09-002259TTS Hernando County School Board vs. Michael D. Provost Status: Closed Recommended Order on Wednesday, September 9, 2009.

Summary: Petitioner did not establish that it was not a "state agency" for purposes of teacher discipline. Therefore, Section 112.045 and the Board's policy apply and Respondent can't be terminated for a first drug offense, if he voluntarily sought rehab..

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2259

)

MICHAEL D. PROVOST, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon appropriate notice this cause came on for final

hearing before P. Michael Ruff, a duly-designated Administrative

Law Judge of the Division of Administrative Hearings in

Brooksville, Florida, on June 23, 2009. The appearances were as

follows:

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns

whether the Petitioner School Board has just cause to terminate

the Respondent's employment as a teacher, with reference to a

positive drug test for purported use of marijuana.

PRELIMINARY STATEMENT

This case arose upon a determination and recommendation by

the Superintendent of the Hernando County School District that

just cause existed for termination of the Petitioner's

employment. The School Board for Hernando County (Petitioner)

adopted the recommendation and issued a Petition for Termination

of Employment. The petition was filed with the Division of

Administrative Hearings on April 27, 2009, and, after the

Respondent elected to dispute the matter, this proceeding

ensued. A Notice of Hearing was issued on May 4, 2009, setting

this case for hearing for June 23, 2009, in Brooksville,

Florida.

The cause came on for hearing before the undersigned, as

noticed. The Petitioner presented the testimony of two

witnesses at hearing: Leechele Booker, Principal of Delores S.

Parrott Middle School, and Heather Martin, Executive Director of

"Business Services" and "Human Resources." Additionally, the

Petitioner's Exhibits 1 through 11 were admitted by stipulation.

The Respondent presented the testimony of one witness, the

Respondent, Michael Provost. The Respondent offered no

exhibits.

Upon conclusion of the hearing, the parties agreed to order

a transcript thereof and to file proposed recommended orders

within 20 days of the filing of the transcript. On July 2,

2009, the transcript was filed and the proposed recommended

orders were timely filed on or before July 23, 2009. Those

Proposed Recommended Orders have been considered in this

rendition of this Recommended Order.

FINDINGS OF FACT

1. The Respondent has been employed at Dolores S. Parrott

Middle School (DSPMS) as a teacher for a total of seven years,

including the 2008-2009 school year. The Respondent taught

Health, Career Education, and Physical Education. A large

component of the Health curriculum is drug use prevention. It

includes, as a portion of its curriculum and discussion, the

subject of marijuana use.

2. The Respondent was the S.T.A.N.D. (Students Taking

Action on Drugs) sponsor at the school for several years prior

to the 2008-2009 school year. He was thus responsible for

providing students with information about the dangers of using

and abusing drugs and the possible consequences related thereto.

His position as the Health teacher and the S.T.A.N.D. sponsor

made him a role model for students regarding the subject of drug

use and drug abuse prevention.

3. The principal at DSPMS for the 2008-2009 school year

was Leechele Booker. She has been principal at that school for

two years and was an assistant principal and teacher for some

twelve years prior to that with the Hernando County School

District. In her capacity as principal she is responsible for

supervising and evaluating employees, enforcing policy and

procedures, as well as investigating alleged violations of

policies, law and recommending any resultant disciplinary

measures to the District.

4. On March 11, 2009, an unidentified woman called the

principal at DSPMS and left a voice mail message identifying

herself as "Michelle". She requested that the principal return

her call concerning one of the teachers at the school. The

principal returned the call to the number that the woman had

left. Since no one answered that call, the principal left a

message identifying herself.

5. Ms. Booker received a return call approximately thirty

minutes later. When Ms. Booker took the call the woman

identified herself as Michelle, and acknowledged receiving the

message which Principal Booker had left on the voicemail.

6. The person identified as Michelle thereupon informed

the principal that she had knowledge of one of the teachers at

DSPMS engaging in recent use of marijuana. She claimed to have

observed him smoking marijuana over the past weekend and told

the principal of her concern at seeing that conduct by one of

the teachers. Michelle also advised Ms. Booker that the

teacher's fiancée was present when the teacher was smoking

marijuana. She identified the teacher's fiancé as a woman named

"Brenda." She then stated that the teacher's name was "Mike"

and that he was the Health teacher at DSPMS.

