The Issue Whether Respondent, a non-instructional employee of Alachua County School Board (School Board), should be dismissed for the reasons stated in the notification letter of November 5, 1998.
Findings Of Fact Petitioner is the governing body of the School District of Alachua County, Florida. It operates 43 public schools and centers in Alachua County and employs approximately 4,000 persons. At all times material, Respondent was employed by Petitioner in the position of maintenance helper. He is a member of Petitioner's career service bargaining unit. Petitioner has a "drug free workplace policy" which is part of the collective bargaining agreement with a non- instructional bargaining unit. The policy was implemented in June 1993. Before that time, Petitioner gave notice to its employees of the drug-free workplace policy. Petitioner's drug-free workplace policy requires that, as a condition of continued employment, employees submit to drug screening when there is reasonable suspicion of substance abuse. Following a positive drug screening, the employee is given an opportunity to participate in a treatment program. The policy also provides that, after completion of the treatment program, the employee may return to work, but if there is a second positive drug test, the employee may be disciplined up to and including termination of employment. Petitioner's Human Resources Division has attempted to be consistent in administering the drug-free workplace policy. Any employee having a second positive drug test has been recommended for termination. Pertinent to this case, Petitioner's drug-free workplace policy provides: It is the intent of the Board to provide a drug-free Workplace. Drug-Free Workplace Guidelines 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. 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 program, 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. * * * 12. 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. (Emphasis supplied) Respondent's drug test reported on September 2, 1998, was positive for cannabinoids-THS and cocaine metabolites. Respondent entered into a rehabilitation contract with Petitioner on September 3, 1998. Respondent's entry into a rehabilitation program was not "voluntary," in that Respondent was required to enter a rehabilitation program in order to retain his public employment. The contract Respondent signed provided, in pertinent part, as follows. 2. Following release from the rehabilitation clinic/counselor and for a period of one year from that release, the employee agrees to random breath analysis or blood alcohol test upon notification and/or urine analysis within 24 hours of notification from the Director of Employee Relations. 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. (Emphasis supplied) In order to enter the agreed residential drug treatment program, Respondent twice applied for leave, which Petitioner granted. The last date that his leave would run out was October 30, 1998. Ms. Pamela Love-Knerr conducted an initial evaluation/screening of Respondent in September 1998, in preparation for his admission to the residential treatment program at Bridge House, a residential treatment program operated by Meridian Behavioral Health Care, Inc. She was a counselor at Bridge House until November 1998. However, she did not conduct group sessions at Bridge House after January 1998, when, due to her health problems, she was assigned to the night shift. In August 1998, she was assigned to the evening shift. Respondent entered the Sid Martin Bridge House on October 2, 1998, and was discharged or transferred from the residential program on Friday, October 23, 1998. Also on Friday October 23, 1998, Respondent telephoned the office of Catherine L. Birdsong, Petitioner's personnel supervisor, and her secretary made him an appointment to see Ms. Birdsong the following Monday about returning to work. On October 23, 1998, Respondent's Bridge House counselor of record was Larry Faulkner, not Ms. Love-Knerr. However, since the time of her initial evaluation/screening of Respondent, Ms. Love-Knerr had been the only counselor at Bridge House who maintained regular contact with Ms. Birdsong. On October 23, 1998, Ms. Birdsong believed that Ms. Love-Knerr was the counselor assigned to Respondent. While at Bridge House, Respondent had attended therapy meetings every day, and his urine tests had been drug-free. On October 18, 1998, Respondent and his counselor, Larry Faulkner, had agreed upon an "after care" program, to begin on November 1, 1998, consisting of a schedule of meetings of a men's group, an anger management group, Narcotics Anonymous, and Alcoholics Anonymous. It was planned that Respondent would not return to work until a week or two had passed, so that he could "get [himself] together." The period from October 23, 1998, to November 1, 1998, was intended by Respondent and his counselor, Larry Faulkner, as an interim between residential treatment and "after care." Normally, a client of Bridge House would participate in an "after care" program even after he returned to work. On October 23, 1998, after learning that Respondent wanted to return to work, Ms. Birdsong telephoned Bridge House and spoke to Pamela Love-Knerr. Ms. Love-Knerr told Ms. Birdsong that Respondent had completed the Bridge House residential program; that she was recommending an "after care" program for him; and that she was releasing him for work. Mr. Faulkner may not have been aware that Ms. Love- Knerr and Ms. Birdsong had spoken by telephone on October 23, 1998. Ms. Love-Knerr shared office space with Mr. Faulkner at that time, and because Bridge House was under-staffed, Ms. Love- Knerr was assisting him in getting caught up on his paperwork. Ms. Birdsong considered the written continuing care contract for Respondent, together with her October 23, 1998, telephone