17-004226TTS St. Lucie County School Board vs. Renya Jones Status: Closed Recommended Order on Thursday, February 22, 2018.

Summary: Just cause for termination demonstrated by Respondent's reporting for work intoxicated and refusing a drug test.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 4226TTS

RENYA JONES,

Respondent.

_______________________________/

RECOMMENDED ORDER

On December 4, 2017, Administrativ e Law Judge Lisa Shearer

Nelson conducted a hearing pursuant to section 120.57(1), Florida

Statutes (2017), in Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Barbara L. Sadaka, Esquire

Legal Department

School District of St. Lucie Co unty

7000 Northwest Selvitz Road

Port St. Lucie, Florida 34983

For Respondent: Nicholas Wolfmeyer, Esquire

Egan, Lev, Lindstron & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

STATEMENT OF THE ISSUE

The is sue to be determined is whether Petitioner, St. Lucie

County School Board (Petitioner or the School Board) , ha s just

cause to terminate the employment of Respondent, Renya Jones

(Respondent or Ms. Jones).

PRELIMINARY STATEMENT

On May 22, 2017, E. Wayne Gen t, as Superintendent of the

School Board, notified Respondent of his intent to recommend to

the School Board that it terminate her employment at its June 13,

2017, meeting , and advised her o f her right to a hearing.

Ms. Jones was further notified that if she chose to exercise her

right to a hearing, Mr. Gent would recommend that she be

suspended without pay pending the outcome of the hearing.

Respondent requested a hearing , and on July 25, 2017, the

School Board served a Petition for Termination and referr ed the

case to the Division of Administrative Hearings (Division) for

assignment of an administrative law judge.

The case was originally scheduled for hearing to commence

October 13, 2017. However, there was some difficulty obtaining a

location for the date originally set for hearing, and on

September 6, 20 1 7, an Order was issued explaining the

difficulties, askin g the parties for information regarding

possible locations, and in the alternative, for mutually -

acceptable dates to reschedule the hearing. A s a result of the

response by the parties, on September 19, 2017, the case was

rescheduled for December 4, 2 01 7.

On October 10, 2017, the School Board referred a separate

Petition for Termination against Respondent for the assignment of

an administrativ e law judge, and on October 12, 2017, requested

that the two cases be consolidated. An Order of Consolidation

was entered October 12, 2017, consolidating the instant case with

the second Petition for Termination, which was docketed as DOAH

Case No. 17 - 556 6 TTS .

On October 26, 2017, Respondent filed a Petition to

Determine the Invalidity of School Board Rules 6.16 and 6.50

(Rule Challenge) , which was docketed as DOAH Case No. 17 - 5889 RX

and for which an Order of Assignment was issued October 30, 2017 .

Respon dent also moved for consolidation of the rules challenge

with DOAH Case Nos. 17 - 4226 TTS (Discipline I) and 17 - 5566 TTS

(Discipline II). A Status Conference was conducted to address

scheduling, because the disciplinary cases were already scheduled

to go for ward on December 4, 2017, five days past the statutory

deadline for scheduling a rule challenge, absent an agreement of

the parties or good cause shown. See § 120.56(1)(c), Fla. Stat.

After discussion with the parties, Discipline I was severed from

Disci pline II and the Rule Challenge, and Discipline I remained

scheduled for hearing on December 4, 201 7 . Discipline II and the

Rule Challenge were consolidated for hearing and scheduled to be

heard on January 23, 201 8. At the time this Recommended Order is

issued, the Rule Challenge has been heard and remains pending. 1/

The hearing took place as scheduled. Prior to hearing, the

parties filed a Pre - h earing Statement which contained a

stipulation regarding those facts for which no proof at hearing

was require d. To the extent those facts remain relevant in light

of the severance of Discipline I from Discipline II and the Rule

Challenge, those facts have been incorporated into the Findings

of Fact below. At hearing, Petitioner presented the testimony of

Actavi s McQueen, Verna Brown, Sherri Brown, Mary Bergerman,

Cynthia Garcia, Ucola Barrett - Baxter, Kenneth Rodriguez, Gina

Dinello, and Aaron Clements ; and PetitionerÓs Exhibits numbered 1

through 18 and 20 through 49 were admitted into evidence.

Respondent pres ented the testimony of Marcela Marshall - Morgan and

Andrew Copeland, and RespondentÓs Exhibit numbered 1 was admitted

into evidence .

The two - volume Transcript of the proceedings was filed with

the Division on January 5, 2018. At the request of the parties,

the deadline for p roposed r ecommended o rders was extended to

30 days from the filing of the Transcript. Both parties filed

Proposed Recommended Orders that have been carefully considered

in the preparation of this Recommended Order. All references to

Fl orida Statutes are to the 2016 codification , unless otherwise

indicated.

FINDING S OF FACT

1. Respondent, Renya Jones, is employed by the School Board

of St. Lucie County, Florida. She has been employed by the

School Board since the 2004 - 2005 school year, most recently as a

music teacher at Village Green Environmental Studies School.

2. Respondent has a professional services contract pursuant

to section 1012.33, Florida Statutes. As a classroom teacher,

she is covered by the Collective Bargaining Agreeme nt between the

School Board and the Classroom Teachers Association.

3. When Respondent was hired by the School Board, she

participated in an orientation process whereby she received

training on a variety of School Board policies, including the

Code of Eth ics/Professional Competency and the Drug - Free

Workplace Policy . On July 28, 20 0 4, she signed a New Employee

Orientation Verification of Training form indica ting that she had

received training in the areas listed (including those name d

above), and that she had received a copy of the St. Lucie County

School Board New Employee Handbook.

4. Respondent also submitted to pre - employment drug

screening on July 30, 2004 .

5. On May 8, 2017, Respondent was a m usic teacher at

Village Green Environmental Studies Scho ol, also referred to as

Village Green Elementary (Village Green).

6. The contractual hours for teachers at Village Green

during the 2016 - 2017 school year were from 7:45 a.m. to 3:20 p.m.

There were clubs that met in the morning before classes began at

ap proximately 8:30 a.m. , and those teachers working with clubs

were required to report earlier so that they were present when

the clubs were to start.