7. Ms. Booker then realized that there was only one

teacher by that name at the school, the Respondent, Michael

Provost. She was already aware that the Respondent's fiancée's

name was Brenda, having met her on several occasions.

8. The principal ended the call by advising Michelle that

she would investigate the matter and thanked her for the

information. She did not request any additional contact

information from Michelle. She did not learn additional facts

concerning where the Respondent had been seen using marijuana,

when it occurred, how Michelle knew the Respondent, or the

nature of her relationship with the Respondent. It is likely,

although not clear from the record, that Principal Booker did

not want to reveal to the caller what her thoughts might be

concerning the identity of the teacher who was the subject of

the complaint.

9. After ending the phone call with Michelle, Ms. Booker

met with Assistant Principals Gary Buel and Nancy Vasquez. She

told them of the phone call and the nature of it and they

discussed what actions should be taken, based upon the

Petitioner's policy 6.33 "Alcohol and Drug-Free Workplace."

10. Ms. Booker then contacted the district office of the

Petitioner and spoke with the secretary in "Human Resources."

She was thereby advised that an investigation would have to be

conducted and that Heather Martin, the Administrator for the

Department of Human Resources, would have to be involved.

11. After contact with the district office, Principal

Booker and Ms. Vasquez discussed the matter and agreed that they

had "reasonable suspicion," under the above-referenced policy,

to require the Respondent to take a drug test.

12. The Petitioner maintains that that reasonable

suspicion is based upon the information provided in the phone

call with Michelle, as well as the fact that the principal was

aware that the Respondent was having financial difficulties and

needed to be paid for extra-curricular duties immediately,

rather than waiting for the normal payment process. He was

known to have requested permission to leave work early more

frequently than other employees.

13. Ms. Booker called the Respondent to her office to

report the allegations lodged against him by the caller. She

advised him of the phone call and the reference to smoking

marijuana. She informed him that she believed she had

reasonable suspicion to have him drug-tested. She told him that

Mr. Buel would escort him to the testing facility.

14. The principal then left her office, but was called

back because the Respondent had some questions for her. She

located a Union representative, Marlene Richie, who accompanied

her back to the office to confer with the Respondent.

15. When the principal and Ms. Richie arrived at the

office, the principal informed her of the allegations against

the Respondent. Ms. Richie made some phone calls to

Sandra Armstrong, the Executive Director of the Teachers

Association and Joe Vitalo, the Union President.

16. After these phone conversations, Ms. Richie informed

Ms. Booker that the Respondent wished to speak to her alone.

Ms. Booker spoke with the Respondent alone, in her office, and

he informed her that he had been smoking marijuana and told her

that the test would be positive. The Respondent admitted his

marijuana use because he respected the principal, and it was in

everyone's best interest for him to be honest and candid about

his problem. He was not coerced or under any pressure to make

the admission. He made the admission voluntarily.

17. The Union representative, Ms. Richie, then rejoined

Ms. Booker and the Respondent in the office, and the Respondent

informed Ms. Richie of what he had told Ms. Booker concerning

his marijuana use. Ms. Booker informed the Respondent that he

would still need to have drug testing, and she also discussed

the Employee Assistance Program ("EAP"). The Respondent

volunteered to enroll in the EAP program and made an appointment

to see a counselor. The Respondent had not requested assistance

or a referral to the EAP before the conversation with the

principal on this day, when he admitted his marijuana use.

18. There are two means of referring employees to the EAP

under the district's drug and alcohol policy; either self-

referral by the employee or referral by management. Under this

policy, no disciplinary action is taken when an employee self-

refers to the program, or when he or she admits to a drug or

alcohol problem and is referred to EAP by a manager.

