18-002308 Clay County School Board vs. Carrie Williams Status: Closed Recommended Order on Tuesday, February 12, 2019.

Summary: School Board's failure to follow its own rule on employee drug testing invalidates employee's positive test; recommend employee be reinstated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLAY COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 2308

CARRIE WILLIAMS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing w as held in this case

on September 18, 2018, in Green Cove Springs, Florida, before

Lawrence P. Stevenson, the designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Eric J. Holshouser, Esquire

Michael J effrey Lufkin, Esquire

Buchanan Ingersoll & Rooney, PC

50 North Laura Street, Suite 2800

Jacksonville, Florida 32202

For Respondent: Mark S. Levine, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Petitioner, Clay County School Board

(ÐSchool BoardÑ) , may terminate R espondent's employment as an

non - instructional employee based upon the conduct alleged in the

document titled ÐCharges and Recommended ActionÑ (the ÐChargeÑ)

issued by the Superintendent of Schools , Addison Davis , to

Respondent dated April 17, 2018.

PRELIM INARY STATEMENT

On or about April 17, 2018, Respondent , Carrie Williams ,

received a copy of the Charge, which recommended the termination

of her employment for just cause, based on a positive result

from a random selection drug test to which Ms. Williams

s ubmitted on November 28, 201 7. The Charge alleged that

Ms. Williams failed to comply with the following:

School Board Policy 6GX - 10 - 2.17, Section

A.3.n, ÐNon - compliance with the regulations

and policies of the School Board.Ñ

School Board Policy 6GX - 10 - 2. 17, Section

A.3.k, ÐMisconduct in office.Ñ [and]

School B oard Policy 6GX - 10 - 2.17, Section B,

ÐAlcohol and Substance Abuse.Ñ

A separate letter, also dat ed April 17, 2018, informed

Ms. Williams of her right to request a formal hearing to contest

the charg es. On April 30, 2018, Ms. Williams , through counsel ,

filed a Petition for Formal Hearing, denying the factual

allegations, raising procedural objections to the manner in

which the drug test was conducted, and challenging the proposed

disciplinary action.

On May 3, 2018, the School Board adopted Superintendent

DavisÓs recommendation and terminated Ms. WilliamsÓs

employment for just cause pending disposition of this action.

On May 8, 2018, the School Board referred this matter to

the Division of Administ rative Hearings (ÐDOAHÑ) for the

assignment of an Administrative Law Judge and the conduct of a

formal hearing. The matter was scheduled for final hearing

beginning on September 18, 2018, on which date it was convened

and completed.

At the outset of the h earing, the parties stipulated to the

admission of Joint Exhibits 1 through 3. At the hearing, the

School Board presented the testimony of David Broskie, a ssistant

s uperintendent of Human Resources for the School Board;

Jacqueline Cory, the School BoardÓs d irector of Support

Personnel and Human Resources during the relevant period; Amanda

Johns, a collector and phlebotomist who administered the

disputed drug test to Williams; and Raymond M. Pomm, M.D., a

board - certified psychiatrist, clinician, and addicti on

specialist. The School BoardÓs Exhibits 1 through 8 and 10

through 14 were admitted into evidence. School Board Exhibit 14

was the deposition transcript for Philip A. Lopez, M.D. , and

exhibits referenced therein.

Ms. Williams testified on her own beh alf and presented the

testimony of Superintendent Davis; Betsy Reagor, a service unit

director for the Florida Education Association (ÐFEAÑ) , assigned

to the Clay Education Staff Professional Association Local 7409

(ÐCESPAÑ); and Lonnie Roberts, an electro nic technician in the

School BoardÓs maintenance department and CESPA v ice p resident.

Ms. WilliamsÓs Exhibits 1 through 8 were admitted into evidence.

It is noted that Ms. WilliamsÓs Exhibits 3, 4, and 7 are

duplicative of Joint Exhibits 1 through 3.

The one - volume Transcript of the hearing was filed at DOAH

on October 2, 2018. Two unopposed extensions of the time for

filing proposed recommended orders were granted by O rders dated

November 15 and December 10, 2018. In compliance with the

deadline set by the second extension O rder, the parties filed

their Proposed Recommended Orders on December 14, 2018.

FINDING S OF FACT

1. Article IX, section 4 of the Florida Constitution ,

establishes that each county constitutes a school district. The

School Board is the constitutional entity authorized to operate,

control, and supervise the pub lic schools for Clay County.

§ 1001.42, Fla. Stat.

2. A Collective Bargaining Agreement (ÐCBAÑ) between the

School Board and CESPA governs the relationship between the

School Board and its educational support employees.

3. Respondent Carrie Williams was hired by the School

Board in 1998. At all material times, Ms. Williams worked for

the School Board as a non - instructional Exceptional Student

Education (ÐESEÑ) a ssistant at Bannerman Learning Center, an

elementary school within the Cl ay County school district.

Ms. Williams was an Ðeducational support employeeÑ as that term

is defined by section 1012.40(1)(a), Florida Statutes (2018) .

Educational support employees working fo r the School B oard are

covered by the CBA.

4. Ms. Williams remained employed by the School Board from

1998 until May 3, 2018, when the School Board terminated her

employment for just cause after she tested positive for cocaine

and marijuana metabolites on a random drug test.

5. Ms. Williams had been subject to no prior discipline as

a School Board employee.

6. As an ESE a ssistant, Ms. Williams had job

responsibilities that included transporting exceptional students

in vehicles owned by the School Board. Ms. Williams was

required by the School Board to have a valid Florida driverÓs

license and a safe driving record while employed.

7. Because of her student transp ortation job duties and

driving - related job qualifications, Ms. Williams was subject to

rand om drug testing under the School BoardÓs Alcohol and

Substance Abuse Policy (ÐSubstance Abuse PolicyÑ), rule 6GX - 10 -

2.17B. Language in Article XII(B) of the CBA reflects the

Substance Abuse PolicyÓs random drug testing requirements.

8. The Substance Abus e Policy, in conjunction with the

CBA, establishes standards for the School BoardÓs drug testing

of support employees. For employees who operate commercial

motor vehicles (ÐCMVÑ) and , as such , perform Ðsafety sensitive

functions , Ñ as defined by Federal re gulations, the Substance

Abuse Policy and CBA require random drug testing that complies

with the Omnibus Transportation Employee Testing Act of 1991

(ÐOTETAÑ). The Federal Department of Transportation (ÐDOTÑ)

requirements for this testing regime are codif ied at 49 C.F.R.

