01-002456 Pinellas County School Board vs. Wade Ragland Status: Closed Recommended Order on Tuesday, December 4, 2001.

Summary: Random drug testing issue - School Board issued temporary policy change without notice to staff of termination date. Recommend no termination of employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2456

)

WADE RAGLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notic e, the Division of Administrative Hearings

by its duly - designated Administrative Law Judge, Fred L.

Buckine, held a formal hearing in the above - styled cause on

September 19, 2001, in Largo, Florida.

APPEARANCES

For Petitioner: Jacqueline M. Spoto, E squire

School Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Andrew J. Salzman, Esquire

Zimmet, Unice, Salzman

& Feldman, P.A.

Two Prestige Place

2650 McCormick Drive, Suite 100

Clearwater, Florida 33759

STATEMENT OF THE ISSUE

Whether Respondent, Wade Ragland, when notified by his

transportation dispatcher that he had been selected for a random

drug substance test, did not immediately report for testing

because he had scheduled a prior maintenance appointment at his

home, constitutes a refusal to be tested in violation of School

Board Policy, state law, or contractu al agreement. If so, was

his failure to report immediately for random drug testing just

cause for termination.

PRELIMINARY STATEMENT

On April 24, 2001, Respondent (Wade Ragland, bus driver)

was suspended with pay. Thereafter, the Superintendent of

P ublic Schools for Pinellas County, Florida, submitted a

recommendation to the Pinellas County School Board (the Board)

that Wade Ragland be terminated because of his alleged refusal

to submit to a random drug test and that his actions were in

violation of School Board Policy 8.23 and 8.25(1)(u) and (x).

Ragland, upon receipt of the recommendation of termination

notice, requested a hearing pursuant to Chapter 120, Florida

Statutes. On June 21, 2001, the matter was referred to the

Division of Administrative Hearings.

The final hearing was held at the Pinellas County School

Board, Largo, Florida, on September 19, 2001. The Board

presented testimony from seven witnesses: Gene M. Bessette,

Administrator, Office of Personnel Standards; Susan Detmold -

Collins, Assistant Director, Transportation Department; Theresa

Hooker, Personnel Office Technician; Joyce Hefty, Clerk

Specialist II, Transportation Department; Steven A. Masone,

Dispatcher; Walter Pownall, Service Center; and Dennis J.

Bennett, Chief Operating Of ficer, FirstLab (third party

administrator of drug/alcohol testing programs). The Board

offered twenty - eight exhibits (P - 1 - 28) in evidence, which were

accepted without objection.

Ragland presented the testimony of his son, Shane Ragland,

and Craig Schult heis, Sentricon Technician, Swat Exterminating.

Respondent, Wade Ragland, did not testify. Ragland offered in

evidence without objection the depositions of Wade Ragland,

John R. Degen, Board's Field Operations Coordinator,

Steve Masone, Susan Detmold - Co llins, Joyce Hefty, and

Gene Bessette.

On September 28, 2001, the two - volume Transcript of the

hearing was filed. On October 30 and 31, 2001, respectively,

the Board's and Ragland's Proposed Recommended Orders were filed

and have been given consideratio n.

FINDINGS OF FACT

1. Petitioner, Pinellas County School Board, is a

political subdivision and an administrative agency of the State

of Florida charged with the duty to operate, control, and

supervise all public schools and personnel in the Pinellas

Co unty School District. Dr. J. Howard Hinesley is the

Superintendent of Public Schools for Pinellas County, Florida.

2. Respondent, Wade Ragland, at all relevant times, was an

employee of the Pinellas County School Board in its

Transportation Department. Ragland was employed as a substitute

school bus driver on July 20, 1998, and became a regular bus

driver on August 17, 1998. On April 24, 2001, Ragland was

acting as a school bus driver for the Board. He was tested for

drugs in January 2001, and the tes t was performed after his

first run, which was the Board's policy and standard procedure.

