The Issue Whether the Respondent, Gloria P. Adams, violated School Board rules regarding a drug-free workplace, and excessive absenteeism; whether she abandoned her position of employment; whether Respondent committed gross insubordination or willful neglect of duty; and if so, whether such violation(s) support termination of Respondent's employment with the School District.
Findings Of Fact At all times material to the allegations of this case, the Petitioner is the authority charged with the responsibility of operating, controlling, and supervising all public schools within the Miami-Dade County, Florida School District. As such, its duties also include the personnel decisions related to teachers employed by the School District. At all times material to the allegations of this matter, the Petitioner employed the Respondent pursuant to a professional services contract. The Respondent was assigned to serve as a teacher at Jan Mann Opportunity School. On December 21, 2001, the Respondent presented for work staggering (in fact she fell down) with a disheveled appearance. At that time Respondent spoke with slurred speech and used verbally aggressive words. Based upon her appearance and actions, together with what was perceived as a strong odor of alcohol, the Respondent's supervisor determined that she should complete a "reasonable suspicion form." The form is designated when an employee is suspected of drug and/or alcohol use on school property. Betty Major completed the form (Petitioner's Exhibit 1) and noted Respondent's unsteady gait as well as the other indicators of being under the influence. Moreover, the Respondent admitted she had been drinking alcohol the night before. During the interview conducted by Ms. Major, the Respondent exhibited marked irritability and expressed anger. As a result, the Respondent was relieved of duty. The Respondent subsequently refused to submit to a drug and alcohol screening. On January 10, 2002, the School Board's Office of Professional Standards held a conference-for-the-record (CFR) and informed the Respondent that the refusal to submit to drug and alcohol screening would be considered a positive test response. The details of the CFR are memorialized in Petitioner's Exhibit 2. At the CFR the Respondent was also advised that she had excessive absences. Although the Respondent maintained she was physically ill and unable to attend school, documentation from a treating physician to support the number of absences has not been provided. At the conclusion of the CFR, the Respondent was provided with a copy of the School Board rule regarding its policy for a drug-free workplace, a copy of the responsibilities and duties rule, and the code of ethics of the Education Profession in Florida. The CFR was concluded with an indication from Respondent that she would promptly address the issues raised therein. As part of the CFR the Respondent was advised of her opportunity to obtain assistance through the Employees' Assistance Program (EAP). Among its functions the EAP counsels School Board employees with substance or drug abuse concerns. Alcohol is considered a "drug" under the drug-free workplace policy. The Respondent initially agreed to complete the EAP requirements in order to return to the classroom. She did not fully cooperate with or complete the program. On April 15, 2002, a second CFR was conducted with the Respondent. This meeting again sought to address the Respondent's ability to return to duty and her noncompliance with the drug-free workplace policy. At the second CFR the Respondent again expressed a willingness to complete the EAP and to obtain appropriate help for her on-going problems. The Respondent was directed to comply with the recommendations made by the School District's EAP. The Respondent continued to be apologetic for her past behaviors. On August 13, 2002, a third CFR was held between the Respondent and the Office of Professional Standards. The agenda for that meeting was similar to the past CFRs. The Respondent had not complied with the EAP, had not explained the unauthorized excessive absences, and the issue of the presumptive positive response for the drug and alcohol screening still loomed large. Again, as in the past, the Respondent apologized for not completing the EAP. Additionally, the number of leave without pay (unauthorized) absences had by that time grown to The Respondent had also exhausted her sick/personal leave time. The absences were directly attributable to the Respondent's failure to complete the EAP. Basically, the Respondent was unable to be cleared to return to the classroom until she completed the EAP. She failed to complete the EAP so the number of unauthorized absences continued to grow. Eventually the Respondent was dropped from the EAP due to lack of participation. Her case was then closed. The Petitioner gave the Respondent numerous opportunities to demonstrate she was fit to return to the classroom. The Respondent did not offer any credible explanation for her actions. Regrettably, the Respondent demonstrated by her failure to comply with the EAP that she was unprepared to return to the classroom. The Respondent did not request medical leave (with appropriate documentation from a physician) if her condition were due to a physical illness. Moreover, the Respondent did not apply for any leave that might have protected her job. This lack of judgment in itself suggests the Respondent was impaired and therefore unable to perform her duties as a classroom teacher. At the minimum, had Respondent attended the EAP she could have received counseling and assistance that might have protected her future employment with the School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a Final Order confirming the initial decision to suspend without pay and to terminate the employment of the Respondent based upon just cause as set forth above. It is further recommended that, should the Respondent complete an accepted program for substance abuse and demonstrate fitness for Duty, that the School Board consider re-employment of the Respondent. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 30th day of May, 2003. COPIES FURNISHED: Merrett R. Stierheim Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1394 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Gloria P. Adams 19511 Northwest 8th Avenue Miami, Florida 33169 Melinda L. McNichols, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132
The Issue At issue is whether Petitioner St. Lucie County School Board (School Board or Petitioner) should terminate the employment of Respondent Judith Lee Heuter (Respondent or Heuter) following her second conviction for Driving Under the Influence (DUI).
