The Issue The issue is whether Petitioner may terminate Respondent's employment as a teacher.
Findings Of Fact Respondent has been a teacher since 1993. She is a 34- year-old divorced mother of a four-year-old son. Respondent has suffered from a chemical dependency since she was 18 years old. At that time, she completed a 28- day detoxification program at Mt. Sinai Medical Center in Miami. Six or seven years later, Respondent underwent additional inpatient treatment for her addiction to drugs. She submitted to a third detoxification, lasting five to seven days, in 1993 or 1994. Respondent underwent a fourth detoxification ten months later and, in 1996, a fifth detoxification. Respondent admits that she has undergone detoxification several more times since 1996. These detoxifications and Respondent's intermittent participation in Narcotics Anonymous were parts of treatment programs attempting to relieve Respondent from her addiction to cocaine and heroin. Respondent's addiction has spanned her college years through her entire teaching career. The effects of Respondent's illness have, at times, precluded her from reaching her full potential as a classroom teacher. After a brief period of employment by Petitioner as a permanent substitute teacher, Respondent began fulltime employment with Petitioner in August 1994 as a teacher at Oak Grove Elementary School. While at Oak Grove, Respondent was a satisfactory teacher, although her attendance was less than satisfactory. Also, on at least six occasions, evidently starting in her second year, Respondent fell asleep while conducting a reading tutorial session in which the students spent 20 minutes in separate cubicles. Respondent's principal at Oak Grove documented by a memorandum dated December 4, 1995, eleven full-day absences and two half-day absences during the 1995-96 school year and two instances of sleeping while charged with the instruction of a student--both on the same day and both discovered by the principal. Due to these incidents and an earlier incident of sleeping while on duty, the principal administratively referred Respondent to Petitioner's Employee Assistance Program (EAP). The December 4 memorandum documented the actions taken at a conference held the same date involving, among others, Respondent and the principal. Respondent then missed work on December 6 and 7--calling in at 10:06 a.m. on December 7 saying that she had overslept and asking if it was too late to report to work. Respondent missed a considerable amount of work during the 1996-97 school year. Some of the absences, especially from early December through early February, were due to Respondent's chemical dependency. However, some absences, especially during the latter part of the school year, may be attributed to the birth of Respondent's child on July 9, 1997, following a high- risk pregnancy. The record does not disclose much about the 1997-98 school year. However, Respondent missed ten days of work due to sick or personal leave and eleven days of work due to unpaid, but authorized, leave. The absence of additional administrative action against Respondent suggests that she may have improved her attendance and eliminated her sleeping while on duty. For the 1998-99 school year, Respondent transferred to a new school, Linda Lentin Elementary School. Again, Respondent was a satisfactory teacher, except for absenteeism. However, during a nine-day absence from May 20 through June 2, 1999, the principal received a telephone call from someone claiming that Respondent had had a breakdown and was in a "drug rehabilitation hospital." Accordingly, the principal requested that Petitioner's Office of Professional Standards (OPS) monitor Respondent's return to work. On June 8, 1999, Respondent, the principal, Petitioner's OPS Director, and others participated in a Conference for the Record (CFR). Respondent attributed her 21 absences in the 1997-98 school year, as well as 20.5 absences in the 1998-99 school year, to six miscarriages and depression. Petitioner's OPS Director explained the procedures for reasonable-suspicion drug testing. The CFR memorandum concludes by emphasizing that Respondent must report to work when scheduled and on time, obtain medical excuses for all absences, provide lesson plans for substitute teachers, and obtain approval for scheduled leave. At the same time, Petitioner's OPS Director referred Respondent to Petitioner's EAP. Subject to these actions, Petitioner approved Respondent's return to the classroom. However, Respondent's attendance did not improve the following school year, and her behavior became somewhat eccentric early in the school year. At noon on September 27, 1999, Respondent told the principal that she was ill and needed to go home for the remainder of the day and the following day. Respondent went home, but, despite requesting leave and a substitute for the following day, returned to work the following day without calling first. Near the end of the school day, while her students were in a special-area class, Respondent signed out of school and walked down the street, despite the fact that it was raining. The next day, Respondent left the school grounds without permission and, the following day, failed to attend a mandatory teachers' meeting. The situation deteriorated in mid-October 1999. From October 11-14, Respondent telephoned the school each day and reported that she was sick and in the hospital. The following Monday, October 18, Respondent reported to work. However, on October 19, Respondent failed to report to work or call, leaving her class sitting in the hallway. Respondent telephoned the school at mid-day and stated that she had been in a five-car accident. This accident did not take place. On October 20, while driving to school, Respondent was involved in a two-car accident, which resulted in her striking a fire hydrant not far from the school. The accident took place at about 8:45 a.m., which was about 15 minutes after Respondent assumed direct supervision of her students. Respondent arrived at school late, crying and disconcerted. An acquaintance transported Respondent home. The next morning, prior to the start of school, Respondent called the school and stated that she would not be at work. On the following morning, October 22, Respondent reported to work, and her principal ordered her to submit to a reasonable-suspicion drug test. Respondent complied, and the drug test revealed the presence of cocaine and morphine. The drug test accurately detected the presence of these substances because Respondent had used crack cocaine and heroin within the period for which the drug test is sensitive. By memorandum dated October 29, 1999, Respondent's principal asked Petitioner's OPS to monitor Respondent's return to work. By memorandum dated November 1, 1999, Petitioner's OPS informed Respondent that she would require a clearance from OPS before returning to work. On November 8, 1999, Respondent requested a leave of absence without pay to extend from October 22, 1999, through June 16, 2000. Petitioner granted this request. Shortly after starting her leave from work, Respondent was first seen by Dr. John Eustace. Dr. Eustace is Board-certified in internal medicine and is also certified in the treatment of addictions. He is the medical director of the Addiction Treatment Program at Mt. Sinai Medical Center. He is also an assistant professor of psychiatry at the University of Miami medical school. In the last ten years, Dr. Eustace has performed 2000 evaluations of professionals to assess whether they can return to practice with the requisite skill and safety. During his career, Dr. Eustace has diagnosed and treated over 10,000 patients for addictions. Dr. Eustace admitted Respondent as an in-patient at Mt. Sinai for, among other things, a four- or five-day detoxification program. He found that Respondent was in the late middle stage of addiction to heroin and cocaine and that her illness was active. When releasing Respondent from the detoxification program, Dr. Eustace recommended that Respondent enter a twelve- step program to better prepare Respondent for the difficult recovery process, which requires, among other things, gaining insight into the consequences of the