The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether Respondent (“Douglas Wiseman”) violated Petitioner, the School Board of Hernando County’s (“the Board”),1 drug-free workplace policy; and, if so, whether his employment with the Board should be terminated.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record in this proceeding, and matters subject to official recognition, the following Findings of Fact are made: Section 381.986, Florida Statutes (2019)2, pertains to the medical use of marijuana and allows patients suffering from chronic, nonmalignant pain to receive marijuana if they have been added to the medical marijuana use registry by a qualified physician. However, section 381.986(15)(a), provides that “[t]his section does not limit the ability of an employer to establish, continue, or enforce a drug-free workplace program or policy.” Also, 2 All statutory references shall be to the 2019 version of the Florida Statutes. section 381.986(15)(b), states that “[t]his section does not require an employer to accommodate the medical use of marijuana in any workplace or any employee working while under the influence of marijuana.” The Board operates 24 schools, employs over 3,000 people, and has approximately 24,000 students. The Board maintains a drug-free workplace. On August 27, 2019, the Board revised its drug-free workplace policy in order to explicitly prohibit medical marijuana. The revised policy states, in pertinent part, that: [m]arijuana is considered a controlled substance under the Federal Controlled Substance Act. The Board does not distinguish between marijuana and medical marijuana for its policies. Use of marijuana in any form is prohibited. If a drug test result is positive for marijuana, the employee will be subject to disciplinary action per Board Policy 4139.01. The Board adopted the above-quoted revision in order to resolve any ambiguity regarding its position on medical marijuana following the passage of section 381.986. The Board’s revised policy mandates that employees who perform “safety-sensitive functions with Board-owned and/or operated . . . vehicles must be mentally and physically alert at all times while on duty.” Accordingly, the Board requires “the Superintendent to establish a drug and alcohol testing program whereby each regular and substitute bus driver, and any other staff member who holds a CDL license, as well as any staff member performing safety-sensitive functions, is tested for the presence of” alcohol, marijuana, cocaine, opioids, amphetamines, and PCP. (emphasis added). The revised policy further provides that drug tests can be conducted prior to employment, for reasonable cause, upon return to duty after drug or alcohol rehabilitation, after an accident, on a random basis, and on a follow-up basis. The revised policy states that “[t]he term safety-sensitive functions includes all tasks associated with the operation and maintenance of Board- owned vehicles.” The revised policy is silent as to whether maintenance employees or those operating power tools perform safety-sensitive functions. The Board also revised its disciplinary policy on August 27, 2019, to classify a positive drug test as a “Group IV” offense punishable by termination. However, that same policy also provides that [t]he Superintendent and the School Board retain the right to treat each incident of employee misconduct or performance deficiency on an individual basis without creating a precedent for other similar incident cases which may arise and to determine the appropriate disciplinary [measure] on a case-by-case-basis. The Board has a department responsible for maintaining its buildings and its fleet of approximately 50 vehicles. Mr. Wiseman has been employed with the Board for nearly 14 years as a Carpenter III. Mr. Wiseman is the Board’s head roofer and thus used ladders up to 36 feet in height on an almost daily basis. In addition, he performed carpentry work such as putting up drywall, installing ceiling tiles, and repairing doors and shelves. In the course of his duties, Mr. Wiseman regularly used power tools such as electric drills, circular saws, and nail guns that have the potential to cause injury if not properly handled. The Board assigned one of its fleet vehicles to Mr. Wiseman, and it was stocked with equipment and tools. He drove that vehicle every workday. While Mr. Wiseman had no responsibilities relating directly to students, the Board considered him to be in a safety-sensitive position due to the nature of his duties and because he drove a Board vehicle. Mr. Wiseman injured his back approximately two years ago, and the incident resulted in a workers’ compensation claim. Mr. Wiseman initially used muscle relaxers and pain medication to deal with the pain associated with his injury, but he could not tolerate the side effects. As a result, he became certified to receive medical marijuana in 2018. Mr. Wiseman has benefited greatly from this treatment and plans to continue using medical marijuana until he can live without pain. Mr. Wiseman only uses medical marijuana to treat his pain and did not use it during school/work hours. The Board convened a