Findings Of Fact Heuter has served as a teacher in the St. Lucie County school system for over 13 years. At all times material to this case, Heuter is party to a professional services contract with the School Board. Heuter's personal and professional reputations were unblemished until November 12, 1999, when she was arrested for DUI. By letter dated December 14, 1999, Respondent was notified by the School Board Personnel Director, Susan Ranew (Ranew), that she was to meet with Ranew on January 11, 2000, regarding the arrest. The meeting took place as scheduled. Ranew gave Heuter a letter signed by Assistant Superintendent for Human Resources Russell Anderson. The letter stated, in pertinent part: . . . [Y]our recent arrest could be a violation of the Florida Code of Ethics for Public Officers and Employees and the General Personnel Policies of the St. Lucie County School Board Policies section 3.56. State Board of Education Administrative Rule 6B-1.001 states at subsection (3) that the educator is [sic] “aware of the importance of maintaining the respect and confidence of one’s colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct. . . . . . . [Y]ou are directed to refrain from this type of behavior in the future. Your failure to follow this directive will result in more severe disciplinary action. . . . The letter further advised Heuter that she was to be recommended for a two-day suspension, a disciplinary action which she did not contest. In due course, the suspension was formally imposed and was served by Heuter. In addition, the 1999 arrest resulted in an investigation by the state's Education Practices Committee (EPC). On September 7, 2001, the EPC issued a Final Order, which included a letter of reprimand and three years' probation. The terms of the probation included a provision that Heuter refrain from alcohol consumption and engage in substance abuse counseling. Legal proceedings relating to the 1999 DUI concluded on February 14, 2000, when Heuter plead no contest to the charge in St. Lucie County Court. As a first time DUI offender, Heuter was directed to alcohol abuse treatment. Thus, at the time the EPC entered its Final Order requiring treatment, Heuter was already in treatment. Although cooperative with treatment, Heuter was not persuaded that she suffered from alcoholism, a chronic disease requiring lifelong treatment. Such denial is a classic symptom of alcoholism. Heuter was arrested a second time for DUI on June 17, 2003. This event proved the catalyst for her acknowledgment that she was an alcoholic and would, without treatment, remain a danger to herself and others. Heuter promptly reported the arrest to her principal at the time, Diane Guffey (Guffey), to Jane Summa (Summa), who was slated to take over as principal at Heuter's assigned school for the 2003-2004 school year, and to personnel director Ranew. Heuter also returned to alcohol abuse counseling with appropriately credentialed professionals, and an understanding she had previously lacked concerning the seriousness of her illness. Heuter plead no contest to the second DUI and was convicted of the criminal charge on December 17, 2003. She was still on EPC probation at the time of the second offense, and an investigation in that forum is pending. More than one month elapsed between Heuter’s no contest plea and the time she was informed of the Superintendent's intent to recommend termination. Petitioner contends that Heuter knew or should have known from the time of the second arrest that a conviction would automatically result in her termination. In support of this contention, Petitioner asserts that Heuter was told by Ranew at their January 11, 2000, meeting of an "unwritten policy" which required that she be terminated upon conviction. The "unwritten policy" upon which Petitioner relies is not a School Board policy, but rather a district policy. The difference between School Board policy and district policy in St. Lucie County includes, but is not limited to, the fact that School Board policies are promulgated in writing following a period of deliberation which includes an opportunity for public comment. After careful consideration of all of the record evidence regarding the existence of an unwritten (district level) policy, the fact-finder is not persuaded that such policy existed. At most, one or more current and former district officials, neither of whom testified, held the view that any person who might commit a second alcohol or drug-related criminal offense should be terminated without regard to any mitigating factors which may exist. The parties agree that this is a case of first impression in St. Lucie County, in that the School Board has never undertaken to address the question of whether teachers or other employees should be terminated automatically upon a second DUI conviction. However, in other contexts relating to substance abuse, the School Board has crafted written policy which demonstrates careful attention to what people, places, and circumstances are intended to be brought within the scope of the policy, and what, if any, discretion the School Board reserves to deal with the offender on an individualized basis. For example, School Board Policy 3.59 addresses substance abuse in the workplace. This policy specifically provides: DRUG FREE WORKPLACE It is the intent of the School Board that work environments be free of the presence of illegal drugs and alcohol. Therefore, employees are prohibited from possessing, using, manufacturing, dispensing, distributing, or being under the influence of illegal drugs or alcohol while on duty. For the purposes of this policy, illegal drugs are those controlled substances as defined by federal or state law, or any counterfeit of such drugs or substances. For purposes of this policy, “workplace” means the site for the performance of work done in connection with employment. Workplace includes any school building or any school premises; and any vehicle used to transport students to and from school and school activities off school property during any school-sponsored or school-approved activity, event or function, such as a field trip or athletic event, where students are under the jurisdiction of the School District. As a condition of employment, each employee shall notify his or her supervisor of his or her conviction of any criminal drug statute for a violation occurring in the workplace no later than five (5) days after such conviction. An employee who violates the terms of this policy may be nonrenewed or his or her employment may be suspended or terminated. However, at the discretion of the School Board, such employee may be allowed to participate in and satisfactorily complete a drug abuse assistance or rehabilitation program approved by the School Board in lieu of a nonrenewal, suspension, or termination. Sanctions and discipline against employees, including nonrenewal, suspension, and termination, shall be recommended within thirty (30) days of receiving notice of an employee’s conviction. Within ten (10) days of receiving notice of an employee’s conviction in violation of this rule, the Superintendent shall notify the state and federal department of education. A drug-free awareness program is hereby established, and is to be implemented by the Superintendent, to inform employees of the dangers of drug abuse in the workplace, of the School Board’s policy of maintaining a drug-free workplace, of available drug counseling, rehabilitation, and assistance programs, and of the penalties to be imposed upon employees for drug abuse violations occurring in the workplace. As a part of this program, all employees and applicants for employment shall be given notice of the School Board’s policy regarding the maintenance of a drug- free workplace. . . . [A]t the discretion of the School Board, such employee may be allowed to participate in and satisfactorily complete a drug abuse assistance or rehabilitation program approved by the School Board in lieu of a non-renewal, suspension, or termination. At all times material to this case, Heuter is actively participating in treatment as prescribed by appropriately credentialed professionals involved in her care. The opportunity to do the work for which she was trained provides a powerful incentive for Heuter to continue to cooperate in her treatment. Heuter’s employer-based insurance provides partial coverage for her treatment. Her treating professionals regard her illness as medically similar to diabetes, heart disease, or other types of chronic and potentially life-threatening illnesses. So long as Heuter remains in compliance with her treatment program, she is well able to perform her job. There is no evidence that symptoms of Heuter's alcoholism ever surfaced in the classroom, or elsewhere on school grounds or on school time. Rather, at all times material to this case, Heuter enjoys the unqualified support and respect of experienced school principals she has served for and with over the course of her career. On March 23, 2004, following the decision to terminate Hueter’s employment, Jane Summa (Summa), who was to be the principal at Heuter's assigned school the following academic year, prepared Heuter's performance review for the current year. She wrote: It is with great pleasure that an EXCEPTIONAL OVERALL PERFORMANCE APPRAISAL RATING be granted to this highly effective teacher! Yet it comes as no surprise due to the fact that performance consistently exceeds the requirements of this position. As a direct result, students are consistently afforded an opportunity to perform at the highest possible level. Add to this one who always works in a positive, effective manner with all stake holders and you have a staff person that I am very proud to say is a true WEATHERBEE MARINER. (Emphasis in original). Diane Guffey (Guffey), Respondent’s principal at the time of both DUI infractions, would welcome Heuter back to her teaching staff. In a letter dated April 22, 2004, Guffey wrote: Ms. Hueter is a teacher who has made a difference in the lives of many children. . . . Teaching and children are a passion for her and she gives the job her best. Although Ms. Hueter has made some mistakes of bad judgment in her personal life, I have never seen any adverse effect on her teaching. As an administrator, I sometimes have to work with marginal teachers. Mrs. Hueter is an example of a mentor teacher who can help other teachers become better. Mrs. Hueter is an excellent teacher whom I would be proud to work with at anytime in any school. Robert Dougherty (Dougherty) provided glowing testimony concerning Heuter's teaching of his two sons. According to Dougherty, Heuter had extracted success from his sons in situations where other teachers had tried and failed. His personal knowledge and focus is narrowly based upon his parent/teacher relationship with Heuter, and, like the testimony of Summa and Guffey, was considered only as it may bear upon the alleged violation of Rule 6B-1.001(2) and (3). No evidence was presented in support of Petitioner's request for back pay and benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Heuter, having committed the single act of driving under the influence on June 17, 2003, violated School Board Policy 3.56 (3) (b) (7) (19), (29) and (37); dismissing the remaining charges; that acknowledging the violations proved warrant the substantial discipline of suspension without pay from March 11, 2003, to and including the date of the entry of a Final Order; and denying the claim for back pay and benefits. DONE AND ENTERED this 10th day of September, 2004, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 10th day of September, 2004. COPIES FURNISHED: Catherine J. Chamblee, Esquire Chamblee, Johnson & Haynes, P.A. The Barrister’s Building, Suite 500 1615 Forum Place West Palm Beach, Florida 33401 David Miklas, Esquire Elizabeth Coke, Esquire J. David Richeson & Associates, P.A. Post Office Box 4048 Fort Pierce, Florida 34948 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Michael Lannon, Superintendent St. Lucie County School Board 4204 Okeechobee Road Fort Pierce, Florida 34947
The Issue The issue in this case is whether Petitioner has just cause to terminate Respondent's employment.