addiction. Following the detoxification process, Dr. Eustace opined that Respondent had an even chance of avoiding another relapse. However, this prognosis improves with time. After the first five years without relapse, the relapse rate is only ten percent. Also, after a second treatment, the recovery rate is over 90 percent. Of the 2000 professionals whom Dr. Eustace has treated, over 90 percent have recovered. Unfortunately, Respondent relapsed after her 1999 detoxification and treatment by Dr. Eustace. Despite her return to active use of illegal drugs, Respondent chose to restart the process by which she could return to the classroom. Petitioner's OPS informed Respondent that she would need OPS clearance before returning to work. Reacting to Respondent's request for a clearance, OPS scheduled a CFR with Respondent and others to take place on July 28, 2000. At the July 28 CFR, Respondent signed an Employee Acknowledgement Form concerning Petitioner's drug-free workplace policy. The form states: "Before returning to duty, I must undergo a return-to-duty . . . controlled substances test with verified negative results." At the CFR, Respondent admitted that she had had a chemical dependency, but represented that she was now clean and sober. Apparently, Respondent did not anticipate that she would be required to take a drug test at the July 28 CFR. However, with the new school year imminent, it is difficult to understand exactly when Respondent thought she would be required to take the drug test. If she were going to teach the next school year, her principal needed more than a few days' notice. In any event, Respondent took the test on July 28, and the test revealed the presence of morphine, although not cocaine. By memorandum dated September 6, 2000, from Petitioner's OPS Director to Respondent, Petitioner advised Respondent that it was reviewing its options after receiving the results of the July 28 drug test. By letter dated October 6, 2000, to Respondent, Petitioner's Superintendent advised Respondent that Petitioner was suspending her and initiating dismissal proceedings due to just cause, including incompetency, misconduct in office, gross insubordination, excessive absences, and violation of Petitioner's Rules 6Gx13-4-105 (drug-free workplace) and 6Gx13-4A-1.21 (responsibilities and duties). By letter dated October 12, 2000, and revised October 17, 2000, Petitioner's board took the action recommended by the Superintendent. The contract between Petitioner and the United Teachers of Dade (Contract) provides in Article XXI, Section 1.B.1.a, that "[a]ny member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." Article XXI, Section 2.G, sets forth the Drug-Free Workplace General Policy Statement. Section 2.G.b provides the policy statement on illegal drugs, Section 2.G.c provides the policy statement on alcohol and prescription drugs, and Section 2.G.d provides the policy statement on employee drug screening. Under employee drug screening, Section 2.G.d.5 states: [Petitioner] recognizes that chemical dependency is an illness that can be successfully treated. It is the policy of [Petitioner], where possible, to seek rehabilitation of employees with a self- admitted or detected drug problem. Disciplinary action may be instituted against employees who the Board believes will not be assisted by rehabilitation or who have negatively impacted students and/or staff. Employees who have previously been referred for assistance or employees unwilling or unable to rehabilitate may be subject to appropriate action, pursuant to Board Policy, applicable Florida Statutes, State Board Rules, and applicable provisions of collective bargaining agreements. Petitioner has invoked two of its rules in this case. Rule 6Gx13-4A-1.21, which is a statement of "Responsibilities and Duties," requires, at Section 1, all employees "to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system." It is unnecessary to determine whether the Contract incorporates this rule, or whether Petitioner may otherwise rely on this rule to dismiss an instructional employee during the school year. Rule 6Gx13-4-1.05 (Rule), which is the "Drug-Free Workplace General Policy Statement," is a restatement of the Drug-Free Workplace General Policy Statement contained in the Contract. The prominent role of the Drug-Free Workplace General Policy Statement in the Contract, as well as its provision for the dismissal of employees, justifies Petitioner’s reliance upon a violation of the Rule as a basis for dismissing an instructional employee during the school year, notwithstanding the provision of the Contract otherwise requiring that all such dismissals be based on violations of Florida Statutes. In most respects, the Drug-Free Workplace General Policy Statement is the same in the Rule and the Contract. The Rule provides for "disciplinary sanctions" against employees who have violated the "standards of conduct" set forth within the Rule. Like the Contract, the Rule contains three "policy statements," which supply most of the operative provisions of the Rule. For illegal drugs, the policy statement, as set forth in the Rule, provides: "Employees are expected to conduct themselves in a manner consistent with the following provisions: Employees on duty or on School Board property will not manufacture, distribute, dispense, possess or use illegal drugs, nor will they be under the influence of such drugs. Employees on or off duty will not influence students to use illegal or abuse legal drugs. An employee convicted, adjudicated guilty, or who has entered a plea of guilty for an criminal drug statute violation occurring in the workplace shall notify [Petitioner] within 48 hours after final judgment. Paragraphs A and C are limited to acts and conditions that take place while an employee is on Petitioner's property or on duty. Paragraph B is limited to acts of the employee directed toward students. The evidence does not suggest that Respondent violated any of these provisions of the Rule. Petitioner failed to serve that the incidents involving Respondent sleeping while in charge of students appear not to have been due to her cocaine or heroin intoxication; it is at least as likely that the sleeping resulted from fatigue following the use of one or both of these drugs the preceding night. The distinction between intoxicating levels of these drugs and nonintoxicating trace amounts is explicitly dismissed by the Rule's treatment of alcohol, as to which employees must be "free of measurable . . . concentrations." After the policy statements on illegal drugs and alcohol and prescription drugs, the Rule sets forth the policy statement on employee drug screening. Although this part of the Rule fails to provide explicitly that a positive drug screen is a violation of the Rule, the introductory paragraph of the Rule acknowledges that Petitioner and the United Teachers of Dade are jointly committed "to create and maintain a drug-free work environment." Paragraph D within the drug-screening policy statement restates this purpose. Also, the disciplinary sanctions provided by the Rule clearly state that a refusal to submit to a drug test or a second violation of the Rule constitutes an inability to be assisted by rehabilitation; if a refusal to submit to a drug test is a violation, a failed drug test must also be a violation. These statements are therefore sufficient to provide that the presence in employees of even nonintoxicating amounts of illegal drugs, while on duty, constitute a violation of the Rule. In two respects, the Drug-Free Workplace General Policy Statement, as described in the Rule, is materially different from the Drug-Free Workplace General Policy Statement, as described in the Contract. First, the Rule adds another objective: To communicate that persons who violate the standards of conduct cited in this rule and who refuse or cannot be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. Second, the Rule provides disciplinary sanctions for any violation--not just for violations of the drug-screening policy statement, as provided by the Contract--of the Drug-Free Workplace General Policy Statement. The Rule also adds two presumptive conditions for determining when an employee is unable to be