The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations that the Respondent is guilty of misconduct involving the possession of cocaine. There is very little dispute regarding the facts in this case. The primary dispute concerns the determination of the appropriate penalty to be imposed.
Findings Of Fact The Respondent, Alton J. Roberts, holds teaching certificate number 584629 issued by the Florida Department of Education. His certificate is in the area of Physical Education and is valid for the period 1991-1996. At all times relevant and material to this proceeding, the Respondent has been, and continues to be, employed as a school teacher with the Dade County School System. He has been teaching in this capacity as a Physical Education teacher for approximately four years. On or about July 21, 1990, the Respondent and another adult male were in the process of driving from Miami to New York to return a van that belonged to the Respondent's brother. While the Respondent was sleeping and the other man was driving, law enforcement officers stopped the van for a traffic violation in the vicinity of Fort Pierce, Florida. As the van was coming to a stop, the driver woke the Respondent and told him that they were being stopped by law enforcement officers. When the van came to a stop, the driver got out first and went to speak to the officers. After the driver had gotten out of the car, the Respondent saw a small plastic container that he knew was the type of container customarily used for storing and sifting powdered cocaine. In an effort to conceal the container from the law enforcement officers, the Respondent picked up the container and put it in one of his back pockets. A few minutes later when the Respondent was asked to step out of the van, the law enforcement officers discovered the container in the Respondent's back pocket. Further examination of the container removed from the Respondent's back pocket revealed that it contained a small amount of white powder. The white powder was not weighed, but was perhaps as much as a gram in total weight. Described otherwise, the volume of the powder in the container removed from the Respondent's pocket was less than the volume of powder that would result from a crushed aspirin. The white powder was field tested and it tested positive for cocaine. As a result of the events described above, the Respondent was arrested and charged with felony possession of cocaine and possession of drug paraphernalia. On February 25, 1991, the Respondent entered a plea of nolo contendere to the charge of possession of cocaine and the other charge was dismissed. Adjudication was withheld and the Respondent was placed on probation for a period of two years. The Respondent was also required to perform 150 hours of community service, to pay $725.00 in court costs and fines, to pay $50.00 per month toward the cost of his probation supervision, and to receive a substance abuse evaluation. The Respondent has complied with all of the court-ordered requirements. The Respondent does not use cocaine. There is no evidence that the Respondent has been involved in any way with cocaine or any other illegal drugs at any time before or after the incident on July 21, 1990. The Respondent's arrest and subsequent court proceedings did not receive any notoriety in the Dade County area. The Respondent reported the matter to the principal of the school where he is employed. The principal reported the matter to administrators of the Dade County School System. After review of the matter, the administrators of the Dade County School System allowed the Respondent to continue to be employed as a teacher. Between the date of his arrest and the date of the hearing, the Respondent has taught all of one school year and most of a second school year. No evidence was offered of any problems or irregularities in his teaching during that period, nor was any evidence offered of any lack of effectiveness as a teacher during that period.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent is guilty of a violation of Section 231.28(1)(c), Florida Statutes, as charged in the Administrative Complaint, and imposing a penalty consisting of the following: Issuance of a written reprimand from the Education Practices Commission to be placed both in the Respondent's certification file and in the Respondent's personnel file with the Dade County School System, and Placement of the Respondent on probation for a period of five years, the probation period to begin upon issuance of the Final Order and to include such terms as may appear necessary and appropriate to the Education Practices Commission to monitor the Respondent's performance as a teacher during the period of probation, including a provision for random drug testing of the Respondent at the request of the Education Practices Commission and at the expense of the Respondent. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 28th day of April, 1992. MICHAEL M. PARRISH, 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 20th day of April, 1992.
The Issue The issues in this proceeding is whether Petitioner was the subject of unlawful sexual harassment by Respondent and whether Petitioner was subjected to unlawful retaliation for participation in an activity protected under Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Julie Hembrough, was a female employee of Respondent, Sikorsky Support Services. She was employed as a senior calibration technician at the Pensacola Naval Air Station (Pensacola NAS). As part of her duties she was in charge of monitoring the quality of the work her section performed and the employees who performed that work. Petitioner came to work at Pensacola NAS with Sikorsky’s predecessor, Lear Siegler (LSI). Sikorsky is a “drug free” workplace and has a written policy, entitled "Sikorsky Support Services, Inc. Strike Pensacola, Florida Drug-Free Work Force and Work Place Manual,” as part of its collective bargaining agreement. The drug free workplace policy requires periodic random drug testing of employees. The policy states: An employee who refuses to take a drug test under Section . . .V.5 Random Testing will be terminated for violation of this policy. Petitioner went through an initial drug test when Sikorsky took over the Pensacola NAS maintenance contract and hired the LSI workers. Petitioner was aware that random drug testing occurred and was required by Respondent. She knew that there had been previous random drug tests at the Pensacola NAS. Petitioner was considered a hard worker and competent technical leader of her calibration section. However, there were personality conflicts throughout the section in which Petitioner worked. The problems in the section stemmed from a weak supervisor, who was eventually terminated, who did not hold employees to the performance standards for the section, and who did not support the technical leaders, like Petitioner, when they tried to enforce those performance standards. The supervisory problems resulted in various factions in the work place. The factions were comprised of both male and female employees. Petitioner had particular conflicts with two employees, Roger York and Leon Mills. Petitioner herself testified that her conflicts with Roger York stemmed from a work disagreement regarding the repair of certain Navy radios. Mr. Mills did not want to perform certain tests on Navy radios that Petitioner thought were required for thorough testing of the radios. Petitioner also felt, with some factual basis, that Mr. Mills was not honest with her when he represented to her that he had performed such tests. Petitioner’s problems with Leon Mills were of a similar nature to those with Mr. York. However, Mr. Mills accused Petitioner of fraud in relation to trying to get rid of him. The evidence did not demonstrate that any of the difficulties with these men were related to Petitioner’s gender, but what little unspecified name-calling or derogatory statements there were was the result of animosity toward Petitioner and her supervisory role. Some workers considered Petitioner a “spy” for the Respondent. Other workers accused Petitioner of trying to “get rid of” Leon Mills through fraudulent means. Indeed Mr. Mills complained to the union about Petitioner and that he thought she was trying to get rid of him. Feelings against Petitioner were so strong that, even though she was a member of the union, she was asked by the union shop steward to not attend a union meeting. Respondent had no input or control over the union’s request to Petitioner. In September 2000, Petitioner orally complained to her manager, Joe Diehl, that another male worker used the word "bitch" and talked about his sex life and that someone else told her to put on some makeup. The details of the facts surrounding these comments were not introduced into evidence. Therefore, it is unclear if they were harassing in nature. Petitioner was never physically grabbed or groped by anyone at Sikorsky, was not sexually propositioned, and no one ever threatened her with adverse action if she refused to perform any type of sexual activity. She did not see open pornography in the workplace. Moreover, such sporadic comments do not constitute sexual harassment. She again complained in August 2001. The actual written complaints were not introduced into evidence. In essence, the bulk of the oral complaints revolved around the work problems in the section and the multi-gender employee animosity toward Petitioner. Sikorsky took Petitioner’s complaints seriously and investigated the complaints. During the investigation, people from the “upper echelon” of the company were brought in to investigate. However, the investigators could not corroborate Petitioner’s claims of sexual harassment. They did find that the section had various problems as described above. Nevertheless, to make sure that everyone understood the seriousness of sexual harassment issues, the site manager held a training session on Sikorsky’s sexual harassment policies. Petitioner attended the training session. The site manager also personally delivered the findings of the investigators to Petitioner, to show he was