Part 40. The tests are colloquially referred to as ÐDOT tests.Ñ

9. School Board employees such as Ms. Williams, who are not

covered by OTETA , but whose job descriptions require a valid

driverÓs license other than a CMV license, are also subject to

random drug testing under the Substance Abuse Policy and the

CBA. The Substance Abuse Policy states, at 6GX - 10 - 2.17

B.10.a.(2), that the procedures used for testing and review of

test results for these non - OTETA employees Ðshall be the same as

those established for CMV operators as specified in [Substance

Abuse Policy] 2.17 B.9,d.,e.Ñ The cited Substance Abuse Policy

specifications provide as follows:

d. Drug Testing Procedures : With respect

to drug testing procedures OTETA requires

the use of a Ðsplit sampleÑ approach, which

provides employees an option for a second

screening test following positive findings

on the primary sample. [1/] All testing for

controlled substances shall be performed on

urine specimens and be accomplished by means

of an initial screen (Enzyme Immunoassay or

EIA), followed by a confirmation of any

positive findings by Gas Chromotography/Mass

Spectrometry or GC/MS. All controlled

substances testing will be carried out at a

laboratory certified by the Department of

Heal th and Human Services (DHHS).

Urine spectrometry shall be screened for

amphetamines, cannabinoids, cocaine,

phencyclidine, and opiates.

e. Review of Controlled Substance/Alcohol

Test Results : All laboratory results

generated by the DistrictÓs drug test ing

program shall be reviewed by a medical

review officer (MRO). The MRO is a licensed

physician (medical doctor or doctor of

osteopathy) having knowledge of substance

abuse disorders and having appropriate

medical training to interpret and evaluate

an in dividualÓs confirmed positive test

result, together with his/her medical

history and any other relevant biomedical

information.

Prior to verifying a ÐpositiveÑ result, the

MRO shall make every reasonable effort to

contact the employee (confidentially), an d

afford him/her the opportunity to discuss

the test result. If, after making all

reasonable efforts and documenting them, the

MRO shall contact the DistrictÓs key

contact, who shall direct the employee to

contact the MRO as soon as possible (within

24 ho urs). [2/]

Under split - sample collection procedures,

the employee has seventy - two (72) hours

following notification of a positive result

to request the secondary sample be analyzed.

Analysis of the split - sample specimen shall

be at the employeeÓs expense and shall be

paid in advance with a money order or

certified check. [3/]

10. Article XII(B)(2) of the CBA likewise provides that

non - OTETA employees who hold a position for which a driverÓs

license is required Ðshall be subject to random drug testing.Ñ

I t goes on to provide: ÐThe method used to generate the list of

randomly selected employees and all other aspect of the drug

testing for this group of employees shall be the same as for

OTETA covered employees. Specifically, this shall require that

Federa l standards be met with regard to specimen collection and

handling, testing procedures, the use of a Medical Review

Officer (MRO) to review all test results, and reporting

procedures.Ñ

11. At all times relevant to this proceeding, Ms. Williams

was aware o f the School BoardÓs Substance Abuse Policy and that

she could be subjected to random drug testing. She also

understood that the School Board could take disciplinary action

up to and including termination of her employment as a

consequence of a failed dru g test.

12. In spite of the clear language of the Substance Abuse

Policy providing that non - OTETA employees , such as Ms. Williams ,

shall be subjected to the same testing procedures as OTETA

employees, i.e., the DOT test, the School Board conceded at

heari ng that its long established practice has been to provide a

Ðnon - DOTÑ drug test to employees in Ms. WilliamsÓs position.

David Broskie, assistant s uperintendent for Human Resources,

testified that for as long as he could remember the School

BoardÓs practi ce has been to require employees with commercial

driverÓs licenses (ÐCDLsÑ) to take the DOT test , and to require

employees with regular driverÓs licenses to take the non - DOT

test. Mr. Broskie stated that neither CESPA nor any individual

employee has ever filed a grievance or otherwise challenged the

School BoardÓs practice.

13. Both the DOT and non - DOT tests are subjected to the

same five - panel drug screen set forth in 49 C.F.R. § 40.85,

i.e., marijuana metabolites, cocaine metabolites, amphetamines,

opia te metabolites, and phencyclidine ( Ð PCP Ñ ). Both tests

employ the same standardized cutoff levels for the presence of

drugs in the urine. Evidence provided at the hearing

established that the chief difference is that the DOT test

employs the split specime n technique , whereby the u rine sample

is divided into two specimens at the point of collection. In

the non - DOT test, a single urine specimen is sent to the lab,

which may then retain a portion of the specimen for potential

retesting.

14. On the morning o f November 28, 2017, School Board

personnel alerted Ms. Williams that she had been selected for a

random drug test. She went to the School BoardÓs administrative

office and completed the School BoardÓs consent form for a non -

DOT drug test. The consent fo rm required her to submit to a

random drug screen at ClayMed of North Florida ( Ð ClayMedÑ) , the

School B oardÓs drug screening service provider, no later than

8:30 a.m.

15. ClayMedÓs facility is less than two minutes from the

School BoardÓs administrative o ffice. Ms. Williams arrived

there at 8:15 a.m. , and recorded her name and arrival time on

the patient sign - in sheet.

16. Amanda Johns has been employed by ClayMed as a

collector, phlebotomist, and a breath alcohol technician for

four years, and has 19 ye arsÓ experience in the drug screening

collection industry. Ms. Johns was on duty at ClayMed on the

morning of November 28, 2017. She witnessed Ms. Williams sign

in and then assisted her in the sample collection process.

Ms. Johns testified, consistent w ith the sign - in sheet, that

Ms. Williams was the first patient to sign in that morning , and

that the next patient did not arrive until 8:45 a.m.

17. After Ms. Williams signed in, Ms. Johns took her back

to a desk and chair approximately five feet from a b athroom in

the rear of ClayMedÓs office wher e urine samples are given.

Ms. Williams provided Ms. Johns with the School Board Ós consent

form.