19. The Petitioner maintains that the Respondent did not

volunteer that he had a drug or alcohol problem until confronted

with the principal's suspicion and direction to take a drug

test. At the same time, however, the Petitioner acknowledges

that the Respondent's admission concerning his marijuana use was

not because he felt coerced. The Petitioner maintains that, in

its view, the request for EAP assistance was not a voluntary

request and that therefore, under the Petitioner's policy,

disciplinary action can still be taken.

20. The preponderant, persuasive evidence, based upon

credibility of the witnesses, including the Respondent,

demonstrates that the request for EAP assistance was a voluntary

one and was done in conjunction with the principal voluntarily

discussing the availability of the EAP program to the

Respondent. The Respondent was under no pressure or coercion

when he made the admission. In fact, the Respondent, as well as

the Petitioner, have presented substantial argument concerning

whether there was even "reasonable suspicion," under relevant

case law, for the principal to order a drug test. Because of

the findings made, and conclusions reached herein, the question

of whether "reasonable suspicion" for drug testing existed is

immaterial, in light of the District's Policy 6.33 and Section

112.0455, Florida Statutes (2008).

21. After meetings and conversations with Union

representatives, the Respondent agreed to the drug test and the

results were received on March 18, 2009. They indicated that

the test was positive for the presence of marijuana.

22. The Respondent was suspended with pay on March 12,

2009, pending the outcome of an investigation. The Respondent

was advised in writing of his suspension at the time of his

meeting with the principal and through a letter from the

Superintendent.

23. A pre-determination conference was scheduled for

March 20, 2009, after the receipt of the drug test results.

This was to provide the Respondent an opportunity to dispute any

of the information collected through the investigation, before

discipline was recommended. The Respondent attended the

conference and again admitted to using marijuana and stated that

he was aware of the Drug and Alcohol-Free Workplace Policy. He

explained that his drug use was the result of personal problems

he was experiencing.

24. Following the pre-determination conference, and before

making a disciplinary recommendation to the Superintendent,

Ms. Martin attempted to contact the informant Michelle, to

confirm her story. It was important for Ms. Martin to ensure

that she had a name and phone number of the informant since the

District does not act on anonymous complaints. A complaint is

deemed anonymous if the District has no contact information and

no name.

25. Ms. Martin called the number that Michelle had left

with the principal and the phone was answered by someone who

said it was "Chrissy's phone." Ms. Martin asked for Michelle

and a different person came on the line and identified herself

as Michelle.

26. The phone number and phone in question were registered

to a Chrissy Campbell. Chrissy Campbell is married to the

Respondent's fiancée's brother. The Respondent and Campbell are

acquainted with each other but do not get along.

27. Ms. Martin advised Michelle that she was calling in

reference to the complaint received earlier by the principal.

She stated that the District was conducting an investigation and

asked if Michelle was willing to provide additional information.

At that point, Michelle refused to give any additional

information. In her conversation with Michelle, Ms. Martin did

not use the Respondent's name, nor did she indicate the call

concerned a drug test.

28. After her conversation with Michelle, Ms. Martin

reviewed the drug test results and the personnel file, including

the Respondent's disciplinary history, before making a

recommendation for discipline to the Superintendent.

29. The Respondent's personnel file contained three

additional discipline records. In 2005, he received a written

warning concerning a violation of the Professional Code of

Ethics regarding an inappropriate comment. In 2007, he was

reprimanded in writing, stripped of his S.T.A.N.D. sponsor

duties and suspended without pay for ten days for failing to

properly handle a student's reported drug use. In 2008, he

received a Letter of Direction for failing to follow the

curriculum and being too personal with students.

30. Ms. Martin took that disciplinary history into

consideration in making her recommendation to the Superintendent

for termination of employment. By letter of March 23, 2009, the

Superintendent advised the Respondent of his recommendation to

the School Board that the Respondent be terminated from

employment. This proceeding ensued.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

32. The Superintendent is authorized to recommend to the

School Board that instructional employees be suspended and/or

dismissed from employment pursuant to Section 1012.27 Florida

Statutes (2008). The Respondent is an instructional employee as

defined by Section 1012.01(2), Florida Statutes (2008). The

School Board's authority to terminate or suspend instructional

employees resides in Sections 1012.22(1)(f) and 1012.33(6)(a),

Florida Statutes (2008).