involved and to make Petitioner understand that Sikorsky was taking the issue seriously. Petitioner was invited to come forward with any complaints she may have at any time. After advising Petitioner of the results of the investigation, the site manager spoke to her several times encouraging her to come forward with any issues. He stopped by Petitioner’s work area in the section and asked if she was having any problems. Petitioner told him things were going okay and that she was not having any problems. Petitioner testified that sometime in May, she advised her supervisors that she intended to file another internal complaint because of actions by the union and because she had found “hot sauce” on her vehicle. Petitioner complained that the union accused her of committing fraud and that she was excluded from a union meeting. However, as indicated above, it was the union steward, not Sikorsky, that asked Petitioner not to attend the union meeting. Sikorsky was not involved in the union meeting or any accusations of fraud by the union against Petitioner. These facts do not support a finding of sexual harassment by Sikorsky. The “hot sauce” incident occurred while her vehicle was parked in an open, unfenced parking lot owned by the U.S. Navy. The Navy was responsible for security in the parking lot. Petitioner discovered that someone had poured hot sauce over her vehicle. Upon seeing the substance, Petitioner got in her vehicle and drove home. She called her manager from her vehicle to inform him about the incident. He advised her it was probably “too late” to do anything since she had left the scene. Petitioner did not see anyone put the substance on her vehicle, and does not know who did it, although she strongly suspects it was a particular coworker. Petitioner never reported the incident to Navy security. Without more detail and given the animosity in the workplace with allegations of spying and fraud, the incident does not support any finding that Petitioner was sexually harassed or that Sikorsky was responsible for such alleged harassment. On May 6, 2002, seventeen Sikorsky employees were selected for random urinalysis at Sikorsky; five employees were selected as alternates. Petitioner was one of the employees selected. Sikorsky employs a third-party contractor, Professional Health Examiners (PHE), to select the individuals to be drug tested and to administer the drug test. PHE and Sikorsky use a “name blind” system to select individuals for testing. Before a test day, Sikorsky’s administrative manager sends a list of partial social security numbers to PHE. Sikorsky does not give names to PHE, but only partial social security numbers. PHE then inputs the partial social security numbers into a computer program, which randomly selects a percentage of the numbers. Once the numbers are selected, PHE sends the list of numbers to Sikorsky. The administrative manager then matches the selected numbers with an employee list to determine the employees named. On the day of the test, those selected are called to take the test at a specific time and location. Petitioner was notified of her selection at approximately 7:15 a.m. and told to immediately report to the test site to take the test. She did not go to the drug test site, but went directly to the office of her manager, Joseph Diehl. Petitioner refused to take the drug test at the time the test was scheduled. At the time, Petitioner had no knowledge of the drug testing selection procedures and did not ask what the procedures were; she also wanted to speak with her attorney. Joseph Diehl called the administrative manager. At approximately 7:30 a.m., the administrative manager went to Diehl’s office. Since neither had been confronted with a situation similar to this one, Diehl and the manager allowed Petitioner to call her lawyer. However, her lawyer was unavailable. The morning of the drug test, the site manager and Diehl’s supervisor, Joe Colbert, had jury duty and had not arrived. Therefore, Mr. Diehl called Dan Pennington, the program manager, for guidance. Mr. Pennington stated in more colloquial language, that Petitioner must either immediately submit to the drug test per corporate policy or be terminated. Mr. Diehl, again in more colloquial language, passed the direct order to Petitioner to take the test or face termination. Petitioner said she would not take the test without calling her lawyer. Later in the morning, Petitioner spoke with Michael Neri, her supervisor, and told him she was quitting. Mr Neri had been hired only three weeks earlier and was familiar with the drug test policy. Mr. Neri told Petitioner to take the test, and that if she did not take the test, she would be terminated. Petitioner met with the site manager, Joe Colbert, after 9:00 a.m. He told her to take the test or she would be terminated. He told her that once she took the test, her lawyer could take whatever steps she wanted to take, but that she needed to take the test. All of Petitioner’s supervisors wanted Petitioner to take the test because she was a good employee whom they did not want to terminate. Petitioner did not take the test. Mr. Colbert then suspended Petitioner and gave her a letter of suspension, pending termination. The letter stated that the reason for the suspension was her refusal to take the drug test at the appointed time. Because Petitioner suggested that she had been targeted for selection for the drug test, Mr. Colbert assigned one of his managers, Frank Eggleton, to conduct an investigation of the procedures. Mr. Colbert told Petitioner that if the investigation came back clean, she would be terminated. Later in the morning, at approximately 11:00 a.m., on May 6, 2002, Petitioner called Joe Diehl and informed him that she had spoken to her lawyer and was willing to participate in the random drug testing. However, it was too late. Mr. Colbert refused to allow Petitioner to take the test at that time because she had already been suspended. Mr. Colbert testified that Petitioner had had her opportunity more than once to participate. He was concerned that if he made exceptions to the mandatory random drug testing policy, then it would open the door for everyone to seek to defer taking a random drug test. This rationale was reasonable and not pretextual. Mr. Colbert told Mr. Eggleton to investigate how individual employees were selected for the random drug test and to determine if Petitioner had somehow been targeted. Mr. Colbert did not pressure Mr. Eggleton to reach any particular conclusion and told him to conduct a thorough, open investigation. Mr. Eggleton visited the facilities of PHE to determine how individuals were selected. After conducting his investigation, Mr. Eggleton reported to Mr. Colbert that the drug-testing contractor used a name-blind system for selection and that there was no indication that Petitioner had been targeted. PHE had nothing to do with the decision to terminate Petitioner and Sikorsky did not pressure PHE to select Petitioner for the drug test. In fact, there was no evidence at the hearing that Petitioner was targeted for drug testing. After receiving the investigation report, Mr. Colbert decided to terminate Petitioner’s employment based on her refusal to take the drug test at the appointed time. He obtained the approval of the necessary authorities at Sikorsky. On May 10, 2002, Petitioner’s employment was terminated. In April 2002, employee Brian McHenry was selected for random drug testing. Mr. McHenry, prior to discovering he was going to be drug tested, used the restroom just before he was told of the drug test. As a result, Mr. McHenry was unable to produce a sufficient urine sample to allow PHE to perform a the test. He took part, tried to produce a sample, and actually produced a urine sample, but it was not enough for testing purposes. After a few hours of drinking fluids Mr. McHenry still could not produce a sufficient urine sample. Mr. Colbert wanted Mr. McHenry to stay late until he could provide a sample, but Mr. McHenry had a serious child care problem that day and needed to pick up his child in Alabama. Because Mr. McHenry had tried to complete the drug test, and because of the child care problem, Mr. Colbert told Mr. McHenry to go to the test facility in the morning. Unlike Petitioner, McHenry did not refuse the drug test; he could not provide a sufficient urine sample. The McHenry case is not similar to Petitioner’s situation. Moreover, Mr. Colbert testified that if Mr. McHenry had refused to take the test, he would have been fired. Likewise, there was no evidence at the hearing that Petitioner was terminated because of her previous internal complaints. There was no evidence Petitioner was selected for drug testing because of her previous complaints. In fact Mr. Colbert did not have knowledge of Petitioner’s two complaints, since both complaints were handled by the previous site manager. Mr. Colbert was aware of Petitioner's complaint about hot sauce thrown on her car, but said he did not even consider it a sexual harassment issue. Petitioner did not put forth sufficient evidence to prove a claim of sexual harassment. She did not introduce evidence that any conduct she complained of was severe or pervasive, or that the allegedly harassing conduct was because of her gender, as opposed to some other reason such as thinking she was a spy. Likewise, Petitioner failed to establish that she was terminated for any complaints she had made to Respondent. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of April, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 26th day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gregor J. Schwinghammer, Esquire Gunster, Yoakley & Stewart, P.A. Phillips Point, East Tower 777 South Flagler Drive, Suite 500 West Palm Beach, Florida 33401 Debra Cooper, Esquire Law Offices of Debra Cooper 1008 West Garden Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Respondent committed the violations charged in the Administrative Complaint, involving possessing and introducing onto the grounds of a state correctional institution, certain controlled substances and, if so, what if any penalty is warranted.