18. Ms. Johns verified Ms. WilliamsÓs identification and

the accuracy of her paperwork, made appropriate notati ons on it,

had Ms. Williams empty her pockets, gave her a cup for the urine

sample collection, and sent her to the nearby bathroom to

provide the specimen.

19. Ms. Johns remained at the collection desk directly

facing the bathroom for the entire time Ms. Williams was in the

bathroom. Ms. Johns was at the desk when Ms. Williams exited

with her urine sample.

20. At the hearing, Ms. Williams testified that after she

exited the ClayMed bathroom , and was standing with her urine

sample at the collection desk, she received a telephone call

concerning her motherÓs medical condition. Ms. Williams

testified that she told Ms. Johns that she had an emergency and

needed to leave. She testified that she set her urine sample on

the corner of the collection desk and le ft ClayMed before the

collection process was completed. She stated that there were

other urine samples on the desk at the time she placed her

sample there.

21. Ms. WilliamsÓs testimony on this point is contradicted

by Ms. Johns and by the documentary evi dence. Ms. Johns

testified that Ms. Williams did not receive a call and did not

leave ClayMed before completi ng the collection process.

Ms. Williams turned over her ur ine sample to Ms. Johns at

8:23 a.m., as indicated on the n on - DOT Custody and Control F orm

that Ms. Johns completed at the time of collection. The Custody

and Control Form identified Ms. Williams as the donor , and

connected her to the sample container via matching specimen

numbers.

22. After Ms. Williams placed her urine sample on the

co llection desk, Ms. Johns removed one of the two tamper seal

labels from the bottom of the Custody and Control Form, affixed

it over the top of the sample bottle, dated the label, and

provided it to Ms. Williams for her initials. In fact,

Ms. Johns had to go through this process twice in Ms. WilliamsÓs

presence because she inadvertently dated the first label

Ð11/27.Ñ Ms. Johns removed the first label, put on the second

of two tamper seal labels from the Custody and Control Form,

dated it correctly, and had Ms. Williams initial the sample a

second time.

23. Ms. Williams signed the Custody and Control Form,

certifying (a) that she provided her urine specimen to the

collector, (b) that Ms. Williams had not altered her urine

sample in any way, (c) that the spe cimen bottle used was sealed

with a tamper - evident seal in her presence, and (d) that the

information provided on the Custody and Control Form and on the

corollary label affixed to the specimen bottle was correct.

24. Ms. Johns testified that Ms. Williams left ClayMed

immediately after completi ng the collection process.

Ms. Williams departed ClayMed before the next patient arrived

and signed in at 8:45 a.m.

25. As to her claim that other urine samples were sitting

on the collection desk when she left her sample, Ms. Williams

could offer no specific description as to how many there were or

whether they were labeled. Ms. Johns unequivocally stated that

there were no other urine samples on the collection desk when

she took Ms. WilliamsÓs sample. Ms. JohnsÓ testimony is

supported by the fact that Ms. Williams was the first patient of

the day, making it highly unlikely that other samples would be

on the desk. Ms. Johns testified that there was no chance that

Ms. WilliamsÓs urine sample was switched with some one elseÓs.

26. Ms. JohnsÓ version of events on the morning of

November 28, 2017, is credi ted. Chain of custody over

Ms. WilliamsÓs urine sample was appropriate at all material

times.

27. Ms. WilliamsÓs urine sample was sent to Laboratory

Corporation of America (ÐLabCorpÑ) in Southaven, Mississippi ,

for testing. LabCorp received the urine sample on November 29,

2017, with no material deficiencies noted. The lab specifically

noted on the Custody and Control Form that the primary specimen

bottle seal for Ms. WilliamsÓs urine sample was intact on

November 29, 2017.

28. On November 30, 2017, LabCorp conducted an initial

immunoassay test on Ms. WilliamsÓs urine sample that yielded a

presumptive result positive for marijuana and cocaine

metabolites. LabCorp then performed a confirmation test using

gas chromatography/mass spectrometry (ÐGC/MSÑ), which resulted

in Ms. WilliamsÓs urine sample being confirmed positive for

marijuana metabolite and cocaine metabolite. A laboratory

report was issued that same day.

29. The positive results were forwarded to First Source

Solutions, the School BoardÓs MRO service provider, and were

reviewed there by MRO Philip A. Lopez, M.D. On December 1,

2017, Dr. Lopez called Ms. Williams twice, once at 9:28 a.m. and

again at 12: 57 p.m., 4/ to discuss the positive results of the

tests, but was unable to reach her. At 3:26 p.m. on the same

day, 5/ Dr. LopezÓs office contacted Jacqueline Cory, the School

BoardÓs d irector of Support Personnel and Human Resources,

advising that Dr. Lop ez had been unable to reach Ms. Williams.

Dr. LopezÓs office asked Ms. Cory to call Ms. Williams and give

her Dr. LopezÓs contact inform ation. Ms. Cory spoke with

Ms. Williams on the afternoon of December 1 and told her that

she needed to contact Dr. Lop ez that day. Ms. Williams did not

call Dr. Lopez that day.

30. On December 3, 2017 , Dr. Lopez determined that

Ms. WilliamsÓs drug screen was positive for cocaine and

marijuana.

31. On December 4, 2017, at 8:19 a.m., First Source

Solutions contacted Ms. Cory to inform her that they were

releasing Ms. WilliamsÓs drug test results to the School Board

as Ðno contact, positive for marijuana and cocaine.Ñ Shortly

thereafter, Ms. Cory accessed the MROÓs report with a final

verification of positive for cocaine and marijuana and took it

to Mr. Broskie. Mr. Broskie instructed Ms. Cory to call

Ms. Williams and set up an appointment for them to meet with her

the following day.

32. When Ms. Cory called Ms. Williams, she told her that

the School Board had receive d a positive report from her random

drug screen and that Mr. Broskie wanted to meet with her about

it the following day. Ms. Williams agreed to meet, but stated

to Ms. Cory that she could not understand the test result.

33. Also on December 4, 2017, at 2 :38 p.m., Ms. Williams

phoned Dr. Lopez. Ms. Williams denied that she had used

marijuana or cocaine, but admitted to what Dr. Lopez

characterized as Ðpassive exposure.Ñ Dr. Lopez asked her a

series of questions designed to probe whether there was an

alte rnative, medically reasonable explanation for the presence

of marijuana and cocaine in Ms. WilliamsÓs drug screen.