7. Respondent was the teacher working with the chorus club,

which would require her to be present early. When teachers

arrive at school, they normally sign in at the front desk.

8. Cynthia Garcia is the executive secretary to the

principal at Village Green. During the 2016 - 2017 school year,

the principal was Ucola Barrett - Baxter. Ms. Garcia typically

arri ve s at school before anyone else and sits at the front desk

as teachers sign in, as opposed to sitting in her office,

adjacent to Ms. Barrett - BaxterÓs.

9. On May 8, 2017, Ms. Garcia was present when Respondent

signed in at sometime between 7:30 and 7:50 a .m. Ms. Garcia

asked Respondent if she was alright, because her appearance was

different than normal . While Respondent was usually dressed

professionally and wore make - up, that morning she was wearing no

make - up and her wig was not on straight . Responde nt replied that

she was running a little behind and was a little messed up, and

still needed to put on her make - up. Ms. Garcia testified that

Respondent w as different than when she usually signed in, and

described her as a bit Ðgiddy,Ñ flailing her arms a nd laughing.

10. Actavis McQueen is a fourth - grade teacher at Village

Green. As she approached her classroom on May 8 , 2017,

Respondent called to her in the hallway a little after 8:00 a.m .

Ms. McQueen described Respondent as giggly and loud, and when

M s. McQ ueen approached Respondent, she noticed that Respondent

was not properly dressed for work. For example, her wig was

twisted , she was not wearing make - up as she usually does, her

stomach was showing under the tank top she was wearing, and she

was wea ring flip flops or slides instead of shoes. Most

importantly, Ms. McQueen could smell the strong odor of alcohol.

11. Respondent was loud and laughing, saying that the

children would not recognize her without her make - up. Students

were starting to come in for practice on the school play, and

Ms. McQueen did not want the students to see Respondent in her

current condition, so Ms. McQueen told students that there would

not be a rehearsal that day. She told Respondent to go to her

office in the back of her classroom and fix herself up.

12. Ms. McQueen was shocked by RespondentÓs appearance, and

after telling Respondent to go to her office, Ms. McQueen headed

toward the school office. On her way, she ran into Verna Brown

at the cafeteria . The chorus roo m that served as RespondentÓs

classroom is adjacent to or behind the cafeteria, and can be

entered from the cafeteria area by way of the stage.

13. Verna Brown 2/ is a health paraprofessional employed at

Village Green. On this particular morning, she was on duty in

the cafeteria for those students eating breakfast. Ms. McQueen

approached her and told Ver n a Brown that she had spoken to

Respondent , and it appeared that Respondent had been drinking.

Ms. McQueen reported that Respondent smelled of alcohol an d asked

Ver n a Brown to go check on Respondent , because Ms . McQueen was

uncertain what to do.

14. Verna Brown went to RespondentÓs class , and when she

arrived, two other staff members were in RespondentÓs room, so

she closed the door and said she would c ome back, which she did

once the others left the room. Like Ms. McQueen, Verna Brown

could smell alcohol and observed that RespondentÓs eyes were

swollen and red, her hair was Ðwild,Ñ and her stomach was

showing. Respondent indicated that she had been to a party .

15. Verna Brown was concerned for RespondentÓs well - being

and told Respondent she needed to get herself together . While

she was talking to Respondent, students were trying to come into

the room through the stage, and were asking Respondent qu estions

about rehearsal. Respondent told them there would be no

rehearsal that morning and to come back at 3:00 p.m . Verna Brown

was trying to keep the students from seeing Respondent because

she did not want them to see her in that condition. Verna Bro wn

asked Respondent if Respondent needed her to call someone to come

get her, but Respondent indicated that she had a rental car, and

left out the back door. 3/ Despite having signed in upon her

arrival at Village Green, Respondent did not sign out when sh e

left. Verna Brown was not authorized to arrange for a substitute

for Respondent, but told her she would speak with Ms. Garcia

about one. No substitute was ever procured.

16. Verna Brown returned to the cafeteria and confirmed to

Ms. McQueen that she a lso smelled alcohol on Respondent.

Ms. McQueen went to the office accompanied by Sherri Brown, the

media specialist, in search of the principal, Ucola Barrett -

Baxter. Ms. Garcia advised Ms. McQueen that Ms. Barrett - Baxter

was at student drop - off duty, an d Ms. McQueen told Ms. Garcia

that she needed to speak to her about a staff member. Ms. Garcia

asked if it was Respondent, and went to the drop - off area to

advise Ms. Barrett - Baxter of Ms. McQueenÓs need to see her.

Ms. Garcia believed that Ms. McQueen w as very upset about

Respondent and took over Ms. Baxter - BarrettÓs duties at the

student drop - off area so that Ms. Barrett - Baxter could speak with

Ms. McQueen.

17. Ms. Barrett - Baxter found Ms. McQueen at the media

center, where Ms. McQueen advised her that she had seen

Respondent and that Respondent appeared to be drunk and smelled

like alcohol . Ms. Barrett - Baxter asked where Respondent could be

located , and was told that she had already left the campus.

18. Ms. Barrett - Baxter immediately called Aaron C lements,

the d irector of Employee Relations, and explained the situation.

Upon learning that Ms. Barrett - Baxter had not seen Respondent

personally and that Respondent was no longer at the school,

Mr. Clements advised Ms. Barrett - Baxter that at that point, there

was nothing that could be done.

19. As noted above, Sherri Brown is a media specialist at

Village Green. At Ms. McQueenÓs request, she accompanied

Ms. McQueen to the office to find Ms. Barrett - Baxter. She and

Verna Brown were both concerned abo ut whether Respondent made it

home safely, and she tried to call Respondent. Respondent did

not answer her phone when Sherri Brown called, and she and Verna

Brown received permission from Ms. Barrett - Baxter to leave campus

and drive by RespondentÓs home t o make sure she had arrived .

Once they saw the rental car Respondent had been driving parked

at her home , they returned to campus.

20. Respondent returned Sherri BrownÓs call at about

10:17 a.m., and stated that she had left early due to an

unidentified emergency. Sherri Brown told Respondent to contact

Ms. Barrett - Baxter before she came back to work, and not to come

back to the school . Sherri Brown relayed the telephone

conversation with Respondent to her media assistant, Mary

Bergerman, and told Ms. B ergerman that she needed to go to the

office and report the contact with Respondent. Ms. Bergerman had

heard Sherri BrownÓs side of the telephone conversation and

confirmed that Sherri Brown had told Respondent not to return to

the school , as opposed to a dvising her that she needed to come

back .