conversation with Ms. Love-Knerr, and determined that Respondent had completed the residential part of his rehabilitation; that he was in or would be in a "after care" program; and that he would be able to return to work immediately. Petitioner's decision to return an employee to work is normally made by the Petitioner's District Drug Free Workplace Coordinator after discussing it with the returning employee's drug/alcohol counselor. On Monday, October 26, 1998, at approximately 9:00 a.m., Respondent met, in person, with Ms. Birdsong at her office. They discussed his impressions of the Bridge House program and his desire to return to work. Because his leave was only approved through the end of that work-week, October 30, 1998, it was arranged, through a speaker-phone conversation with Respondent's immediate supervisor, that Respondent would return to work on Monday, November 2, 1998. Ms. Birdsong then sent Respondent for a follow-up drug test for return to duty. Ms. Birdsong informed Respondent that he should report for a drug test by 10:00 a.m., that morning, October 26, 1998. It is Petitioner's normal practice to require employees who are returning from a rehabilitation program to take a drug test prior to returning to work. Respondent went to Doctor's Laboratory of Gainesville as instructed, and provided a urine specimen for drug testing at 10:00 a.m. on October 26, 1998. Respondent's specimen was transported by courier to Doctor's Laboratory in Valdosta, Georgia, where it was tested and confirmed positive for cocaine metabolites as benzozlecgonine. Doctor's Laboratory reported the test result to MRO Services, Inc., in Brunswick, Georgia. After a review of the test results and a telephone consultation with Respondent, the Medical Review Officer, Robert H. Miller, M.D., reported to Petitioner that Respondent's drug test was positive for cocaine metabolites.1 On November 2, 1998, Respondent met again with Ms. Birdsong. She explained to him that because of the positive result of his October 26, 1998, drug test, he might be recommended for termination. She gave him written notice to schedule a pre-termination conference within five days. On November 5, 1998, Respondent and his mother met with Synester P. Jones, Petitioner's Assistant Superintendent for Human Resources, in a pre-termination conference. Ms. Jones explained the procedure for drug testing. She also informed Respondent in writing that, based on his second positive drug test, she would recommend suspension and termination. At its regular meeting on November 17, 1998, Petitioner School Board suspended Respondent without pay, effective November 18, 1998, pending disposition of the instant proceeding.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Alachua County School Board enter a final order terminating Respondent for violating its drug-free workplace policy and his rehabilitation contract. DONE AND ENTERED this 3rd day of August, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 3rd day of August, 1999.
Findings Of Fact Richard Stephan Flatt, M.D., Respondent, is licensed by the Board of Medical Examiners, Department of Professional Regulation (Petitioner) as a medical doctor and was so licensed at all times here relevant. Respondent has been a Board certified Dermatologist since 1957 and has practiced Dermatology in Sarasota for some 20 years. He is 54 years old. Tana Williams was a patient of Respondent in 1971 when he first treated her for warts, and he also treated Ms. Williams' daughter. Afterward she left Sarasota but returned in 1975 or 1976, at which time she was divorced. She visited Respondent's office for treatment of warts on 5 April 1976. Her appointment was near the close of Respondent's office hours. During this visit she told Respondent she was divorced; that she liked older men; and that she would like to see him socially. He suggested she come back to the office after 5:30 p.m. when his nurse normally departed. Upon her return after 5:30, Respondent and Ms. Williams discussed an arrangement whereby he would contribute $250 per month towards her support and spend weekends at the apartment she would occupy. According to Respondent's testimony, at this time he was going through a mid-life crisis and was delighted with the prospects of being desired by a woman 23 years his junior. Some two weeks later the first weekend was shared. Although the situation was very satisfactory to Respondent, the $250 per month was insufficient even to pay the rent, let alone satisfy Ms. Williams' money requirements. Accordingly, Respondent found the liaison was costing more than he could fund from his ready cash. After the 5 April 1976 visit, Ms. Williams did not again visit Respondent's office, or consider herself Respondent' s patient. In addition to cash, Ms. Williams also wanted drugs for her nervous condition and Respondent began supplying her with Quaaludes in the latter part of 1978. By 1979, Ms. Williams was psychologically dependent on Quaaludes and was taking 10 to 12 per day. As Respondent became more financially strapped the Quaaludes were provided for the additional purpose of being converted by Ms. Williams into cash to help maintain her life style. In 1976 Respondent began ordering Quaaludes and Preludin from New York drug houses under his DEA authorization. The Quaaludes started out in quantities of 200 every few months but increased to 1,000 nearly every month by the end of 1979. Most, if not all, of the 11,000 300 mg. Quaaludes Respondent ordered on an Official Order Form for Controlled Substances were given to Ms. Williams. In addition, Respondent ordered Preludin which he also gave to Ms. Williams. Both Preludin and Quaaludes are Class II controlled substances. Due to Ms. Williams' increasing dependence on Quaaludes, nearly half of these drugs given her by Respondent were taken by her. Petitioner