Ragland's drug test result was negative.

3. Pursuant to the Board's Policy 8.23 and Title 49 of the

Code of Federal Regulations (CFR) as of January 1, 1995, all

em ployees who are required to hold a Commercial Drivers License

(CDL) as a condition of employment and who perform safety -

sensitive functions, which include operating a vehicle designed

to transport more than 15 persons, shall be subject to drug

urinalysis t esting and/or breath alcohol testing via sample

collection, through random testing.

4. The Federal Omnibus Transportation Act (The Federal

Act) was at all times relevant, including April 24, 2001. Four

times a year, once every three months, and on or be fore the 15th

day of the month preceding the beginning of the quarter, a

random list of drivers will be requested by a contract testing

facility. The Federal Act does not require termination of a CDL

employee who either fails or refuses to take a random d rug test.

5. The School Board Policy 8.23 is incorporated as Article

32 of the Agreement between the Pinellas County School Board and

the School Employees Union, the exclusive collective bargaining

representative for bus drivers. Under Section 8.23(3)( a) 3 of

the Board's policy, random drug testing must be unannounced and

shall be conducted during the selected driver's on - duty time.

6. The Board's internal normal operating procedures for

the selection of drivers to be tested in each quarter is

accompl ished in the following manner. Theresa Hooker, Personnel

Technician and Drug Testing Program Manager since July 2, 2000,

is responsible for drug testing of all personnel and maintenance

of their confidential drug test records. FirstLab, the contract

test ing facility, is responsible for the selection of employees

who will be tested during a given quarter from the list of names

provided by the Board. Ms. Hooker is solely responsible for the

determination of the date each of the selected employee will be

te sted.

7. Upon receiving the quarterly list from FirstLab,

Ms. Hooker sends the names of 20 - 25 selected bus drivers to

Joyce Hefty, personnel technician in the Transportation

Department. It is Ms. Hefty's responsibility to notify each

driver, direct ly or through one of three dispatchers, of the

selection for drug testing during a driver's first or second

morning bus run. Once the selected driver reports to her

office, she checks the driver's identification, provides the

driver with the necessary tes ting paperwork and gives the

location of a Board - approved testing facility.

8. All dispatchers and bus drivers know that drivers who

have been notified by dispatcher(s) that their names came up for

testing are to report immediately, after completion of t heir

first or second morning run, to Ms Hefty's office for

identification check, completion of paper work, and instructions

to report to a Board - approved test site for testing during their

on - duty time for which they are paid.

9. Equally known by dispat chers and drivers, is the

meaning of on - duty time under School Board's Policy 8.23.

On - duty time is the time required for a driver to complete his

last morning run. Included is the time required for each driver

to return to his/her assigned transportati on compound. In those

instances where a driver has permission to take the bus home,

on - duty time is computed from check - out time of the first run to

the time it would take a driver to return from the first or

second morning run to the assigned compound. Each compound

dispatcher maintains records and time sheets of assigned

drivers.

10. Should a driver selected for random drug testing not

be tested, refuse to be tested, or experience the inability to

provide a specimen and therefore has to wait hours to c omplete

testing, Ms. Hefty is notified. She in turn notifies

Ms. Hooker. Ms. Hooker notifies Mr. Gene Bessette,

Administrator, Office of Personnel Standards. Mr. Bessette has

discretionary decisional authority touching upon every facet of

a part icular situation. He is informed of each situation and

determines whether an individual situation requires further

action and, if so, what action should be taken. He determines

the appropriate discipline based upon the totality of

circumstances, discipli nary guidelines, and aggravating and

mitigating factors, if any, and submits his final

recommendations to the Superintendent of Pinellas Public

Schools, Dr. Hinesley. Dr. Hinesley has authority to accept,

reject or modify Mr. Bessette's recommendations. Dr. Hinesley's

decision is presented to the Pinellas County School Board for

final modification or approval.