33. The standard for termination of instructional

personnel is "just cause" as provided in Section 1012.33(1)(a),

Florida Statutes (2008). A plenary definition of "just cause"

is not provided in the statutes. The Petitioner agency has

discretion, subject to de novo challenge at hearing, to set

standards which subject an employee to discipline of varying

degrees, or levels, including termination. See Dietz v. Lee

County School Board , 647 So. 2d 217 (Fla. 2d DCA 1994). The

School Board has the burden of establishing just cause by

preponderance of the evidence. McNeill v. Pinellas School Board

of Dade County , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v.

School Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990);

See also § 120.57(1)(j), Fla. Stat. (2009).

34. In establishing standards to assist it in determining

just cause in a given employee discipline situation, the

Petitioner has enacted "School Board Policy 6.33." That policy

provides, in pertinent part, as follows:

(1) Goal: To establish a policy that ensures

all employees remain drug free as a

condition of employment. It is further the

policy of the HCSB to prohibit the

possession or use of alcohol by all

employees under circumstances that will or

may affect the efficient operation of the

business of the HCSB and the safety of its

employees, students and the public it

serves.

(2) Prohibition Against Drug and/or Alcohol Abuse.

Employees are prohibited from engaging in

any of the following activities:

(a) Illegal controlled Substances

The HCSB prohibits the use,

distribution, manufacture, possession,

sale, cultivation, or attempt to sell

illegal controlled substances at any

time whether on or off duty, or on or

off HCSB property. Illegal controlled

substances are defined by Florida

Statutes, Chapter 893, and/or 21 U.S.C.

812.

(5) Testing

(b) Employees

(2) When two or more supervisory

employees have or when the

Superintendent otherwise has

reasonable suspicion to believe

any employee is in violation of

paragraph 2(a) and/or (b) of this

policy (known as Reasonable

Suspicion Testing).

(10) Employee Assistance

(a) Self Referral . Employees who have a

drug or alcohol related problem may

seek assistance through the Employee

Assistance program and Drug Free

Program School Specialist. Self

referrals will be confidential to the

extend [sic] required or allowed by

law; unless the medical provider or

Specialist determines the problem is of

such magnitude that failure to report

it to the Superintendent would

constitute a safety or serious

operational problem.

(b) Referral by Management . If an employee

voluntarily reports a drug or alcohol

related problem to a member of

management, unless the problem is

determined by the Superintendent to be

of such a magnitude as to constitute a

safety or serious operational problem,

the Superintendent shall refer the

employee to the Drug Free Program

School Specialist for assistance. Such

referrals will be confidential except

that the Specialist shall keep the

Superintendent, or the Superintendent's

designee, advised as to the progress of

the assistance plan for the employee.

(c) Others . Employees who violate

paragraph 2(a) and/or (b) above who

have not sought voluntary assistance

or reported their problem under

paragraphs (a) and/or (b) shall be

subject to immediate disciplinary

action up to and including termination

of employment.

(12) Procedures

The Superintendent is authorized to

adopt procedures to effectuate this

policy and to ensure compliance with

applicable law, including the Omnibus

Transportation Employees Testing Act,

known as "OTETA," and to obtain the

discount and other advantages set forth

in Florida Statutes §440.102.

Petitioner's Employee Handbook states in pertinent part:

DRUG FREE WORKPLACE POLICY

As a condition of employment, an employee shall:

3. Understand that violation of the District's

alcohol and other drugs policy will lead to

disciplinary sanctions up to and including

termination of employment and prosecution.

35. The Petitioner contends that it has just cause to

terminate the Respondent based upon a positive drug test which

was administered pursuant to its drug "Drug Free Workplace

Policy." That policy provides multiple means of administering a

drug test. In this case, however, the test was administered as

a "reasonable suspicion" test.

36. The Petitioner and Respondent dispute whether there

was "reasonable suspicion" justifying the requirement of a drug

test. The Petitioner maintains that the primary consideration

was the phone call that the principal received from "Michelle."