However, Ms. WilliamsÓs answers provided no such explanation.

Consequently, Dr. Lopez advised Ms. Williams that her drug test

result would be set as positive for cocaine and marijuana.

34. A meeting between Ms. Williams, CESPA union

representative Betsy Reagor, Ms. Cory, and Mr. Broskie was held

on December 5, 2017. Mr. Broskie explained to Ms. Williams that

the School Board had received a drug test report positive for

cocaine and marijuana and that, consistent with School Board

practice, Ms. Williams was being suspended with pay, pending an

investigation. Ms. Williams denied drug use and stated that she

did not think it was her urine that was tested. She offered to

give another urine sample.

35. Mr. Broskie advised Ms. Williams that School Board

policy provided her 72 hours from the time she was notified of

the test result to request that the urine sample she gave on

November 28, 2017, be retested. 6/ Mr. Broskie further informed

Ms. Williams that she would be responsible for the cost of

retesting. 7/

36. On December 6, 201 7 , Ms . Williams spoke again with

Dr. Lopez by telephone. She again denied drug use, but provided

Dr. Lopez with no new medical information to justify a change in

her positive drug test. Ms. Williams did not contact Dr. Lopez

and First Source Solutions to request a retest of her urine

sample until the morning of December 8, 2017. This was more

than 72 hours after she received notice of her positive drug

test result from Ms. Cory and Dr. Lopez on December 4, 2017.

37. A timeline of events provided to the School Board in

January 2018 by First Source Solutions indicates that problems

with a money order and later a check submitted by Ms. Williams

to pay for the retest pre vented it from being done.

Ms. Williams first attempted payment in mid - December 2017 and

finally gave up on January 4, 2018.

38. In January 2018, th e School Board transitioned

Ms. Williams from Ðsuspende d with payÑ to Ðsuspended without

pay.Ñ Mr. Broskie testified that the School Board normally

would move immediately for termination of an employee with a

positive drug result. However, the School Board wished to give

Ms. Williams the benefit of the doubt because she had denied

drug use and had spoken of asking for a retest. The School

Board decided to proceed cautiously while it investigated the

matter.

39. In mid - January 2018, Ms. Cory communicated with First

Source Solutions about obtaining the above - referenced timeline

of events. Ms. Cory also confirmed with First Source Solutions

that Ms. WilliamsÓs urine sample had been available for

retesting, as well as the length of time the specimen would

remain available and whether the company could conduct a DNA

test on Ms. WilliamsÓs urine.

40. After receiving the timeline from First Source

Solutions, Ms. Cory passed it on to Mr. Broskie as part of the

investigatory process. They took special note of the timeline

entry in which Dr. Lopez wrote that Ms. Williams had admitted

Ðpassive exposure.Ñ Ms. Cory testified that she took this to

mean that Ms. Williams acknowledged she had been around

marijuana and cocaine.

41. Ms. Cory also obtained information from ClayMed

concerning Ms. WilliamsÓs drug screen. This included, among

other things, obtaining a copy of the n on - DOT Custody and

Control Form signed by Ms. Williams on November 28, 2017, and

ClayMedÓs Patient Sign - In sheet for that day.

42. On February 7, 2018, Ms. Williams independently

submitted to a h air follicle drug test. A single hair was

collected from Ms. WilliamsÓs head at that time and sent to

United States Drug Testing Laboratories, Inc.Ós (ÐUSDTLÑ) for

testing. USDTL performed a five - panel drug screen on

Ms. WilliamsÓs hair specimen on Febru ary 13, 2018, and reported

negative test results for c ocaine and cannabinoids.

Ms. Williams offered the hair follicle test results to the

School Board as evidence that the November 2017 drug screen was

erroneous.

43. Both parties presented expert evidenc e on the efficacy

of hair follicle testing generally , and on the particular

question of whether a negative hair follicle test on February 7,

2018, could call into question the result of the urine drug test

of November 28, 2017. Ms. Williams introduced the deposition

testimony of Donald E. Palm, III, Ph.D., an expert in

pharmacology with a professional focus in neuropharmacology.

Dr. Palm opined that the hair follicle test was a valid

indicator of whether cocaine an d marijuana were present in

Ms. WilliamsÓ s system on November 28, 2017. Dr. Palm stated

that, because hair is a stable matrix to preserve a drug,

samples of drugs can be detected in hair Ðup to three to even

six monthsÑ after ingestion. A urine screen is capable of

detecting cocaine metabolites for three or four days after

ingestion and cannabinoids for perhaps six days. Dr. Palm cited

research indicating that an African AmericanÓs hair is thicker

and richer in melanin, factors that provide a Ðperfect matrixÑ

for preserving drugs in the system. Ms. Williams is African

American.

44. The School Board offered testimony and a written

expert opinion at the final hearing from Raymond M. Pomm, M.D.,

a board - certified physician specializing in addiction

psychiatry ; a certified MRO ; and c hief m edical o fficer for

Gateway Community Services, an addiction treatment facility in

Jacksonville. Dr. Pomm has been involved in hair follicle

testing and assessing drug screens involving hair follicle

specimens for many years. He developed the protocols

standardiz ing the utility of hair follicle testing for the State

of FloridaÓs impaired professionals program.

45. Dr. Pomm testified that hair follicle testing has been

around for a long time but has limitations. A hair test might

or might not show a positive for three months or longer,

depending on circumstances. Excessive washing, hair treatments,

or hair straightening can disrupt the bonds of hair follicles

and invalidate test results. Dr. Pomm testified that marijuana

is not easily taken up into the hair fol licle, especially in

hair with high melanin content. He agreed with Dr. Palm that

African American hair may be optimal for a cocaine test, but

noted research indicating that the rate for positive cocaine

tests is only 40 percent after a couple of months.

46. Dr. Pomm described urinalysis testing at the GC/MS

level as the Ðgold standardÑ in the industry. It tests at the

molecular level. If the molecule is there, the test detects it.

The GC/MS test does not detect something that is not there.