meeting of the maintenance staff on the morning of September 19, 2019, in order to discuss the revisions to the Board’s drug-free workplace policy. Because the Board considers maintenance to be a safety-sensitive function, the maintenance staff was put on notice that they would be subject to random drug testing and that random testing would start in 60 to 70 days. The Board did not impose immediate random testing because it wanted to give employees taking medical marijuana an opportunity to confer with their physicians and make arrangements to bring themselves into compliance with the revised policy. Mr. Wiseman attended the September 19, 2019, meeting, and he was required to give a urine sample on November 20, 2019. The Board received the positive test result on December 2, 2019, and immediately prohibited Mr. Wiseman from working on roofs and driving the Board-owned vehicle that had been assigned to him. The Board leveled several allegations against Mr. Wiseman and proved by a preponderance of the evidence that he violated the following polices: (a) Policy 4124 which prohibits the use of any controlled substance by any staff member at any time while on Board property or while engaged in Board-related activities; (b) Policy 4139.01 Group II (6) which prohibits violations of known safety rules or practices; (c) Policy 4139.01 Group IV (2) which subjects a Board employee to termination for a positive drug or alcohol test; and (d) Policy 4162 which prohibits any Board employee with a positive drug test from driving any school vehicle or using Board-owned equipment.” The Board failed to prove the remaining allegations by a preponderance of the evidence. The greater weight of the evidence demonstrates that Mr. Wiseman worked for the Board in a safety-sensitive position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Hernando County issue a written reprimand to Respondent. DONE AND ENTERED this 2nd day of September, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 2nd day of September, 2020. COPIES FURNISHED: Mark Herdman, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761-1526 (eServed) Gregory A. Hearing, Esquire GrayRobinson, P.A. Suite 2700 401 East Jackson Street Tampa, Florida 33602 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 3299-0400 (eServed) John Stratton, Superintendent The Hernando County School District 919 North Broad Street Brooksville, Florida 34601-2397
Findings Of Fact 1. William Long holds Florida Teaching Certificate number 241743, covering the area of elementary education; it is valid through June 30, 1993. 2. During the 1987-88, 1988-89, 1989-90, and 1990-1991 school years, Mr. Long was employed as a teacher at Highland Oaks Elementary School by the School Board of Dade County. Mr. Long taught fifth grade with a team of four other teachers. The teachers worked together closely, as the team concept required them to teach their classes in a single large classroom and to instruct certain subjects to all of the students at the fifth grade level. The early portion of Mr. Long's employment at Highland Oaks was unmarkable. Beginning in the 1989-1990 school year, and continuing through the 1990-1991 school year, Mr. Long engaged in unprofessional behavior which was noticed by his fifth grade team members and by the administrative staff of Highland Oaks. Mr. Long was often absent from work. He also frequently arrived late for work in the morning and left school before the dismissal time for teachers. Although Mr. Long was advised by his principal to be punctual, he continued to arrive late to school. Mr. Long missed or was late for parent-teacher conferences because of his tardiness. Absenteeism prevented him from participating in several fifth grade team conferences and planning sessions. Mr. Long did not prepare adequate lesson plans. The absence of proper lesson plans caused difficulties for substitute teachers during his many absences. Mr. Long consistently neglected to maintain student records and student assignments, and failed to record grades in his grade book. He did not properly issue progress reports and report cards. Team members often had to evaluate his students in his absence, based upon inadequate information. Mr. Long's lack of record keeping violated Date County School Board Rule 6Gx13-4A-1.21. Mr. Long left his class unattended and unsupervised on an almost daily basis. He usually failed to follow the procedure of notifying another teacher before leaving his class. As a result, his unsupervised students became noisy and disruptive to other classes. Mr. Long frequently fell asleep during the school day in his classroom. On occasions, his own students had to wake him up. Mr. Long fell asleep during staff meetings, most notably during a meeting concerning the district's Drug-Free Work Place policies on December 6, 1989. Parents made numerous complaints to teachers and administrators about Mr. Long. Parents often asked to have their children transferred out of his class. Mr. Long's behavior became widely known and was a serious cause for concern among parents. Mr. Long also engaged in bizarre and unusual conduct in front of his students. This conduct