presented no evidence that Preludin was wrongfully prescribed or abused. During the nearly four years the relationship continued, several interruptions occurred, due largely to Ms. Williams' living with other men, one of whom she married for a short period of about two months. During the periods Ms. Williams was living with other men, she would contact Respondent to continue or renew their liaison and even threatened suicide and to publicize their relationship to his wife if he did not continue to see her. In the latter months of their association, assignations were arranged at motels at which Respondent gave Ms. Williams money and/or drugs in exchange for sex. In addition to supplying Ms. Williams with drugs obtained on Official Order Forms, Respondent also wrote prescriptions in Ms. Williams' name, in the names of his children, or in the name of a fictitious person. Those prescriptions written in names other than Ms. Williams, Respondent took to Wallpole's Pharmacy personally and picked up the drugs. By this procedure from late 1978 through 1979 Respondent acquired an additional 1,249 300-mg. Quaaludes, 150 Preludin Endurettes, and 100 Preludin tablets which he gave to Ms. Williams. Using a confidential informant, the Sarasota police made two controlled buys of Quaaludes from Ms. Williams and on one of these occasions the informant was wired for sound so his conversations with Ms. Williams could be monitored. With information received from the confidential informant and a surveillance of Ms. Williams' residence, the police became aware that Respondent was Ms. Williams' supplier of drugs. On the morning of 8 February 1980, Ms. Williams was arrested at her home on charges of possession and sale of controlled substances. After being advised of her rights, she was taken down to the State Attorney's office where she was told that she could get up to 10 years in prison for possession and sale of drugs, but that if she cooperated with the police in their case against Respondent, the State Attorney's office would recommend probation rather than jail when she was sentenced. Prior to the arrest of Ms. Williams the Sarasota Police, state and federal drug authorities were aware of Respondent's involvement and were investigating. Respondent, too, was aware of his increasing vulnerability to criminal prosecution and requested a pharmacist to pass the word to the proper authorities that he would like to surrender his DEA certificate, under the authority of which he ordered controlled substances. On February 12, 1980 federal, state and local authorities, armed with information that Respondent had ordered some 11,000 Quaaludes from three New York drug companies during the period from 1976 to the present, visited Respondent's office, told him he was suspected of narcotics violation, read him his rights and asked to see his records. Respondent cooperated fully with the authorities and presented his records which confirmed that Respondent could not account for more than 10,600 Quaaludes during the period from 1976 to the date of the inspection. Respondent made a voluntary statement to the police in which he acknowledged many of the facts noted above. He also voluntarily surrendered his narcotics license. On 22 May 1980, Respondent pleaded guilty in the Circuit Court in and for Sarasota County of two counts of possession of methaqualone and two counts of sale of methaqualone. Adjudication of guilt was withheld, but the Court sentenced Respondent to probation for a period of three years and a $5,000.00 fine on each of the two counts of possession and sale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order dismissing the charges against respondent, R. Hughes, Inc. d/b/a The Odyssey, contained in the Notice To Show Cause in this case. RECOMMENDED this 6th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1984.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner School Board has just cause to terminate the Respondent's employment as a teacher, with reference to a positive drug test for purported use of marijuana.
Findings Of Fact The Respondent has been employed at Dolores S. Parrott Middle School (DSPMS) as a teacher for a total of seven years, including the 2008-2009 school year. The Respondent taught Health, Career Education, and Physical Education. A large component of the Health curriculum is drug use prevention. It includes, as a portion of its curriculum and discussion, the subject of marijuana use. The Respondent was the S.T.A.N.D. (Students Taking Action on Drugs) sponsor at the school for several years prior to the 2008-2009 school year. He was thus responsible for providing students with information about the dangers of using and abusing drugs and the possible consequences related thereto. His position as the Health teacher and the S.T.A.N.D. sponsor made him a role model for students regarding the subject of drug use and drug abuse prevention. The principal at DSPMS for the 2008-2009 school year was Leechele Booker. She has been principal at that school for two years and was an assistant principal and teacher for some twelve years prior to that with the Hernando County School District. In her capacity as principal she is responsible for supervising and evaluating employees, enforcing policy and procedures, as well as investigating alleged violations of policies, law and recommending any resultant disciplinary measures to the District. On March 11, 2009, an unidentified woman called the principal at DSPMS and left a voice mail message identifying herself as "Michelle". She requested that the principal return her call concerning one of the teachers at the school. The principal returned the call to the number that the woman had left. Since no one answered that call, the principal left a message identifying herself. Ms. Booker received a return call approximately thirty minutes later. When