Cocaine an d marijuana metabolites are detected in a urinalysis

only when the drugs have been ingested; Ðpassive exposureÑ is

not enough to generate a positive GC/MS result.

47. Dr. Pomm opined that he could not medically conclude

from Ms. WilliamsÓs negative hair f ollicle test that her

November 2017 urinalysis was erroneous. In his words, Ða

negative hair follicle testing has absolutely no relevance to

the original test through urinalysis that was positive.Ñ

48. In the ÐFrequently Asked QuestionsÑ portion of its

public webpage, USDTL has published the following questions and

answers:

Q. Can a hair test be manipulated by the

donor?

A. Yes. Bleaching, perming, dyeing and

straightening can affect the outcome of a

hair test. Commercially treated hair should

not b e collected.

Q. Can a hair test be used to prove that a

previously taken urine test was inaccurate?

A. No. T he results of any second collected

specimen have absolutely no bearing on the

validity of the results of the first

collected specimen. Further more, each

matrix has its own advantages, disadvantages

and limits of interpretation.

49. The preponderance of th e evidence establishes that

Ms. WilliamsÓs hair follicle test of February 7, 2018, does not

invalidate the results of the random urine drug t est that

Ms. Williams took on November 28, 2017.

50. Dr. Pomm further opined that nothing in this case

suggests that the School BoardÓs deviation from DOT protocols in

collecting Ms. WilliamsÓs November 2017 urine sample adversely

affected the reliability of the test result: ÐThe urine is the

urine. Whether itÓs split or not, itÓs still the urine.Ñ

Whether the specimen is split at the collection site or later at

the lab makes no clinical difference. The same five - panel drug

screen, with the same standa rd cutoff levels, is used in both

DOT and non - DOT drug tests.

51. In a document titled ÐFact Finding Memorandum,Ñ dated

April 16, 2018, Mr. Broskie wrote as follows:

The recommendation to terminate Carrie

WilliamsÓs employment with the Clay County

School District is based on her having

submitted to a urinalysis test which came

back positive for marijuana and cocaine use.

As an ESE Assistant, one of the essential

functions of Ms. WilliamsÓs job was to

transport students in a motor vehicle, and

as a result of that, she is considered to be

in a safety sensitive position subjecting

her to random drug testing under the School

BoardÓs Alcohol and Substance Abuse policy.

She was randomly selected for such testing

on November 28, 2017, and the district

received p ositive test results for her

marijuana and cocaine use on or about

December 4, 2017 (copy attached). She was

placed on unpaid suspension on January 8,

2018.

Under the School BoardÓs Alcohol and

Substance Abuse policy, Ms. Williams could

have elected with in 72 hours to have her

split sample retested at her expense, [8/] but

she chose not to exercise that right though

she delayed for weeks in making a decision.

Rather, through her attorney, she has

contended that when she gave her urine

sample in November 2 017, several other

patients were at the collection facility and

that multiple samples were setting out on a

counter unmarked so hers must have been

mixed up with someone elseÓs sample. Then,

in early F ebruary 2018, approximately

two and a half months afte r she was tested,

she provided a urine and hair sample for

testing at a laboratory she selected, and

the results came back negative. Her

attorney contends that while the urinalysis

test would only detect the presence of

illegal drugs recently ingested, th e hair

sample provides a record of drug use going

back 90 days, thus proving the sample taken

in November 2017 was not Ms. WilliamsÓs .

The union and her attorney have also claimed

that Ms. Williams does not fit the profile

of a drug user and that she has consistently

maintained she never ingested any illegal

drugs.

I investigated the above and have determined

that Ms. WilliamsÓs defense to the positive

drug test to be insufficient based on the

following:

* Two certified medical review officers

(ÐMROÓsÑ) , one of whom is a certified

addiction psychiatrist retained to advise

the School District on drug testing, have

given the District an opinion that a single

episode of illegal drug use will not result

in a positive hair sample drug test,

particularly one m ore than 60 days after the

illicit drug use.

* The collection site and testing

laboratory have confirmed they properly

followed specimen collection and chain of

custody protocols, including properly

marking and sealing Ms. WilliamsÓs sample.

Also, the s ign - in sheet at the collection

site (co py attached) documents that

Ms. Williams was the first to give a sample

on November 28, 2017 and that the next

patient did not even sign in until more than

20 minutes after she already had donated her

sample, directly contradicting her claim

that others were there at the same time and

that multiple samples were setting on the

counter.

* The contemporaneous notes of the MRO who

certified the initial drug test result

document that Ms. Williams admitted to

passive expos ure, contrary to her later

denial of any ingestion of illegal drugs

(see attached).

* The certified addition psychiatrist/MRO

disputes that drug use can be determined by

profiling individuals.

Given that studentsÓ safety is of utmost

concern to the Dist rict and Superintendent,

and the risk of a negligent retention claims

of employing someone who tested positive to

drive children, employment termination is

recommended.

52. The Substance Abuse Policy prohibits a School Board

employee from reporting to wo rk with illegal drugs in his or her

system. The Substance Abuse Policy further prohibits School

Board employeesÓ use of illegal drugs off duty and off School

Board property because such use Ðmay adversely affect on - the - job

performance and the confidence o f the public in the School

districtÓs ability to meet its responsibilities.Ñ Employees who

violate the Substance Abuse Policy are subject to discipline , up

to and including termination.

53. The School BoardÓs Discipline Policy ( Ð Discipline

PolicyÑ) , 6GX - 10 - 2.17 and Article X of the CBA provide that the

School Board may dismiss any employee for just cause. The

Discipline Policy establishes that Ð[j]ust cause shall include,

but is not limited toÑ a variety of violations, among them

Ðmisconduct in officeÑ and Ðnon - compliance with regulations and

policies of the School Board, State Board of Education, or the

laws of Florida.Ñ

54. The Discipline Policy and the Substance Abuse Policy

are communicated to School Board employees through the School

BoardÓs Emplo yee Handbook. It is undisputed that Ms. Williams

was aware of the School Board Ós drug testing policy and that she

was subject to random drug testing during her employment.