Michelle identified the Respondent, by name, as a teacher at the

school and stated that she had witnessed him smoking marijuana.

She also knew the Respondents fiancé's name and knew that he was

the Health teacher at the school.

37. The Respondent argues that these considerations are

not a valid basis for "reasonable suspicion" and requiring a

drug test. He contends that they cannot form a legal basis for

a reasonable suspicion test because Michelle was not a credible

and reliable source of information, as well as the fact that her

statements were lacking in detail, and that there were

extenuating circumstances (building a house) that resulted in

the Respondent's financial trouble and need to leave work early

repetitively (other collateral reasons why the principal

maintained she had reasonable suspicion).

38 The determinative issues herein, however, are not so

much whether reasonable suspicion for ordering a drug test

existed or not, but rather whether this was the Respondent's

first positive drug test or first admitted illicit drug use. If

that is the case, then pursuant to Section 112.0455, Florida

Statutes (2008), the Florida Drug-Free Workplace Act, the

Respondent is not subject to disciplinary action for a first

positive drug test, assuming that this statutory provision

applies to school boards and not just to executive branch

agencies of state government. Moreover, it is also the case

that under Policy 6.33, quoted above (the applicable policy to

be employed in the determination of just cause for discipline in

the case of marijuana use by an employee) first-time offenders

who are self-referred or employer-referred to a

counseling/rehabilitation program, are not subject to

disciplinary action or termination. The Petitioner apparently

contends that this exculpatory provision does not apply if a

drug test has been mandated, versus a completely voluntary

admission of drug use, before any suspicion, reasonable or

otherwise, is aroused.

39. In this connection, Section 112.0455(8)(n)1., Florida

Statutes (2008), prohibits an employer from discharging all but

law enforcement personnel or fire safety equipment inspectors,

installers and maintenance personnel, upon their first positive

confirmed test, unless first given an opportunity to participate

in a drug rehabilitation program. That provision states, in

pertinent part:

No employer may discharge, discipline, or

discriminate against an employee on the sole

basis of the employee's first positive,

confirmed drug test, unless the employer has

first given the employee an opportunity to

participate in, at the employee's own

expense or pursuant to coverage under a

health insurance plan, an employee

assistance program or an alcohol and drug

rehabilitation program . . . .

40. See § 112.0455(8)(n)1., Fla. Stat. (2008). Section

112.0455, Florida Statutes, also provides, at Section

112.0455(8)t that:

No employer shall discharge, discipline, or

discriminate against an employee solely upon

voluntarily seeking treatment, while under

the employ of the employer, for a drug-

related problem if the employee has not

previously tested positive for drug use,

entered an employee assistance program for

drug-related problems, or entered an alcohol

and drug rehabilitation program . . . .

This Act defines "drug" as including marijuana and there is no

dispute that the Respondent has not previously tested positive

nor entered any employee assistance or drug rehabilitation

program.

41. On March 11, 2009, when confronted by the principal

with the suspicion of marijuana use and the principal's referral

for a drug test, the Respondent candidly admitted that he had

used marijuana and that it was not really necessary to require a

drug test because he admitted doing so. The Respondent

maintains that that admission is the equivalent of a first

offender drug test and that the Respondent is entitled to the

protection afforded a first offender, referenced above, under

Section 112.0455.

42. Section 112.0455(5)(h), extends the protection of that

Act to

" . . . Any agency within State government

that employs individuals for salary, wages,

or other remuneration."