assisted by rehabilitation. The Rule states: Employees who violate the standards of conduct cited it this rule and who the Board determines will not be assisted by rehabilitation or who have negatively impacted students and/or staff shall be dismissed. A refusal to submit to a drug test or a second violation of the Drug-Free Workplace Policy shall constitute an inability to be assisted by rehabilitation. . . . This case turns on whether Petitioner has proved that Respondent would not be assisted by rehabilitation because Petitioner has produced little detailed evidence of any negative impact upon Respondent's students. The record lacks detail of Respondent's specific teaching duties, the specific impact of her sleeping incidents or absences, and the academic achievements of her students during the periods in which these shortcomings took place. Notwithstanding the marked shortcomings in Respondent's performance as a teacher, Petitioner did not dismiss her until first giving her a chance to rehabilitate herself. The most likely inference is that Petitioner's administrative employees found that the situation did not satisfy the first criterion for dismissal--negatively impacting students. The basic issue, then, is whether Petitioner could reasonably have determined, from July to October 2000, that Respondent would not be assisted by rehabilitation. Petitioner could choose to show rehabilitation would be futile by relying on one of the two presumptions contained in the Rule. However, Respondent never refused to submit to a drug test, and difficult questions of her employment status in July 2000 obscure the determination as to whether her failure of the July 2000 drug test constitutes a second violation of the Rule. In this case, though, Petitioner may satisfy its standard of proof without regard to either of the presumptions in the Rule. After a display of considerable patience and good faith by Petitioner, Respondent, in July 2000, misrepresented to Petitioner that she was clean and sober and prematurely requested permission to return to teaching duties despite her knowledge that she was still abusing drugs and not ready to return to the classroom. These facts support the finding that, as of July or October 2000, Respondent would not be assisted by rehabilitation. This finding of the futility of rehabilitation, as of July or October 2000, is difficult due to the fact that subsequent events suggest that Respondent may finally be rehabilitating herself. After Petitioner dismissed her, Respondent underwent detoxification and then began treatment at St. Luke's Addiction Recovery Center, which is sponsored by Catholic Charities of the Archdiocese of Miami, Inc. She was in intensive residential treatment from November 6, 2000, through January 24, 2001. She later underwent nine urinalyses, through June 1, 2001--a day after the end of the hearing in this case-- and all of them were negative. Respondent is successfully participating in the St. Luke's aftercare program, where she takes weekly drug tests. She is proud of the fact that she has turned her life over to God and has achieved the longest period of sobriety that she has experienced in many years. After regaining sobriety, Respondent substituted for awhile and then found a job teaching a third-grade class at a private school in the Miami area. At the time of the hearing, Respondent had been so employed for six weeks, she had not been late or missed a day of school, and the school had invited her to teach again for the 2001-02 school year. Dr. Eustace opines that Respondent's prognosis is much improved from the prognosis of September 2000.
Recommendation It is RECOMMENDED that Petitioner enter a final order dismissing Respondent from employment. DONE AND ENTERED this 5th day of November, 2001, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of November, 2001. COPIES FURNISHED: Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 N. E. Second Avenue Room 912 Miami, Florida 33132-1308 Luis M. Garcia Attorney's Office School Board of Miami-Dade County 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Richard Baron Baron and Cliff 11077 Biscayne Boulevard, Suite 307 Miami, Florida 33161 Honorable Charlie Crist Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
The Issue The issue is whether respondent should be dismissed as an employee for the reasons given in the termination letter dated June 19, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Oliver Williams, was employed as a bus aide for petitioner, School Board of Alachua County (Board). As such, he is an educational support employee within the meaning of the law. In a charging document dated June 19, 1996, the Board alleged that respondent had violated the Board's "DrugFree Workplace" policy by "testing positive for an illegal substance" a second time. For this alleged misconduct, the Board proposed to terminate his employment. Effective July 17, 1996, respondent was suspended without pay pending the outcome of this proceeding. Respondent disputes these allegations and has initiated this proceeding to challenge his termination. In his position as a bus aide, respondent is required to undergo an annual physical, including a five-panel drug screen through urinalysis for amphetamines, cannabinoids, cocaine, PCP and opiates. The testing is required since the Board has adopted a policy/guideline of maintaining a drug-free workplace. The policy/guideline has been in effect since at least May 16, 1989, and all employees are on notice that controlled substances may not be used in the workplace. On June 14, 1995, respondent provided a urine speciman to Doctor’s Laboratory, Inc., a Gainesville, Florida firm which has contracted with the Board to provide drug screening for certain Board employees. That test revealed a positive reading for Cannabinoids-THC (marijuana), which violated a Board policy prohibiting the “use of a controlled substance” in the workplace. On June 26, 1995, respondent was invited to a conference to discuss the test results. At that conference, respondent executed a rehabilitation contract in which he agreed to undergo patient counseling and to refrain from using “all illegal mind- altering substances.” He also agreed to have “random urinalysis” for a period of one year following release from the rehabilitation clinic/counselor. The contract provided that if he violated the agreement, he would be subject to termination as a Board employee. On August 16, 1995, and March 4, 1996, respondent tested negative in follow-up drug tests. On June 10, 1996, however, respondent again tested positive for Cannabinoids-THC. The validity and accuracy of the latter test has not been challenged. At a pre-termination conference held on June 18, 1996, respondent was asked what would cause his test to be positive. He responded that a fourteen year old niece who lived in his home regularly smoked marijuana with her friends and the passive smoke may have caused the positive reading. Through expert testimony of Dr. Goldberger, however, this theory was discredited. Because respondent’s conduct violates Board policy and the agreement which he signed, he should be terminated. Termination of employment is consistent with actions taken by the Board in the cases of other employees who have tested positive a second time. It is likewise found to be appropriate in this case.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Alachua County enter a final order finding respondent guilty of violating Board policy regarding the use of drugs in the workplace and that he be terminated as a Board employee.DONE AND ENTERED this 13th day of March, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of March, 1997. COPIES FURNISHED: Robert W. Hughes, Superintendent of Schools School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601-5498 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601-5498 Douglas W. Porter, Esquire Post Office Box 2655 Gainesville, Florida 32602
The Issue The issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so, whether those acts constitute immorality or misconduct in office and thereby constitute just cause for the suspension and termination of the Respondent's employment as a continuing contract visiting teacher.