55. The Substance Abuse Policy and CBA do not provide for

mandatory termination for employees who fail drug tests, but the

School BoardÓs established practice is to terminate employees

testing positive for illegal drugs. Superintendent Davis

testified that the rationale for the School BoardÓs practice is

safety - based. He stated that student safety is the School

BoardÓs greatest priority. Employees who transport students and

test positive for cocaine and marijuana will face termination

Ð100 percent of the time.Ñ

56. Prior to this case, Mr. Broskie had been involved in

disciplining f ive or six other School Board employees who tested

positive for illegal drugs. Each case resulted in either

termination of employment by the School Board or the employeeÓs

voluntary resignation in lieu of termination.

57. When questioned as to why the Sc hool B oard did not

employ progressive discipline in light of Ms. WilliamsÓs prior

spotless record, Superintendent Davis responded that the School

BoardÓs Ðprogressive discipline menuÑ was in fact consulted and

that the appropriate consequence for the circu mstance was

selected.

58. On April 17, 2018, Su perintendent Davis provided

Ms. Williams with written notice of his recommendation that the

School Board terminate her employment based on her misconduct in

office and violations of School Board policies.

59 . On May 3, 2018, the School Board accepted the

SuperintendentÓs recommendation and terminated Ms. WilliamsÓs

employment for j ust cause effective May 17, 2018 .

60. Ms. Williams had the re maining portion of her

November 28, 2017, urine sample retested by a Quest Diagnostics

Incorporated laboratory between May 10 and May 13, 2018. The

retest reconfirmed the presence of cocaine and marijua na

metabolites in Ms. WilliamsÓs urine sample.

61. On May 15, 2018, Dr. L opez reviewed the retest of

Ms. WilliamsÓs ur ine sample and reconfirmed that it was positive

for cocaine and marijuana.

62. Mr. Broskie test ified that his opinion that

Ms. WilliamsÓs employment should be terminated is unchanged by

the fact that she was given a non - DOT drug test. Echoing

Dr. Pomm, M r. Broskie stated that the lack of split sampling at

the point of collection had no effect on the ultimate test

result because the same five - panel drug screen is administered

in both DOT and non - DOT drug tests.

63. Ms. Williams counters that the Federal D OT's rules are

explicit and detailed, providing for security measures at the

test site, procedures for the taking of the urine samples, chain

of custody for urine samples, and guarantees of privacy for

employees. 49 C.F.R. p t . 40. For example, urine coll ectors are

required to do all of the following before each collection:

(1) Secure any water sources or otherwise

make them unavailable to employees (e.g.,

turn off water inlet, tape handles to

prevent opening faucets);

(2) Ensure that the water in the t oilet is

blue;

(3) Ensure that no soap, disinfectants,

cleaning agents, or other possible

adulterants are present;

(4) Inspect the site to ensure that no

foreign or unauthorized substances are

present;

(5) Tape or otherwise secure shut any

movable to ilet tank top, or put bluing in

the tank;

(6) Ensure that undetected access (e.g.,

through a door not in your view) is not

possible;

(7) Secure areas and items (e.g., ledges,

trash receptacles, paper towel holders,

under - sink areas) that appear suitabl e for

concealing contaminants; and

(8) Recheck items in paragraphs (b)(1)

through (7) of this section following each

collection to ensure the siteÓs continued

integrity.

49 C.F.R. § 40.43(b).

64. The evidence produced at the hearing did not establish

that these exemplar procedures or the other collector procedures

prescribed by 49 C.F.R. Part 40, Subparts D & E were followed by

ClayMed. Obviously, the many provisions specific to split

specimen testing were not followed due to the School BoardÓs

initi al instruction that Ms. Williams be given a non - DOT test.

65. The DOT rules provide that in undertaking the

verification process, an MRO must not consider any evidence from

tests of urine samples or other body fluids (e.g., blood or hair

samples) that are not collected or tested Ðin accordance with

this part.Ñ 49 C.F.R. £ 40.151(a). The MRO is required to make

reasonable efforts to reach the employee to notify him or her of

positive test results. ÐReasonable efforts include, at a

minimum, three attempts , spaced reasonably over a 24 - hour

period, to reach the employeeÑ at the numbers the employee has

provided. These efforts must be documented, including dates and

times, before the MRO may contact the Designated Employer

Representative (ÐDERÑ) and direct t hat person to contact the

employee. 49 C.F.R. § 40.131(c).

66. If the DER becomes the first point of contact, the DER

must attempt to contact the employee immediately and inform the

employee of the consequences of failing to contact the MRO

within the ne xt 72 hours, which are that the MRO may verify the

test as positive. 49 C.F.R. § 40.131(d).

67. After verifying a drug test as positive, the MRO is

required to inform the employee of his or her right to have the

split specimen tested, as follows:

(b) Y ou must inform the employee that he or

she has 72 hours from the time you provide

this notification to him or her to request a

test of the split specimen.

(c) You must tell the employee how to

contact you to make this request. You must

provide telephone numbers or other

information that will allow the employee to

make this request. As the MRO, you must

have the ability to receive the employeeÓs

calls at all times during the 72 hour period

(e.g ., by use of an answering machine with a

Ðtime stampÑ feature when there is no one in

your office to answer the phone).

(d) You must tell the employee that if he

or she makes this request within 72 hours,

the employer must ensure that the test takes

place, and that the employee is not required

to pay for the test from his or her own

funds before the test takes place. You must

also tell the employee that the employer may

seek reimbursement for the cost of the test

(see § 40.173).

(e) You must tell the employee that

additional tests of the specimen ( e.g., DNA

test s) are not authorized.

49 C.F.R. § 40.153.

68. The evidence produced at hearing established multiple

failures by the School Board and its MRO to comply with the DOT

testing requirements. In even co nsidering the non - DOT test,

Dr. Lopez, the MRO, acted i n contravention of the DOT

requirement that he consider only evidence from tests of urine

samples collected in accordan ce with 49 C.F.R. Part 40.

Dr. Lopez ma de only two attempts in a three - hour period to

contact Ms. Williams on Dece mber 1, 2017, the firs t at

9:28 a.m., the second at 12:57 p.m. At 3:26 p.m., Dr. Lopez

phoned Ms. Cory (the presumptive DER) to ask her to call

Ms. Williams and give her his contact information.