11. The chain of command would be for Ms. Hooker, upon

receipt of information from Ms. Hefty, to contact Mr. Bessette.

On April 24, 2001, at 9:34 a.m., Ms. Hooker received an e - mail

from Ms. Hefty regarding Respondent, Wade Ragland.

Ms. Hooker, however, was not in her office and did not speak

with Ms. Hefty or Mr. Bessette on that day.

12. On April 24, 2001, Ragland was acting as a school bus

dr iver for the Board. The agreement between the Board and

School Employees Union Local 1221, Firemen and Oilers, an

affiliation of Service Employees International Union, which

governs Ragland, provides, as does Board's Policy 8.23, that

random drug testing " shall be during on - duty time ."

13. The Board's "normal random testing procedure," in

effect since 1998, was to notify drivers during their first run

in the morning that they are going to be sent for a random test

after the completion of the first mornin g run. Dispatch would

send a relief driver and bus to cover the second and third runs

of the selected driver's route.

14. Under the Board's normal procedure, notification to

drivers would occur during a driver's first morning run. A

driver's drug test , conducted at an approved testing site, would

occur during the time the driver would normally be driving a

second and third morning run. Under this procedure, selected

drivers would not receive additional pay. Should, however, the

actual drug test exten d beyond a driver's normal scheduled time

for morning runs, including compound check - in time, additional

time would be added when computing the driver's total hours for

that week.

15. Under the operative terms of the Board's procedure,

bus drivers are on non - paying "down - time" after completion of

the final morning run. Down - time would continue until a driver

began their evening run usually about 1:00 p.m. or later,

depending on their selected bus route.

16. "Down - time" is equal to "off - duty" time for whi ch

drivers receive no pay. The Board, at all times, was fully

aware that drivers held other jobs during their down - time, a few

cared for their elderly relatives, some, as did Ragland,

scheduled personal appointments with service providers and

others engag ed in various other activities.

17. Under the Board's procedure, "over - time," for

over - time pay purposes, is the time drivers work beyond and over

a predetermined time for each route. Drivers, at the beginning

of each year, bid for a specific bus route. Each bus route has

its own, per - week pay schedule based upon the number of

morning/evening runs, the combined distance of the runs, plus

any required over - time work in excess of their route time.

18. The School Employees Union Agreement and the Board's

policy mandate that drivers could be required to work over - time,

when and if, the driver was requested by a dispatcher or

supervisor to work over - time while the driver was on duty. For

special trips, weekends, nights, etc., dispatchers or

supervisors woul d first seek a volunteer driver. If no

volunteer is found, a dispatcher would select a driver to work

over - time who would receive over - time pay for the over - time

work.

19. Faced with a shortage of regular bus drivers for 2000 -

2001 school year, the Board changed its herein above "normal

random drug testing procedures" as described above. The intent

of the Board was to comply with its Federal drug - testing

requirements and to minimize expenditure of over - time pay for

bus drivers.

20. Accordingly, on Augu st 31, 2000, Susan Detmold -

Collins, Assistant Director, Transportation Department, issued a

memo to "All School Bus Drivers" outlining a "Temporary Change

To Random Drug/Alcohol Testing Procedure." In pertinent part

the memo stated:

To: ALL SCHOOL BUS D RIVERS

Every year, at this time, we run into a

bit of a problem with meeting our quotas for

random drug/alcohol testing. As many of you

know, we are required, by Federal Law, to

randomly test 25 percent of our drivers each

quarter. The current quarter started in

July and will end in September. We always

start out the school year somewhat behind in

meeting our testing quotas, because many of

our drivers do not work for summer school,

and therefore can not be sent for testing

during July and August.

This year, because of our shortage of

drivers, and the number of drivers we are

required to send for testing, we decided to

enact a temporary change to our usual

procedures . . .

First, I wanted to make sure all drivers

were made aware of this temporary change we

are making to our normal procedure and the

reasons for it.