included: making guttural sounds and dancing in front of the class, putting a box over his head, hanging a lunch bag on his ear, "moonwalking" and singing in the cafeteria, putting a straw in his nose as if inhaling cocaine, and eating a candy cane with exaggerated movements. Student response to such actions caused a distraction to other classes and teachers. As a result of these deficiencies, members of the fifth grade teaching team frequently had to fulfill Mr. Long's duties, such as conducting parent conferences, planning, and evaluating and grading student work. Mr. Long's difficulties were first reported to the district on December 1, 1989, when Virginia Boone, Principal of Highland Oaks, referred him to the Employee Assistance Program. Ms. Boone's referral followed several conferences with Mr. Long about his deficiencies. On January 18, 1990, James E. Monroe, Director for the Office of Professional Standards, held a conference for the record with Mr. Long. Mr. Long was told to submit his grade book with up-to-date student grades, report for a medical evaluation and drug screening, and to remain at home and be accessible by telephone. On January 19, 1990, Mr. Long tested positive for the presence of cocaine in his system. The test results were subsequently reported to the school district. The positive cocaine test constituted violation of the Dade County School Board's Drug Free Work Place policy in that test results, coupled with his behavior, show that he was under the influence of cocaine while on duty. Mr. Long did not report for his medical evaluation on two occasions, and did not remain at home in order to be reached by district personnel. On January 31, 1990, the Respondent was reassigned to the School Board's Region II Office. Mr. Long received a memorandum on February 5, 1990, from his principal and assistant principal which detailed his non-compliance with their directives concerning grading of his students, lesson plans, supervision of students, and participation in parent conferences. On February 5, 1990, district personnel met with Mr. Long in another conference for the record. He was placed upon medical leave to undergo substance abuse counseling. He was also warned of his violation of district policies and state rules, and was advised that failure to improve could lead to termination. Mr. Long first attended a 28 day inpatient drug abuse program at Mt. Sinai Hospital. Beginning April 26, 1990, he participated in the Concept House drug and rehabilitation program as a resident, and was subsequently transferred to an outpatient program. In August of 1990, Mr. Long was cleared to return to work and was assigned back to Highland Oaks Elementary. As a condition of his return, he was required to continue his participation in the after care portion of his drug treatment program. Upon his return to Highland Oaks, his unprofessional and inappropriate behavior became worse. He engaged in the same conduct as the previous school year and parents continued to complain about him and request transfers of their children from his class. On September 5, 1990, Mr. Long was arrested by police officers in Opa Locka, Florida, and charged with possession and purchase of cocaine. Mr. Long failed to follow administrative directives by not participating appropriately in his aftercare program. On December 3, 1990, the Concept House terminated him from its program and subsequently notified the district of its action on December 5 or 6, 1990. On December 17, 1990, Mr. Long fell asleep during class. At one point during the day, he was physically unable to stand to conduct his class. On that same day, a teacher observed Mr. Long eating a candy can in a strange and exaggerated manner, and believed that he was "out of it." The teacher called Assistant Principal Barbara Cobb to come to the classroom. Barbara Cobb observed the same behavior, and after watching Mr. Long for several minutes, asked him to accompany her to the school office. Mr. Long told Ms. Cobb a bizarre story about activities at his house. He repeated the story for the principal, who sent Mr. Long home for the day. On December 29, 1990, Mr. Long again was arrested by police officers in Miami upon suspicion of possession of cocaine. He was incarcerated in the Dade County Jail until January 17, 1991, in part due to a bench warrant issued as a result of his September 5, 1990 arrest. No adjudication was ever entered as to the charges resulting from the September 1990 or December 1990 arrests. On January 6, 1991, near the end of the winter vacation, Mr. Long telephoned Assistant Principal Cobb and informed her that he would be absent for an unspecified period of time because of his father-in-law's death. When Mr. Long placed the call to Ms. Cobb, he was still incarcerated in the Dade County Jail. District policy authorizes the use of sick leave in the event of the death of a relative, but not if an employee is in jail. Mr. Long's false statement concerning the purpose of his absence violated School Board Rule 6Gx13-4E-1.02, and was a ruse to attempt to be paid using sick leave benefits, to which he was not entitled. On January 11, 1991, Mr. Long