Ms. Booker took the call the woman identified herself as Michelle, and acknowledged receiving the message which Principal Booker had left on the voicemail. The person identified as Michelle thereupon informed the principal that she had knowledge of one of the teachers at DSPMS engaging in recent use of marijuana. She claimed to have observed him smoking marijuana over the past weekend and told the principal of her concern at seeing that conduct by one of the teachers. Michelle also advised Ms. Booker that the teacher's fiancée was present when the teacher was smoking marijuana. She identified the teacher's fiancé as a woman named "Brenda." She then stated that the teacher's name was "Mike" and that he was the Health teacher at DSPMS. Ms. Booker then realized that there was only one teacher by that name at the school, the Respondent, Michael Provost. She was already aware that the Respondent's fiancée's name was Brenda, having met her on several occasions. The principal ended the call by advising Michelle that she would investigate the matter and thanked her for the information. She did not request any additional contact information from Michelle. She did not learn additional facts concerning where the Respondent had been seen using marijuana, when it occurred, how Michelle knew the Respondent, or the nature of her relationship with the Respondent. It is likely, although not clear from the record, that Principal Booker did not want to reveal to the caller what her thoughts might be concerning the identity of the teacher who was the subject of the complaint. After ending the phone call with Michelle, Ms. Booker met with Assistant Principals Gary Buel and Nancy Vasquez. She told them of the phone call and the nature of it and they discussed what actions should be taken, based upon the Petitioner's policy 6.33 "Alcohol and Drug-Free Workplace." Ms. Booker then contacted the district office of the Petitioner and spoke with the secretary in "Human Resources." She was thereby advised that an investigation would have to be conducted and that Heather Martin, the Administrator for the Department of Human Resources, would have to be involved. After contact with the district office, Principal Booker and Ms. Vasquez discussed the matter and agreed that they had "reasonable suspicion," under the above-referenced policy, to require the Respondent to take a drug test. The Petitioner maintains that that reasonable suspicion is based upon the information provided in the phone call with Michelle, as well as the fact that the principal was aware that the Respondent was having financial difficulties and needed to be paid for extra-curricular duties immediately, rather than waiting for the normal payment process. He was known to have requested permission to leave work early more frequently than other employees. Ms. Booker called the Respondent to her office to report the allegations lodged against him by the caller. She advised him of the phone call and the reference to smoking marijuana. She informed him that she believed she had reasonable suspicion to have him drug-tested. She told him that Mr. Buel would escort him to the testing facility. The principal then left her office, but was called back because the Respondent had some questions for her. She located a Union representative, Marlene Richie, who accompanied her back to the office to confer with the Respondent. When the principal and Ms. Richie arrived at the office, the principal informed her of the allegations against the Respondent. Ms. Richie made some phone calls to Sandra Armstrong, the Executive Director of the Teachers Association and Joe Vitalo, the Union President. After these phone conversations, Ms. Richie informed Ms. Booker that the Respondent wished to speak to her alone. Ms. Booker spoke with the Respondent alone, in her office, and he informed her that he had been smoking marijuana and told her that the test would be positive. The Respondent admitted his marijuana use because he respected the principal, and it was in everyone's best interest for him to be honest and candid about his problem. He was not coerced or under any pressure to make the admission. He made the admission voluntarily. The Union representative, Ms. Richie, then rejoined Ms. Booker and the Respondent in the office, and the Respondent informed Ms. Richie of what he had told Ms. Booker concerning his marijuana use. Ms. Booker informed the Respondent that he would still need to have drug testing, and she also discussed the Employee Assistance Program ("EAP"). The Respondent volunteered to enroll in the EAP program and made an appointment to see a counselor. The Respondent had not requested assistance or a referral to the EAP before the conversation with the principal on this day, when he admitted his marijuana use. There are two means of referring employees to the EAP under the district's drug and alcohol policy; either self- referral by the employee or referral by management. Under this policy, no disciplinary action is taken when an employee self- refers to the program, or when he or she admits to a drug or alcohol problem and is referred to EAP by a manager. The Petitioner maintains that the Respondent did not volunteer that he had a drug or alcohol problem until confronted with the principal's suspicion and direction to take a drug test. At the same time, however, the Petitioner acknowledges that the Respondent's admission concerning his marijuana use was not because he felt coerced. The Petitioner maintains that, in its view, the request for EAP assistance was not a voluntary request and that therefore, under the Petitioner's policy, disciplinary action can still be taken. The preponderant, persuasive evidence, based upon credibility of the witnesses, including the Respondent, demonstrates that the request for EAP assistance was a voluntary one and was done in conjunction