Second, I wanted to reassure all drivers

that we will pay them for any extra time

they may end up working as a result of this

change in procedure. (Since random

drug/alcohol testing is usually conducted

during a period of time when drivers would

normally be doing their second and third

runs, drivers do not usually receive any

additional pay.)

Third, I wanted to let drivers know we

fully recognize that many of them have

scheduled ap pointments and other things

which they count on being able to do during

the middle of the day, on what would

normally be their "their down - time ." If

drivers let us know about these things, in

advance, we will take steps to make sure

they are not called to drug test when doing

so would cause a scheduling conflict for the

driver. Since a refusal to take a

drug/alcohol test can have very severe

consequences under Federal Law and School

Board Policy, I wanted to reassure all

drivers that we will work cooperat ively with

them and make every effort not to pull them

for testing if they have made us aware that

they have a doctor's appointment or other

appointment or activity scheduled during

their "down - time" on a particular day .

Mr. Fleming and I greatly apprec iate your

cooperation and support during this period.

. . . We are working hard with Supporting

Services Personnel to recruit and train

additional drivers as quickly as possible.

We hope we'll have things back to "normal"

by October at the latest, if not sooner .

[emphasis added]

21. By March 2001, the Transportation Department had hired

sufficient bus drivers to cover the above - cited need. It is

unclear, however, whether the Transportation Department made the

administrative staff, dispatchers and bus dr ivers aware of the

fact that a sufficient number of bus drivers had been hired.

It is equally unclear, from the collective testimony of the

Board's employees, whether the temporary change in the drug -

testing procedure herein above outlined had been retr acted, and

if so, on what date. It is clear that as of April 24, 2001, the

Transportation Department had not issued a written retraction of

its August 31, 2000, temporary procedural change memoranda.

22. From the testimony of a dispatcher, Masone, and the

comments of a bus driver, Ragland, it is clear that neither

Masone, nor Ragland, knew whether the normal drug - testing

procedure or the temporary drug - testing procedure was in effect

on April 24, 2001. It is therefore, a reasonable conclusion

that some dispatchers, Masone for instance, assumed the

temporary drug testing procedure was in effect wherein drivers

would be required to undergo random drug - testing on down - time.

Others, however, drivers like Ragland, assumed the normal drug -

testing procedu re was in effect and drivers could only be

required to undergo random drug testing during on - duty time.

This conflicting and confusing situation resulted in a

misunderstanding of what was required of the drivers by

dispatchers and what was required of dis patchers by drivers as

it related to random drug testing procedures on April 24, 2001.

23. It is certain, that bus drivers, dispatchers, the

transportation personnel technician, the drug - testing program

manager, and the professional standards office were not informed

that the Board's temporary drug testing policy procedure was in

effect on April 24, 2001, some six months past October 2000.

24. On April 24, 2001, Ragland had driven to Palm Harbor

University, then to Brooker Creek University and was drivin g to

Safety Harbor Middle School, the third and last stop of his

morning runs. Completion of the last morning run and the

driving time required for Ragland to report back to the Tarpon

Springs transportation compound checkpoint is considered on - the -

clock time for pay purposes. The time of Ragland's arrival at

the Tarpon Springs compound would begin his down - time. On that

day, according to dispatcher Masone, Ragland's down - time began

at 9:56 a.m. He would remain on down - time until his evening

runs began at 1:00 p.m. later that same day.

25. At 9:18 a.m. on April 24, 2001, Masone notified

Ragland that he had been randomly selected for drug testing that

morning. Ragland informed Masone that he had a prearranged

service appointment at his home with an exte rminator at 10:00

a.m. and he would go for testing "as soon as my appointment is

over with."

26. When asked by Masone why he did not tell his

supervisor that morning when he checked in that he would not be

available during his down - time, Ragland's reply w as "I did not

know I had to report" planned down - time activities. On this

point Ragland is right. According to Gene Bessette, before the

August 30, 2000, temporary change memo, there was never a

written policy that required drivers to notify dispatchers or

anyone else if they had a prearranged appointment during their

down - time.