43. The essential issue then becomes, as to applicability

of Section 112.0455, whether the County School Board is an

"agency within state government." The Petitioner Board

maintains that it is not and, therefore, that the statute and

its preclusion of discipline for a first offender, does not

apply to the subject situation involving School Board discipline

of an instructional employee. The Petitioner cites Dunbar

Electric Supply, Inc. v. School Board of Dade County , 690 So. 2d

1339, 1340 (Fla. 3d DCA 1997), for the point that school boards

are constitutional entities and do not exist within the

executive branch of state government. It also cites Travelers

Indemnity Co. v. School Board of Dade County , 666 F.2d 505 (11th

Cir. 1982), citing Campbell v. Gadsden County District School

Board , 534 F.2d 650 (5th Cir 1976) (no 11th amendment immunity

for school boards as they are not agencies of the state). The

Petitioner argues that for the statute to be applicable it would

have to define the term "agency" to include school boards and

that the definition provision in the above statutory section

does not specifically mention school boards. There is no

general definition for state agencies elsewhere in Part I of

Chapter 112. The Petitioner does acknowledge, however, that

"public schools" are included in the definition of agency in

Section 112.312. The Petitioner maintains that this definition

only applies to that term as it is used in Part III of Chapter

112.

44. The Petitioner acknowledges that the case of McIntyre

v. Seminole County School Board , 779 So. 2d 639 (Fla. 5th DCA

2001), was a case where the Fifth DCA vacated an employee's

termination, citing to Section 112.0455, Florida Statutes, on

the grounds that the employee could not be terminated for a

first time positive drug test. The Petitioner points out that

the Court did not discuss the application of that statutory

section to the Seminole County School Board as a state agency.

Implicitly, it applied the statutory provision to the school

board because, for that purpose, it viewed the School Board as a

state agency.

45. The Petitioner finds a difference between the

situation in the McIntyre case with that of the Respondent in

that the Fifth District noted that the Seminole County Drug-Free

Policy stated: "Any School Board employee who violates this

policy shall be treated in accordance with appropriate Florida

Statutes and/or appropriate Contract Agreement." The Petitioner

then contends that this policy statement left open the question

as to what law applied to the drug-free workplace program of

that School Board and that the Fifth District simply applied

Chapter 112. The Petitioner maintains that, unlike the McIntyre

situation, the question of the applicable drug-free workplace

law has not been left open to interpretation in the instant

case. The Petitioner contends that its Policy 6.33 states that

it is specifically designed to meet the requirements of Section

440.102, Florida Statutes (the Drug-Free Workplace Provision of

the Workers Compensation Law) and that there is no reference to

Chapter 112, or any section of Chapter 112, in the body of the

Petitioner's policy or in its statement of Statutory Authority

or laws implemented.

46. It is determined, however, that the Petitioner's

distinction of the McIntyre case from the subject situation is

not a pivotal distinction. This is because to do so would allow

the School Board's internal policy, written and adopted for one

county school district, to control the applicability of a state

statute. The School Board's policy cannot render inapplicable

Section 112.0455, so long as the School Board, for purposes of

the applicability of that statute, is carrying out disciplinary,

just cause determinations pursuant to a statutory mandate to

uniformly regulate the practices of instructional personnel

(statewide public function), set forth by the Legislature for

all school districts in Chapter 1012, Florida Statutes. Since

it is doing so, it is determined to be an agency within state

government.

47. Concerning this point, the Court in Buck v. McLean ,

115 So. 764, 765 (Fla. 1st DCA 1959), held, "In short, county

school boards are part of the machinery of government operating

at the local level as an agency of the state in the performance

of public functions." Certainly the determination, pursuant to

a state statute, regarding just cause and discipline of

instructional employees is a "public function." See also

Witgenstein v. School Board of Leon County , 347 So. 2d 1069,

1071 (Fla. 1st DCA 1977) (Wherein Chapter 120, which defined

"agency" as "each other unit of government in the state" was

construed to extend to a county school board); Motor v. Citrus

County School Board , 856 So. 2d 1054 (Fla. 5th DCA 2003) (which

extended to county school boards the requirement in Florida

Statutes Section 768.28, Florida Statutes, that persons suing a

county or other "state agency" must give written notice of the

claim to the agency and the Department of Insurance). See also

Ingraham v. Dade County School Board , 450 So. 2d 847 (Fla. 1984)

wherein the court held that a statutory limitation on attorney's

fees was applicable where the state agency, a school district,

had purchased supplemental and discretionary insurance.