with the principal voluntarily discussing the availability of the EAP program to the Respondent. The Respondent was under no pressure or coercion when he made the admission. In fact, the Respondent, as well as the Petitioner, have presented substantial argument concerning whether there was even "reasonable suspicion," under relevant case law, for the principal to order a drug test. Because of the findings made, and conclusions reached herein, the question of whether "reasonable suspicion" for drug testing existed is immaterial, in light of the District's Policy 6.33 and Section 112.0455, Florida Statutes (2008). After meetings and conversations with Union representatives, the Respondent agreed to the drug test and the results were received on March 18, 2009. They indicated that the test was positive for the presence of marijuana. The Respondent was suspended with pay on March 12, 2009, pending the outcome of an investigation. The Respondent was advised in writing of his suspension at the time of his meeting with the principal and through a letter from the Superintendent. A pre-determination conference was scheduled for March 20, 2009, after the receipt of the drug test results. This was to provide the Respondent an opportunity to dispute any of the information collected through the investigation, before discipline was recommended. The Respondent attended the conference and again admitted to using marijuana and stated that he was aware of the Drug and Alcohol-Free Workplace Policy. He explained that his drug use was the result of personal problems he was experiencing. Following the pre-determination conference, and before making a disciplinary recommendation to the Superintendent, Ms. Martin attempted to contact the informant Michelle, to confirm her story. It was important for Ms. Martin to ensure that she had a name and phone number of the informant since the District does not act on anonymous complaints. A complaint is deemed anonymous if the District has no contact information and no name. Ms. Martin called the number that Michelle had left with the principal and the phone was answered by someone who said it was "Chrissy's phone." Ms. Martin asked for Michelle and a different person came on the line and identified herself as Michelle. The phone number and phone in question were registered to a Chrissy Campbell. Chrissy Campbell is married to the Respondent's fiancée's brother. The Respondent and Campbell are acquainted with each other but do not get along. Ms. Martin advised Michelle that she was calling in reference to the complaint received earlier by the principal. She stated that the District was conducting an investigation and asked if Michelle was willing to provide additional information. At that point, Michelle refused to give any additional information. In her conversation with Michelle, Ms. Martin did not use the Respondent's name, nor did she indicate the call concerned a drug test. After her conversation with Michelle, Ms. Martin reviewed the drug test results and the personnel file, including the Respondent's disciplinary history, before making a recommendation for discipline to the Superintendent. The Respondent's personnel file contained three additional discipline records. In 2005, he received a written warning concerning a violation of the Professional Code of Ethics regarding an inappropriate comment. In 2007, he was reprimanded in writing, stripped of his S.T.A.N.D. sponsor duties and suspended without pay for ten days for failing to properly handle a student's reported drug use. In 2008, he received a Letter of Direction for failing to follow the curriculum and being too personal with students. Ms. Martin took that disciplinary history into consideration in making her recommendation to the Superintendent for termination of employment. By letter of March 23, 2009, the Superintendent advised the Respondent of his recommendation to the School Board that the Respondent be terminated from employment. This proceeding ensued.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the School Board of Hernando County dismissing its Petition for Termination of Employment and reinstating the employment of the Respondent with attendant provision of back pay and all related benefits. DONE AND ENTERED this 9th day of September, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 2009 COPIES FURNISHED: J. Paul Carland, II, Esquire Hernando County School Board 919 North Broad Street Brooksville, Florida 34601 Mark Herdman, Esquire Herdman & Sakellarides, P.A. 29605 U.S. Highway 19 North, Suite 110 Clearwater, Florida 33761 Wayne S. Alexander, Superintendent School Board of Hernando County, Florida 919 North Broad Street Brooksville, Florida 34601 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Recommendation Based on the Findings of Fact and Conclusions of Law above, the Hearing Officer would recommend that the Board revoke the Respondent's license, suspending said penalty upon continued voluntary surrender of the Respondent's license for two years. At the end of said period, the Hearing Officer recommends that the Board set aside the revocation permanently upon the Respondent's satisfactorily demonstrating that she is fully rehabilitated. This will permit the Board to observe the Respondent's conduct for the remainder of her court supervised probation and an additional year of observation of the Respondent in an unsupervised environment. DONE and ORDERED this 7th day of December, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 James Freeland, Esquire 26 Wall Street Orlando, Florida 32801 Geraldine Johnson, R.N. State Board of Nursing 6501 Arlington Expressway - Bldg B Jacksonville, Florida 32211
The Issue The issue to be resolved in this proceeding is whether the Board's disciplinary policy on violation of its drug-free workplace policy is an invalid unpromulgated rule.