27. Masone, not sure whether the temporary procedure or

the normal procedure was in effect, informed Ragland that he

"could" lose his job if he did not go for drug testing. Rag land

replied he would go for testing after his appointment was

finished, probably within the next one - half hour or

approximately 10:30 a.m.

28. At approximately 9:25 - 9:30 a.m. and after his

conversation with Ragland, Masone called Joyce Hefty and

informed her of his conversation with Ragland. Ms. Hefty asked

Masone to call Ragland and have him call her. When Ragland

arrived home, he called Ms. Hefty.

29. At approximately 9:31 a.m. and after her conversation

with Masone, Ms. Hefty e - mailed Susan Collins regarding

Ragland's selection for random drug test at 9:18 a.m. and

relayed the information as she received it from Masone regarding

Ragland's position of his down - time status. Ms. Hefty does not

recall if Masone told her Ragland said he would come for te sting

after his appointment was finished. Unable to reach Ms. Collins

by telephone, Ms. Hefty called Mike Bessette regarding Ragland's

situation. Bessette concluded the conversation by instructing

Ms. Hefty to give Ragland another 40 minutes to cool off and see

if he showed up at her office.

30. As Masone had requested, Ragland called Ms. Hefty from

his home between 9:32 a.m. and 9:44 a.m. Ms. Hefty asked if he

was going for his drug test, Ragland replied that he could not

come to her office at that tim e, but he would come as soon as

his exterminator finished his work. The exterminator, Craig

Schultheis, was in the house at the time of this telephone

conversation and overheard Ragland's comments. Ragland's offer

to Ms. Hefty to speak with his extermina tor for verification was

refused.

31. Mr. Schultheis, the exterminator, arrived at Ragland's

home approximately 9:40 a.m. completed his task and departed at

approximately 10:05 a.m. While there, he overheard the

telephone conversation and Ragland say, "W hen I'm done I can

come in." He did not know at that time that Ragland was talking

to Ms. Hefty.

32. During the above telephone conversation, Ms. Hefty

failed to inform Ragland that Mr. Bessette had given him an

additional 40 minutes to report to her off ice. Had Ms. Hefty

obeyed Mr. Bessette's instruction, Ragland would have had the

option of immediately driving from his home to her office,

should he chose to do so. Instead, at 9:44 a.m. Ms. Hefty,

without further consultation with Mr. Bessette, her sup erior,

concluded her conversation with Ragland by informing him that he

was terminated. A few minutes later, she called the North

County Dispatcher and requested that they send two drivers to

pick up Ragland's bus and return it to the motor pool.

33. Bec ause Ragland drove from Safety Harbor Middle School

directly to his home rather than driving directly to her office,

Ms. Hefty testified it was too late for him to take the drug

test. To her, his conduct constituted in part his refusal.

This was Ms. Heft y's first occasion to encounter the situation

where a driver who has been notified by a dispatcher of

selection for random drug testing responded with, "No I can't; I

have an (prearranged) appointment and will go when its

finished."

34. Ms. Hefty did not know whether Ragland was on "down -

time" or "on - the - clock" status when he called her from his home.

At the time she determined that Ragland's responses, "will go

when my appointment is finished" or "not on my own time,"

coupled with his failure to imm ediately report to her office,

was a refusal under her understanding of the rules. She did not

know nor could she articulate the procedure or rule she relied

on in reaching her conclusion. She testified she was merely

doing what Polly Frush, who had the job before, had taught her.

35. Ragland took a drug test at 1:00 p.m., on April 24,

2001, at Atlantis Clinic with a negative result. This drug test

was not accepted by the Board as a substitute drug test. Under

its policy, the Board accepts drug te st results from only its

approved and designated drug - testing facilities. Atlantis is

not an approved facility.