69. Ms. Cory spoke with Ms. Williams that afternoon and

told her she needed to contact Dr. Lopez that day. The record

is silent as to whether Ms. Cory informed Ms. Williams of the

s ignificance of the following 72 - hour period. In any event,

Dr. Lopez reported the test Ðno contact, positive for marijuana

and cocaineÑ at 8:19 a.m. , o n December 4, 2017. This was

slightly sooner than 72 hours after Dr. LopezÓ s first,

unsuccessful attempt to phone Ms. Williams and much sooner than

72 hours after Ms. Cory actually contacted Ms. Williams on the

afternoon of December 1 , 2017 .

70. Ms. Will iams phoned Dr. Lopez on December 4, 2017, at

2:38 p.m. Dr. Lopez testified as to what he and Ms. Williams

discussed but did not state whether he gave her the information

required by 49 C.F.R. § 40.153, particularly the notification

that she was not requi red to pay for any retest from her own

funds before the test took place.

71. In urging that its failure to follow the DOT testing

procedure mandated by its own p olicy was harmless error, the

School Board narrowly focuses on the laboratory test result

wi thout considering the myriad procedural and substantive

protections denied to Ms. Williams by the failure of the School

Board to use the DOT test protocols. In addition to the

initial, fatal flaw of failing to require a split sample, the

School BoardÓs MR O failed to make reasonable efforts to contact

Ms. Williams about her test result. The MRO also deni ed

Ms. Williams the proper 72 - hour notice before her test was

verified as Ðpositive, no contact.Ñ

72. The School Board denied Ms. Williams a retest beca use

of her inability to pay for it, despite a clear DOT requirement

that the School Board pay for the test if she could not. There

is every reason to believe that Ms. Williams would have promptly

requested a retest had she been told that she was not requi red

to come up with the money immediately. Mr. BroskieÓs testimony

and his ÐFact Finding MemorandumÑ make clear that Ms. WilliamsÓs

failure to request a retest within 72 hours and her subsequent

failure to pay for a retest played a significant role in the

recommendation to terminate her employment. Thus, the School

BoardÓs errors were not merely procedural. The School Board

denied Ms. Williams the substantive right to a timely retest of

a split sample specimen , then used the lack of a retest as

evidence against her.

73. It is axiomatic that an agency must follow its own

rules. The fact that the agency has disregarded a specific

provision of its rules for as long as its employees can remember

is irrelevant once the illicit practice is challenged. The

School B oardÓs prior failures should not be visited upon

Ms. Williams.

74. There is no way of knowing how events would have

played out if the School Board had followed its own adopted

p olicy and sent Ms. Williams for a DOT drug test. The School

Board Ós failure to comply with its own Substance Abuse

Policy 6GX - 10 - 2.17 B.10 and Article XII of the CBA renders the

non - DOT drug test administered to Ms. Williams invalid.

CONCLUSIONS OF LAW

75. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and

1012.33(6)(a), Florida Statutes (2018) .

76. The School Board has the burden to establish by a

preponderance of the evidence t he grounds for disciplining

Ms. Williams. See, e.g. , McNeill v. Pinellas Cnty. Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty.

Sch. Bd. , 664 So. 2d 1178, 1179 (Fla. 5 th DCA 1995); Allen v.

Sch. Bd. o f Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990);

Dileo v. Sch. Bd. o f Dade Cnty. , 569 So. 2d 883, 884 (Fla. 3d

DCA 1990).

77. As a non - instructional ESE a ssistant, Ms. Williams is

an Ðeducational support employee,Ñ as defined by section

1012.40(1)(a) , Florida Statutes . Accordingl y, the partiesÓ CBA

governs Ms . WilliamsÓs termination. § 1012.40(2)(b), Fla. Stat.

78. Article X of the CBA establishes that employees are

subject to discipline Ðonly for just cause.Ñ The CBA does not

define Ðjust causeÑ in the context of discipline. While the

School Board has dis cretion in setting the standards for

employee discipline, Ðjust causeÑ for discipline Ðmust

rationally and logically relate to an employeeÓs conduct in the

performance of the employeeÓs job dutiesÑ and must be Ðconcerned

with inefficiency, delinquency, poo r leadership, lack of role

modeling or misconduct.Ñ Lee Cnty. Sch. Bd. v . Preiss , Case

No. 08 - 4443, RO at 45 ( Fla. DOAH Feb. 13, 2009) ( citing Dietz v.

Lee Cnty. Sch. Bd. , 647 So. 2d 217 (Fla. 2d DCA 1994) ) (Blue, J.,

specially concurring) ; and State ex rel . Hathaway v. Smith ,

35 So. 2d 650 (Fla. 1948).

79. Consistent with its rule making authority under

section 1012.23(1)(a), the School Board has defined Ðjust causeÑ

in its Discipline Policy, 6GX - 10 - 2.17A.3., as including, among

other things, Ðmisconduct i n officeÑ and Ðnon - compliance with

the regulations and policies of the School Board, State Board of

Education, or the laws of Florida.Ñ

80. In the instant case, the Charge asserts that Ðjust

causeÑ existed to terminate Ms. WilliamsÓs employment because,

on December 4, 2017, the School Board received a cocaine and

marijuana - positive result for Ms. WilliamsÓs November 28, 2017 ,

random drug screen. The Charge alleges that the failed drug

test resulted in violations of: School Board Discipline Policy

6GX - 10 - 2.17A.3.k., Ðmisconduct in officeÑ ; School Board

Discipline Policy 6GX - 10 - 2.17A.3.n., Ðnon - compliance with the

regulations and policies of the School BoardÑ ; and the School

BoardÓs Substance Abuse Policy , rule 6GX - 10 - 2.17B.

81. An Ðeducational unitÑ is d efined as an ÐagencyÑ under

section 120.52(1)(a). The School Board is subject to the

rulemaking provisions of section 120.54, as modified by

section 120.81(1). There was no contention in this case that

the Substance Abuse Policy , rule 6GX - 10 - 2.17B , was i mproperly

adopted. There was no contention in this case that Substance

Abuse Policy , rule 6GX - 10 - 2.17B , is an invalid exercise of

delegated legislative authority. It is a valid, existing,

enforceable rule of the School Board.