was assigned to the Region II Office. He returned to work on January 22, 1991. While at that location, he failed to follow directives concerning signing in and out and reporting absences. The district penalized Mr. Long a day and a half's pay for his unauthorized absences. Mr. Long did not receive an annual teaching evaluation for the 1989- 1990 and 1990-1991 school years, primarily because he was absent from classroom duty during the portion of the year when the evaluations were conducted. On March 20, 1991, the School Board of Dade County suspended Mr. Long from his position and initiated dismissal proceedings against him pursuant to Section 231.36(4)(c), Florida Statutes. At Mr. Long's election, a formal Division of Administrative Hearings hearing was held before Hearing Officer Stuart M. Lerner on September 12, 1991, and October 6, 1992. On February 11, 1991, Hearing Officer Lerner issued a Recommended Order which found that Mr. Long should be dismissed from the school system on the grounds of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency. On March 18, 1992, the School Board of Dade County adopted the Recommended Order and dismissed Mr. Long from his employment with the school system upon the grounds set forth in the Recommended Order. Mr. Long failed to provide a proper or even minimal education to his students during the 1989-1990 and 1990-1991 school years. School staff and parents in the community were well aware of Mr. Long's poor performance as a teacher. All of Mr. Long's fifth grade team members had little confidence in his performance, and did not want to work with him again. The School Board gave Mr. Long an opportunity for rehabilitation and a chance to return to the classroom, upon his return Mr. Long continued to engage in inappropriate behavior. Dr. Patrick Gray is qualified as an expert in performance appraisal, personnel management and professional ethics in the field of education. Based upon his experience, knowledge of Education Practices Commission precedent, and evaluation of the facts of the case, Dr. Gray recommended that Mr. Long's teaching certificate be suspended or revoked for a minimum of three years, followed by a probationary period with quarterly reporting, random drug testing, and coursework in the area of his deficiencies. The recommendation of revocation was supported by Dr. Joyce Annunziata, Director for the Office of Professional Standards for the School Board of Dade County.
Recommendation Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent, William Long, be found guilty of violating Sections 231.28(1)(c) and 231.28(1)(e), Florida Statutes. It is further recommended that the Education Practices Commission revoke Mr. Long's teaching certificate for three (3) years, and that if he does re-enter the teaching profession as a licensed educator, that he shall be placed on an additional three (3) years of probation with the Education Practices Commission. The terms of the probation shall include the requirement that Mr. Long: shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school district rules and other policies governing teacher conduct and of any disciplinary actions imposed upon him by the district; shall make arrangements for his immediate supervisor to provide the Education Practices Commission with an accurate copy of each written performance evaluation prepared by his supervisor, within ten (10) days of its issuance; shall perform his assigned duties in a competent professional manner; shall violate no law and shall fully comply with all school board rules and State Board of Education Rule 6B-1.006; and shall successfully complete two (2) college level courses, each course being three (3) credit hours, in the areas of classroom management and teaching methods. During the probationary period, Mr. Long shall submit to random drug testing. RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of June 1992. WILLIAM R. DORSEY, JR. 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 29th day of June 1992.
The Issue The issue to be resolved in this proceeding is whether the Board's termination of Respondent's employment should be upheld.
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. The severity of the discipline is meant to emphasize the serious nature of drug use in relation to education, the students and the school, and its employees must set an example. 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 warranting termination. The Board's "policy" of termination for illegal drug use by an employer falls within the disciplinary rule of the Board. 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.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered by the Respondent, Escambia County School Board, terminating the employment of Patricia Gadson. DONE AND ENTERED this 2nd day of March, 1999, 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 2nd day of March, 1999.
The Issue Whether Respondent may be terminated for just cause, in accordance with Article VI, Section 1.A. of the contract between the School Board and the American Federation of State, County and Municipal Employees, Council 79, Local 850 (AFSCME).