36. No Board employee, with whom Mr. Bessette spoke on

April 24, 2001, informed him of Ragland's statement that he

would be willing to go im mediately to take the drug test after

his appointment was concluded. If he had been made aware of

Ragland's statement, he testified he would have taken that into

consideration when determining whether or not Ragland's action

was a refusal to take the rand om drug test. Assuming that Board

staff had provided him with all the facts, and following the no

exceptions policy (refusal equals automatic termination),

Mr. Bessette made his recommendation of Ragland's termination to

Dr. J. Hinesley, Superintendent o f Public Schools, Pinellas

County.

37. This is a case of first impression for the Board's

staff, wherein the Board issued two procedures for random drug

testing, Policy 28.3 and the August 30, 2001, Memo to Bus

Drivers; first impression where Board staff members and

employees were not certain which one of the two procedures was

in effect on April 24, 2001; and first impression where the

conduct of the Board's administrative staff and the conduct of a

bus driver employed the Board was reasonable given the

circumstances on April 24, 2001.

38. Petitioner's evidence in this case does not

demonstrate insubordination by Ragland. The evidence does not

prove that Ragland engaged in flaunting the Board's authority,

repeatedly failed to heed the Board's instr uctions to take a

drug test, openly refused to take the drug test, or failed to

follow the Board's recently changed random drug testing

procedure. Just the opposite is evident. On April 24, 2001, at

approximately 1:00 p.m., during his normal on - duty time , Ragland

took a drug test with a negative result.

39. The facts here demonstrate, at most, Ragland's

exercise of poor judgment based on the confusion created by a

lack of clear directions from the Board. The confusion resulted

from the Board's temporar y random drug - testing procedure

termination date and its normal random drug - testing procedure

resumption date. Petitioner failed to produce evidence in any

form to establish with reasonable certainty, which one of its

two procedures was in effect on April 24, 2001. I find that on

April 24, 2001, the Board's staff, at the very least, did not

have a working knowledge of the applicable random drug testing

procedure.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has

jurisdiction over the subject matter. Section 120.57(1),

Florida Statutes. (All references to Sections are to Florida

Statutes.)

41. Section 231.3605(2)(b) requires that Petitioner

conform to the provisions of the collective bargaining agreement

and Petitioner's rules i n terminating most non - instructional

employees, including an employee assigned to the transportation

department. As noted above, the collective bargaining agreement

provides for termination for the refusal to submit to a random

drug test.

42. Petitioner has the burden of proof in this non -

instructional employee dismissal hearing. The standard of proof

in this proceeding is by a preponderance of the evidence.

McNeil v. Pinellas County School Board , 678 So. 2d 476 (Fla.

1996); Dileo v. School Board of Dad e County , 569 So. 2d 883, 884

(Fla. 3rd DCA 1990).

43. Accordingly, Petitioner has failed to prove by a

preponderance of the evidence the charge of insubordination

against Respondent, Wade Ragland.

44. The Rules and Regulations governing the adminis tration

of drug testing of individuals who drive commercial vehicles are

set forth in 49 Code of Federal Regulations, Part 40, Subparts A

and B. The Federal Regulations provide mandatory procedures

governing the drug testing of bus drivers and employers,

including this School Board. Petitioner was responsible to see

that regulations are enforced and testing is done in compliance

with those regulations. See 49 C.F.R. Section 40.1.

45. The Superintendent of the Pinellas County School Board

has the authori ty to suspend and recommend dismissal of School

Board employees, Section 230.33(7)(e), Florida Statutes.

46. The School Board of Pinellas County has the authority

to suspend and/or dismiss School Board employees, Section

230.23(5)(f), Florida Statute s.

47. Under Section 230.22, Florida Statutes, the School

Board has authority to adopt rules and regulations that

contribute to efficient operations of the school system.

48. Alcohol and drug testing of school bus drivers is

regulated under Federal Law, 49 C.F.R. Part 40 and 49 C.F.R.