Findings Of Fact Mr. Brown has been employed by the School Board since September 5, 2000, working in various maintenance positions. In 2004, he took the position of "night lead" at Fairmont Park Elementary School, in which he was responsible for supervising the night cleaning and maintenance crew at the school. On February 8, 2010, Mr. Brown was arrested by an officer with the St. Petersburg Police Department and charged with two felony counts, one for sale of cocaine and one for possession of cocaine. The same charges were set forth in a Felony Information filed by the state attorney for Pinellas County on March 17, 2010. Mr. Brown self-reported the arrest and charges to the OPS. Based on that information, he was transferred from his position at an elementary school setting to a similar position at a non-student site that was a warehouse, while the charges worked their way through the criminal justice system. However, after Respondent was called to a meeting at OPS and he refused to answer any questions regarding the investigation, the decision was made to proceed with disciplinary action, even though the criminal case was still pending. The superintendent issued a letter on October 19, 2010, notifying Respondent of the decision to recommend termination of his employment at the November 9, 2010, School Board meeting, unless Respondent requested an administrative hearing, in which case the recommendation would be to suspend Respondent without pay pending the conclusion of the administrative hearing process. As stated in the agenda item attached to the letter, which served as the administrative complaint, the basis for the recommended action was that Mr. Brown had been arrested and charged with sale of cocaine and possession of cocaine, both felonies. The OPS obtained copies of the police reports describing the circumstances of the arrest and made the determination that Mr. Brown violated the following provisions of School Board Policy 4140 (Policy 4140): A.2.a. (illegal possession or use of drugs, or being under the influence of illegal drugs, while on or off duty); A.2.b. (illegal sale of drugs whether on or off duty); A.2.c. (possession, use, or being under the influence of illegal drugs while off duty); A.3. (committing or conviction of a criminal act--felony); A.21 (conduct unbecoming a board employee that brings the district into disrepute or that disrupts the orderly process of the district); and A.22. (misconduct or misconduct in office). On November 9, 2010, the School Board adopted the superintendent's recommendation. Because of Mr. Brown's request for an administrative hearing, he was suspended without pay pending the outcome of this hearing process. The circumstances leading to Mr. Brown's arrest, as described in police reports considered by OPS in its investigation, were described, in large part, at the final hearing by Officer Doug Dilla. Officer Dilla is currently employed in the uniform service division of the St. Petersburg Police Department. However, from early 2008 until recently in 2011, he was in the narcotics and vice division. At some point in 2008, he began working as an undercover agent. He obtained information from a confidential informant, whom he believed to be reliable, that the confidential informant had purchased narcotics from Respondent. The confidential informant gave Officer Dilla Respondent's name and address. Officer Dilla conducted surveillance at Respondent's address, where he recorded the license tag numbers from cars parked there. His trace of those tag numbers identified members of Respondent's family, including a silver Nissan Altima registered in Respondent's mother's name. Officer Dilla also was able to retrieve a photograph of Respondent through drivers' license records and had the confidential informant positively identify Respondent as the person from whom he had purchased narcotics, whom he knew as "Quan." On August 4, 2008, Officer Dilla arranged for the confidential informant to join him and, while they were together, to contact Respondent and try to arrange a purchase of powder cocaine from Mr. Brown. Officer Dilla picked up the confidential informant and they parked at a gas station, where the confidential informant called Mr. Brown on his cell phone number. The cell phone number called by the confidential informant is admittedly Mr. Brown's; the number, in the police report prepared by Officer Dilla, is the same as Mr. Brown's phone number on file with the School Board. In the phone conversation, the confidential informant told the person on the line that he wanted two "sacks" or two "50s," to indicate two small bags of powder cocaine and to meet him and the person with him, who wanted to make the purchase, at a Hess station located a few blocks from where Mr. Brown lived. Within 20 minutes of that phone call, the silver Nissan Altima registered to Respondent's mother pulled into the station and parked over by the car vacuum machine. Officer Dilla and the confidential informant got out of the car and approached Respondent in the Nissan Altima. Respondent got out of his car and walked around to the passenger door, and Officer Dilla met Respondent by the passenger door. Respondent gestured to the front passenger seat and said, "go ahead and take it." There were two small zip-lock baggies of white powder which Officer Dilla believed to be powder cocaine. He reached in and got the two baggies and gave Respondent $100. Respondent got back in his car and drove away. Officer Dilla put the baggies in his pocket, then drove away with the confidential informant, dropped him off, and then proceeded back to the police department. Back at the police department, Officer Dilla performed a field test on the powder in the baggies. He identified the field test as the Scott Reagent Modified System Test Kit "G," and he described how the test was performed. The results were "presumptively positive" for powder cocaine. After conducting the field test, Officer Dilla weighed the baggies, deposited them in a heat-sealed evidence bag, and secured them in a locked evidence locker. According to Officer Dilla, the material was then sent off to a lab for further confirmatory testing. However, Officer Dilla did not testify that he personally removed the material from the evidence locker and delivered it to the lab. According to Officer Dilla's police report, after he deposited the evidence in an evidence locker, he took no further action. While a better predicate could have been laid for the extent of Officer Dilla's experience or training in administering field tests generally and the specific field test he used, there was no objection to Officer Dilla's testimony regarding the field test results, which he described with confidence and without hesitancy. Respondent denied many of the details to which Officer Dilla testified, but there were some details he could not deny. Respondent acknowledged that it was his cell phone number that was written in the police report, which was prepared by Officer Dilla two days after the purchase. Respondent testified that many people know his phone number and perhaps someone who had been "busted" by Officer Dilla gave the officer his phone number for some reason. Respondent then testified that it must have come from the confidential informant, but Respondent could not explain why the confidential informant would have given the officer Respondent's phone number. Respondent also admitted that