21. When Sherri Brown arrived at the office, Ms. Barrett -

Baxter was in a meeting with a parent. She stepped into

Ms. GarciaÓs office to relay the message that Respondent was

going to contact the principal, and wh ile she was there,

Respondent entered the office behind her. Sherri Brown said

hello to Respondent and returned to the library. She covered

RespondentÓs classes for the day, and she and a co - worker covered

the rehearsal that afternoon.

22. While Ms. Bar rett - Baxter was in the parent conference,

at approximately 10:24 a.m., she received a text from a number

she did not recognize . She responded, ÐIÓm in a meeting. WhoÓs

calling,Ñ to which Respondent responded, ÐJones IÓm there in

5 minutes.Ñ

2 3 . Responde nt arrived in the office while Ms. Barrett -

Baxter was still in the parent conference, so she went in

Ms. GarciaÓs office to wait. After somewhere between ten and

30 minutes, the parent conference concluded , and Respondent went

in Ms. Barrett - BaxterÓs offi ce. Ms. Barrett - Baxter testified

that Respondent is normally well put together in terms of make - up

and hair, but when she came in the office she looked disheveled,

and noticeably different from her normal appearance. She could

detect the smell of alcohol and her eyes were puffy and red.

Respondent told her she had gone home to clean up a little bit,

and Ms. Barrett - Baxter replied that it did not work, because she

could smell the alcohol from across the desk. She told

Respondent that she would have to co ntact the district office,

and left Respondent in her office while she went to Ms. GarciaÓs

office to call Mr. Clements. Sometime that day , she also

completed a Human Resources Reporting Form and emailed it to

Mr. Clements. The Reporting Form summarized the reports she had

received regarding RespondentÓs apparent intoxication and what

she had observed when meeting with Respondent before calling

Mr. Clements.

24. Reasonable suspicion existed to warrant testing for

drugs and alcohol based upon RespondentÓs appearance, behavior,

and the smell of alcohol emanating from her person and noted by

nearly every person with whom she came in contact.

2 5 . Mr. Clements advised that he would send someone from

security to transport Re spondent for testing. Ms. Barrett - B axter

had Respondent go sit in the conference room in the office area

to wait for transport, and resumed her other duties.

2 6 . Ken Rodriguez is a security officer for the St. Lucie

County School District (School District) and a retired police

officer fr om New York City, and he has worked at the School

District for the last nine years. He arrived at Village Green

between 11:00 and 11:30 a.m. Once he arrived, he went to the

conference room where Respondent was waiting. He identified

himself to Responden t and explained that he would be transporting

her to the district office where she would meet with Aaron

Clements, who would explain to her the procedures that were going

to take place.

2 7 . Mr. Rodriguez asked Respondent about any personal

affects she m ight have, and then asked someone in the office to

retrieve her purse for her. U pon receiving the purse, Respondent

place d it on the table and started looking for something. From

his vantage point standing by the table, he could see a large

ziplock bag o f capsules in her purse, as well as a box of box

cutters. He did not search her purse, but asked her about the

bag of capsules , and Respondent told Mr. Rodriguez that they were

vitamins.

2 8 . Mr. Rodriguez took her explanation at face value, but

advised h er that he was going to hold onto both the bag of

capsules and the box cutters as a safety measure w hile she was

transported, and return them to her when they were finished.

2 9 . Mr. Rodriguez and Respondent arrived at the School

District offices sometim e after noon. Mr. Rodriguez directed

Respondent to sit in the reception area while he went in to see

Mr. Clements. Mr. Rodriguez reported to Mr. Clements that he had

taken possession of the capsules and the box cutter as a safety

measure and gave them to Mr. Clements , and then brought

Respondent in to meet with him . Mr. Rodriguez did not sit in on

the meeting between Mr. Clements and Respondent.

30 . Mr. Clements advised Respondent that she was going to

be taken to the lab for drug/alcohol testing, and n ow would be

the time for her to tell him if the pills were something illegal

or would cause her to have a negative result from the test, and

she again stated that they were vitamins. Mr. Clements

reiterated that they were sending her for drug and alcohol

testing, and she indicated that she understood. She was provided

with the standard forms related to testing that are used for all

employees being tested, and she signed them. Respondent did not

ask Mr. Clements any questions, and appeared to understand w hat

she was told.

3 1 . Mr. Clements is not the medical resource officer for

St. Lucie County Schools. The medical resource officer is

identified on the form for drug testing, along with his telephone

number. No evidence was presented to indicate that Res pondent

asked to speak to the medical resource officer or was prohibited

from doing so.

3 2 . The School District typically tests for both drugs and

alcohol on a reasonable suspicion test. While there may be

reasonable suspicion that someone is under the i nfluence of

either drugs or alcohol, without the testing, it is difficult to

know for sure the source of the influence.

3 3 . After meeting with Mr. Clements, Respondent was

provided with a St. Lucie Public Schools Drug & Alcohol Testing

notification form t hat identifies the time Respondent left the

School District and instructs her to report to the identified

testing location no later than 30 minutes from receiving the

form. Respondent and Mr. Clements both signed this form at

1:10 p.m.

3 4 . Mr. Rodriguez drove Respondent to Absolute

Testing/Consulting (Absolute Testing) , where he provided the

paperwork to a technician, Gina Dinello, who took her back for

testing while he waited in the reception area.

3 5 . Absolute Testing provides alcohol testing to St. Lucie

County using a breathalyzer, and provides drug testing using a

urine sample. Ms. Dinello holds the appropriate certifications

to conduct the breathalyzer test and to collect the urine sample

for the drug test . The sample for the urine test is obta ined on

premises and then transported to a lab oratory for processing.

3 6 . The breathalyzer that Absolute Testing uses is DOT -

certified, and is calibrated in accordance with DOT standards.

3 7 . Ms. Dinello took Respondent into the back room at

Absolute T esting, and explained how the procedure for the

breathalyzer works. She showed Respondent the documents related

to the test , and Respondent signed them.