Section 382.109. Consistent with the Drug - Free Workplace Act of

1998, 49 C.F.R. Part 40, and 40 C.F.R. Part 382, the School

Board adopted Policy 8.23. The Board's policy requires that as

of January 1, 1995, all School Boar d employees who hold a

commercial driver's license as a condition of employment and who

perform safety sensitive functions, that includes operating a

vehicle designed to carry more than 15 persons, shall be subject

to drug urinalysis and/or breath alcohol testing.

49. C.F.R. Section 382.211 states that:

No driver shall refuse to submit to

. . . a random alcohol or controlled

substance test. . . . No employer shall

permit a driver who refuses to submit to

such tests to perform or continue to perform

safety - sensitive functions.

50. Section 382.211 does not require dismissal in cases of

refusals, only discontinuation of "safety - sensitive functions."

51. School Board Policy 8.32 is incorporated as Article 32

of the Agreement between th e Pinellas County School Board and

the School Employees Union, the exclusive collective bargaining

representative for bus drivers and applicable to Respondent.

52. The determinative issue in this case turns on School

Board Policy 8.23(3)(e)2(3), which def ines refusal to submit to

a test to include "the driver engaging in conduct that clearly

obstructs the testing process." The plain meaning of "obstruct"

is to "block" "interfere with, impede, or retard."

53. 49 C.F.R. Section 382.305(1), places a ti me

requirement on an employee notified to take a drug test. It

requires that "each driver who is notified of selection for

random alcohol and/or controlled substances testing proceed to

the test site immediately." The only exception to this

requirement i s to allow the driver to complete the current

safety - sensitive function, i.e. , to drop off students in the

school bus at the school.

54. Immediately, in fact, is determined by the

circumstances and length of time required for the notified

driver to d epart the location where the notification was

received (school drop - off site), with consideration for traffic

delays, to reach Ms. Hefty's office at the school board

building. This period can range from 30 minutes to one and one -

half hours depending upon traffic conditions at the time.

55. The August 30, 2000, memorandum of temporary change in

procedure created confusion among all the parties involved. It

is unclear whether that memorandum was in effect on April 24,

2001. Dispatcher Masone was unde r the impression that the

August 30, 2000, memorandum procedure was in effect on April 24,

2001. Respondent, Ragland, was under the impression that the

August 30, 2000, memorandum was not in effect on April 24. 2001.

Ms. Hefty admitted she was unsure. Mr . Bessette acknowledged

that the memorandum caused confusion. The Board failed to make

clear to its administrative staff, dispatchers, union

representatives and bus drivers whether the August 30, 2000,

memorandum was in effect on April 24, 2001, or termin ated in

October 2000.

56. School Board policy 8.25(1)(x), entitled "Disciplinary

Guidelines for Employees," defines failure to comply with School

Board Policy, state law, or appropriate contractual agreement as

an offense with a penalty range from caution to dismissal.

57. The agreement with the School Employees Union permits

the School Board to set work schedules and work hours for bus

drivers and to require over - time work for drivers. When a

driver is notified during a regularly scheduled b us run that

he/she has been selected for a random drug test, the School

Board has the authority to require the bus driver to go for drug

testing even when the test would require the driver to work

beyond his/her regularly scheduled work hours.

58. The Atl antis Clinic is not an approved by the Board

for testing its bus drivers. The Atlantis Clinic testing

procedures do not meet federal requirements. First, the testing

is not by appropriate laboratory methods. Second, the person

collecting the samples is not an approved collector. Third, the

test results are not on a form approved by the Federal

Department of Transportation. Fourth, the test results are not

reviewed by a Medical Review Officer.

59. Ragland is charged, in the Board's May 3, 2001,

s uspension letter, with violation of School Board Policy

8.25(1)(u) and (x) which in pertinent part states:

(1) The school district generally follows

a system of progressive discipline in

dealing with deficiencies in employee work

performance or conduct. Progressive

discipline may include, but is not limited

to, verbal or written counseling or caution,

written reprimand, suspension without pay

and dismissal. The severity of the problem

or employee conduct will determine whether

all steps will be followe d or a

recommendation will be made for suspension

without pay or dismissal. When there is a

range of penalties, aggravating or

mitigating circumstances will be considered.