he drove his mother's silver Nissan Altima. He claimed that the officer must have gotten the tag number and the car description because he goes to that Hess station "every day" and that he was probably there on the day in question to buy gas. Respondent, therefore, admitted two key components of Officer Dilla's testimony and police report: that the telephone number that Officer Dilla said was called by the confidential informant to arrange a drug purchase was Respondent's phone number; and that Respondent did drive the silver Nissan Altima to the Hess station on the day in question. Having admitted that much, Respondent failed to explain the rest of Officer Dilla's testimony. Respondent said that Officer Dilla made up the story, that it was a case of mistaken identity. Yet neither the phone number, nor the vehicle's presence was a case of mistaken identity. It would be necessary to conclude that Officer Dilla intentionally fabricated every detail, except for the phone number and the vehicle in order to falsely accuse Respondent of selling him cocaine. Respondent offered no reason, much less a credible reason, why Officer Dilla would fabricate the details of his report. The greater weight of the credible evidence does not support a finding of any fabrication. The undersigned accepts Officer Dilla's more credible version of the events of August 4, 2008. Respondent came quickly to the Hess station after receiving a telephone call from someone saying that he had someone who wanted to buy two "50s"--two baggies of powder cocaine. Respondent complied by selling two baggies of white powder for $50 each, for a total of $100. Based on the totality of the evidence, including Officer Dilla's clear, credible testimony regarding the details of the arrangements made for him to purchase cocaine from Respondent, his actual purchase of white powder from Respondent for $100 and the results of the field test that were presumptively positive for powder cocaine, the undersigned finds that it is more likely than not that the white powder that Respondent sold to Officer Dilla was, in fact, powder cocaine. The School Board sought to buttress its evidence regarding the substance that was sold to Officer Dilla by attempting to establish that the same two baggies of powder were later tested by the Pinellas County Forensic Laboratory and that the results confirmed that the substance was, in fact, cocaine. However, no chain of custody evidence was offered to establish that the substance tested by the lab was, in fact, the two baggies of white powder purchased from Respondent and secured by Officer Dilla in a locker after he completed his field test. The lab analysis evidence was even more attenuated from Officer Dilla's purchase because what purported to be the substance purchased from Respondent was tested once in 2008 at the lab, and then retested in 2010; however, only the 2010 reanalysis and results were sufficiently supported by testimony of the lab director who conducted reanalysis and prepared the lab report and back-up work papers admitted in evidence. The original 2008 test was done by a lab technician who moved out of state, and there was no witness who could testify from personal knowledge of what tests were done or how the report was prepared in 2008. Accordingly, as explained in Endnote 2, the 2008 lab report was not admitted in evidence. No chain of custody evidence was offered to trace the apparent movement of the two baggies of powder purchased by Officer Dilla from the evidence locker to the lab in 2008, from the lab in 2008 to one or more unidentified holding places for a two-year period, then back to lab in 2010 for reanalysis. The evidence established that the substance in two baggies delivered to the lab in 2010 for testing did, in fact, test conclusively positive for cocaine. The credentials and expertise of the lab director and the reliability of her methodologies used to test the substance three different ways, each test corroborating the other tests and increasing the reliability of the outcome, were established and accepted. However, the School Board failed to prove that the two baggies of powder tested in 2010 were, in fact, the same two baggies of powder that Officer Dilla purchased from Respondent two years earlier and locked in a locker after conducting the field test. Therefore, the undersigned cannot make a finding that the white powder purchased from Respondent was conclusively cocaine, beyond any reasonable doubt and to the exclusion of any other substance. However, the totality of the credible evidence meets a lower threshold of proof, establishing as explained above, that the white powder obtained from Respondent was more likely than not cocaine. Officer Dilla credibly explained the lapse in time between his purchase of cocaine from Respondent and Respondent's arrest. After making the purchase, Officer Dilla's intent was to try to make additional purchases to increase the total weight of the drugs purchased so as to reach a quantity that would constitute the more serious offense of trafficking. However, he was called off of that matter to work on a larger-scale investigation. Therefore, he prepared a probable cause packet on the case so that the results of his investigation could be utilized, alone or in conjunction with additional information, to bring charges against Respondent, because Officer Dilla believed that there was sufficient evidence to arrest Respondent and charge him. Respondent's criminal case was set for trial several different times with witnesses subpoenaed by the state, but Respondent's attorney successfully moved for continuances four times. In May 2011, the matter was finally resolved without a trial, by a plea agreement whereby Respondent pled guilty to two counts of possessing drugs without a prescription, second-degree misdemeanors, in exchange for the prosecution amending the information to drop the original charges of possession and sale of cocaine, both felonies, and change the charges to two misdemeanor counts of possessing drugs without a prescription. Respondent's employment record was summarized in the evidence. Apparently, up until 2008, his record with the School Board was unblemished. On March 5, 2008, Respondent received a "needs improvement" evaluation based on attendance. Respondent received another "needs improvement" evaluation the next year, this time based on quality of work. Also during this same timeframe, on November 14, 2008, Respondent received a reprimand from the principal of the elementary school for "misconduct in office." No details of this disciplinary incident were provided, but Respondent did not dispute that he had received the reprimand for misconduct in office that is noted in evidence in the summary of his employment record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby: RECOMMENDED that Petitioner, Pinellas County School Board, enter a final order terminating the employment of Respondent, Quan R. Brown. DONE AND ENTERED this 29th day of November, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 29th day of November, 2011.
The Issue The issue for determination is whether just cause exists for termination of Respondent Mabel Johnson’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the employment of Respondent, Mabel Johnson. DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. S DON W. 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 2nd day of February, 2005.