Findings Of Fact The Respondent, Erlene Stewart, has been employed as a correctional officer at Union Correctional Institution (UCI). She was so employed on February 1, 1999, and had been employed there for almost five years at that time. The Respondent was working on Saturday, January 30, 1999. On that day, officers at UCI examined employees coming to work by conducting an "Ion Scan" of employees to attempt to detect any drug or drug residues on or about their persons when they entered the institution to go on duty. The Respondent was subjected to such an Ion Scan and successfully passed it. Thus, she was aware that a drug detection effort was being conducted on Saturday, January 30, 1999, at UCI. February 1, 1999, was the Monday after that Saturday. The Respondent was working that day in tower number five of UCI. She had driven to work that day in the black Pontiac Grand Am in question, which is registered in her name. She was working on the 8:00 a.m. to 4:00 p.m., shift on that Monday. It was very unusual for a drug detection operation to be conducted on that Monday, immediately succeeding the Ion Scan drug detection operation which had been conducted on Saturday, two days before. Such a drug detection operation was conducted in the parking lot of UCI on Monday, February 1, 1999, however, using a drug detection dog. It was very unusual for a drug detection dog to be used so soon after an Ion Scan drug detection operation and also unusual for the dog to be used at 12:30 in the afternoon. The Respondent was surprised to find that a drug detection dog was being used in the parking lot of UCI on February 1, 1999. When the Respondent came to work on that day she locked her car leaving the windows slightly cracked and went inside to go on duty. Later that day, at approximately 12:30 p.m., a drug detection dog, handled by Sergeant Box of UCI, was examining vehicles in the parking lot and "alerted" to the presence or odor of narcotics inside or on the Respondent's vehicle. The dog had been trained and certified to be capable of passively alerting to the odors of four narcotics: marijuana, powdered cocaine, crack cocaine and heroin. After the dog alerted to the presence of contraband drugs in or on the Respondent's vehicle, the Respondent, who was then working in tower number five, was relieved of duty and summoned to her vehicle in the parking lot on the grounds of UCI. When she arrived in the vicinity of her vehicle, she was informed that a drug detection dog had alerted to her vehicle. She provided a written consent, to the officers present, to a search of her vehicle. The Respondent had to unlock her vehicle in order for the drug detection officers to begin their search of its interior. Upon gaining access to the interior of the Respondent's vehicle, Sergeant Mobley of Hamilton Correctional Institution, discovered an aluminum foil package containing a white powder suspected to be cocaine, on the passenger's side of her vehicle. Sergeant Mobley turned that package over to the custody of Inspector Bailey. Sergeant Dugger found what appeared to be marijuana on the driver's side of the Respondent's vehicle. Prior to his entry into the vehicle, Sergeant Dugger and Inspector Bailey had observed through the window what appeared to be marijuana and marijuana seeds on and about the driver's seat. The Respondent is familiar with the appearance of marijuana and cocaine. Moreover, she is aware that cocaine is commonly wrapped in aluminum foil. Her former husband had been known to use cocaine according to the Respondent's testimony. Inspector Bailey took custody of the suspected cocaine and marijuana and conducted two tests on both substances. The results of his field test and Ion Scan test were positive for marijuana and cocaine. The evidence was then turned over to Inspector Yaw who conducted another Ion Scan test on the white powder confirming it as cocaine. Sergeant Dale Pfalzgraf of the Union County Sheriff's Office, was summoned to UCI on that day, after the suspected drugs were located in the Respondent's vehicle. Inspector Yaw turned over to him a sealed plastic bag containing what appeared to be marijuana and a tin-foil package of what appeared to be cocaine. Deputy Pfalzgraf placed the Respondent under arrest and transported her and the evidence to the Sheriff's office. He placed the evidence into a secure locker with the evidence custodian, pending its transportation to the Florida Department of Law Enforcement (FDLE) laboratory. Deputy Tomlinson of the Union County Sheriff's Office was given the evidence that was seized from the Respondent's vehicle by the evidence custodian and transported it to the FDLE laboratory in Jacksonville, Florida, for testing. At the FDLE laboratory, Allison Harms received the evidence from Deputy Tomlinson. The evidence bag remained sealed until testing was performed by Ms. Somera, the FDLE chemistry analyst. Ms. Somera tested the substances contained within the bag and positively identified them as cannibis and cocaine. The Respondent maintains in her testimony that her former husband had access to her vehicle and had used it in the last several days with some of his friends. She contends that he is a known illicit drug user (cocaine). She also states that she left the windows to her car slightly cracked for ventilation when she parked it in the parking lot on the day in question to go to work. She states, in essence, that either the illicit drug materials found in her car were placed there without her knowledge by her former husband or his friends or, alternatively, that the correctional officers involved in the investigation planted the drug materials in her car in order to remove her from employment and/or licensure as retaliation for past employment-related friction she states she had with prison authorities. She also contends that another prison employee told her in private that she was being "framed" but that that person refused to testify on her behalf because of fear of potential loss of his job. In any event, her self-serving testimony is not corroborated by any other witness or exhibit and is not credited.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That the Respondent be found guilty of failure to maintain good moral character as defined by the above-cited legal authority and that her certification be suspended for a period of two years. DONE AND ENTERED this 2nd day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 2nd day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Erlene Stewart Route 1, Box 52 Sanderson, Florida 32087 A. Leon Lowry, II Program Director Division of Criminal Justice Professionalism Services Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue for determination is whether Petitioner's request for exemption should be granted.