Findings Of Fact The Respondent, James W. Hamilton, was employed by the School Board of Dade County pursuant to a continuing contract and was assigned to Region One of the school system as a visiting teacher. As a visiting teacher, the Respondent held a valid teaching certificate and he had the option of being a classroom teacher. As a visiting teacher, his duties here primarily related to identifying and helping to resolve home problems that adversely affected the school attendance or school performance of students in the Region One schools. Visiting teachers are held to the same standards of conduct as those expected of classroom teachers. For many years, including the 1989-90 school year, there has been in place throughout the Dade County School System an ongoing, continuous anti-drug program. The program is designed to prevent the use of unlawful drugs by public school students. At about 10:00 p.m. on the night of October 27, 1989, Officers Warren Emerson and Willie Wiggins, together with several other law enforcement officers of the Broward County Sheriff's Office were in the process of conducting a reverse sting operation in the 4600 block of Southwest 20th Street, a neighborhood in West Hollywood, Florida, known as Carver's Ranches. Officer Wiggins was working as an undercover operative, posing as a street level narcotics dealer offering to sell rock cocaine to anyone who was interested in buying it. Other officers waited nearby to arrest all of Officer Wiggins' customers. The Carver's Ranches area is known to be a high-level street narcotics area where many offenses occur, such as burglaries, robberies, thefts, shootings, and an array of crimes related to narcotics activity. At approximately 10:00 p.m. on the night of October 27, 1989, the Respondent approached the location of the reverse sting operation and stopped his vehicle beside where Officer Wiggins was standing. Officer Wiggins walked over to the Respondent's vehicle, whereupon a conversation took place between the Respondent and Officer Wiggins. Officer Wiggins then handed a small plastic baggie containing rock cocaine to the Respondent. Immediately thereafter, Officer Wiggins removed his cap, which was a signal to the other law enforcement officers involved in the reverse sting operation that a narcotics transaction had taken place and that the Respondent was in possession of rock cocaine. Other officers promptly moved in and arrested the Respondent. At the time of his arrest the Respondent was holding in his left hand a small plastic baggie containing rock cocaine. The baggie containing the rock cocaine was seized by the arresting officers and was turned over to a forensic chemist for analysis. Scientific analysis of the contents of the baggie taken from the Respondent confirmed that the baggie contained cocaine. Scientific analysis also confirmed that it was the same cocaine that had been distributed by Officer Wiggins, because all cocaine distributed by Officer Wiggins was specially marked. Shortly after the Respondent was arrested for possession of rock cocaine that information was reported to the School Board of Dade County. The school system initiated investigative proceedings and the facts became known to various school system administrators. The fact of the Respondent's arrest also became known to clerical staff, to other personnel who handle confidential matters, and to agencies that are customarily involved in these types of matters. The Respondent's arrest for possession of cocaine was also reported on two occasions in the Miami Herald, a Dade County newpaper of wide circulation. The Respondent's possession of cocaine constitutes a breach of various duties imposed on instructional personnel, including the following: (a) the duty to strive to achieve and sustain the highest degree of ethical conduct, (b) the duty to maintain the respect and confidence of colleagues, students, parents, and other members of the community and (c) the duty to make reasonable efforts to protect students from conditions that would be harmful to either learning, health, or safety. The Respondent's possession of cocaine is inconsistent with standards of public conscience and good morals and is sufficiently serious as to impair the Respondent's services in the community and his effectiveness in the school system. Such conduct also constitutes a violation of School Board rules relating to employee misconduct and conduct unbecoming a School Board employee pursuant to Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order in this case concluding that the Respondent is guilty of - "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July 1990. 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 18th day of July, 1990. COPIES FURNISHED: Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134 Mr. James W. Hamilton 505 N.W. 177th Street Apartment 120 Miami, Florida 33169 Dr. Patrick Gray Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132 Madelyn P. Schere, Esquire School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Commission of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie General Counsel Department of Education The Capitol PL-08 Tallahassee, Florida 32399-0400 =================================================================
Findings Of Fact Background Petitioner was founded by Mr. Art Barker in 1970 and has been operated since that time as a private, non-profit entity. Petitioner receives no funds from any unit of government and is a valuable asset in the field of drug abuse treatment and prevention. Petitioner enjoys a good reputation in the community it serves and has demonstrated its ability to help people with substance abuse problems. Approximately 7,000 people have gone through Petitioner's drug abuse program with a success rate in excess of 90 percent. Petitioner was an innovator in the development of the type of drug abuse programs administered by it. The drug abuse program administered by Petitioner has been emulated by approximately 12 other programs in the state. There are not enough programs of this type to satisfy the needs of individuals in the state. Respondent first began licensing drug abuse programs in February, 1972. Petitioner has been continuously licensed by Respondent as a drug abuse program. Petitioner is authorized under License Number 10A-38 to provide "day care with host component." The licensed address for Petitioner is 919 East Broward Boulevard, Fort Lauderdale, Florida, 33301. Petitioner's license must be renewed annually. Applicable administrative rules require licensees to operate drug abuse programs under the supervision of a "qualified supervisor." Prior to September, 1986, a qualified supervisor was defined as an individual who, by "training or experience" was responsible for providing clinical guidance to counselors. 3/ In September, 1986, the ability of an individual to qualify as a qualified supervisor based solely upon his or her work experience was deleted. Since September, 1986, an individual who wished to satisfy the requirements of a qualified supervisor was required to either satisfy minimum educational requirements or become certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process ("certified addiction professionals" or "CAP designation"). Petitioner demonstrated its good faith effort to comply with Respondent's rules. Respondent's licensing agent advised Petitioner in 1987 that Petitioner would be in compliance with the new requirements for qualified supervisors as long as staff personnel placed their full name and title next to the comments on the client's records. That procedure was followed by staff personnel during the license years for 1987-1988 and 1988-1989. Petitioner's license was renewed during those years with no question from Respondent concerning the credentials of Petitioner's qualified supervisors. During the same license years, Petitioner's personnel were led to believe by Respondent's licensing agent and reasonably did believe that they were in full compliance with Respondent's rules. Petitioner relocated in 1987 and purchased a building rather than leasing one. The decision to purchase the building at the new location was made, in part, in reliance upon Respondent's representation and Petitioner's belief that Petitioner was in compliance with applicable rules regarding qualified supervisors. Respondent refused to issue a regular annual license to Petitioner for the 1989-1990 license year for the sole reason that Petitioner did not have a qualified supervisor. 4/ Respondent specifically determined that neither Mr. Art Barker nor Ms. Lybbi Kienzle satisfy the educational or certification requirements for qualified supervisors. 