The Issue Whether Respondent's teaching certificate should be suspended or revoked, or Respondent otherwise disciplined for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B-5, Florida Administrative Code, as set forth in the Administrative Complaint, dated October 21, 1980. This proceeding commenced with the Filing of an Administrative Complaint by the Commissioner of Education alleging that Respondent's teacher's certificate should be revoked or suspended, or other action taken, pursuant to Chapter 231, Florida Statutes, for gross immorality, moral turpitude, and engaging in conduct which seriously reduced his effectiveness, by reason of the alleged sale of cocaine to Tampa Police Department Detectives on November 16, 1979. The complaint also alleged that the Respondent was in violation of Section 231.09, F.S., in that he failed to provide a proper example for students, and of Chapter 6B-5, Florida Administrative Code, in that he had not practiced his profession at the highest ethical standard. The complaint was filed on October 21, 1980, and by an "election of rights" form received by the Professional Practices Services Section of the Department of Education on December 29, 1981, Respondent disputed the allegations of material fact of the complaint and requested a formal hearing before this Division. The case was thereafter referred by the Education Practices Commission to this Division by letter of January 6, 1981. By Order, dated January 15, 1981, the parties were advised of various procedural matters by the Hearing Officer, and paragraph 7 thereof quoted Model Rule of Procedure 28-5.104, F.A.C., concerning representation in administrative proceedings. Notice of Hearing was issued on February 4, 1981, for final hearing on April 23, 1981. Due to the fact that it was later determined that an incorrect address had been used on the notice for Respondent, an Amended Notice of Hearing was issued on March 11, 1981. On April 20, 1981, a letter from Respondent to Petitioner's counsel dated April 12, 1981, was received in this Division after referral by said counsel. The letter requested that Petitioner's counsel inform him of a court appointed attorney to represent him since he could not afford to hire an attorney to defend him. He further asked that he be granted a continuance until the problem could he resolved. Petitioner's counsel informed Respondent, by letter dated April 16, that he was unable to assist him in his request. On April 22, the Hearing Officer advised Respondent telephonically that there was no provision for "court appointed counsel" in administrative proceedings and that due to the lengthy period of time since Respondent had been aware of the pendency of the proceeding and of his rights to representation, and because Petitioner's counsel had orally communicated objection to any continuance, that his request was denied. Respondent stated that he did not intend to appear at the hearing and, in a later telephone conversation on the same date, stated that he was transmitting a telegram withdrawing his request for hearing. Since no such communication was received on April 22, the hearing commenced as scheduled. At that time, Respondent appeared at the hearing and renewed his motion for continuance over objection of Petitioner, and the prior denial was reaffirmed. Upon inquiry by the Hearing Officer, Respondent stated that he did not wish to represent himself and that he would not participate in the proceedings other than to submit a letter and accompanying copy of the decision of the Third District Court of Appeals in the case of Pearl v. Florida Board of Real Estate, Case No. 80-347, opinion issued February 17, 1981. In his letter, Respondent requested that consideration be taken of his record as a counselor for seven years at Sligh Junior High School in Tampa, Florida, and that his certificate not be revoked. (Hearing Officer's Exhibit 1) Respondent was thereupon advised of his rights in administrative proceedings, but although he remained in the hearing room during the course of the hearing, he took no further part in the proceedings. Petitioner filed prehearing discovery requests which were not responded to by Respondent. Petitioner thereafter Filed a Motion for an Order Compelling Discovery and Respondent failed to respond thereto. By Order dated March 26, 1981, the motion was granted and Respondent was provided a period of ten days to either respond to Petitioner's discovery requests or to assert any rights against self-incrimination as to individual requests. Respondent did not respond to the foregoing order and therefore, a subsequent order was issued on April 8, 1981, wherein it was ordered that pursuant to Rule 1.370(a), Fla.R.Civ. P., the matters of which Petitioner's First Requests for Admissions were requested were deemed admitted by the Respondent for the purpose of this proceeding. Petitioner presented the testimony of four witnesses and submitted five exhibits in evidence. Additionally, at the request of Petitioner, official recognition was taken of orders issued by the State Board of Education from 1976-1981 relating to drug-related cases in administrative license disciplinary proceedings. (Hearing Officer's Exhibit 2)
Findings Of Fact Respondent David Michael Knox holds certificate No. 325767, postgraduate rank II, which expires on June 30, 1982, covering the areas of biology, science, junior college and guidance. (Complaint) Respondent's address on December 16, 1979, was 7409 El Encanto Court, Apartment 203, Tampa, Florida. At all times material, Respondent was employed by the Hillsborough County School System as a guidance counselor. As a guidance counselor, Respondent counseled students with drug problems. (Petitioner's First Request for Admissions) On November 16, 1979, Detective Candice Moore, Tampa Police Department, pursuant to information supplied by a confidential informant that cocaine could be purchased from Respondent, telephoned Respondent to arrange such a purchase. During the course of the conversation, Respondent agreed to sell Moore a quantity of narcotics at his residence that evening. Detective Moore arrived at Respondent's residence at approximately 6:50 P.M. and was invited into the house by Respondent. He then showed her two packages and told her that she could choose the one that she wanted. She selected one of the packages. Respondent then brought out a tray on which there was a substance divided into six "lines." Respondent told Moore that she could sample the first and second lines. She simulated "snorting" the substance and also tasted it. Respondent "snorted" two lines of the substance and then told her to take the last two lines. She again simulated that she was taking the drug. Detective Moore had tasted cocaine before in the course of her duties and had determined that cocaine has a distinctive taste. The substance that she tasted at Respondent's residence tasted like cocaine. Detective Moore gave Respondent $85.00 in U.S. currency and put the package, which appeared to contain approximately one gram of the substance, in her purse. Detective Moore and Respondent then spoke of the possibility of future transactions, and he told her that if she wanted more cocaine in the future to provide him several days notice since he only kept two to three grams at his home. He further told her not to tell anyone where she had obtained the cocaine and that everything would then be "cool" and they could do business together in the future. After leaving the apartment, Detective Moore observed another detective at the police station perform a chemical reagent test on the contents of the package which she had purchased. The test was positive for cocaine. The contents of the package was then identified under evidence No. 9E-10250 and a small sample was sent to the State Crime Laboratory for analysis under evidence No. 9E-10251. Laboratory analysis utilizing standard testing procedures established that the substance gas cocaine. (Testimony of Moore, Booth, Wilbarger, Kasten, Petitioner's Exhibits 1-2) Respondent thereafter was charged with delivery of cocaine and possession of cocaine in violation of Sections 893.13(1)(a)(2), and (1)(e), Florida Statutes. On July 9, 1980, Respondent entered a plea of of nolo contendere to the charges in the Hillsborough County Circuit Court, Case No. 80- 780. The Court entered an order that adjudication of guilt and imposition of sentence be withheld, and Respondent was placed on probation for a period of three years. 1/ (Petitioner's Exhibits 3-5) Joseph C. Greco, Supervisor of Guidance Services for the Hillsborough County School System, is of the opinion that a high school guidance counselor who is arrested for the possession of cocaine would set a poor role model example for students and that his effectiveness in the school system would be diminished. He further is of the opinion that such a person would not have adhered to the highest ethical standards required of personnel in the school system. (Testimony of Greco)
Recommendation That Respondent's teaching certificate be permanently revoked, pursuant to Chapter 231, Florida Statutes. DONE and ENTERED this 18 day of May, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 1981.