Findings Of Fact Respondent has a twelfth grade education and is a licensed cosmetologist. She has been employed by Volusia County for over 20 years and for about eight years by Petitioner Volusia County School Board. During her years with the School Board, she has worked at Silver Sands Middle School and at Campbell Middle School. At the time the charges herein arose, Respondent was serving as a Campus Advisor at Campbell Middle School and was subject to, and protected by, the contract between the School Board and her union, AFSCME. Article VI of the AFSCME contract (Exhibit P-9) provides as follows: Section 1 – Disciplinary Action An employee may be disciplined only for just cause. . . . An employee who elects to proceed under Chapter [sic Section] 120.57, Florida Statutes, may further elect to proceed before a hearing officer [sic. Administrative Law Judge] whose decision will be regulated under Chapter 120.68, Florida Statutes. . . . Under normal circumstances the Board will follow the tenets of progressive discipline in the administration of its disciplinary standards. Discipline shall be defined as (1) the suspension of an employee; (2) the termination of an employee during the term of his or her annual contract, after he or she has completed the initial probationary period; or (3) the non-reappointment of an employee who has successfully completed three consecutive years of employment with the District, and been reappointed for a fourth year. * * * As a Campus Advisor, Respondent was responsible for aiding in maintaining a safe school environment for students. Her duties included monitoring security issues and assisting the school administrative staff with control of students. She monitored the cafeteria, helped to conduct traffic flow, and assisted students and administrators with whatever task was necessary. In her capacity as Campus Advisor, Respondent directly interacted with students on a daily basis. In August 2003, while she was employed at Silver Sands Middle School, Respondent had been referred for a fitness-for- duty evaluation because she was exhibiting irrational and disturbed behavior at school. This referral was in the nature of an intervention to protect the children in her care, to enable Respondent to get the mental health help she needed, and to permit her to continue her employment. Dr. Timothy Shaw, a psychologist, diagnosed Respondent as suffering from “Delusional Disorder, Persecutory Type,” and School Board officials asked Respondent to sign a contract agreeing to successfully maintain a prescribed program of care for her diagnosed mental condition. On January 14, 2004,3/ Respondent entered into an employment agreement (written contract) with the School Board by which she agreed to, among other things, “. . . participate in whatever treatment is prescribed if it is deemed necessary by the aforementioned professional” and to “successfully complete and maintain the prescribed program of care . . . “ Respondent acknowledged at hearing that part of the prescribed program of care at that time was for her to daily take Clonazepam (possibly Klonopin), a psychiatric medication, prescribed by a psychiatrist, Dr. Wylie. Respondent was compliant with her counseling, medication, and employment agreement for a long period of time. As of May 3, 2004, she had been recognized as “Staff Person of the Month” at Campbell Middle School. As of May 13, 2005, she had received a Service Pin as the School Board's recognition of her excellent job performance. Also, all of her attendance records were exemplary and her evaluations highly rated during this period of time. She also was active in her church and in her community during this period. At some point, Respondent felt unwell and left work with the permission of the Campbell Middle School principal. She consulted a private neurologist, who prescribed 25 milligrams of the psychiatric medication Seroquel. However, Respondent did not take this medication, because she had read or heard that it had unpleasant or dangerous side effects. Moreover, she began to take the Clonazepam, required under her contract with the School District, only when she, in her unilateral opinion, believed she needed it. On October 11, 2005, Vicky Presley, Campbell Middle School Principal, reported to Petitioner’s Office of Professional Standards that Respondent was again exhibiting irrational behavior on the job. In response to Ms. Presley's report, Professional Standards Investigator Thomas N. Harrison spoke to Respondent on October 12, 2005. At that time, Respondent told Harrison that she believed that surveillance cameras were in her home, and that she knew a red dot followed her around her house. Based on these comments and Ms. Presley's report, Mr. Harrison scheduled a meeting with Respondent to discuss a new fitness for duty evaluation. On October 14, 2005, Mr. Harrison met with Respondent to initiate the new fitness for duty evaluation. During the course of their meeting, Respondent admitted to Mr. Harrison that she had stopped taking her psychiatric medication. She went on to say that she would not take the medication required by her January 14, 2004, contract any longer, because it made