5/ It is uncontroverted that Mr. Art Barker and Ms. Lybbi Kienzle are each competent to perform the duties of a qualified supervisor. Respondent determined that each individual is competent to perform the duties of a qualified supervisor and so stipulated in the joint prehearing stipulation filed in this proceeding. Respondent did not follow its own rule in rejecting Petitioner's request for a deviation. Respondent's current written policy was adopted as a rule after Petitioner's request for a deviation but prior to the formal hearing. Under Respondent's current rule, each district office must make a recommendation concerning each request for deviation made to the district office. The request for deviation and the district office recommendation is then considered by the licensure rules committee. The licensure rules committee then recommends action to appropriate department personnel who may either accept or reject the committee's recommendation. The approval of any request for deviation automatically ends at the time of the expiration date of the regular license. At the time of Petitioner's request for deviation, Respondent was in the process of developing its current written policy. Deviation requests and district office recommendations were considered at the time by an ad hoc committee of anywhere from three to seven people, depending upon who was available. The occurrence of such a meeting, the number of people, and the identity of the committee members was determined by "catch-as- you-can." A licensure rules committee was not officially formed until some time after Petitioner's request for deviation. Petitioner's request for deviation and the recommendation of the district office was not considered by any committee. The district office recommended that Petitioner's request for a deviation be granted. Approval of the request for deviation was recommended by the district office subject to the conditions that the deviation be limited to one year, that Petitioner submit a new request for deviation prior to its annual licensing date, and that the competency of Mr. Barker and Ms. Kienzle to perform the duties of qualified supervisors be documented by their respective resumes. Documentation in the form of resumes was not a significant concern to Respondent and was merely ministerial. The recommendation for approval of the request for deviation was made by employees of the Respondent who have personal knowledge of the experience and competency of Mr. Barker and Ms. Kienzle. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform the duties of a qualified supervisor. The district office, however, did recommend that either Mr. Barker or someone on his staff pursue CAP designation. The recommendation of the district office was overruled by Dr. Iver Groves, Ph.D., Assistant Secretary for Alcohol, Drug Abuse and Mental Health. The request for deviation was rejected on the grounds that Mr. Barker's honorary degree did not satisfy the educational requirements for a qualified supervisor. Dr. Groves determined that deviation from the educational requirements for a qualified supervisor cannot be granted under any circumstances. Dr. Groves suggested that Mr. Barker and Ms. Kienzle comply with the requirements for CAP designation or formal education. Dr. Groves has no personal knowledge of the experience and competency of either Mr. Barker or Ms. Kienzle to perform the duties of a qualified supervisor. Dr. Groves first became involved in this proceeding when a draft of a letter embodying the recommendation of the district office was presented to Dr. Groves for his signature. Dr. Groves spent an ". . . hour [or] maybe two hours . . ." considering Petitioner's request for deviation. Dr. Groves never saw the recommendation of the district office, was unaware that anyone in the district office recommended approval of the deviation, and did not consider the recommendation of the district office in making his determination to reject Petitioner's request for deviation. Dr. Groves never compared the requirements for a deviation in the applicable administrative rule to Petitioner's request for deviation. Dr. Groves rejected Petitioner's request for deviation based upon his concern over the establishment of a precedent for other programs in the state. Dr. Groves primary concern was whether it was appropriate to waive a ". . . fundamental standard in the rule that would have ramifications for the practice of the treatment of addiction across the State of Florida." It is uncontroverted, however, that there are no other programs in the state that are comparable to that administered by Petitioner. The experience and competency of Mr. Barker and Ms. Kienzle to perform the duties of a qualified supervisor satisfies the purposes of the educational requirements for qualified supervisors. As Dr. Groves stated during his testimony at the formal hearing, the purpose of imposing educational requirements on qualified supervisors is to give Respondent ". . . some assurance of the capability and competence of people within the program . . ." and to insure that ". . . somebody associated with that program . . . has been through a certain organized set of experiences and has been judged to be qualified." Transcript at 111. Grounds For Deviation Neither Mr. Barker nor Ms. Kienzle satisfy either the educational or certification requirements for qualified supervisors. Neither individual has the requisite education and neither has been certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. The honorary degree received by Mr. Barker from Fort Lauderdale University does not satisfy the educational requirements for a qualified supervisor. Mr. Barker was awarded "The Honorary Degree of Doctor of Social Science" in June, 1972, by Fort Lauderdale University. Fort Lauderdale University was accredited at the time the honorary degree was awarded. The citation attached to the honorary degree states in relevant part that the degree was awarded to: . . . the outstanding drug rehabilitation expert in the United States [who] saved 1,500 young men and women from a life in prison or mental hospital or a premature death from a drug overdose. . . . The ninety per cent success rate of The Seed is a tribute to your genius. Neither Mr. Barker nor Ms. Kienzle satisfy the educational requirements for becoming certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. Applicants for CAP designation must hold a minimum of an Associates Arts degree from a college or university. The degree requirement became effective on January 1, 1991, and it was impossible for either Mr. Barker or Ms. Kienzle to satisfy the educational requirements prior to the formal hearing. Requiring Mr. Barker and Ms. Kienzle to satisfy the educational requirements for a qualified supervisor would interfere with the efficient operation of Petitioner. The time and energy needed to obtain the academic credits would impose an unnecessary hardship on each of them and detract from the time and energy they could devote to the drug abuse program administered by Petitioner. Requiring Petitioner to hire a certified addiction professional would interfere with Petitioner's efficient operation. Petitioner has a positive net worth and can pay for such services. In recent years, however, Petitioner has experienced operating deficits. The amount of funds received as donations and pledges has been less than annual operating expenses. Expenses incurred by Petitioner to hire one or more additional personnel who have obtained the CAP designation would increase Petitioner's operating deficit and further erode Petitioner's remaining net worth. Supervision of either Mr. Barker or Ms. Kienzle by a certified addiction professional would be superfluous and would interfere with Petitioner's efficient operation. Neither Mr. Barker nor Ms. Kienzle need to be supervised by one or more individuals who have obtained the CAP designation in order to perform the duties of a qualified supervisor. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform such duties. Deviation from the educational requirements for qualified supervisors for Mr. Barker and Ms. Kienzle will not jeopardize the health and safety of clients in the program administered by Petitioner, will not abridge the rights of those clients, and will not diminish the level of quality of client care. Mr. Barker is competent to provide clinical guidance to counselors, approve and reassess treatment plans, supervise psychosocial assessment services, and supervise treatment services for Petitioner. Mr. Barker has focused his time continuously and exclusively on running the drug abuse program for Petitioner. Ms. Kienzle graduated from Petitioner's drug abuse program in 1971 and has been employed continuously and exclusively by Petitioner as a counselor and supervisor. A master's degree in a social or behavioral science does not assure competency to perform the duties of a qualified supervisor in a drug abuse program. Respondent's rule does not require the field of academic study to be related to the duties that must be performed by a qualified supervisor. As Dr. Groves stated in his testimony during the formal hearing, the requirement for a master's degree in a social or behavioral science is satisfied by a master's degree in history or English. For the same reason, the requirement of an Associate Arts degree for a CAP designation does not assure competency to perform the duties of a qualified supervisor for a drug abuse program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner should be granted a regular license for one year and the requested deviation. The deviation should automatically end at the time of the expiration date of the regular license or at such time as Petitioner's regular license is revoked, suspended, or otherwise terminated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of October 1991. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October 1991.