Findings Of Fact Petitioner seeks an exemption for employment in a position for which a security background check is required pursuant to Sections 435.03 and 435.04, Florida Statutes. 1/ Petitioner seeks employment in a position caring for children. On September 1, 1987, Petitioner pled guilty to trafficking in cocaine, a first degree felony under Section 893.135(1)(b)(1). Petitioner also pled guilty to possession of cocaine, within the meaning of Section 893.03(2)(a)(4). The court fined Petitioner $50,000, imposed court costs of $2,500, and sentenced Petitioner to 15 years imprisonment. The sentence was to be served by three years imprisonment and by 12 years probation. Petitioner served three years imprisonment, is currently completing her probation, and is paying the fine and court costs over time. The terms of probation, in relevant part, require Petitioner to submit to drug testing and to remain free of all drugs. On November 9, 1995, Petitioner tested positive for marijuana. Petitioner failed to show by clear and convincing evidence that she is no longer a threat to those with whom she would interact if exempted. Petitioner failed to show by clear and convincing evidence that she has been rehabilitated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein DENY Petitioner's request for exemption. RECOMMENDED this 3rd day of June, 1996, in Tallahassee, Florida. DANIEL S. 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 3rd day of June, 1996.
The Issue The issue is whether Respondent's employment with Petitioner as a school bus driver should be terminated because he violated his rehabilitation contract and Petitioner's drug-free workplace policy and guidelines by testing positive for cocaine.
Findings Of Fact Petitioner is a Florida public school district. Respondent was employed by Petitioner as a school bus driver for about ten years and three months prior to his suspension without pay in the summer of 1996. The position of school bus driver is a safety-sensitive position. In June of 1989, Petitioner adopted a drug-free workplace policy. Petitioner directed its superintendent to develop guidelines to implement the policy. In December of 1991, Petitioner adopted Drug-Free Workplace Guidelines, GBCBA-G, which state as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-Free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. Employees in job classification which require an annual physical will be required to submit to a drug screening as part of the annual physical. As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services . . . . The procedures established by the laboratory shall be followed in administering drug tests to employees. * * * Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four hour notification . . . . Random testing of employees shall not be conducted. Respondent signed a notice to all applicants and employees on April 15, 1992, advising him in advance that the drug-free workplace policy would become effective on June 15, 1992. This notice stated as follows: All pre-employment applicants will be drug-tested prior to being hired. All employees who require fitness-of-duty examination will be drug-tested at least once annually. An employee will be drug-tested when reasonable suspicion of substance abuse exists. An employee will be drug-tested following any work-related accident or mishap involving actual or potential injury or property damage. An employee will be drug-tested during any probationary period following a drug- related suspension or approved drug treatment program. Petitioner acknowledged that he received a copy of the drug-free workplace policy and understood the consequences of violating the drug-free workplace guidelines by signing the notice. The notice clearly states that failure to comply with the guidelines could result in termination of employment and forfeiture of eligibility for workers' compensation medical and indemnity benefits. The guidelines for the drug-free workplace policy are a part of Petitioner's Collective Bargaining Agreement with the instructional and non-instructional bargaining units of the Alachua County Education Association (ACEA). The ACEA ratified the policy and guidelines in January of 1993. The Petitioner's drug-free workplace policy and guidelines have been continuously in effect since that time. Article XI, Section 1(B) of the 1995-1996 Collective Bargaining Agreement between Petitioner and the ACEA requires Petitioner to provide school bus drivers with an annual physical as required by the rules of the State Board of Education. Appendix F of the 1995-1996 Collective Bargaining Agreement sets forth the drug-free workplace guidelines. It states as follows in pertinent part: The purpose of these guidelines is to comply with the Drug-free Workplace Act of 1988, 34 CFR Part 85, Subpart F, which requires grantees to certify that they will maintain a drug-free workplace. * * * Pre-employment Drug Abuse Screening examinations shall be required to prevent hiring individuals who use drugs or individuals whose use of drugs indicates a potential for impaired or unsafe job performance or for high risk positions such as bus drivers. * * * Employees in job classifications which require an annual physical will be required to submit to a drug screening as part of the annual physical. * * * As a condition of continued employment, current employees shall submit to drug screening when reasonable suspicion exists to believe that an employee is using a substance that is impairing the employee and/or his job performance . . . . * * * When a reasonable suspicion exists, the Director of Employee Relations shall be contacted. The employee, if a member of a bargaining unit, shall be afforded the opportunity to have ACEA representation. The employee will be provided an opportunity to explain his/her condition. The employee will be provided with information regarding available drug counseling, rehabilitation, assistance programs, and leave options. A rehabilitation contract including drug testing may be agreed upon. Failure to participate in a treatment program following a positive drug screening will result in disciplinary action, up to and including termination. Due process will be followed. All testing shall be conducted by a laboratory certified by the State of Florida as a Medical and Urine Drug Testing Forensic Laboratory which complies with the Scientific and Technical Guidelines for Federal Drug Testing Programs and the Standards for Certification of Laboratories engaged in Drug Abuse and Mental Health Administration of the U. S. Department of Health and Human Services. The laboratory shall be chosen jointly by ACEA and SBAC if the employee is a member of the bargaining unit. The procedures established by the laboratory shall be followed in administering drug tests to employees. Employees who seek voluntary assistance for substance abuse may not be disciplined for seeking assistance. Employees shall be subject to all employer rules, regulations, and job performance standards with the understanding that an employee enrolled in a rehabilitation program is receiving treatment for an illness. Employees who return to work after completion of a rehabilitation program shall be subject to follow-up drug testing with twenty-four (24) hour notification. Any employee who refuses the drug test or subsequently tests positive may be disciplined up to and including termination. Random testing of employees shall not be conducted except as required by state or federal law . . . . On December 13, 1994, Respondent signed the following statement: I have received, read, and understand the training materials on drug and alcohol testing under the U. S. Department of Transportation regulations. In January of 1995, Petitioner began complying with an additional drug testing program pursuant to a federal statute entitled Omnibus Transportation Employee Testing Act (OTETA). Petitioner did not formally adopt a written policy or develop written guidelines to implement the new drug-testing program. Petitioner's Collective Bargaining Agreement with the ACEA does not refer to OTETA or the federal regulations implementing it. Mandatory procedures governing drug testing in transportation workplaces under U. S. Department of Transportation regulations require that drug tests be performed using split samples. A "split specimen collection" consists of one urination followed by the splitting of that specimen into two bottles. If the primary specimen tests positive, the employee may request that the split specimen be sent to a different laboratory for testing. The majority of drug testing performed in this country is single specimen collection. Drug testing pursuant to state law and rules and the regulations of the U. S. Department of Health and Human Services does not require employers to utilize split samples in the collection process. A split specimen generally is used only for purposes of testing pursuant to the regulations of the U. S. Department of Transportation. The U. S. Department of Transportation requires Petitioner to provide the following testing in transportation workplaces: (a) pre-employment testing; (b) post-accident testing; (c) random testing; (d) reasonable suspicion testing; return-to-duty testing; and (f) follow-up testing. OTETA does not