her mouth dry and she did not like the way it made her feel. She also affirmatively disclosed to him that she was carrying an unloaded handgun in her purse. Mr. Harrison perceived her comments and behavior as sufficiently irrational, worrisome, or problematic for him to be concerned for her safety and that of her husband. He called in the Daytona Beach Police and Respondent’s husband. The Daytona Beach police officers who responded to Mr. Harrison’s call questioned Respondent but released her to her husband and declined to “Baker Act” her. Mr. Harrison informed Respondent that she was being referred to the Employees Assistance Program (EAP). Initially, Respondent indicated that she would not comply with the referral to EAP. However, she ultimately accepted the referral to The Allen Group, which oversees Petitioner’s EAP services. On October 28, 2005, Respondent signed another employment agreement (contract), in which she again agreed to successfully maintain a prescribed program of care for her mental illness. Pursuant to paragraphs eight and nine of that October 28, 2005, contract, Respondent acknowledged that she understood that the document constituted additional terms for her continued employment, as follows: By signing this agreement The EMPLOYEE is acknowledging that any manifestation of the condition named by the aforementioned professional does not give rise to an obligation of the EMPLOYER to accept such behavior by the EMPLOYEE. By signing this agreement the EMPLOYEE is acknowledging his/her understanding that any violation of Federal Law or Regulation of the State of Florida, the Rules and Regulations of the State Board of Education, or the policies of the EMPLOYER will subject the EMPLOYEE to a recommendation by the superintendent to the school board for the EMPLOYEE’S termination from employment by the EMPLOYER. Further, the EMPLOYEE understands that this agreement does not constitute a guarantee of employment but merely constitutes additional terms for the period of employment. (Emphasis supplied.) Based on the delusional behavior and paranoia Respondent exhibited during her EAP assessment, The Allen Group referred her for a psychiatric evaluation. That psychiatric evaluation was conducted by James T. Moore, M.D., a Florida- licensed psychiatrist, on or about November 3, 2005. Dr. Moore considered Respondent to be clearly psychotic on that occasion. She continued to talk about being under surveillance from the red dot in her home and stated that she was subjected to untrue rumors that she inappropriately watched school children and that she had stolen food. This was the same situation that she had complained-of at Silver Sands Middle School. Dr. Moore diagnosed her condition as “presumably delusional disorder, persecutory type,” and provided her with samples of 100 milligram tablets of Seroquel. His deposition and report in evidence do not reflect that he ever wrote a prescription for Seroquel for Respondent. In fact, his testimony was that he felt Respondent needed more than 100 milligram tablets of Seroquel daily but that he believed he should not provide/prescribe more than 100 milligrams unless he were treating Respondent as his patient in an on-going fashion. Respondent’s testimony acknowledged that with or without a prescription for Seroquel, she would not take that drug, because she had heard of its side-effects and that a “lawyer” was going to remove it from the market. She did, however, continue her psychological therapy with The Allen Group. On November 30, 2005, James Hollins, Director of the Office Of Professional Standards, was informed by Kevin Percy, M.Ed., CEAP, LMHC, and a member of The Allen Group who had met with Respondent on several occasions, that Respondent had been assessed and a treatment plan had been developed for her. However, Mr. Percy, who is a Florida-licensed mental health counselor, went on to report to Mr. Hollins that Respondent's illness was "uncontrolled and she refuses to follow medical orders." Additionally, he reported that Respondent was not pursuing any acceptable alternative course of treatment. In summation, he opined that Respondent was "non-compliant" with the prescribed treatment plan, because she would not take her medicine. No evidence was presented that any medical or psychological professional had ever considered offering, or had offered, Respondent a substitute for Seroquel. On December 2, 2002, Dr. Moore reported to Mr. Hollins that Respondent's condition was an impediment to the fulfillment of her duties as Campus Advisor. Dr. Moore recommended, after consultation with Mr. Percy and others in The Allen Group, that Respondent not be returned to work, because he felt she should not be around children in her condition. By this time, Respondent had told Messrs. Harrison, Percy, and Moore that she would not take Seroquel. Based on Respondent's failure to adhere to the terms of the two contracts, each entitled “Employment Agreement,” and due to the report by properly licensed and qualified medical and psychological personnel that Respondent was not mentally fit to successfully carry out her duties as a Campus Advisor for the School Board, Mr. Hollins recommended to