The Issue Whether Petitioner, Palm Beach County School Board, has just cause to suspend and terminate the employment of Respondent, Carla J. Holmes, for violations of school board policies resulting from her refusal to take a reasonable suspicion drug test on January 7, 2013.
Findings Of Fact The Board is the duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Palm Beach County, Florida (the District), pursuant to Article IX, Florida Constitution, and section 1001.32, Florida Statutes. From 2006 until her termination, Respondent was employed by the District as a food service assistant assigned to Palm Springs Elementary School. The District has a Drug and Alcohol Free Workplace Policy (the Policy) that prohibits staff from coming to work under the influence of alcohol or illegal drugs and provides for the District to undertake "reasonable suspicion" drug testing when warranted by certain circumstances. On January 7, 2013, a cafeteria worker, Rose Niva-Joseph (Niva-Joseph), heard the bell for the cafeteria door ring. When she opened the door, Respondent stumbled into the kitchen. Respondent sat in a chair, fell, and dropped her bag. According to Niva-Joseph, Respondent smelled like alcohol. Niva-Joseph reported her observations to the cafeteria manager, Lisa Rosenthal (Rosenthal). Rosenthal observed that Respondent had fallen and sprayed water all over the floor. Rosenthal went to assistant Principal Andrew Kline (Kline) and reported that Respondent was acting very unusual. She told Kline that Respondent fell and sprayed water all over the kitchen floor. Kline went to the kitchen to investigate. Kline observed that Respondent was swaying back and forth, slurring her speech and had alcohol on her breath. Kline directed Respondent to return with him to his office. Kline contacted Human Resources Manager Britoni Garson (Garson) in the District’s Professional Standards Office to report Respondent's unusual behavior. Garson directed Kline to fill out an Observable Behaviors Checklist (Checklist). On this Checklist, Kline noted that Respondent was argumentative, her speech was slurred, she appeared restless, and had an unsteady gait. Kline also noted that Respondent had an odor of alcohol on her breath, she fell, and appeared agitated and nervous. Kline faxed the Checklist back to Garson who determined reasonable suspicion existed to suspect Respondent was under the influence of alcohol or drugs. Garson contacted the testing technicians to go to the school and collect a specimen for a drug and alcohol test on Respondent. While in Kline's office, Respondent was agitated and belligerent. Because this was not the first time Kline had observed Respondent acting in this manner, he asked for the school district police to send an officer. Kline previously observed similar behaviors from Respondent in September 2008 for which Respondent received a written reprimand for a positive drug or alcohol test. As a result of Respondent's aggressive behavior during the 2008 incident, Respondent also received a verbal reprimand with a written notation for her unprofessional behavior displayed in threatening Kline. Commander Terry Moore (Moore) was dispatched on January 7, 2013, and was directed to stand by because a cafeteria worker appeared to be under the influence of alcohol or drugs, and he was to be present to deter any problems. When Moore arrived, Respondent was in the office with Kline, and Kline was trying to explain to Respondent why she was asked to submit to testing. Respondent was aggressive, resistant, and accused Kline of being a racist. Moore smelled the strong odor of alcohol on Respondent's breath from three to four feet away. Principal Kathy Harris (Harris) was starting her first day at Palm Springs Elementary School on the morning of January 7, 2013. She heard yelling from Kline's office, and she looked in to see what was going on. Respondent was talking to Kline in a very argumentative tone. When Harris looked in the office, Kline was on the telephone. He came out to speak to Harris and told Harris that Respondent exhibited unusual behaviors including slurred speech and an unsteady gait. Harris personally observed Respondent being argumentative, belligerent, talking with slurred speech, and not making any sense. She believed these behaviors warranted a drug test. When the technician arrived to take Respondent's specimen, Respondent refused. Harris and Kline told Respondent that refusing to take a drug test constitutes an automatic positive test pursuant to the Board's policies. Harris had not previously met Respondent, and she was unaware that Respondent had a prior positive drug or alcohol test. Kline explained to Respondent that if she refused to take the drug test, she could lose her job. Respondent refused to take the test and walked out of the school. Moore followed Respondent to make sure that she was safe and that she did not drive. Moore observed Respondent boarding a public transit bus. Several days later, the lab sent the District a report indicating that Respondent refused to provide a sample for a drug test. Board Policy 3.96 provides that refusal to take a reasonable suspicion drug test constitutes a positive test and that the appropriate discipline for a positive drug test shall be in conformance with the applicable collective bargaining agreement. Pursuant to notice dated January 28, 2013, Respondent was informed that the District was undertaking an investigation into her actions and that she was scheduled for pre-determination meeting for February 1, 2013. Respondent attended this meeting and offered no explanation for her behavior on January 7, 2013, including her refusal to take the drug test. Respondent denied spraying water on the kitchen floor and stated that, if Kline wanted her to submit to a drug test, everyone else in the kitchen would need to be drug tested because they were using drugs. She denied that she had an odor of alcohol or demonstrated any risky behavior, slurred speech, or increased loud talking. Significantly, prior to January 7, 2013, Respondent never reported to anyone her belief that her co-workers were using drugs or alcohol while at work. No other member of the cafeteria staff was observed engaging in behavior that would suggest that they were under the influence of drugs or alcohol at work. Respondent signed a Drug and Alcohol Free Workplace Acknowledgment form on January 11, 2007, verifying her receipt and understanding of Board Policy 3.96 and that violation of the Policy would result in disciplinary action up to, and including, termination. Respondent signed the Code of Ethics Acknowledgment Receipt on April 24, 2010. The applicable collective bargaining agreement requires progressive discipline, and the District's policy and practice since 2008 has been that every employee who has a second positive drug or alcohol test was terminated for that offense. On August 7, 2013, the Board voted to terminate Respondent's employment effective August 23, 2013, for violation of Board Policy 3.96(2)(v) and (4)(f), Drug and Alcohol Free Workplace Policy; Board Policy 3.02(4)(a), (4)(f) and (4)(h), Code of Ethics; Board Policy 3.10(6), Conditions of Employment; and Board Policy 1.013(1), Responsibilities of School District Personnel and Staff. No evidence was introduced at the final hearing to substantiate Respondent's contention that the request for her to take a drug and alcohol test on January 7, 2013, was the result of a "conspiracy" against her, racism on the part of Kline, or that she was being singled out for testing when other co-workers were allegedly using drugs. Determination of Ultimate Facts The Board demonstrated by a preponderance of the evidence that reasonable suspicion existed on January 7, 2013, to require Respondent to submit to a drug and alcohol test. Respondent's refusal to take such test was not justified and constituted a "second offense" for purposes of the Policy. Accordingly, "just cause" existed to suspend and terminate Respondent's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Palm Beach County School Board, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 23rd day of July, 2014, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 2014. COPIES FURNISHED: Jean Marie Middleton, Esquire School District of Palm Beach County Office of General Counsel Post Office Box 19239 West Palm Beach, Florida 33416-9239 Carla J. Holmes 615 Mango Drive, Apartment 117 West Palm Beach, Florida 33415 E. Wayne Gent, Superintendent Palm Beach County School Board Suite C-316 3300 Forest Hill Boulevard West Palm Beach, Florida 33406 Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Petitioner, the School Board of Sarasota County (the Board),1 proved Respondent, Betty Register (Ms. Register), committed misconduct in 1 The Board’s official name is The School Board of Sarasota County. § 1001.40, Fla. Stat. (2020). The case style has been amended accordingly. her employment as alleged in the Administrative Complaint (AC) dated November 17, 2020,2 and if so, the appropriate discipline.