require a routine fitness-for-duty drug test as part of an annual medical examination. State law does require such a test. OTETA requires random testing and post-accident testing. State law does not require these tests. Petitioner's guidelines as adopted in 1991 specifically prohibit random drug testing of employees. However, Petitioner's guidelines, as incorporated into the Collective Bargaining Agreement, state that "[r]andom testing of employees shall not be conducted except as required by state or federal law." In June of 1995, Respondent received a routine fitness- for-duty drug test as part of his annual physical examination. The test yielded a positive result for cannabinoids and cocaine metabolites. Respondent did not contest the results of the test. On June 22, 1995, Petitioner's Director of Employee Relations had a conference with Respondent. During the conference, Respondent signed a medical records release and a rehabilitation contract. The rehabilitation contract stated as follows: . . . positive results indicating alcohol and/or illegal mind-altering substances, following the initiation of this contract, is prima facie evidence of violation of this contract. I understand that failure to comply with the terms of this contract may result in termination of my employment with the School Board of Alachua County, Florida. Respondent subsequently took leave to attend to his rehabilitation. By letter dated August 21, 1995, Petitioner's rehabilitation counselor at the Corner Drug Store reported that Respondent's drug tests from July 5th through August 16th were negative for illegal drugs. The counselor also informed Petitioner that Respondent had attended weekly intervention group meetings as required under the rehabilitation contract. The counselor did not recommend further treatment. A substance abuse professional, other than one who provided treatment, had to assess Respondent in order for him to return to work. In August of 1995, a clinical psychologist from The Education Center evaluated Respondent. The psychologist recommended that Respondent return to work subject to five years participation in the "random drug screening program that is in addition to the standard screening program." Respondent returned to his duties on or about August 26, 1995. His follow-up drug tests performed on October 25, 1995, January 17, 1996, and March 4, 1996, were reported as negative. On the morning of June 10, 1996, Petitioner informed Respondent that he was scheduled that day to take his regular annual physical examination, including a drug test. Respondent went to a medical facility in the northwest part of Gainesville for the physical exam during that morning. He went to Doctors' Laboratory, Inc., in the southwest part of Gainesville after work for his drug test. The following are routine procedures when a person goes to Doctors' Laboratory, Inc., in Gainesville for a urine drug test: The front desk checks the donor's photographic identification, such as a driver's license. The collector takes the photo ID and the donor into a separate room to sign in. The collector asks the donor to remove any hat, if he or she is wearing one, and to empty his or her pockets onto the counter. The collector watches the donor wash and dry his or her hands. The donor selects a testing kit, which is individually packaged in a plastic bag, from a box. The kit contains a urinalysis bottle. The collector opens the bag, breaks the seal on the specimen bottle, and gives it to the donor. The collector shows the donor how much urine is required on the bottle. The collector takes the donor to the bathroom. The donor is informed that the toilet water contains bluing. The donor is instructed not to flush the toilet. After the collector leaves the bathroom, he or she cuts off the water to the sink using a lever outside the door. The donor stays in the restroom no longer than two and a half or three minutes. The donor comes out of the bathroom and hands the specimen bottle to the collector who is waiting outside. The collector checks the amount of urine in the bottle to be sure the quantity is at least 40 ML. The collector measures the temperature by means of a gauge on the outside of the bottle to be sure that the temperature is between 90 and 100 degrees Fahrenheit. The collector notes this information on the chain-of-custody form. The bottle's cap is screwed on tightly. The collector also checks the appearance of the urine for any unusual color. The collector asks the donor to place his or her initials in the following three places: on the bag; on the chain-of-custody form peel-off label; and on the security seal. The security seal is placed over the top of the bottle. The collector dates and also initials the peel-off label. The collector then removes the label from the form and applies it to the bottle. The collector completes and signs part II of the multi-part chain-of-custody form. The collector separates copies one through three from copies four through seven. The collector hands the donor copies four through seven so that he or she can fill out part III with the donor's name, address and two telephone numbers. The donor signs the form certifying that he or she provided the specimen to the collector, that the bottle was sealed with a tamper-proof seal in the donor's presence, and that the information on the form and on the bottle label is correct. The collector completes part IV of the multi- part forms, copies one through three, initiating the chain-of-custody documentation. The specimen bottle is then placed inside the plastic bag, which is sealed. Copies one through three of the multi-part form, which do not contain the name of the donor, are placed in a pouch on the side of the bag. Copies four through seven of the multi-part form are not sent with the specimen. Instead, one copy is retained at the collection site. Another copy is sent to the employer. The third copy is given to the donor. The bagged specimen bottle is kept in a box in a locked refrigerator with other packaged specimens prior to shipment by courier to the testing laboratory. The collector gives the donor a written checklist showing the steps to be taken in the urine collection process. The donor is asked to read the list and check to make sure that the procedures were followed. The donor signs this form indicating that the collector followed all appropriate steps in the collection process. Once a collector begins the collection process, he or she completes the process alone. No other collector at the site may perform any of the required steps or safeguards. In this case, Respondent signed the following statement in part III of the multi-part chain-of-custody form: I certify that I provided my specimen(s) to the collector, that the specimen bottle was sealed with a tamper-proof seal in my presence, and that the information provided on this form and on the label attached to the specimen bottle is correct. The collector gave Respondent a copy of the donor's checklist to read and verify that the collection procedures were followed. Respondent signed the donor's checklist. Elizabeth Verbeke was the person at Doctors' Laboratory, Inc., in Gainesville, Florida, who collected Respondent's urine specimen on June 10, 1996. She usually collected 50 to 60 urine specimens per week for drug testing. She has no independent recollection of collecting Respondent's specimen. However, there is no reason to believe that she failed to follow the laboratory's routine procedures in this case. Ms. Verbeke entered the word "none" at question five of part II on the chain-of-custody form, indicating the collection of Respondent's specimen was entirely routine. She noted no irregularities of any kind. The chain-of-custody identification number for Respondent's urine specimen was 026A13381. In part II of the chain-of-custody form, Ms. Verbeke indicated that she checked Respondent's picture identification, collected the urine specimen, and read the specimen's temperature within four minutes of collection. The specimen's temperature of 94 degrees Fahrenheit was within the proper range. The volume of the specimen was at least 40 milliliters. Later in the day on June 10, 1996, a courier picked up Respondent's urine specimen and transported it to Doctors' Laboratory, Inc., in Valdosta, Georgia. The laboratory performs forensic drug testing, as well as other kinds of tests. It processes about 8,000 specimens a month. The accessioner at the laboratory receives the specimens from the courier. Next, the accessioner examines the packaging and the sample bottles for any possible compromise of the security seals. Then, the accessioner compares each specimen bottle with the custody documents to ensure that they are accompanied by the correct paperwork. The accessioner places the urine specimens in batches with approximately 40 in each group. The accessioner pours a small portion of each specimen (an "aliquot"), one at a time, into a collection cup for analysis. The original specimen bottle with the remaining portion of the specimen is placed into temporary refrigerated storage until the initial test is deemed negative or positive. If the test is positive, the accessioner retrieves the original specimen bottle from temporary storage and pours a second aliquot for confirmation testing. The