Findings Of Fact The Respondent, Patricia Gadson, age 51, was employed as a department secretary by Petitioner, the Escambia County School Board. She worked for the School Board of Escambia County from April 12, 1968, through January 27, 1998.1 She was employed by the Board for twenty-nine years and nine months. Throughout this period of time, Ms. Gadson worked as a school or administrative secretary at various locations throughout the school system. Prior to 1994, Ms. Gadson was a successful employee who received good evaluations of her work. However, sometime prior to January, 1994, several departments were consolidated as a result of downsizing. Ms. Gadson was assigned as the sole administrative secretary for six departments working for four different supervisors. Ms. Gadson found her new job very stressful. The stress resulted in her missing work frequently due to illness and medical treatment. After being examined by her own and the School Board's psychiatrists, Ms. Gadson was diagnosed with depression and took a six-week leave of absence to recuperate. She was not involved with drugs at this time. However, sometime in 1996, approximately two years before her discharge in 1998, Ms. Gadson was introduced to crack cocaine by her sister. She did not refuse the drug and eventually became addicted. She used the drug with full knowledge of the Board's drug-free workplace policy and its policy of zero tolerance for such use. As a result of her addiction, Ms. Gadson's life spiraled downward. She had increased absences from work and deteriorating job performance. In fact, her supervisors had already decided to terminate her for her poor performance. However, her supervisors recognized that she was exhibiting the symptoms of someone suffering from substance abuse and instructed her to take a drug test on November 3, 1997. Ms. Gadson fully cooperated in taking the test. On the way home, Ms. Gadson volunteered to Dr. Larry Reed, one of her supervisors, that the test would be positive. The test came back positive for crack cocaine since Ms. Gadson had last smoked crack on November 2, 1997, the day before her drug test. As a result she was terminated on January 27, 1998, retroactive to December 5, 1997, for violation of the School Board's drug-free workplace policy and for having tested positive for an illegal drug. Ms. Gadson has not smoked crack since November 2, 1997. With the assistance of Dr. Reed, her supervisor, Ms. Gadson was admitted to an out-patient rehabilitation program at the Pavilion Chemical Dependency Hospitalization Program on November 12, 1997. She was discharged from that program on November 26, 1997. She continued the recommended program of treatment in the Aftercare Program until approximately February 1998. She stopped attending the aftercare program in order to care for her grandmother who is an invalid. Ms. Gadson is willing to voluntarily undergo regular drug testing in order to demonstrate her continued abstinence should she be reinstated. The School Board maintains and strictly follows a "zero tolerance" policy for use of illegal drugs. When an employee or student is found to have used illegal drugs, they are automatically terminated or expelled after exhaustion of any due process procedures available irrespective of any mitigating factors. The discipline which would be imposed on an employee for violation of the Board's drug policy was set forth in a memo from the superintendent. The memo was given to all employees, including Ms. Gadson. Additionally, the drug policy was made part of an employee's contract. This policy was applied to Ms. Gadson in this case. The School Board has not adopted the disciplinary part of the drug policy as a rule pursuant to Section 120.54, Florida Statutes (1997). However, the Board has adopted a disciplinary rule and has incorporated that rule in the contract it has with the union. The zero tolerance policy is generally applicable to all employees and, as stated in the School Board's answer, it implements the School Board's drug-free workplace policy, authorized under Chapter 440, Florida Statutes, and School Board Rule 6Gx17-2-62. Indeed, the very intent of the zero tolerance rule is to announce to all concerned that the sole penalty for illegal drug use is termination. Illegal drug use in a school setting is a serious misconduct. Such behavior in this instance, the Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Escambia County Civil Service Board and the collective bargaining agreement for Escambia County. Therefore the School Board's zero tolerance drug use policy is already implemented by Board rule. The rule adequately defines the discipline imposed for employee misconduct and need not define specific instances which warrant termination of any other type of discipline. Respondent's use of cocaine violated the Board's policy and her employment contract. The District has consistently terminated employees found in possession of or using controlled substances with or without evidence of prior disciplinary problems. No exceptions have ever been allowed with one exception related to arbitration. Violation of the Board's drug-free workplace program constitutes cause for termination. Additionally, even without the Board's zero tolerance policy, the use of crack cocaine over an extended period of time by a school employee which causes the employee's performance to fall below acceptable levels constitutes cause for termination. Therefore, superintendent's recommendation for termination of Respondent should be upheld.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent, Jim J. Smith, was at all times material hereto, employed by the School Board as a teacher (under a professional service contract), and assigned to Charles R. Drew Elementary School (Drew Elementary). On or about September, 1997, an informant heard on the street that Respondent wanted to hire someone to kill his former wife. As a consequence, a Florida Department of Law Enforcement (FDLE) agent was assigned (on September 15, 1997) to operate undercover and to meet with Respondent regarding his proposal. On September 16, 1997, the undercover FDLE agent was introduced to Respondent, and during the course of that meeting, Respondent told the agent that "he had a brother that had got into some trouble and there was a [female] witness . . . [that] he wanted taken care of so she couldn't testify against him." (Transcript, page 39). Following that explanation, the meeting was discontinued (for reasons not apparent from the record), and another meeting was scheduled for the following day. As arranged, the undercover agent met with the Respondent the next day and, at Respondent's direction, followed the Respondent by car to a residence located at 1149 Northeast 210th Terrace, Miami, Florida. There, Respondent identified the residence as that of the "witness" he wanted "taken care of"; however, it was actually the residence of his former wife and their two