3 8 . With breathalyzer tests, where there is a positive test

result, it is standard procedure to wai t 15 minutes and then have

the person being tested blow into the breathalyzer a second time.

The theory is that, by waiting the 15 minutes, any extraneous

influence, such as mouthwash, that might have affected the first

test would have dissipated by the s econd test.

3 9 . Respondent cooperated with the first administration of

the breathalyzer test, which resulted in a reading of .186 at

1:40 p.m. Once she learned the results of the first test,

however, she did not want to wait for the second administrati on.

Ms. Dinello asked Mr. Rodriguez to help explain the process to

her, and he did so, telling her that a second test was a standard

part of the process. Both Mr. Rodrig u ez and Ms. Dinello

explained to Respondent that she had a right to refuse the test ,

but her refusal would be documented. Respondent then consented

to t he second administration, which resulted in a reading of .191

at 1:56 p.m.

40 . After the breathalyzer test was complete, Ms. Dinello

explained that Respondent needed to provide a urine sa mple for

the drug test. Respondent declined to do so, saying she had

already blown the breathalyzer test, so there was no point to

proceed with the urine test. Both Mr. Rodriguez and Ms. Dinello

explained again that if she chose to refuse the test, the r efusal

would be documented and reported to the School District.

Respondent refused to submit , and Ms. Dinello submitted paperwork

to that effect.

4 1 . Mr. Rodri guez was not informed of the results of the

breathalyzer test. When the testing was finished, he took

Respondent to her home, returned her belongings to her, and she

walked into her home. He did not allow her to drive her car

home, which remained at Village Green, because he believed that

she could still be under the influence of alcohol. He test ified

that when he transported her to the testing facility, he could

smell the heavy odor of alcohol on her, and he did not believe

she was physically capable of driving home.

4 2 . Respondent was paid a salary for May 8, 2017, and had

not requested annual or sick leave. She was on duty when she

arrived at the school that morning, and she remained on duty,

despite the fact that she chose to go home without signing out

for the day.

4 3 . On May 9, 2017, Respondent received a letter by hand -

delivery notifying her that she was under investigation for

having a breath alcohol level of .186 and .191 while at her work

location, and for refusing the drug test. She was placed on

temporary duty assignment. While on temporary duty, Respondent

received all of her pay a nd benefits. Moreover, Respondent was

paid for the entire term of her contract for the 2016 - 2017 school

year, from August 12, 2016 , through June 30, 2017.

4 4 . On May 10, 2017, Mr. Clements provided to Respondent a

Meeting Notice , scheduling a meeting reg arding the charges that

she refused the drug test and had unacceptable breath alcohol

test results. Respondent acknowledged receiving the notice in

writing and attended the meeting with her union representative.

The purpose of the meeting was to provide Respondent with Ðdue

processÑ and give her the opportunity to provide any information

she might choose regarding the allegations against her.

4 5 . On May 15, 2017, Respondent received written notice of

a second meeting, to be held on May 22, 2017. The pur pose of

this meeting was to provide Respondent the results of the School

DistrictÓs investigation. Respondent and her representative

attended this meeting as well.

4 6 . On May 22, 2017, Rafaal Sanchez , Jr., Mr. ClementsÓ

supervisor and e xecutive d irector of Human Resources for the

School District, recommended to Superintendent Gent that

Respondent Ós employment be terminated. Superintendent Gent

accepted Mr. SanchezÓs recommendation and by letter dated May 22,

2017, notified Respondent of his intent to rec ommend to the

School Board that her employment be terminated, as well as the

procedure available to her to contest that recommendation. The

letter also advised Respondent that if she chose to request a

hearing, the s uperintendent would recommend that she be suspended

without pay pending the outcome of the hearing.

4 7 . That same day, counsel for Respondent wrote to

Superintendent Gent regarding the allegations against Respondent.

He advised the superintendent that Respondent was relieved of

duty on May 8 , 2017, and was later called and told to return to

Village Green, and that she voluntarily complied with this

directive. He also contended that she was not presented with any

drug testing policies and she had no knowledge of the

consequences of failing to submit to the drug test at that time.

As a result of this letter, Mr. Clements opened a second

investigation to see whether anyone had told Respondent to return

to school. At that time, he gathered statements from staff

members , who had seen Respondent a t school on the morning of

May 8, 2017, and ultimately closed the investigation as

unsubstantiated.

CONCLUSIONS OF LAW

4 8 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding pursuant to sect ions 120.569, 120.57(1), and

1012.33(6)(a)2., Florida Statutes (2017).

4 9 . The School Board is the duly - constituted governing body

of the St. Lucie County School District pursuant to Article IX,

section 4 of the Florida Constitution, and sections 1001.30 and

1001.33, Florida Statutes. The School Board has the authority to

adopt rules governing personnel matters pursuant to sections

1001.42(5) and (28), 1012.22(1), and 1012.23.

50 . District superintendents are authorized to make

recommendations for dismis sal of school board employees, and

school boards may dismiss school board instructional staff for

Ðjust cause.Ñ ££ 1001.42(5), 1012.22(1)(f), 1012.27(5) , and

1012.33(6)(a), Fla. Stat.

51 . Petitioner is seeking to terminate RespondentÓs

employment for jus t cause. Therefore, Petitioner bears the

burden to establish the charges against Respondent by a

preponderance of the evidence. Dileo v. Sch. Bd. of Dade Cnty. ,

569 So. 2d 883 (Fla. 3d DCA 1990); § 120.57(1)(l), Fla. Stat.

5 2 . The preponderance of the e vidence standard requires

that the proof against Respondent be by the greater weight of the

evidence, or evidence that Ðmore likely than notÑ tends to prove

the allegations. Gross v. Lyons , 763 So. 2d 276, 280 n.1 (Fla.

2000).