The Issue The issue in this case is whether there is just cause for a thirty-day suspension of Priscilla Parris' employment with the Miami-Dade County School Board.
Findings Of Fact Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within Miami-Dade County, Florida, pursuant to Article IX §4(b) of the Florida Constitution; and section 1001.32, Florida Statutes. Specifically, the School Board has the authority to discipline employees. § 1012.22(1)(f), Fla. Stat. Parris started her employment with Petitioner in 1982. She has not been subject to any prior disciplinary action. Parris was employed pursuant to a professional services contract, a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade. After holding various teaching positions with the School Board, Parris was assigned to Benjamin Franklin Elementary School ("Franklin") in 2005. At all times material to this matter, Parris was a teacher at Franklin. On April 21, 2010, Adrian Rogers ("Rogers"), Assistant Principal at Franklin, was conducting a faculty meeting in the school's media center. During the meeting while at the podium in the front of the media center, Rogers solicited volunteers to serve on an interview committee for a new principal or assistant principal, in case one had to be replaced. Parris raised her hand to volunteer for the interview committee. Rogers handpicked the interview committee from the volunteers but did not select Parris. Instead, she chose the non-classroom teachers who volunteered for the interview committee. As the faculty meeting continued, Parris voiced her concerns to Rogers that the interview committee consisted of non-classroom teachers. Rogers responded that she would talk to Parris about it after the meeting and would not discuss the matter further during the faculty meeting. After the meeting, Parris got up from her seat and walked1 towards Rogers in the front of the room questioning the committee selection. Rogers' response upset Parris and both women became agitated. Both raised their voices during the exchange of words and got louder and louder. The heated disagreement turned into an argument. At some point during the heated discussion, Parris told Rogers, "Don't talk to me like that. I am old enough to be your mother." Rogers responded and Parris retorted, "I don't think your mother would approve, if she was alive, you talking to someone older than you [like that]. . . you better watch your back because you are going to regret disrespecting me." Parris also referred to Rogers as a little girl. Rogers then walked to a different area in the media center to get her belongings and Parris attempted to follow her. Rogers did not like what Parris said to her and felt that Parris was coming toward her as though Parris was going to attack her. Rogers told Parris "You need to step back." As Parris walked toward Rogers to continue the discussion and explain herself,2 Charles Johnson ("Johnson") stepped in front of her and she bumped him as he blocked her from following Rogers. When Johnson stood between the two, he lightly held Parris near the shoulder with an open hand. Johnson told Parris, "This is not worth it. You don't want to do this." At that point, Parris stopped following Rogers and backed away. No physical contact ever took place between Parris and Rogers. Several teachers were surprised by the incident between Parris and Rogers and left the media center quickly after the faculty meeting. Wayne Kirkland ("Kirkland"), the librarian, walked over to Rogers and Parris because both voices were so loud. He saw how upset Rogers was and calmed Parris down by telling her, "let's walk outside." Parris left with Kirkland and he walked her from the media center to her car. Soon thereafter, Parris left the school grounds in an attempt to make her dentist appointment. After an investigation of the incident in the Franklin media center, the matter ultimately was brought to the attention of the Administrative Director, who by letter on or about January 31, 2011, advised Respondent that a determination had been made that the Superintendent would recommend suspension without pay to the School Board. On February 9, 2011, the School Board followed the recommendation and took action to suspend Respondent without pay for 30 workdays. Parris timely requested an appeal of the disciplinary action.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Miami-Dade County School Board enter a final order rescinding the 30-day suspension with back pay. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 30th day June, 2011.
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
The Issue Whether Respondent Terri Medus (Respondent) engaged in an act of immorality, conduct that violates Orange County public school policy, conduct that violates the Code of Ethics, conduct that violates the Principles of Professional Conduct of the Education Profession, or conduct that compromised her effectiveness as an educator.
Findings Of Fact Stipulated Facts During all times relevant hereto, Petitioner employed Respondent as a classroom teacher. Respondent has held a Professional Service Contract with Petitioner since May 1986. Respondent's Professional Service Contract states that Respondent will not be terminated "except for just cause," as provided by Florida Statutes. Respondent pled no contest to a driving under the influence (DUI) charge stemming from an arrest on March 26, 2014, and was adjudicated guilty, in accordance with section 316.656, Florida Statutes. Petitioner did not discipline Respondent for the DUI arrest or subsequent adjudication. Reasonable Suspicion Respondent admits that prior to December 1, 2014, she was aware of Petitioner’s drug-free workplace policy (Policy) and that she could be disciplined for reporting to work under the influence of alcohol. December 1, 2014, fell on a Monday. On Saturday, November 29, 2014, Respondent flew from Detroit to Orlando after visiting her son during the Thanksgiving holiday. Respondent began consuming alcoholic beverages on the plane ride to Orlando. The following day, November 30, 2014, Respondent, by her own admission, consumed between five to ten rum and Coke beverages, which resulted in Respondent becoming intoxicated. While at work on the morning of December 1, 2014, Respondent attended a 9:00 a.m. meeting. Ms. McCray, Respondent’s immediate supervisor, was also present at the meeting and sat next to Respondent. The meeting lasted approximately 10 minutes. Immediately following the meeting, Ms. McCray wanted to debrief with Respondent and another employee regarding what was discussed during the meeting. During the debriefing, Ms. McCray detected the smell of alcohol on Respondent’s breath, observed that Respondent’s hands were shaking and that her speech was slurred when she responded to questions asked, that Respondent’s body language was “a little wavering,” and that Respondent’s eyes were “glossy.” Additionally, when Ms. McCray asked questions of Respondent during the debriefing, Respondent's answers did not quite match the questions being asked by Ms. McCray. Ms. McCray repeatedly asked Respondent if something was wrong. At first, Respondent said she was fine. However, Respondent then said to Ms. McCray that she took Benadryl the night before the meeting because she could not sleep. Ms. McCray memorialized her observations of Respondent in a spiral notebook that she personally maintains. Upon concluding that Respondent was likely suffering from the effects of excessive alcohol consumption, Ms. McCray was assisted in assessing Respondent’s condition by Rafael Sanchez, who works for Petitioner as a senior manager in Petitioner’s employee relations department. Mr. Sanchez is also a trained reasonable suspicion manager. Based on his observations, Mr. Sanchez completed a reasonable suspicion checklist and noted thereon that Respondent had slurred speech, an odor of alcohol on her breath or person, an