daughters. Respondent also advised the agent that the "witness" would be home alone that day between 5:00 and 6:00 p.m., when he wanted the job done. At the time, Respondent knew his former wife would be alone that afternoon because he was scheduled to have visitation with his daughters. After Respondent identified the residence, the parties drove to a K-Mart parking lot where Respondent exited his vehicle and met with the agent in his car. At that time the agent related the following conversation ensued: . . . at that time I asked him, "So, what do you want done? He says, "I just want her taken care of." I said, "Well, what does that mean? What do you want, because there are different payments for different things. If you want me -- if you want me to kill her, cut her up, take her out to the ocean, that's going to be X amount of dollars. Whatever you need to do, tell me." "I want her messed up, I just want her messed up so she can't talk, whatever you take that as doing, I just need her messed up." 4 I said, well, fine, that it will be $1500 before that, and then it will be $1500 afterwards, which is a total of -- would be a total of $3,000. (Transcript, pages 41 and 42). Notwithstanding Respondent's insistence that the job be done that day, there was no apparent exchange of money and no proof of record that anything further transpired following their conversation. Based on such incident, Respondent was arrested on October 1, 1997, for solicitation to commit aggravated battery. Those charges were, however, dismissed in early March 1998, based on the State's perceived failure to comply with the "Speedy Trial" rule. The propriety of that dismissal is currently pending on appeal. On or about March 20, 1998, following dismissal of the charges, the School Board inexplicably returned Respondent to his duties at Drew Elementary. That reinstatement was met by an "outcry from the community"; however, the School Board allowed Respondent to resume his duties. Apart from soliciting someone to harm or, as the undercover agent understood it, to kill his former wife, Respondent had also engaged in a pattern of harassment toward his former wife since on or about April 1, 1996. That harassment abated during the pendency of the criminal charge, and escalated following dismissal of the charge.5 In response, Respondent's former wife secured an injunction against domestic violence which prohibited Respondent from contacting her or their daughters. Notwithstanding, the harassment continued. On October 1, 1998, Respondent was arrested and charged with burglary with assault therein, aggravated stalking, and violation of the injunction against domestic violence. Thereafter, Respondent was apparently erroneously released on bond; however, on or about October 6, 1998, he was taken back into custody, where he remained as of the date of hearing. On April 12, 1999, as his trial was about to commence, Respondent expressed his desire to enter a plea. At the time, Respondent pled guilty to all charges, and was sentenced to two years of community control (house arrest), followed by ten years of probation. As a special condition of the two-year term of community control, Respondent was ordered to serve a term of 364 days in the Dade County Jail without credit for time served; however, the jail term would be mitigated to residential treatment provided Respondent found and entered into appropriate residential mental health counseling. As heretofore noted, as of the date of hearing (April 19, 1999), Respondent remained incarcerated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida WILLIAM J. KENDRICK 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 28th day of May, 1999.
The Issue Whether Respondent has been guilty of gross immorality or an act involving moral turpitude and/or guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board.
Findings Of Fact At all times relevant hereto, Marilyn Joan Pelaez held Florida Teacher's Certificate No. 463945 covering the subjects of elementary and secondary physical education and secondary English. On February 20, 1989, while returning home from a party, Respondent became disoriented, sleepy and was in a section of Tampa of which she was not familiar. She pulled her car off the road and into the driveway of a business establishment (Cox Lumber Company) and went to sleep. Some time thereafter Deputy Sheriff Bradley Sanderson, on patrol, observed the parked car and, following standard procedures, stopped his vehicle to investigate. Upon approaching the car, he observed Respondent apparently asleep. He rapped on the windshield, Respondent awakened and opened the car door on the driver's side. When the door was opened, Deputy Sanderson saw what appeared to be drug paraphernalia in the pocket of the door and seized the "pipe". Although this pipe was offered into evidence, it was not accepted. In lieu thereof, a description of the "pipe" was read into the record. This paraphernalia seized is used for "snorting" cocaine rather than smoking it. The pipe was tested on the scene, and traces of cocaine were found in the pipe. Respondent was forthwith arrested for possession of drug paraphernalia and cocaine and transported to the sheriff's office. She was subsequently brought to trial on charges of unlawful possession of cocaine and having in her possession drug paraphernalia with intent to use to ingest unlawful drugs (Exhibit 1). Respondent pleaded nolo contendere to these charges, adjudication of guilt was withheld, and Respondent was placed on probation for one year (Exhibit 2). Respondent readily acknowledged the above facts but contends, without contradiction, that she did not own the "pipe" found in the car door pocket and was unaware that the instrument had been left there by an unknown person. She admitted that she was careless in not locking her car, but acknowledged that the car had been left unlocked and outdoors all weekend. Respondent further testified that she had never used cocaine since experimenting with it in college, and that she requested the officers who arrested her to test for cocaine in her system, and they refused. Had this not been true, the officers who arrested Respondent were present, heard the testimony and were available to rebut this evidence. The deputy who was called in rebuttal reinforced Respondent's testimony that she had opened the door immediately upon being aroused and did not try to close the door when he saw and reached for the pipe. Respondent pleaded nolo contendere because she had no defense to the charge that drug paraphernalia had been found in her car and, therefore, in her possession, and that plea would get her probation rather than a possible prison sentence if she contested the charges. No evidence was presented that Respondent's arrest had received wide publicity in the Hillsborough County School System, nor was other evidence presented respecting Respondent's effectiveness in the school system subsequent to her arrest.