5 3 . Section 1012.33(6)(a) provides that any member of

instructional staff may be suspended or dismissed during the term

of his or her contract for just cause as defined in section

1012.33(1)(a). Section 1012.33(1)(a) provides that:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34 ,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s. 1012.34 , gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

5 4 . The basis for the School Board Ós decision to terminate

RespondentÓs employment is outlined in the Petition for

Termination, which states in pertinent part:

Ð [J] ust causeÑ exists for Resp ondent to be

disciplined by way of termination pursuant

to: § 1012.22(1)(f), Fla. Stat.,

§ 1012.27(5), Fla. Stat., and § 1012.33(1)(a)

and (6)(a), Fla. Stat.; School Board Policies

6.301(2); 6 .301(3)(b)(i); 6.301 (3)(b)(iii);

6.301(3)(b)(xix); 6.301(3)(b)( xxix);

6.301(3)(b)(xxxvii) Employee Standards of

Conduct ; 6.59 Alcohol and Drug Free

Workplace ; and 6.60 Drug and Alcohol Testing ;

Rules 6A - 10.081(1)(b), (1)(c), and (2)(a)(1)

F.A.C. Principles of Professional Conduct for

the Education Profession in Florid a ; and Rule

6A - 5.056 F.A. C., Criteria for Suspension and

Dismissal for the violations stated above.

These allegations do not specifically use the term Ðmisconduct .Ñ

However, the provisions cited fit under the definition of

ÐmisconductÑ delineated in Flor ida Administrative Code

Rule 6A - 5.056.

5 5 . T he School BoardÓs Policies 6.301, 6.59, and 6.60 are at

the heart of this case. Those policies provide in pertinent part :

6.301 Employee Standards of Conduct

(2) Each principal, supervisor, or member of

the instructional staff shall abide by the

Principles of Professional Conduct for the

Education Profession in Florida. . . . All

certificated employees shall be required to

complete training on the standards of ethical

conduct upon employment and annually

th ereafter. All employees shall abide by the

Florida Code of Ethics for Public Officers

and Employees.

(3) Disciplinary Guidelines for Employees

* * *

(b) The following list is not intended to be

all inclusive, but is typical of infractions

that war rant disciplinary action:

(i) Insubordination

* * *

(iii) Violation of drug and alcohol policy

* * *

(xix) Violation of any rule, policy,

regulation, or established procedure

* * *

(xxix) Any violation of the Principals of

Professiona l Conduct for the Education

Profession, the Standards of Competent and

Professional Performance, or the Code of

Ethics for Public Officers and Employees

* * *

(xxxvii) Alcohol - related off en ces, including

driving under the influence of alcohol

6.59 Alcohol and Drug - Free Workplace

(1) It is the intent of the School Board

that work environments be free of the

presence of illegal drugs and alcohol.

Therefore, employees are prohibited from

possessing, using, manufacturing, dispensing,

distributing, o r being under the influence of

illegal drugs or alcohol while on duty . For

the purposes of this policy, illegal drugs

are those co ntrolled substances as defined by

federal or state law, or any counterfeit of

such drugs or substances.

(2) For the purpose of this policy,

ÐworkplaceÑ means the site for the

performance of work done in connection with

employment. Workplace includes any school

building or any school premises; and any

vehicle used to transport students to and

from school and school activities o ff sc hool

property during any school - sponsored or

school - approved activity, event, or function,

such as a field trip or athletic event, where

students are under the jurisdiction of the

School District.

* * *

(5) A drug - free awareness program is here by

established, and is to be implemented by the

Superintendent, to inform employees of the

dangers of drug abuse in the workplace, of

the School BoardÓs policy of maintaining a

drug - free workplace, of available drug

counseling, rehabilitation, and assistan ce

programs, and of the penalties to be imposed

upon employees for drug abuse violations

occurring in the workplace. As a part of

this program, all employees and applicants

for employment shall be given notice of the

School BoardÓs policy regarding the

ma intenance of a drug - free workplace.

6.60* Drug and Alcohol Testing

(4) Prohibited Acts

(a) As a condition of continued employment,

all employees are prohibited from possessing,

consuming, reporting to work, or working with

the presence of alcohol or drugs in their

bodies in contravention of any federal or

state statute, law, rule, or regulation

governing the drug - free workplace or

workplace safety. An employee who is in

possession of or consumes alcohol or illegal

drugs while on duty will be discharg ed for

the first offense and possibly denied of

eligibility for workersÓ compensation and

indemnity benefits in accordance with

governing law.

* * *

(5) Procedures and Requirements

(a) Drug and alcohol testing is required in

the following situati ons: when there is

reasonable suspicion; when follow - up drug

testing is appropriate; when the employee is

in a safety sensitive position including

driving School District vehicles; when

testing is required by state or federal law

or regulation; and applic ants prior to

employment.

(b) The decision to conduct testing shall be

made by the Superintendent or designee

without other prior notice to the employee.

Scheduling for testing or examination will be

during duty hours, except when required

during routine physicals or time compensated

by the School Board, at the discretion of the

School Board, and the results will become

part of the employeeÓs permanent medical

record. Should the employee refuse to

cooperate with the testing, including

refusing to submit to testing at the time

ordered and without a valid medical

explanation after receiving notice of the

requirement for testing, or engaging in

conduct that clearly obstructs the t e sting

process, such refusal shall result in the

employeeÓs discharge from empl oyment and

forfeiture of eligibility for workersÓ

compensation medical and indemnity benefits

in accordance with governing law.

(c) For purposes of this policy, Ðreasonable

suspicionÑ drug testing means testing based

on a belief, drawn from specific objec tive

and articulable facts and reasonable

inferences drawn from those facts, that an

employee is using or has used alcohol or

drugs in violation or the School BoardÓs

policy. Such facts may include, but are not

limited to:

(i) Observable phenomena while at work, such

as direct observation of alcohol or drug use

or of the physical symptoms or manifestations

of being under the influence of alcohol or a

drug.

(ii) Abnormal conduct or erratic behavior

while at work or a significant deterioration

in work perf ormance .

(iii) A report of alcohol or drug use

provided by a reliable and credible source.

* * *

(e) In testing for the presence of alcohol,

the School District shall use a generally

accepted testing procedure. The employee

will be permitted to re port confidentially to

the Medical Review Officer the use of

prescription or nonprescription medications

both before and after being tested.

(f) In testing for the presence of drugs,

the School District will use an initial

screening procedure. If the ini tial

screening test is positive, a confirmation

test, such as the gas chromatography/mass

spectrometry test, will be performed. The

employee will be permitted to report

confidentially to the Medical Review Officer

the use of prescription or nonprescriptio n

medications both before and after being

tested. . . .