unsteady gait or lack of balance, glassy eyes, and a runny nose or sores around her nostrils. With respect to Respondent's gait, Mr. Sanchez observed Respondent walk into the side of an open door. With respect to her speech, Mr. Sanchez observed that Respondent was speaking very slowly and had difficulty articulating her words. Finally, Mr. Sanchez testified that Respondent demonstrated marked irritability when she was told she would have to be driven to a facility for reasonable suspicion alcohol testing. Petitioner was justified in requesting that Respondent submit to reasonable suspicion testing. Breathalyzer Testing After concluding that there was reasonable suspicion for testing Respondent for alcohol-related impairment, Ms. McCray drove Respondent to ARCPoint Labs, the facility used by Petitioner for reasonable suspicion drug and alcohol testing. Karen Carmona works for ARCPoint Labs as a specimen collector and has been certified as such by the U.S. Department of Transportation since 2013. Ms. Carmona was trained to operate the machine utilized to test Respondent, the RBT IV by Intoximeters.1/ Respondent’s first breathalyzer test, which was time- stamped at 11:46 on December 1, 2014, showed that Respondent’s breath alcohol content (BAC) was 0.198 G/210L. Respondent’s second test, which was time-stamped at 12:04 (18 minutes later) on December 1, 2014, showed Respondent’s BAC level at 0.188 G/210L. The operator’s manual for the RBT IV provides that “[i]f an accuracy check has not occurred within the past 31 days, an accuracy check should be run prior to running a subject test to ensure the instrument has maintained proper calibration.” An accuracy check of the RBT IV device used to test Respondent was performed on November 22, 2014, which is within the prescribed window established by the manufacturer. For the RBT IV device used to test Respondent, the accuracy check must read plus/minus .005 of the expected target value of .038. The accuracy check performed on November 22, 2014, showed a reading of .043, which is within the acceptable range established by the manufacturer. The validity of the accuracy check was confirmed by a print-out from the RBT IV device which reads “CAL CHECK OK.” If the RBT IV had produced a value outside of the parameters of the accuracy check, then the machine would have generated a printout indicating “OUT OF CAL” and it would have been necessary to perform an actual calibration of the testing device. Unlike the general accuracy check, which must fall within plus/minus .005 of the expected value of .038, an accuracy check following a calibration “should be no greater than plus/minus “.003 of the expected value if the calibration is to be considered successful.” Because the RBT IV was operating within the acceptable parameters of the accuracy check, it was not necessary to perform a calibration of the machine. Respondent’s argument that the machine was out of the acceptable accuracy range is not supported by the evidence. The RBT IV used to test Respondent on December 1, 2014, was operating within the limits established by the manufacturer. Additionally, a December 22, 2014, accuracy check of the RBT IV used to test Respondent read .042, which was also within acceptable operational limits. Ice Breakers Candy Respondent also challenges the accuracy of the breathalyzer results on the grounds that the readings cannot be trusted because prior to the administration of the test she consumed Ice Breakers candy. On cross-examination by Petitioner, Respondent’s expert, Mr. Thomas Workman, testified as follows: Q: Your opinion is that her –- that Ms. Medus eating Ice Breakers would so throw off the test that it would elevate her breath alcohol content up to .198 and .188? A: I believe it would –- it would have an effect, I don’t know the degree of the effect, but it would – it would not produce a reliable result. Q: What would be –- what would be your estimate of the degree of effect of how much it would be off? A: It could account for the entire reading or it could account for a portion of the reading, I –- I can’t say. Tr., p. 376. Mr. Workman’s also testified that one Ice Breaker “could” cause a .198 G/2101 BAC reading depending on the “amount of compound that’s in the mouth compared to the amount of alcohol that would be coming from the breath.” Tr., p. 377 Dr. Smith, Petitioner’s expert, disagrees with Mr. Workman’s opinion and testified as follows: Even if either one of those products contained any ethanol or methanol, which are the alcohol that the device is certified to measure, the 15 minute wait between the initial and this confirmation test, when she did not have anything in her mouth at all, any residual alcohol that may have been a product of the food or the gum would have completely dissipated. So it would not be — that's why we have that 15-minute wait to ensure that any residual mouth alcohol, not alcohol that is in the bloodstream, would not be measured on the confirmation test. Tr., p. 283. Mr. Workman’s opinion is rejected because by his own admission, he is unable to say with the requisite degree of reliable scientific probability that any Ice Breaker candy consumed by Respondent sufficiently compromised Respondent’s breathalyzer tests to the point of rendering the same unreliable. Respondent’s Rate of Alcohol Absorption Mr. Workman also testified that Respondent’s rate of absorption of alcohol makes it unlikely that her BAC readings were accurate. Mr. Workman’s testimony is based on numerous assumptions, none of which have adequate proof to invalidate the results of the breath alcohol test. First, Mr. Workman assumed that Respondent did not have any alcohol past midnight on November 30, 2014. Mr. Workman admitted that if the information regarding when Respondent stopped consuming alcohol was erroneous, then his assumption would be incorrect. Moreover, given the amount of alcohol admittedly consumed during the weekend by Respondent, her testimony that she stopped drinking at midnight is unreliable. As previously noted Respondent starting drinking at around noon on Saturday and continued drinking throughout the entire day on the following Sunday. Such a period of sustained drinking makes it unlikely that Respondent was cognizant of the time when she stopped drinking before retiring to bed. Second, Mr. Workman testified that his theory regarding Respondent’s metabolic rate of alcohol absorption would depend on her weight and build. However, Mr. Workman testified that he has never seen Respondent and has no idea of her actual build and weight, other than what he had been generally told by Respondent’s counsel. Additionally, Mr. Workman testified that he does not know the rate at which Respondent actually metabolizes alcohol. Dr. Smith testified there would have to be evidence of a person’s actual metabolic rate in order to perform the extrapolation suggested by Mr. Workman. There is no evidence in the record which indicates how Respondent metabolizes alcohol. As such, Mr. Workman's extrapolation is rejected as unreliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Orange County School Board enter a final order that: Terminates Respondent’s Professional Service Contract for just cause, due to Respondent committing misconduct in office by violating Petitioner’s drug-free workplace policy; Dismisses the allegation(s) that Respondent committed an act of drunkenness; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Code of Ethics of the Education Profession in Florida; Dismisses the allegation(s) that Respondent committed misconduct in office by violating the Principles of Professional Conduct for the Education Profession in Florida; and Dismisses the allegation(s) that Respondent committed an act of immorality. DONE AND ENTERED this 7th day of January, 2016, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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, 2016.