original specimen bottle, with the remaining portion of the specimen, is then placed in long-term frozen storage. Once testing is completed, the aliquots are discarded. Urine drug testing consists first of a rapid and relatively inexpensive procedure which is known as an immunoassay test. A positive result is confirmed by a more sophisticated and expensive technique called gas chromatography/mass spectrometry (GC/MS). The second test, if properly performed, is one hundred percent accurate. The function of the initial test (immunoassay), is strictly to weed out the negatives. Perhaps 90 percent of all the samples that the laboratory processes are negatives. The initial test also identifies which drug group or groups should be the focus of the extraction procedure because there is no universal extraction procedure for all drugs. The second test (GC/MS), makes an unequivocal identification of a molecule based on its molecular structure. If the confirmation test is positive, the laboratory reports the results to the medical review officer (MRO) as positive for the particular drug group. On June 10, 1996, the laboratory's accessioner received Respondent's specimen from a courier. The specimen's chain-of- custody identification number was 026A13381. The accessioner assigned the specimen a unique lab accession number, number 01298048. Subsequently, Respondent's specimen was tested in the laboratory in the usual manner. The initial test on Respondent's specimen used the total cocaine metabolite screening method. When this method is used, any compound similar to cocaine in the specimen will give a positive result. The initial test on Respondent's specimen was reported as "8H," which means that it was a presumptive positive. For the immunoassay test, any compound similar to cocaine in an amount equal to or in excess of 300 nanograms per milliliter (ng/ml) is positive. In the confirmation test, Respondent's specimen tested positive for benzoylecgonine, a cocaine metabolite. After a person consumes cocaine, benzoylecgonine is present in that person's urine specimen. Respondent's specimen contained 303 ng/ml of benzoylecgonine. For the GC/MS test, any amount of benzoylecgonine equal to or in excess of 150 ng/ml is positive. Respondent's urine sample had an abnormally low level of creatinine. Creatinine is a waste product produced by every human being. Respondent's sample had a creatinine level of 17 milligrams per deciliter (mg/dl). Any creatinine level below 20 mg/dl may indicate dilution. When the creatinine level is low, it is possible that the donor consumed a large amount of fluid at least two to three hours before donating the sample in an attempt to dilute the specimen. It is also possible that water was added to the sample. The laboratory checked the specific gravity of Respondent's sample to determine whether the sample was adulterated. Respondent's specimen passed the specific gravity test. It had a specific gravity of 1.004. Anything over 1.003 is within normal range for specific gravity. The greater weight of the evidence indicates that Respondent's sample was not diluted outside of his body because the specific gravity of the specimen was normal and because the specimen's temperature was 94 degrees within four minutes of collection. Doctors' Laboratory, Inc., inserted blind quality controls in the initial testing runs to determine whether the test analysis was valid. Doctors' Laboratory, Inc., receives proficiency test inspections by the U. S. Department of Health and Human Services and the State of Florida. At all times relevant to this proceeding, Doctors' Laboratory, Inc., in Valdosta, Georgia, was certified by the National Institute of Drug Abuse, the State of Florida, and the College of American Pathologists to perform the kind of test at issue here. A scientist employed at Doctor's Laboratory, Inc., certified that the final result of the testing performed on Respondent's specimen was accurate. The greater weight of the evidence indicates that the tests of Respondent's urine specimen were performed in conformity with all applicable testing guidelines. On June 11, 1996, Doctors' Laboratory, Inc., in Valdosta, Georgia, reported Respondent's test results to the MRO in Brunswick, Georgia, as being positive for benzoylecgonine. Dr. Robert H. Miller was the MRO who received the Respondent's drug test report. Dr. Miller is certified as an MRO through the American Association of Medical Review Officers. He works for MRO Services, Inc. The function of the MRO is to ascertain whether there is any medical reason for a given test result. If the individual has a legitimate prescription for a medication that showed up on a drug screen and there is no safety concern over the individual having a significant blood level of that particular substance at work, then the report to the employer is negative. In this case, the MRO reviewed the chain-of-custody form. He did not find any irregularity in the chain-of-custody for the Respondent's specimen. The MRO's office telephoned Petitioner on June 12, 1996, and requested that Petitioner have Respondent contact the MRO. Respondent returned the MRO's call that same day. During their conversation, the MRO informed Respondent about his drug test report. The MRO asked Respondent whether there might be any medical reason for the positive test result. Respondent informed the MRO that he had taken a prescription for a toothache. Respondent did not furnish the MRO with the name of a specific drug to account for the positive test result. Benzoylecgonine is the metabolite measured to identify cocaine. Cocaine is rarely used in ear, nose, and throat medical procedures, such as bronchoscopy. It is not available by prescription. The MRO properly determined that there was no medical reason for Respondent's positive drug test result. The MRO explained to Respondent that a re-test of his specimen was available. The MRO gave Respondent a toll-free telephone number to call if he wanted a re-test performed. By letter dated June 12, 1996, the MRO informed Petitioner that Respondent's drug test was positive for cocaine. By correspondence dated June 13, 1996, the MRO provided Respondent with directions for obtaining a re-test of his specimen. Respondent did not request a re-test. MRO Services, Inc. receives about 1000 reports of drug tests from Doctors' Laboratory, Inc., each month. In the past three years, MRO Services, Inc., has not documented any cases where a re-test of a specimen created a discrepancy with initial test results produced by Doctors' Laboratory, Inc. Petitioner's Director of Employee Relations conducted a pre-termination conference with Respondent on June 18, 1996. The purpose of this meeting was to give Respondent an opportunity to present mitigating circumstances. In the conference, Respondent indicated his belief that a co-worker, Debra Martin, put cocaine in his drinking water without his knowledge. The Director of Employee Relations talked to individuals that Respondent thought might have witnessed his activities and the activities of Debra Martin on June 10, 1996. During the time in question, Respondent and Ms. Martin were washing and waxing buses. Respondent and Ms. Martin often would get drinking water for each other. Ice was available in coolers located in a building near the gas pumps and washrack. Water was available from a spigot next to the place where Respondent and Ms. Martin were washing the buses. Ms. Martin specifically denied that she ever put cocaine or any other illegal drug in Respondent's drinking water. Ms. Martin also tested positive for a controlled substance on June 10, 1996. She subsequently signed a rehabilitation contract with Petitioner. After completing her rehabilitation treatment, Ms. Martin returned to work as a school bus driver for Petitioner. Persuasive evidence indicates that Ms. Martin did not put cocaine in Respondent's drinking water without his knowledge at any time prior to his June 10, 1996, drug test. By letter dated June 19, 1996, Respondent was informed that the Superintendent intended to recommend that Petitioner terminate Respondent's employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That Petitioner enter a Final Order, terminating the employment of Respondent. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997. COPIES FURNISHED: Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Francisco M. Negron, Jr., Esquire Florida Education Association/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Michael H. Olenick, Esquire Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, Florida 32399-0400
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 An Administrative Complaint, dated March 8, 1990, but amended with leave of the Hearing Officer in an order dated December 17, 1990, alleges that Respondent violated the provisions of Section 943.1395(5) and (6), F.S., and Rule 11B- 27.0011(4)(d), F.A.C., by failing to maintain the qualification established in Section 943.13(7), F.S., requiring "good moral character". The complaint, as amended, alleges that Respondent James E. Lyons, Jr., attempted to purchase, and introduced, cocaine into his body in violation of Section 893.03, F.S., on or about January 20, 1989. The issues are whether those violations occurred and, if so, what discipline is appropriate.