Findings Of Fact Based on the competent substantial evidence adduced at the final hearing, the following Findings of Fact are made: The Parties The Board is responsible for operating the public schools in the Sarasota County School District and for hiring, firing, and overseeing both instructional employees and non-instructional “educational support” employees within Sarasota County, Florida. The Board employs approximately 300 school bus drivers each school year, each is considered an educational support employee. On or about September 22, 2020, Ms. Register was employed by the Board as a school bus driver. As a school bus driver Ms. Register was required to and did possess a Florida issued Commercial Driver’s License (CDL). Other Entities The Florida Department of Transportation (DOT) requires that anyone who holds a CDL to drive a commercial vehicle is subject to quarterly random drug and/or alcohol testing. Currently, DOT requires that fifty percent of the CDL holders be tested quarterly randomly. FSSolutions (FSS) is a third-party administrator that handles drug, alcohol, and other testing services for multiple clients. FSS has a contract with the state of Florida to provide these services, and individual entities may purchase the FSS services using the statewide contract. FSS also provides each entity with a list of companies that are approved collection agents. When an entity contracts with FSS to facilitate the testing, that entity will send a list of all its eligible employees to FSS. FSS will then generate a random list of the employees to be tested. The randomly selected employees are notified of the date, time, and location for a sample to be provided. The selected employees report to the collection site and provide a sample for testing. That sample is sent to a certified laboratory for analysis, and a test report is created for each sample tested. Each test report is reviewed by a trained medical doctor, who has been qualified to be a DOT medical review officer (MRO). The MRO will speak to “any donor whose laboratory result is not negative.” A non-negative test result could mean that the sample was positive, adulterated, or substituted. The test reports are then provided to the entity that ordered the test. The Board’s Process The Board requires quarterly random drug tests of its CDL holders, specifically its school bus drivers. Beginning in 2020, the percentage of the Board’s school bus drivers to be randomly drug tested rose from approximately 20 percent to 50 percent. The Board has a contract with FSS to administer the DOT required quarterly random drug and/or alcohol testing. FSS provided the Board a list of approved collection companies. The Board selected an approved collection company. Once the samples are collected, they are sent to a certified laboratory for testing. Each quarter, Ms. Peterson, the risk management supervisor, sends Ms. Clarke, the transportation and operations supervisor, an initial list of the Board’s school bus drivers. Ms. Clarke reviews that list and removes the names of school bus drivers who are no longer employed by the Board. Then Ms. Clarke adds the names of all newly hired school bus drivers to the list. That list is then sent to FSS. FSS then provides the Board with the randomly selected names of the school bus drivers to be tested. Once the randomly selected school bus drivers are identified, the Board’s transportation department sends out the notice to those employees to be tested. The notice contains the date, time, and location for each employee to report for testing. September 22, 2020, through October 6, 2020 The alleged conduct giving rise to this proceeding occurred on or about September 22, 2020. The Board’s quarterly testing period was July 1, 2020, through September 30, 2020. Ms. Peterson followed the routine set forth in paragraph 11 above. Ms. Register’s name was included in the initial list of school bus drivers sent to Ms. Clarke for her review. Following her review and necessary edits, Ms. Clarke returned the revised list, which included Ms. Register’s name, to Ms. Peterson. Ms. Peterson sent the revised list to FSS. FSS programed its random generator to select the requisite percentage of names required by DOT and the Board. FSS then provided the Board with the randomly generated list of employees to be tested. Ms. Register’s name was on that randomly generated list of employees to submit for the quarterly drug testing. Ms. Register was notified of her selection for the testing to be provided on September 22, 2020, at 10:30 a.m. Ms. Register reported to the collection location and provided a sample. Ms. Register’s sample was sent to the LabCorp location in Research Triangle Park, North Carolina, for testing. On October 6, 2020, the test reports were made available to Ms. Peterson, and she became aware that Ms. Register’s sample was positive for marijuana and opioids, specifically: “marijuana, hydrocodone, and hydromorphone.” Ms. Peterson called Ms. Clarke and notified her of Ms. Register’s positive test results. Ms. Clarke “automatically pulled [Ms. Register] from the route.” Further, Ms. Clarke testified Ms. Register never drove another school bus after that notification. District Policies Ms. Peterson testified that the Board is an alcohol and drug-free workplace. Ms. Peterson further testified that the Board’s policies provide that when there is a positive drug test, the employee is subject to an immediate termination of their employment. Ms. Peterson testified that Ms. Register’s employment was terminated based on her positive drug test, which constituted misconduct in office. Ms. Register is no longer employed by the Board. Ms. Register did not appear or testify during the hearing to offer any evidence to the contrary. Based on the greater weight of the evidence, the undersigned finds that the Board had sufficient just cause to terminate Ms. Register’s employment as a school bus driver.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Sarasota County affirm its termination of Ms. Register’s employment as a school bus driver. DONE AND ENTERED this 7th day of January, 2021, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 7th day of January, 2021. COPIES FURNISHED: Betty Register 4715 Greenwich Road Sarasota, Florida 34233 Robert K. Robinson, Esquire Rob Robinson Attorney, P.A. 500 South Washington Boulevard, Suite 400 Sarasota, Florida 34236 (eServed) Dr. Brennan Asplen, III, Superintendent Sarasota School Board 1960 Landings Boulevard Sarasota, Florida 34321 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
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 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 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.