Recommendation It is recommended that the charges contained in the Administrative Complaint dated June 19, 1989, against Marilyn Joan Pelaez be dismissed. ENTERED this 31st day of May, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1990. APPENDIX Proposed findings submitted by Petitioner are accepted, except for the following. Respondent became lost when she was fifteen minutes driving time from her home. Inconsistent with H. O. Finding #2. 9. Rejected as unsupported by the evidence. 18. Accepted as modified by H. O. #11. 21-24. Rejected as beyond the allegations contained in the Administrative Complaint. 25. Accepted insofar as included in H. O. #8. COPIES FURNISHED: Steven G. Burton, Esquire Post Office Box 3273 Tampa, FL 33601-3273 Marilyn Joan Pelaez 13809 Fletcher's Mill Drive Tampa, FL 33613 Karen B. Wilde Executive Director Education Practices Commission 301 Florida Education Center 325 W. Gaines Street Tallahassee, FL 32399 Martin Schaap Administrator Professional Practices Services 325 W. Gaines Street, Room 352 Tallahassee, FL 32399 Mark Herron, Esquire 216 S. Monroe Street Suite 300 Tallahassee, FL 32301 =================================================================
Findings Of Fact During the month of August 1990, petitioner, Gerald J. Vanacker, conspired with one Perry Anthony Laspina (Laspina) to purchase 40 pounds of marijuana (cannabis) in Broward County, Florida, for $34,000.00. Unbeknownst to the conspirators, the person from whom they arranged to purchase the marijuana was a detective with the City of Fort Lauderdale Police Department. The negotiations for the sale were made by telephone, and were primarily between Laspina and the detective; however, the petitioner was present with Laspina when the terms of the agreement were finalized. The basic terms of the agreement were that the detective would deliver 40 pounds of marijuana to Laspina in exchange for $34,000.00. At the actual time of sale, the agreement had been modified, due to a shortage of cash funds, to call for the exchange of $25,000 and the delivery of certain personal property as collateral for the payment of the balance of the agreed upon price. On August 15, 1990, petitioner and Laspina met with two undercover detectives, one of whom was the detective with whom Laspina had negotiated the deal, to purchase the subject marijuana. At that time, one of the detectives took possession of Laspina's car, left the area, loaded it with a 40-pound bale of marijuana, and returned the car and its cargo of marijuana to the site. Thereafter, the trunk was opened, and petitioner and Laspina examined and approved the marijuana. At that point, Laspina entered the detective's car so the money he had brought could be counted and exchanged, and petitioner and the other detective waited in Laspina's car. Shortly thereafter, other detectives arrived on the scene and petitioner and Laspina were arrested and charged with possession of marijuana, a felony, in violation of Section 893.13, Florida Statutes. On August 27, 1990, the respondent, Department of Revenue (Department) issued a Notice of Assessment and Jeopardy Findings which assessed tax and penalties in the amount of $25,500.00, together with interest thereon at the rate of $8.38 per day after September 21, 1990, against the petitioner, pursuant to Section 212.0505, Florida Statutes. The factual basis for the assessment was the petitioner's involvement in the marijuana transaction described in the foregoing findings of fact. Following unsuccessful efforts to resolve the matter, petitioner ultimately filed a timely petition seeking a formal hearing to contest the Department's assessment. At hearing, petitioner contended that he was not involved in any sale, use, or distribution of the subject marijuana, but had merely loaned Laspina $9,000.00 so he, Laspina, could purchase the marijuana. In exchange, petitioner expected a "quick turnaround" on his investment in that he expected to be repaid his $9,000.00, together with an additional $2,100.00, the same day that the marijuana was acquired. According to petitioner, he was merely present at the scene to make sure Laspina did not abscond with his money. Petitioner's contention regarding the limited nature of his involvement is contrary to the credible proof which supported the findings of fact hereto made. Moreover, even were petitioner's contentions to be credited, his involvement in the subject sale was likewise so extensive as to make him a conspirator in such unlawful transaction. In sum, the proof supports the conclusion that petitioner did engage in the unlawful use or distribution of cannabis as set forth in the Notice of Assessment and Jeopardy Findings, and that the Department's assessment of the tax, surcharge, and interest was reasonable and appropriate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department issue a final order concluding that petitioner, Gerald J. Vanacker, is liable for taxes, penalties, and interest pursuant to Section 212.0505, Florida Statutes, and assessing the amount of such liability at $25,500.00, plus interest at the rate of $8.38 per day since September 21, 1990. RECOMMENDED in Tallahassee, Leon County, Florida, this 15th day of November 1991. WILLIAM J. KENDRICK 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 15th day of November 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2712 The Department's proposed findings of fact are addressed as follows: 1. Rejected as not a finding of fact. 2 & 3. Addressed in paragraph 3. 4-23. Addressed in paragraphs 1-3, 5 and 6. 24-29. Addressed in paragraphs 4 and 7. COPIES FURNISHED: Gerald J. Van Acker, pro se 1074 S.W. Jennifer Terrace Port St. Lucie, Florida 34953 Ralph R. Jaeger, Esquire Assistant Attorney General Tax Section, Capitol Building Tallahassee, Florida 32399-1550 Vicki Weber, Esquire J. Thomas Herndon General Counsel Executive Director Department of Revenue 104 Carlton Building 204 Carolton Building Tallahassee, Florida 32399 Tallahassee, Forida 32399-0100