Findings Of Fact James Edward Lyons, Jr., Respondent, was certified as a law enforcement officer by the Petitioner on June 14, 1986, and was issued certificate number 02-86-002-02. At all times relevant to the issues in this proceeding, Officer Lyons was employed as a law enforcement officer by the Brevard County Sheriff's Department and was assigned to the Special Investigations Division, a vice/narcotics enforcement unit. Around midnight on December 31, 1988, Brevard County Sheriff's Deputies, Billy Mitchell Young and Timothy Pemberton, sat in their parked vehicle near Railroad Avenue, an area of the county well-known for illicit drug activity. They had binoculars and were looking for activity with the purpose of intercepting dealers or buyers. They observed a vehicle which, as Deputy Young remarked to his partner, looked alot like "Eddie's" (Respondent's) unmarked department vehicle: a white Thunderbird. Respondent was not a participant in the detail to which the two officers were assigned that evening. The Thunderbird was immobile, and there were two or three people standing around it and moving around in a manner consistent with activity of street dealers competing for a sale. The vehicle stayed parked for about 10-15 minutes. As the two deputies were leaving to back up another team on a traffic arrest, they noticed the Thunderbird run a stop sign at Cross Road and Highway U.S.-1. They commenced pursuit, still unaware of the identity of the occupant. With blue lights flashing, and a spotlight on, the deputies followed the car about three miles before it finally pulled over. The Respondent got out and walked back to the deputies' car to present himself. They were his colleagues, and they knew him to be happy-go-lucky and affable. In this encounter he was very nervous and, according to Deputies Mitchell and Pemberton, he was uncharacteristically anxious to leave. He told them something about hearing about a traffic stop on his radio and going to the Railroad Avenue site to assist. This did not make sense, as the stop to which he referred had occurred much earlier. Mitchell and Pemberton were uncomfortable and somewhat saddened by the event and, at some point, mentioned it to Phillip Shimer, who at that time was in charge of the Brevard County Sheriff's Staff Services Division (including Internal Affairs). On January 20, 1989, Phillip Shimer became involved in an internal investigation involving James "Eddie" Lyons when he was contacted at home early in the morning and was informed that Deputy Lyons was being detained by the Melbourne Police Department on an alleged narcotics violation. The prior evening Deputy Lyons had been found in an area of the City of Melbourne known for narcotics activity. He was in his department Thunderbird attempting to buy crack cocaine from two undercover Melbourne police posing as drug dealers. When one of the undercover police pulled his gun to apprehend him, he fled and was arrested a few blocks away at a convenience store. In a voluntary interview given to Phillip Shimer after his release to the Brevard County Sheriff's personnel, Deputy Lyons explained that he was in the area to meet another Special Investigation Divisions Agent and drove into north Melbourne to see if he could initiate some case activity involving the sale of crack cocaine. He approached two black males on the street and initiated a conversation with them. He attempted to purchase a quantity of cocaine. As the transaction started to take place they identified themselves as police. Deputy Lyons feared that he was going to be robbed, and drove away. The account given by Respondent in his testimony at hearing was similar, but instead of affirmatively trying to make an arrest through a bogus buy, he claimed he was looking for a suspect, "Bobo", and was inquiring of his whereabouts of the two street males when one pulled a gun and he fled. The story would be more plausible if it were not for ensuing events. After listening to Deputy Lyons' explanation, Phillip Shimer suspended him with pay, removed his credentials and secured his department vehicle. He was released on his own recognizance by the Melbourne Police. He was ordered to return to Staff Services at 10:00 a.m. This was delayed until later in the day when Deputy Lyons contacted his superior officer and indicated that he was somewhat upset and did not feel he could respond yet. The parties' prehearing stipulation establishes the following: On January 20, 1989, the Respondent reported to Wuesthoff Hospital in Rockledge, Florida; [in the company of an Internal Affairs Investigator, as required by his superior officer.] At about 2:30 p.m., in a private area of Wuesthoff Hospital, the Respondent urinated into a sterile urine sample cup provided by Wuesthoff Hospital. The cup containing the Respondent's urine sample was promptly received from the Respondent by Wuesthoff Hospital laboratory employee Mr. Wade Wallace. Mr. Wallace immediately capped and sealed the sample cup and labeled it in a manner making it uniquely identifiable as the Respondent's urine sample. At about 2:35 p.m., the sealed sample cup containing the Respondent's urine sample was delivered to the Wuesthoff Hospital Toxicology Laboratory by Mr. Wallace. On January 20, 1989 at about 3:00 p.m., the sample cup containing the Respondent's urine sample was retrieved by laboratory employee Deborah Lanza. Ms. Lanza dispensed a portion of the Respondent's urine sample from the sample cup and performed 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. On January 20, 1989 at about 3:15 p.m., laboratory employee Valerie Lasobeck Davies dispensed a portion of the Respondent's urine sample from the sample cup and performed a confirmation analysis of the sample. Neither the sample cup nor the Respondent's urine sample had been tampered with, altered or adulterated since the respondent's urine sample was initially collected in the sample cup. Ms. Davies tested the Respondent's sample utilizing the fluorescence polarization immunoassay analysis method. The test results showed that the sample was positive, containing some 4,830 nanograms per milliliter of a metabolite of cocaine, benzoylecgonine. Shortly thereafter, Ms. Davies performed a confirmation analysis by gas chromatography/mass spectrometry. This analysis yielded a positive finding for the cocaine metabolite, ecgonine. Both benzoylecgonine and ecgonine are unique metabolites of cocaine. The quantity of cocaine metabolite in the Respondent's urine sample was indicative of illicit use of the drug by the Respondent within seventy-two hours previous to the time at which he gave the urine sample. The quantity of cocaine metabolite was wholly inconsistent with casual handling of articles contaminated with cocaine or the mere handling, as opposed to ingestion, of the drug itself. Although cocaine residue can be absorbed through the skin, the level that would be achieved on a drug analysis would be substantially less than a 300 nanogram cutoff for a "positive" finding. In addition to evidence of his use of cocaine, Respondent's explanations of the events of December 31st and January 20th are further discredited by the fact that his mode of operation was contrary to well- established instructions and prudent practices of undercover law enforcement. Officers must not work alone, for their own safety and to preserve the integrity of the operation. A witness is important for the legal proceedings that follow. When an undercover operation is planned, law enforcement agencies with concurrent jurisdiction are informed to avoid the obvious possible result: cops arresting cops. After a jury trial, Respondent was acquitted of the criminal offense of attempted purchase of a controlled substance.
