirement that the School Board pay for the test if she could not. There is every reason to believe that Ms. Williams would have promptly requested a retest had she been told that she was not required to come up with the money immediately. Mr. Broskie’s testimony and his “Fact Finding Memorandum” make clear that Ms. Williams’s failure to request a retest within 72 hours and her subsequent failure to pay for a retest played a significant role in the recommendation to terminate her employment. Thus, the School Board’s errors were not merely procedural. The School Board denied Ms. Williams the substantive right to a timely retest of a split sample specimen, then used the lack of a retest as evidence against her. It is axiomatic that an agency must follow its own rules. The fact that the agency has disregarded a specific provision of its rules for as long as its employees can remember is irrelevant once the illicit practice is challenged. The School Board’s prior failures should not be visited upon Ms. Williams. There is no way of knowing how events would have played out if the School Board had followed its own adopted policy and sent Ms. Williams for a DOT drug test. The School Board’s failure to comply with its own Substance Abuse Policy 6GX-10-2.17B.10 and Article XII of the CBA renders the non-DOT drug test administered to Ms. Williams invalid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Clay County School Board enter a final order: Dismissing the “Charges and Recommended Action” issued by the Superintendent of Schools Addison Davis to Respondent dated April 17, 2018; and Reimbursing Respondent for any pay or benefits that she did not receive as a result of the School Board’s actions in this case, plus interest from the date that any such pay or benefit was withheld, as appropriate under applicable law. DONE AND ENTERED this 12th day of February, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 12th day of February, 2019.