(g) Should testing substantiate the use of

drugs and alcohol, and it is the employeeÓs

first offense, then the employee shall be

given an opportunity to participate in and

successfully complete an em ployee assistance

program or drug and alcohol reha bilitation

program. . . . For purposes of this policy,

Ðalcohol concentrationÑ means the number of

grams of alcohol (i) per 100 milliliters of

blood, (ii) per 210 liters of breath, or

(iii) per 67 millilit ers of urine. . . .

(Emphasis added ) .

5 6 . The rule history for the Drug and Alcohol Testing

Policy indicates that the policy is implementing, in part,

section 112.0455, Florida Statutes, which is the Drug - Free

Workplace Act and section 440.102 , Florida Statutes, which

provides drug - free workplace program requirements.

5 7 . Section 112.0455 (5)(a) includes alcohol within the

definition of the term Ðdrug , Ñ and section 112.0455(5)(b) defines

a Ðdrug testÑ or ÐtestÑ as Ðany chemical, biological, or physic al

instrument analysis administered for the purpose of determining

the presence or absence of a drug or its metabolites.Ñ

5 8 . With respect to notice given to employees, section

112.0455(6) provides:

(a) Employers with no drug - testing program

shall ensur e that at least 60 days elapse

between a general one - time notice to all

employees that a drug - testing program is

being implemented and the beginning of

actual drug testing. Employers with drug -

testing programs in place prior to the

effective date of this section are not

required to provide a 60 - day notice period.

(b) Prior to testing, all employees and job

applicants for employment shall be given a

written policy statement from the employer

which contains:

1. A general statement of the employerÓs

policy on employee drug use, which shall

identify:

a. The types of testing an employee or job

applicant may be required to submit to,

including reasonable suspicion or other

basis; and

b. The actions the employer may take

against an employee or job applicant on the

basis of a positive confirmed drug test

result.

2. A statement advising the employee or job

applicant of the existence of this section.

3. A general statement concerning

confidentiality.

4. Procedures for employees and job

applicants to confidentia lly report the use

of prescription or nonprescription

medications both before and after being

tested. Additionally, employees and job

applicants shall receive notice of the most

common medications by brand name or common

name, as applicable, as well as by chemical

name, which may alter or affect a drug test.

A list of such medications shall be

developed by the Agency for Health Care

Administration.

5. The consequences of refusing to submit

to a drug test.

6. Names, addresses, and telephone numbers

of em ployee assistance programs and local

alcohol and drug rehabilitation programs.

7. A statement that an employee or job

applicant who receives a positive confirmed

drug test result may contest or explain the

result to the employer within 5 working days

afte r written notification of the positive

test result. If an employee or job

applicantÓs explanation or challenge is

unsatisfactory to the employer, the person

may contest the drug test result as provided

by subsections (14) and (15).

8. A statement informi ng the employee or

job applicant of his or her responsibility

to notify the laboratory of any

administrative or civil actions brought

pursuant to this section.

9. A list of all drugs for which the

employer will test, described by brand names

or common nam es, as applicable, as well as

by chemical names.

10. A statement regarding any applicable

collective bargaining agreement or contract

and the right to appeal to the Public

Employees Relations Commission.

11. A statement notifying employees and job

applic ants of their right to consult the

testing laboratory for technical information

regarding prescription and nonprescription

medication.

(c) An employer shall include notice of

drug testing on vacancy announcements for

those positions where drug testing is

required. A notice of the employerÓs drug -

testing policy shall also be posted in an

appropriate and conspicuous location on the

employerÓs premises, and copies of the

policy shall be made available for

inspection by the general public during

regular busin ess hours in the employerÓs

personnel office or other suitable

locations.

5 9 . S e ction 440.102 is similar in many respects to section

112.0455 . With respect to notice, section 440.102(3) provides:

(a) One time only, prior to testing, an

employer shall give all employees and job

applicants for employment a written policy

statement which contains:

1. A general statement of the employerÓs

policy on employee drug use, which must

identify:

a. The types of drug testing an employee or

job applicant may be re quired to submit to,

including reasonable - suspicion drug testing

or drug testing conducted on any other basis.

b. The actions the employer may take against

an employee or job applicant on the basis of

a positive confirmed drug test result.

2. A statement advising the employee or job

applicant of the existence of this section.

3. A general statement concerning

confidentiality.

4. Procedures for employees and job

applicants to confidentially report to a

medical review officer the use of

prescription or no nprescription medications

to a medical review officer both before and

after being tested.

5. A list of the most common medications, by

brand name or common name, as applicable, as

well as by chemical name, which may alter or

affect a drug test. A list of such

medications as developed by the Agency for

Health Care Administration shall be available

to employers through the department.

6. The consequences of refusing to submit to

a drug test.

7. A representative sampling of names,

addresses, and telephone numbers of employee

assistance programs and local drug

rehabilitation programs.

8. A statement that an employee or job

applicant who receives a positive confirmed

test result may contest or explain the result

to the medical review officer within 5

working days after receiving written

notification of the test result; that if an

employeeÓs or job applicantÓs explanation or

challenge is unsatisfactory to the medical

review officer, the medical review officer

shall report a positive test result back to

the emp loyer; and that a person may contest

the drug test result pursuant to law or to

rules adopted by the Agency for Health Care

Administration.

9. A statement informing the employee or job

applicant of his or her responsibility to

notify the laboratory of any administrative

or civil action brought pursuant to this

section.

10. A list of all drugs for which the

employer will test, described by br and name

or common name, as applicable, as well as by

chemical name.

11. A statement regarding any applicable

collective bargaining agreement or contract

and the right to appeal to the Public

Employees Relations Commission or applicable

court.

12. A stat ement notifying employees and job

applicants of their right to consult with a

medical review officer for technical

information regarding prescription or

nonprescription medication.

(b) An employer not having a drug - testing

program shall ensure that at lea st 60 days

elapse between a general one - time notice to

all employees that a drug - testing program is

being implemented and the beginning of actual

drug testing. An employer having a drug -

testing program in place prior to July 1,

1990, is not required to pr ovide a 60 - day

notice period.