The Issue The issue in this proceeding is whether Respondent's corrections officer license is subject to suspension, revocation or other discipline.
Findings Of Fact On August 29, 1996, Petitioner filed an Administrative Complaint against Respondent alleging that Respondent's corrections officer license should be disciplined for alleged violations of Chapter 943, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent failed to maintain good moral character by testing positive for a controlled substance, marijuana, which was indicative of the illegal ingestion of a controlled substance listed in Chapter 893, Florida Statutes. On September 5, 1996, Respondent filed an Election of Rights in which he disputed the allegations of the Administrative Complaint and requested an administrative hearing. Thereafter, the case was forwarded to the Division of Administrative Hearings for formal proceedings on June 23, 1999. The Respondent was employed as a correctional officer at Volusia Correctional Institution (VCI) in early 1991. A corrections officer is a special risk employee in a safety sensitive position. At the time of licensure Respondent passed his drug screen. In 1996, the month of February had 29 days. In February 1996, Warden Bruce Scherer received allegations of possible drug abuse by Respondent from Connie Beach, Respondent's (then) wife. Respondent's wife was also a corrections officer. Ms. Beach had been in the Warden's office asking for a day off to retrieve her belongings from the marital home due to personal problems with Respondent. Upon inquiry of the Warden, the Warden learned that Ms. Beach's brother Carroll Bradshaw had smoked marijuana with Respondent. The Warden called the brother by telephone. The brother confirmed he had smoked marijuana with Respondent several occasions. In response, the Warden asked Respondent to submit to a drug test. Respondent was cooperative and agreed to submit to the drug test. Volusia Correctional Institution does not conduct random drug testing. At no time did Respondent question why he was being asked to submit to a drug test. Bolton accompanied Respondent to the Halifax Hospital facility to submit a urine specimen for drug testing. In testing specimens for marijuana, two tests are conducted; the first of these is an immunoassay screen, and the second is a gas chromatography/mass spectrometry (GCMS) test. The GCMS test is the more definitive test which specifically identifies THC, the major metabolite of marijuana. THC is also the part of marijuana which gives it its psycho-active properties. Cut-off levels are used in the testing process in order to exclude positive test results for persons who may have had accidental (or second-hand) exposure to marijuana. Respondent submitted his first urine sample for drug testing on February 28, 1996. On March 4, 1996, the results on the immunoassay screen came back positive for cannabinoid (marijuana). The sample first tested positive. It then tested about 300 nanograms of THC in the GCMS test. On March 19, 1996, a second test was conducted on Respondent's original urine sample. On March 20, 1996, the results of that test were received and reviewed by Dr. Hung Doan. The GCMS test showed 259 nanograms of THC. The result was confirmatory of the first as positive for marijuana. Dr. Hung Doan is a certified Medical Review Officer (MRO). He is certified as to his knowledge of drugs, their medical usage and ingestion. Dr. Doan is an expert in the field. Dr. Doan was the MRO who reviewed and certified the results of Respondent's two positive drug tests in 1996. The high levels of marijuana detected in the two positive tests of Respondent's urine sample conclusively establish that the results could not have been caused by accidental or passive inhalation of marijuana. The results did not rule out ingestion of marijuana since the evidence showed that about two cigarette sized amounts of marijuana would produce results similar to those found on Respondent's tests. However, the evidence did not show that Respondent had eaten any marijuana. Only multiple "accidental" exposures to, in conjunction with "accidental" ingestion of marijuana could possibly have resulted in the nanogram levels detected in Respondent's urine without his knowledge. Respondent did not produce any evidence beyond speculation to suggest that this might have occurred in his case. Mr. Beach was notified of the first positive test on March 4, 1996, by Mary Yochum, Dr. Doan's assistant. Respondent's response to being told that he tested positive for marijuana was "okay." He was concerned with the result but could not go into detail over the phone because other officers were present. On March 6, 1996, Respondent submitted a separate urine sample for the purposes of having an independent drug test. The results of that test were negative for marijuana. However, this second test occurred seven days after the first urine sample was given. The test only shows Respondent's level of cannabinoid on the latter date had decreased or diluted sufficiently to fall below the cut-off point for such tests. Marijuana can clear the human body's system within days. However, a chronic user of marijuana may take up to 75 days before the drug clears the persons system. It depends on the persons individual metabolism. Carroll Bradshaw is the ex-brother-in-law of Respondent. Mr. Bradshaw is a known drug user and convicted felon. He was last released from incarceration in 1998 after serving time for a cocaine charge. He continues to use drugs to date. Mr. Bradshaw regularly socialized, and smoked marijuana with Respondent. However, he had not smoked marijuana for quite a while before receiving the telephone call from the Warden. Respondent admittedly was familiar with the smell and appearance of marijuana. Respondent would typically supply and prepare the marijuana which he and his brother-in-law smoked while socializing. Respondent kept his stash of marijuana on a "paraphernalia" tray underneath his couch in his home. Respondent's former mother-in-law, who was also familiar with the look and smell of marijuana because of her son's problems, witnessed Respondent smoking marijuana with her son and others. She confirmed the testimony of her son and her daughter as to Respondent's use of marijuana. Given these facts Petitioner has shown clear and convincing evidence that Respondent violated Chapter 943, Florida Statutes.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be found guilty of failing to maintain good moral character, as required by Section 943.13(7), Florida Statutes, and that Respondent's certification be revoked. DONE AND ENTERED this 25th day of April, 2001, in Tallahassee, Leon County, Florida. 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 25th day of April, 2001. COPIES FURNISHED: Gabrielle Taylor, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 John Stanton, Esquire 121 1/2 North Woodland Boulevard Suite 3 Deland, Florida 32720 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