the Superintendent of Schools, Dr. Margaret Smith, that Dr. Smith request that the School Board terminate Respondent's employment. Mr. Hollins’ recommendation and Ms. Smith's decision to follow that recommendation were reached after they had determined that the School Board had no position available for which Respondent was qualified and which did not require her to be around children. On April 11, 2006, Dr. Smith informed Respondent, by letter, of her intent to recommend to the School Board that Respondent be dismissed from employment at the April 25, 2006, School Board meeting, explaining that the reason for her recommendation was that: The Respondent has breached an agreement dated January 14, 2005, [sic] in which she had agreed to successfully maintain a prescribed program of care for a mental illness which had been previously diagnosed as a result of the Respondent having been referred for a fitness for duty examination. Properly licensed and qualified medical and psychological personnel have determined that the Respondent is no longer following the prescribed program of care, and the Respondent has admitted such to investigators employed by the School Board in its Professional Standards Department. The Respondent is unable to perform out [sic] the essential duties and functions of campus advisor for the School Board, as determined by properly licensed and qualified medical and psychological personnel. Based on the foregoing, the School Board voted to terminate Respondent's employment on April 25, 2006. Respondent was informed of her right to “appeal” that decision, and this case followed. At hearing, Respondent testified that her reasons for not taking her prescribed psychiatric medication were that she "didn't feel [it] was needed at the time it was prescribed." She admitted that no licensed medical professional had instructed her to stop taking her medication. Her decision to stop the medication was her own unilateral decision, and as of the hearing date, September 22, 2006, she had taken no psychiatric medications (neither Clonazepam nor Seroquel) for over a year. She refused to take the drug Seroquel under any conditions. Respondent’s testimony is not entirely clear, but either she believes that the medicine she was taking or her problems with the School Board in 2005 added to the stress in her marriage and thus led to a subsequent divorce, or the stress in the marriage caused her problems with the medication and School Board. Petitioner still believes that adults encouraged school children to pose suggestively for her and that a white dot she calls her "little furry dot" follows her around her house, but the dot no longer bothers her. She is currently attending a community college in a degree program and doing very well. She intends to "not be negative."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the School Board of Volusia County enter a final order ratifying its previous termination of Respondent. DONE AND ENTERED this 18th day of December, 2006, in Tallahassee, Leon County, Florida. S 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 18th day of December, 2006.
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
Findings Of Fact Respondent, Verdyce Clarke (Clarke), was certified as a law enforcement officer by petitioner, Criminal Justice Standards and Training Commission (Commission) on October 18, 1974, and was issued certification number 02-12405. At all times material hereto, Clarke was employed as a police officer by the City of Miami, Florida. On February 10, 1988, Clarke, at the request of her employer, presented herself for her annual physical. Consistent with the collective bargaining agreement existent between her union and employer, such physical included the taking of a urine sample and analysis of that sample for the presence of controlled substances. In this instance, the sample taken from Clarke proved positive for the presence of cocaine, a controlled substance. Again, consistent with the collective bargaining agreement, Clarke was offered the opportunity on February 10, 1988, to provide a second urine sample for substance abuse screening. Clarke elected to provide the second sample and upon analysis it likewise proved positive for the presence of cocaine. The quantity of cocaine detected in Clarke's system on February 10, 1988, was so extreme as to suggest recent recreational use or severe addiction. At hearing, no appearance was entered on behalf of Clarke, and no proof was offered that the subject drug was possessed or administered under the authority of a prescription issue by a physician or that its presence could otherwise be lawfully explained.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking the certification of respondent, Verdyce Clarke. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of March, 1989. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1989. COPIES FURNISHED: Joseph S. White, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 William C. Robinson, Esquire 28 West Flagler Street Suite 220 Roberts Building Miami, Florida 33130 Verdyce Clarke 2230 N.W. 74th Street Miami, Florida 33147 Jeffrey Long, Director Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Daryl McLaughlin Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rodney Gaddy, Esquire General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida. Respondent, Jim J. Smith, was at all times material hereto, employed by the School Board as a teacher (under a professional service contract), and assigned to Charles R. Drew Elementary School (Drew Elementary). On or about September, 1997, an informant heard on the street that Respondent wanted to hire someone to kill his former wife. As a consequence, a Florida Department of Law Enforcement (FDLE) agent was assigned (on September 15, 1997) to operate undercover and to meet with Respondent regarding his proposal. On September 16, 1997, the undercover FDLE agent was introduced to Respondent, and during the course of that meeting, Respondent told the agent that "he had a brother that had got into some trouble and there was a [female] witness . . . [that] he wanted taken care of so she couldn't testify against him." (Transcript, page 39). Following that explanation, the meeting was discontinued (for reasons not apparent from the record), and another meeting was scheduled for the following day. As arranged, the undercover agent met with the Respondent the next day and, at Respondent's direction, followed the Respondent by car to a residence located at 1149 Northeast 210th Terrace, Miami, Florida. There, Respondent identified the residence as that of the "witness" he wanted "taken care of"; however, it was actually the residence of his former wife and their two daughters. Respondent also advised the agent that the "witness" would be home alone that day between 5:00 and 6:00 p.m., when he wanted the job done. At the time, Respondent knew his former wife would be alone that afternoon because he was scheduled to have visitation with his daughters. After Respondent identified the residence, the parties drove to a K-Mart parking lot where Respondent exited his vehicle and met with the agent in his car. At that time the agent related the following conversation ensued: . . . at that time I asked him, "So, what do you want done? He says, "I just want her taken care of." I said, "Well, what does that mean? What do you want, because there are different payments for different things. If you want me -- if you want me to kill her, cut her up, take her out to the ocean, that's going to be X amount of dollars. Whatever you need to do, tell me." "I want her messed up, I just want her messed up so she can't talk, whatever you take that as doing, I just need her messed up." 4 I said, well, fine, that it will be $1500 before that, and then it will be $1500 afterwards, which is a total of -- would be a total of $3,000. (Transcript, pages 41 and 42). Notwithstanding Respondent's insistence that the job be done that day, there was no apparent exchange of money and no proof of record that anything further transpired following their conversation. Based on such incident, Respondent was arrested on October 1, 1997, for solicitation to commit aggravated battery. Those charges were, however, dismissed in early March 1998, based on the State's perceived failure to comply with the "Speedy Trial" rule. The propriety of that dismissal is currently pending on appeal. On or about March 20, 1998, following dismissal of the charges, the School Board inexplicably returned Respondent to his duties at Drew Elementary. That reinstatement was met by an "outcry from the community"; however, the School Board allowed Respondent to resume his duties. Apart from soliciting someone to harm or, as the undercover agent understood it, to kill his former wife, Respondent had also engaged in a pattern of harassment toward his former wife since on or about April 1, 1996. That harassment abated during the pendency of the criminal charge, and escalated following dismissal of the charge.5 In response, Respondent's former wife secured an injunction against domestic violence which prohibited Respondent from contacting her or their daughters. Notwithstanding, the harassment continued. On October 1, 1998, Respondent was arrested and charged with burglary with assault therein, aggravated stalking, and violation of the injunction against domestic violence. Thereafter, Respondent was apparently erroneously released on bond; however, on or about October 6, 1998, he was taken back into custody, where he remained as of the date of hearing. On April 12, 1999, as his trial was about to commence, Respondent expressed his desire to enter a plea. At the time, Respondent pled guilty to all charges, and was sentenced to two years of community control (house arrest), followed by ten years of probation. As a special condition of the two-year term of community control, Respondent was ordered to serve a term of 364 days in the Dade County Jail without credit for time served; however, the jail term would be mitigated to residential treatment provided Respondent found and entered into appropriate residential mental health counseling. As heretofore noted, as of the date of hearing (April 19, 1999), Respondent remained incarcerated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board. DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999.