(c) An employer shall include notice of drug

testing on vacancy announcements for

positions for which drug testing is required.

A notice of the employerÓs drug - testing

policy must also be posted in an appropriate

and conspicuous location on the employerÓs

pr emises, and copies of the policy must be

made available for inspection by the

employees or job applicants of the employer

during regular business hours in the

employerÓs personnel office or other suitable

locations.

60 . It is found that the School Board proved by a

preponderance of the evidence that Respondent was intoxicated when

she reported for work and while she was on duty on May 8, 2017.

This finding is supported by the testimony of Actavis McQueen,

Verna Brown , Ms. Barrett - Baxter, Ken Rod r iguez, and Aaron

Clements, who all testified about her appearance, her unusual

behavior, and the strong smell of alcohol on her person. There is

sufficient evidence without the results of the alcohol

breathalyzer test to support the conclusion that she was

intox icated.

61. The breathalyzer test simply confirms the conclusion

that Respondent was, indeed, under the influence of alcohol. Both

readings were well above any acceptable limit.

6 2 . Respondent does not argue that the breathalyzer test

results are inadm issible. She did not object to the admissibility

of the test results at hearing and includes them in her proposed

findings of fact. Respondent also did not challenge the efficacy

of the machine or the procedure for its use. She contends that

the School District did not comply with the requirements of its

own policy and with the requirements of sections 112.0455 and

440.102, with respect to both the notice provided to Respondent

and the right to consult with the medical review officer prior to

testing , an d that these failures call into question the

reliability of the results .

63. The notice provisions in section s 112.0455 and 440.102

indicate that a one - time notice regarding the program and its

requirements is required , not a test - by - test sort of notifi cation.

Respondent had submitted to applicant screening drug/alcohol

testing prior to employment with the S chool D istrict. Moreover,

as part of her orientation as a School District employee, she

signed an acknowledgment that she had received training on the

Drug - Free Workplace Policy and had received a copy of the New

Employee Handbook. The notice provided through orientation is

sufficient.

6 4 . With respect to the ability to consult with the m edical

r eview o fficer, Respondent reads the School Board Ós D rug and

Alcohol Testing Policy as requir ing the School District to say

that the employee shall meet with the m edical r esource o fficer

both before and after testing. However, the p olicy states that

the employee will be permitted to report confidentially to the

m edical r eview o fficer prior to testing . Here, no evidence was

presented to indicate that Respondent ever asked to speak with the

m edical r eview o fficer , was prohibited from doing so , or what

information she would have provided had the School Board a rranged

such a meeting .

6 5 . Respondent has a valid point w ith respect to the process

to be followed after a positive test result, however. No evidence

was presented to indicate that any of the post - test procedures

were followed with respect to the bre athalyzer test results.

However, given her refusal to submit to the urinalysis, the School

DistrictÓs failure to comply with the post - test procedure becomes

a moot point. Moreover, Respondent participated in a due process

meeting following the testing. No evidence was presented that she

raised this issue at that meeting. Counsel for Respondent wrote

to the s uperintendent on May 22, 2017, as noted in the Findings of

Fact. No thing related to the post - testing review by the m edical

r eview o fficer, or the f ailure to follow the policy, is mentioned.

66 . Finally, Respondent contends that the School DistrictÓs

procedure does not follow the dictates of Florida Administrative

Code Rule 59A - 24. 004(2)(b), which requires that testing for

alcohol will be by blood f or both the initial and confirmation

specimen. 4 / While the School BoardÓs Drug Testing Policy clearly

contemplates breathalyzer testing, AHCAÓs rules do not. 5/ Given

this variance, the breathalyzer tests, standing alone, would not

provid e a basis for a f inding that Respondent was in violation of

the Drug and Alcohol Policy. European Marble Co. v. Robinson , 885

So. 2d 502, 503 (Fla. 1st DCA 2004).

67. There are few cases that interpret either section

112.0455 or section 440.102. None address the valid ity of test

results where the procedures used vary from the rules enacted by

AHCA , other than to hold that the party offering the test results

is not entitled to a presumption (in the workersÓ compensation

arena), that the employeeÓs injury is due to alcoh ol or drug use.

In those cases, additional evidence of intoxication or drug use

would be required . See European Marble , above. Here, that

additional evidence was presented.

68 . With respect to the drug test, the School District has

proven by a prepo nderance of the evidence that Respondent refused

to submit to the urinalysis, even after she was advised that her

refusal would be documented and reported back to the School

District. There is no requirement in the School Board policy that

she be informed , at that time, that her refusal would result in

the termination of her employment. Her training regarding the

Drug - Free Workplace Policy should have alerted her to this fact.

69 . Respondent is charged with violating School Board Policy

6.301(3)(b)(i), quoted above at paragraph 55, which prohibits

insubordination. Mr. Clements gave Respondent a directive, based

on reasonable suspicion, to submit to a drug test. Her refusal

demonstrates a violation of School Board Policy 6.301(3)(b)(i), by

a preponderan ce of the evidence.

70 . School Board Policy 6.301(3)(b)(iii) prohibits violation

of a drug and alcohol policy. The overwhelming evidence presented

at hearing supports the finding that Respondent reported to work

in an intoxicated state and that she was under the influence of

alcohol while on duty , in violation of School Board Policy

6.59(1) .

71 . Respondent contends that she was not on duty on May 8,

2017, because she went home, and only returned to work when

summoned to do so. She also claims that whe n she returned to

work, it was only for a meeting with the principal, and because

she did not return to the classroom, she was not on duty.

72. RespondentÓs argument is rejected as not supported by

the evidence. Respondent signed in for work on the morn ing of

May 8, 2017 , and never signed out . She was not on authorized

leave and was paid for the day. Respondent was required to be

present before the beginning of the school day because she had

responsibilities related to the chorus club, and students wer e

present in her room at a time when she was clearly intoxicated.

Another staff member tried to shield her from the studentsÓ view

out of concern for her inappropriate appearance and behavior.

Respondent was not told by anyone having authority to give su ch a

directive that she should go home, and was not summoned back to

school. While Respondent was not instructing students upon her

return, she was meeting with a superior during the school day.