Recommendation Based on the foregoing, it is hereby, recommended that the Criminal Justice Standards and Training Commission enter its final order finding Respondent guilty as charged in the Amended Administrative Complaint and imposing the penalty of revocation of his certificate. RECOMMENDED this 7th day of May, 1991, in Tallahassee, Leon County, Florida. MARY CLARK 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 May, 1991. COPIES FURNISHED: Joseph S. White, Esquire Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 James E. Lyons 415 18th Street, S.E. Winter Haven, FL 33880 Jeffrey Long, Director Criminal Justice Standards and Training Commission P.O. Box 1489 Tallahassee, FL 32302 James T. Moore, Commissioner Dept. of Law Enforcement P.O. Box 1489 Tallahassee, FL 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
Findings Of Fact At all times material hereto, Respondent, Cheryl A. Odom, was employed as a law enforcement officer by the City of Opa-Locka Police Department, and was duly certified by Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission (Commission), having been issued certificate number 02-028628 on June 4, 1982. The collective bargaining agreement between the Opa-Locka Police Department and its uniformed officers provides for an annual physical examination and drug screen for the uniformed officers. On January 2, 1991, Respondent was told that her annual physical examination and drug screen would be on January 3, 1991. On January 3, 1991, Respondent, as part of her annual physical examination for the Opa-Locka Police Department, reported to Toxicology Testing Services (TTS) and provided a urine sample to be analyzed for the presence of controlled substances. On January 4, 1991, Respondent reported back to TTS to provide a second urine sample for analysis. Both urine samples provided by Respondent to TTS were collected, stored, handled, and tested pursuant to procedures and methods adopted by TTS. The procedures and methods employed by TTS were shown to provide reliable safeguards against contamination, a reliable chain-of-custody, and produce, through Gas Chromograph/Mass Spectrometry (GCMS), a reliable analysis of Respondent's urine samples. The instruments used by TTS to analyze the two urine samples involved in this proceeding were in proper working order at the times the samples were analyzed. GCMS is accepted, scientifically, and the results it produces are acknowledged to possess a 99.99 percent accuracy rate. The urine sample taken from Respondent on January 3, 1991, was screened twice by TTS using a machine that was calibrated to detect benzoylecgonine, a cocaine metabolite, at a level of 50 nanograms per milliliter. Dr. Hall testified that the City of Opa-Locka had instructed TTS to use a screening cutoff of 50 nanograms per milliliter. This is a relatively low screening cutoff. In comparison, the screening cutoff the Commission has adopted by Rule 11B-27.00225(3)(b), Florida Administrative Code, is 300 nanograms per milliliter. The first screening of the sample of January 3, 1991, detected a level of benzoylecgonine at a level of 113, while the second screening detected a level of 115. Because the screening for cocaine was positive, Respondent's urine sample was subjected to analysis using GCMS, which more accurately analyzed the urine sample than the screening device. Upon analysis by the staff of TTS using the GCMS, the sample taken from Respondent on January 3, 1991, proved positive for the presence of benzoylecgonine in a concentration of 166 nanograms per milliliter. Such finding is consistent with the ingestion of cocaine, as cocaine is the only drug commonly available that, when ingested into the human body, produces the cocaine metabolite, benzoylecgonine. The GCMS analysis of the urine sample taken January 3, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 3, 1991, had benzoylecgonine in her urine at a level of 166 nanograms per milliliter. On January 4, 1991, the Opa-Locka Police Department notified Respondent that "a trace of something" had been found in her urine sample and that she would have to be re-tested. Respondent was not notified at that time that the substance detected was the cocaine metabolite. Respondent freely and voluntarily accompanied Sergeant Edward Moore of the Opa-Locka Police Department to TTS on January 4, 1991, at approximately 6:00 p.m., and provided the second sample for analysis. The analysis of this second urine sample taken from Respondent on January 4, 1991, proved positive for the presence of the cocaine metabolite, benzoylecgonine, in a concentration of 90 nanograms per milliliter. The GCMS analysis of the urine sample taken January 4, 1991, GCMS is found to be an accurate measurement and establishes that Respondent, on January 4, 1991, had benzoylecgonine in her urine at a level of 90 nanograms per milliliter. The reduced concentration of the cocaine metabolite detected in the second urine sample is consistent with the concentration of 166 nanograms per milliliter disclosed by the first sample, assuming abstinence during the intervening period. The results of the TTS testing demonstrates the presence of cocaine metabolite in Respondent's system, and, consequently, establish that Respondent ingested cocaine. These results do not, however, establish that the ingestion was knowing and unlawful. Petitioner relies on an inference that it asserts should be drawn from the positive test results to establish its assertion that "[o]n or about January 3, 1991, Respondent, Cheryl A. Odom, did then unlawfully and knowingly be in actual or constructive possession of a controlled substance named or described in Section 893.03, Florida Statutes, to-wit: cocaine and did introduce said substance into her body." There is no evidence, other than the test results, to establish this assertion. Dr. Hall testified that the levels of the cocaine metabolite detected in Respondent's urine samples could have been the result of unknowing passive inhalation of cocaine or the result of unknowing ingestion of cocaine by food or drink. In a heavy user, cocaine can be detected for up to 40 days following ingestion. In the case of a light user, the metabolite can be detected for up to ten days following ingestion. 1/ In response to the testing which revealed the presence of the cocaine metabolite in her urine, Respondent denied the knowing use of cocaine at any time. In determining whether this denial is credible, the undersigned has considered the testimony from the persons who have known Respondent for an extended period of time and the letters of commendation that were presented by Respondent without objection. From this evidence, it is found that Respondent is a person of good moral character who has respect for the law. Respondent has the ability to differentiate between right and wrong and the character to observe the difference. The evidence established that Respondent has a disdain for drugs that has been evident in her personal and professional life. There was other evidence that was considered in determining the credbility of Respondent's denial of knowing drug use. From the time of her certification through January 1991, Respondent submitted to periodic drug screens. All prior drug screenings during the course of her career were negative. Respondent had reason to believe that her annual physical examination, which included the drug screening, would be in January 1991 because the physical examination and drug screen for the years 1989 and 1990 were in January. It is doubtful that Respondent would have knowingly ingested cocaine if she had reason to believe that she would soon be subject to a drug screening. There was no evidence that Respondent used drugs, other than the test results, despite an internal investigation by the Opa-Locka Police Department following the positive testing in January 1991. From Respondent's initial employment as a police officer through her current employment, but for the incident in question, Respondent has consistently been recognized as a professional, loyal and dedicated police officer. During this service, she was frequently commended for her performance. Respondent could not explain how or when the cocaine may have gotten into her system. This inability to explain does not compel the conclusion that her denial of knowing and voluntary ingestion is to be discredited in light of Dr. Hall's testimony that the ingestion could have occurred days before the testing and been unknown to Respondent. It is concluded, based on the totality of the evidence, that Respondent's denial that she has ever knowingly taken drugs is credible. To sustain its burden of proof in this proceeding, Petitioner must establish that Respondent's cocaine use was knowing and unlawful. The fact that Respondent tested positive for cocaine ingestion, without the inference that the ingestion was knowing and unlawful, does not establish that Respondent lacks good moral character. Based on the evidence presented, including the Respondent's credible denial and Dr. Hall's testimony, the undersigned declines to draw the inference that Petitioner requires to sustain its burden of proof in this proceeding. 2/ Because the evidence in this proceeding failed to establish that Respondent unlawfully and knowingly ingested cocaine, the Petitioner failed to establish that Respondent lacks good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint filed against Respondent. DONE AND ENTERED this 8th day of August 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 8th day of August 1995.