The Issue Whether Petitioner, Marion County School Board (“Petitioner” or “School Board”), had just cause to terminate Respondent, Joshua Crill (“Respondent” or “Mr. Crill”), for misconduct in office as alleged in the Administrative Complaint.
Findings Of Fact Based on the testimony and exhibits offered at the hearing and the stipulated findings of fact in the Prehearing Stipulation, the following Findings of Fact are made. Petitioner is the constitutional entity authorized to operate, control, and supervise public schools within Marion County. See Art. IX, § 4(b), Fla. Const.; see also § 1001.32(2), Fla. Stat. Petitioner is authorized to discipline instructional staff. See § 1012.22(1)(f), Fla. Stat. At all times relevant to the allegations in the Administrative Complaint, Mr. Crill was employed as a teacher at Legacy Elementary School, pursuant to a professional services contract. On October 20, 2020, Mr. Crill reported he was involved in an incident at school. Specifically, a student in his classroom was climbing a bookcase. Mr. Crill intervened to prevent the student from harming himself, when the student scratched Mr. Crill’s arm causing a deep laceration and bleeding. Mr. Crill was concerned about possible infection, and thus, he was referred to a workers’ compensation doctor who provides treatment to School Board employees who are injured while working. As part of the evaluation for the possible workers’ compensation-related injury, and consistent with School Board policy, Mr. Crill submitted to a routine urine drug screen. The Medical Review Officer (“MRO”), Dr. Stephen Kracht, provided a report on the urine drug screen to the School Board, which found that the urine sample tested positive for marijuana. Mr. Crill did not challenge the administration of the test or seek a second test to confirm the results of the first test. Mr. Crill also did not challenge the accuracy of the results of the drug screen as reported by the MRO. Mr. Crill acknowledged that he used cannabidiol (“CBD”) products to treat pain related to wear and tear to his shoulder resulting from his military service in the United States Marine Corps (“USMC”) before his employment with the School Board.1 At no point prior to his positive drug screen did Mr. Crill notify his supervisor or the Board that he was using CBD. He only used Ibuprofen before using the CBD products. Mr. Crill pointed to his use of Tropic Twist for the positive test result. Tropic Twist is an over-the-counter product and, according to the packaging, is THC2 infused. Mr. Crill explained that he was introduced to Tropic Twist by a family friend during a gathering that took place before his injury. The family friend gave Mr. Crill the Tropic Twist package of gummies. Mr. Crill did not fully examine the package but he recalled that the package had a hemp leaf on the front and appeared similar to other CBD products that he previously used. The packaging also had the phrase “THC Infused” on the front underneath the package label, next to the hemp leaves. However, Mr. Crill testified that he did not see the language regarding “THC Infused” on the package. 1 Mr. Crill served in the USMC from 2011 through 2015. 2 THC (tetrahydrocannabinol), is the primary psychoactive component of cannabis (marijuana). Throughout his testimony at hearing, Mr. Crill maintained that he had no knowledge that the gummies contained the active ingredient for marijuana, and as a result, he unintentionally ingested the THC. However, he acknowledged that he regularly consumed the Tropic Twist product. Mr. Crill testified that he does not use marijuana or any other illegal drugs. Mr. Crill has no prior history of testing positive for marijuana on a drug screen. He submitted to a pre-employment drug screen when he began working with the School Board, which returned negative. He also submitted to a drug screen prior to being hired at Legacy Elementary School. The School Board maintains a drug-free workplace policy. Petitioner alleges Respondent violated policy 6.33, entitled “Alcohol and Drug-Free Workplace.” Pursuant to policy 6.33, section II.A., which constitutes notice to all employees of School Board, “as a condition of their continued employment” with the School Board, all employees are required to fully comply with the provisions of the Drug-free Workplace Policy. Policy 6.33, section II.B., provides that “it is a condition of employment for an employee to refrain from reporting to work or working with the presence of drugs or alcohol in his or her body.” Policy 6.33, section IV.B., provides that “[e]mployees 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.” Policy 6.33, section IV.B., includes marijuana within a list of substances which are considered illegal, pursuant to section 202 of the Controlled Substances Act, 21 C.F.R. §§ 1300.11 through 1300.15. Policy 6.33, section VI.B.2., provides: Circumstances under which testing may be considered include but are not limited to the following: * * * 2. Accidents on the job causing personal injury to self or others. The School Board is also a party to a collective bargaining agreement, that governs, in part, terms and conditions of employment for Mr. Crill. According to Dr. Gullett, the recommended disciplinary action is termination when employees violate the School Board’s Drug-Free Workplace Policy. Dr. Gullett issued an Administrative Complaint recommending Mr. Crill’s termination due to his testing positive for marijuana on the urine drug screen. Mr. Crill timely requested a hearing to challenge the proposed termination and the School Board referred the matter to DOAH for an ALJ to issue a recommended order based on those disputed facts. Mr. Crill did not exhibit any signs of being under the influence of marijuana, nor did his principal, Shameka Murphy, observe any indication that Mr. Crill was under the influence. Ms. Murphy did not observe any basis to order Mr. Crill to take a reasonable suspicion drug screen, which would be required if she believed that he was under the influence of drugs or alcohol. The parties also stipulated that Mr. Hensel and Ms. Guest, who were principals at some point during Mr. Crill’s tenure working with the School Board, never had a basis to suspect that Mr. Crill was under the influence of drugs or had reason to direct him to submit to a reasonable suspicion drug screen. Ultimate Findings of Fact The greater weight of the evidence demonstrates that Mr. Crill tested positive for marijuana on a urine drug screen following an incident that occurred while working. Petitioner proved by a preponderance of the evidence that Mr. Crill violated School Board policy, namely: The Alcohol and Drug-Free Workplace Policy 6.33, Section II.B., by having the presence of drugs in his body while working as demonstrated by the positive urine drug screen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Marion County School Board enter a final order finding that Respondent, Joshua Crill, engaged in misconduct in office and there is just cause to terminate Respondent, or impose other discipline consistent with Florida Administrative Code Rule 6A-5.056(2). DONE AND ENTERED this 24th day of May, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2021. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 Dr. Diane Gullett, Superintendent Marion County School Board 512 Southeast Third Street Ocala, Florida 34471 Richard Corcoran Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