48. While the Petitioner correctly argues that the court

in McIntyre , supra , did not specifically address whether the

Florida Drug-Free Workplace Act, Section 112.0455, Florida

Statutes, applies to local school boards, its repetitive

reference to that act during its discussion, in the context of

the facts of that case, certainly shows that the Court

considered the act to be applicable to local school boards.

49. Moreover, an apt discussion of whether school boards

are part of the executive branch of state government or are

state agencies for certain purposes is set forth in 27 Stetson

L. Rev. 1127 (1998). In that article, the author,

Scott Sternberg, discussed the Dunbar case relied upon by the

Petitioner herein as authority for school boards not being state

agencies. That commentary makes it clear that, on that appeal

from the Division of Administrative Hearings and the School

Board, the Court's determination that the School Board was not

an executive branch agency was applied narrowly to the situation

concerning whether Section 120.53(5), Florida Statutes, was

applicable to procurement by the School Board. Section

120.53(5) is applicable to agency purchasing arising under

Chapter 287 Florida Statutes. Chapter 287 covers the executive

branch of state government and, because the school board is not

a part of the executive branch, it was determined by the Court

in Dunbar to not be subject to Section 120.53(5). The judge in

that opinion held that the hearing officer and School Board in

that case correctly denied relief to Dunbar under Section

120.53(5). Even so, for other broader purposes school boards

have been definitely held to be agencies of the state, as, for

instance, for employee disciplinary purposes.

50. A county school board has been held to be a state

agency falling within Chapter 120 of the Florida Statutes for

quasi-judicial administrative orders, as, for instance, for

proceedings and resultant agency final orders concerning

employee discipline, a statewide program, enacted by the

legislature in Chapter 1012, Florida Statutes. See Sublett v.

District School Board of Sumter County , 617 So. 2d 374, 376

(Fla. 5th DCA 1993); Canney v. Board of Public Instruction of

Alachua County , 222 So. 2d 803, 804 (Fla. 1st DCA 1969); See

also Von Stephens v. School Board of Sarasota County , 338 So. 2d

890 (Fla. 2d DCA 1976).

51. Because the School Board has been held to be a state

agency for purposes of Chapter 120 and for purposes of a

statewide program concerning regulation of public instruction,

in Chapter 1012, Florida Statutes, the Petitioner is a state

agency for purposes of this employee disciplinary case. See

Mitchell v. Leon County School Board , 591 So. 2d 1032

(Fla. 1st DCA 1991); Citrus Oaks Homeowners Assoc., Inc., v.

Orange County School Board , Case No. 05-0160RU (Recommended

Order August 1, 2005). Therefore, under the above-referenced

provisions of Section 112.0455, Florida Statutes, the Respondent

cannot be disciplined for this first proven instance of illicit

drug use, inasmuch as he has voluntarily admitted such use and

agreed to engage in a rehabilitation program.

52. Moreover, in addition to the applicability of the

above-referenced provisions of Chapter 112, Florida Statutes,

the School Board's policy 6.33, by its own terms, quoted above,

provides that when the employee, after admitting drug use,

voluntarily submits to a rehabilitation program, the employee

cannot be disciplined, under the circumstances shown in the

above Findings of Fact. The Respondent's admission is deemed to

be voluntary because it was made before a drug test could

establish independent proof of whether or not illicit drugs had

been used. The Respondent candidly admitted drug use, without

being coerced, and agreed to the rehabilitation program

requirements. Thus, even under the Board's disciplinary policy,

the Respondent cannot be subjected to discipline for this first

offense situation.

RECOMMENDATION

Having considered the foregoing findings of fact,

conclusions of law, the evidence of record, the candor and

demeanor of the witnesses, and the pleadings and arguments of

the parties, it is, therefore,

RECOMMENDED that a final order be entered by the School

Board of Hernando County dismissing its Petition for Termination

of Employment and reinstating the employment of the Respondent

with attendant provision of back pay and all related benefits.

DONE AND ENTERED this 9th day of September, 2009, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of September, 2009

COPIES FURNISHED :

J. Paul Carland, II, Esquire

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 33761

Wayne S. Alexander, Superintendent

School Board of Hernando County, Florida

919 North Broad Street

Brooksville, Florida 34601

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.