Clearly, meeting with her principal is within the parameter s of

her position with the School District.

73. School Board Policy 6.301(3)(b) (xix) prohibits a

violation of any rule, policy, regulation, or established

procedure . By its nature thi s catch - all provision is duplicative

when any other policy violation is proven. Inasmuch as a

violation of School Board Policy 6.301(3)(b)(iii) has been proven,

this provision has been proven as well.

74. School Board Policy 6.301(3)(b)(xxix) prohibits any

violation of the Principals of Professional Conduct for the

Educ ation Profession , the Standards of Competent and Professional

Performance, or the Code of Ethics for Public Officers and

Employees. This too, is a catch - all provision that depends on the

violation of a separate standard.

75. School Board Policy 6.301( 3)(b)(xxxvii) prohibits

alcohol - related offenses, including driving under the influence

of alcohol. There is no assertion in the Petition for

Termination that Respondent is being charged with a violation for

driving under the influence. This provision is also duplicative

of the charge of violating the drug and alcohol policy, given the

factual allegations in this case. However, Respondent did

violat e this section of School Board Policy 6.301 by virtue of

her intoxication on school board property at a tim e when she was

supposed to be responsible for children.

76. The Petition for Termination also charges Respondent

with violating rule 6A - 10.081(1)(b) and (c), and (2)(a)1., which

provide s :

(1) Florida educators shall be guided by the

following ethical pr inciples:

* * *

(b) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best profess ional judgment

and integrity.

(c) Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethi cal conduct.

( 2) Florida educators shall comply with the

following disciplinary principles. Violation

of any of these principles shall subject the

individual to revocation or suspension of the

individual educatorÓs certificate, or the

other penalties as provided by law.

(a) Obligation to the student requires that

the individual :

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and safety.

77. Respondent is correct that the provisions in

rule 6A - 10.081(1) are aspirational in nature, and do not serve as

a basis for discipline. By its terms, the rule specifies that

the conduct described in paragraph ( 2), as opposed to those

aspirational principles in paragra ph ( 1 ), may serve as a basis

for discipline. Therefore, the undersigned does not recommend

discipline or termination for a purported violation of the

aspirational goals in rule 6A - 10.081(1)(b) and (c).

78. The School Board has demonstrated that Respondent

violated rule 6A - 10.081(2)(a)1., by failing to protect students

from conditions harmful to learning. Respondent came to school

in an intoxicated state and was in her classroom while students

were scheduled to be present. Only the actions of a co - worker

limited her inter action with the students, because the co - worker

did not want the students to see her in that condition.

Appearing in the classroom during work hours reeking of alcohol

and clearly under its influence is inconsistent with the

standards of conduct that Respondent, as an educator, is expected

to model.

79. Finally, r ule 6A - 5.056 identifies the criteria for

suspension or dismissal of an educator, and provides in pertinent

part:

Ð Just causeÑ me ans cause that is legally

sufficient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued are

set forth in Sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the basis

for each such charge is hereby defined:

* * *

(2) ÐMisconduct in OfficeÑ means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6A - 10.080, F.A.C.;

(b) A violation of the Principl es of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6A -

10.081, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the t eacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

80. The School Board has met its burden of proof to

demonstrate just cause for terminating Respondent.

8 1 . Respondent advocated at hearing that the School Board

should h ave offered her something less than termination, given

that the Drug and Alcohol Policy provides that first - time

offenders with a positive test will be offered an opportunity at

rehabilitation. However, the evidence shows that Respondent

refused the urine test, even after being advised that the School

Board would be notified of her refusal. Paragraph (5)(b) of the

Drug and Alcohol Testing Policy (6.60 * ) mandates that when a n

employee refuse s to test without a valid medical explanation

after receiving not ice of the requirement for testing, his or her

refusal shall result in the employeeÓs discharge. This mandatory

directive comes into play here.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by the

School Board finding that RespondentÓ s conduct as identified in

the Findings of Fact constitute just cause for terminating her

position as a teacher.

DONE AND ENTERED this 2 2nd day of February , 2018 , in

Tallahassee, Leon County, Flo rida.

S

LISA SHEARER NELSON

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 2 2nd day of February , 2018 .

ENDNOTE S

1/ On January 18, 2018, the School Board filed a Notice of

Voluntary Dismissal w ithout Prejudice in Discipline II. The Rule

Challenge pro ceeded to hearing. Neither case has any bearing on

the decision made with respect to this case.

2/ There are two witnesses with the same last name, Verna Brown

and Sherri Brown. To distinguish between the two women, their

full names are used.

3/ Re spondent presented the testimony of Marcella Marshall - Morgan

for the purpose of establishing that Respondent drove her to

Village Green that morning , and that she never noticed anything

that would indicate Respondent was under the influence of drugs

or alc ohol . Ms. Marshall - Morgan testified that Respondent often

drove her to the school to volunteer, and that she had on one

occasion driven her to work in a ren tal car. However, she

testified repeatedly that she did not remember dates and could

not identify when she last rode with Respondent to Village Green.

She testified that her last ride with Respondent could have been

at the end of the school year , and did not recall if it was

May 8 , 2017 . The fact that Respondent once gave her a ride in a

rental car d oes not establish that the ride in a rental car

happened on May 8, 2017.

4 / Section 112.0455(13) gives the Agency for Health Care

Administration (AHCA) the authority to adopt rules that cover,

among other things, methods of analysis and procedures to ens ure

reliable drug - testing results, including standards for initia l

tests and confirmation tests.

5/ School Board Policy 6.60(5)(m) states that Ð [i]f there are

changes in governing statutes, laws, rules, or regulations that

affect all or any part of this policy, the statute, law, rule, or

regulation shall control. Ñ

COPIES FURNISHED:

Barbara L. Sadaka, Esquire

Legal Department

School District of St. Lucie County

7000 Northwest Selvitz Road

Port St. Lucie, Florida 34983

(eServed)

Nicholas Wolfmeyer, Esq uire

Egan, Lev, Lindstron & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

(eServed)

Eric J. Lindstrom, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

(eServed)

E. Wayne Gent, Superintendent

School Dis trict of St. Lucie County

4204 Okeechobee Road

Ft. Pierce, F lorida 34947 - 5414

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissio ner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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.