Support Services probationary employees sign

an "At Will" statement that says: Du ring

the probationary period the employee will

not be eligible for certain benefits as

defined by the applicable collective

bargaining agreement and may be terminated

at the will and discretion of the Pinellas

County School Board without advance notice

or a right to a hearing. The following

offenses, when constituting grounds for

discipline under Section 231.36, Florida

Statutes, shall have the following

penalties:

(u) Insubordination, Which is Defined as

a Continuing or Intentional Failure to Obey

a D irect Order, Reasonable in Nature, and

Given By and With Proper Authority.

(x) Failure to Comply With School Board

Policy, State Law, or Appropriate

Contractual Agreement.

60. Subsection (3) defines aggravating and mitigating

factors or circumst ances that will be considered when

determining the appropriate penalty within a penalty range.

Pertinent parts of this subsection are:

* * *

(k) The actual knowledge of the employee

pertaining to the misconduct.

* * *

(l) Attempts by the employee to correct

or stop the misconduct.

* * *

(q) Length of employment.

* * *

(s) Any relevant mitigating or

aggravating factors under consideration.

* * *

61. Petitioner, Pinellas County School Board has proven by

a p reponderance of evidence that Respondent, Wade Ragland, did,

on April 24, 2001, refuse to immediately report for a random

drug test after notification by proper authority, Ms. Hefty.

However, Ms. Hefty's "are you going to report" notice to Ragland

was inc omplete. She did not tell Ragland that Mr. Bessette, her

superior, had given him an additional 40 minutes to report to

her office. Neither did she have proper authority, approval, or

permission, to terminate Ragland, at the time she informed him

he was t erminated. Therefore, even through Ragland refused to

report, his refusal was not "insubordinate," as the term is

defined by the Board.

62. Respondent's refusal to report for the random drug

test after proper notice constitutes a failure to comply with

S chool Board policy. The uncertainly is "which" School Board

policy was in effect on April 24, 2001.

63. Petitioner, Pinellas County School Board did not prove

by a preponderance of evidence that Respondent, Wade Ragland,

was insubordinate by his failure to report immediately for a

random drug test after notice on April 24, 2001. Respondent's

response to the random drug test notice from Petitioner complied

with "a" procedure established by the Board.

64. Petitioner's memoranda to all bus drivers, regardi ng

its temporary procedural change in random drug - testing

procedures coupled with no notice to affected employees whether

its temporary policy continued past October 2000, mitigates

imposition of policy guideline discipline that every random drug

test refu sal equals automatic termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Pinellas County School Board enter a final

order finding Respondent, Wade Ragland, was not insubordinate

and did no t violate Board Policy 8.25(1)(u).

Further finding that Respondent, Wade Ragland, did not

violate School Board Policy 8.25(1)(x) by failing to comply with

an existing School Board Policy.

Further Recommended that Respondent, Wade Ragland be

reinstated to his former position as a bus driver.

DONE AND ENTERED this 4th day of December, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of December, 2001.

COPIES FURNISHED :

Andrew J. Salzman, Esquire

Zimmet, Unice, Salzman & Feldman, P.A.

Two Prestige Place

2650 McCormick Drive, Suite 100

Clearwater, Florida 33759

Jacqueline M. Spoto, Esquire

School Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 294 2

Largo, Florida 33779 - 2942

Dr. J. Howard Hinesley, Superintendent

School Board of Pinellas County

301 Fourth Street, Southwest

Largo, Florida 33770 - 3536

Honorable Charlie Crist

Commissioner of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the dat e of this Recommended Order. Any exceptions

to this Recommended Order must be filed with the agency that

will issue the Final Order in this case.