82. There is plentiful case law standing for the

proposition that an agency is bound by its own rules. See,

e.g. , Collier Cnty. Bd. o f Cnty. CommÓrs v. Fish & Wildlife

Conser. CommÓn , 993 So. 2d 69, 72 - 73 (Fla. 2d DCA 2008)(Ðo f

course, an agency is required to follow its own rulesÑ ); Fla.

Wildlife FedÓn v. Collier Cnty. , 819 So. 2d 200, 208 (Fla. 1 st

DCA 2002)(ÐAn agency action which conflicts with the agencyÓs

own rules is erroneous.Ñ); Cleveland Clinic Fla. Hosp . v. Ag.

for Health Care Admin. , 679 So. 2d 1237, 1242 (Fla. 1st DCA

1 996)(ÐWithout question, an agency must follow its own rules.Ñ);

Decarion v. Martinez , 537 So. 2d 1083, 1085 (Fla. 1 st DCA

1989)(ÐUntil amended or abrogated, an agency must honor its

rules.Ñ)

83. Subsection 9 of Substance Abuse Policy , rule 6GX - 10 -

2.17B , p rovides as follows, in relevant part:

9. CMV Operators/Safety Sensitive Function

Employees:

a. Employees who operate commercial motor

vehicles (CMVs), and who as such perform

safety - sensitive functions as defined in

Federal Regulations, shall be subject to

drug and alcohol testing in accordance with

the Omnibus Transportation Employee Testing

Act of 1991, Public Law 102 - 143, hereinafter

referred to as OTETA, and local policy as

defined herein. This drug and alcohol

testing program shall be administered by the

Division of Human Resources with a key

contact to be assigned by the Superintendent

to answer questions about the program.

ÐSafety - sensitive functionÑ is defined as

follows:

1) All time spent inspecting, servicing, or

conditioning any CMV.

2) A ll time spent on or in a CMV.

3) All time loading or unloading a CMV,

supervising, or assisting in the loading or

unloading, attending a vehicle being loaded

or unloaded, remaining in readiness to

operate the vehicle, or in giving or

receiving receipts f or shipments loaded or

unloaded.

4) All time spent performing the driver

requirements associated with an

accident/incident.

5) All time repairing, obtaining

assistance, or remaining in attendance upon

a disabled CMV.

* * *

c. Testing Categories : Th e types of tests

required to be performed are pre - employment

testing, random testing, reasonable

suspicion testing, post - accident testing,

post - incident testing, return - to - duty

testing, and follow - up testing.

* * *

Random Testing Î Random alcohol testing

shall be administered at a minimum annual

rate of 25 percent of the average number of

covered employee positions. For controlled

substance testing the minimum annual rate

shall be 50 percent of the average number of

covered employee positions. All such tests

shall be unannounced and spread reasonably

throughout the calendar year.

The names for random alcohol and controlled

substance abuse testing shall be generated

by the agency contracted for such testing

and shall be reported to the key contact in

a c onfidential manner. Employees requireing

[sic] testing will be notified in writing by

an immediate supervisor and shall report

immediately to the collection facility for

the proper testing. In no instance shall an

employee report later than the time

nece ssary to reach the collection facility

from the time notification was given.

Employees shall be compensated at their

normal rate of pay for the time necessary to

comply with the requirements for random

alcohol and controlled substance testing.

* * *

d. Drug Testing Procedures : With respect

to drug testing procedures OTETA requires

the use of a Ðsplit sampleÑ approach, which

provides employees an option for a second

screening test following positive findings

on the primary sample. All testing for

contro lled substances shall be performed on

urine specimens and be accomplished by means

of an initial screen (Enzyme Immunoassay or

EIA), followed by a confirmation of any

positive findings by Gas Chromatography/Mass

Spectrometry or GC/MS. All controlled sub -

stances testing will be carried out at a

laboratory certified by the Department of

Health and Human Services (DHHS).

Urine specimens shall be screened for

amphetamines, cannabinoids, cocaine,

Phencyclidine, and opiates.

e. Review of Controlled Substance /Alcohol

Test Results : All laboratory results

generated by the DistrictÓs drug testing

program shall be reviewed by a medical

review officer (MRO). The MRO is a licensed

physician (medical doctor or doctor of

osteopathy) having knowledge of substance

abu se disorders and having appropriate

medical training to interpret and evaluate

an individualÓs confirmed positive test

result, together with his/her medical

history and any other relevant biomedical

information.

Prior to verifying a ÐpositiveÑ result, the

MRO shall make every reasonable effort to

contact the employee (confidentially), and

afford him/her the opportunity to discuss

the test result. If, after making all

reasonable efforts and documenting them, the

MRO shall contact the DistrictÓs key

contact , who shall direct the employee to

contact the MRO as soon as possible (within

24 hours).

Under split - sample collection procedures,

the employee has seventy - two (72) hours

following notification of a positive result

to request the secondary sample be anal yzed.

Analysis of the split - sample specimen shall

be at the employeeÓs expense and shall be

paid in advance with a money order or

certified check.

84. Subsection 10 of Substance Abuse Policy , rule 6GX - 10 -

2.17B, the portion of the rule directly applicabl e to

Ms. Williams, provides as follows, in relevant part:

10. Operators of District - Owned Vehicles

Not Classified as Commercial Motor Vehicles:

a. Employees who, by designation on Board -

approved job descriptions, must possess a

valid driverÓs license ot her than a

Commercial driverÓs license shall be subject

to random drug testing.

1) Random drug testing under this section

shall be administered at a minimum annual

rate of 50% of the average number of covered

employee positions. All such tests shall be

unannounced and spread reasonably throughout

the calendar year.

The names for random drug testing shall be

generated by the agency contracted for such

testing and shall be reported to the

district key contact in a confidential

manner. Employees to be tes ted will be

notified in writing of this requirement and

will be directed to report to the approved

collection site within a specific time

frame. Employees shall be compensated at

their normal rate of pay appropriate for the

time necessary to comply with t his section.

2) Drug Testing Procedure/Review of

Results: Procedures used for testing and

review of test results under this section

shall be the same as those established for

CMV operators as specified in 2.17B.9, d., e

. . . . ( e mphasis added) .

85. T he underscored language establishes that the School

Board requires, through a validly adopted rule, that employees

such as Ms. Williams be drug tested under the same procedures as

those established for CMV operators, i.e., the OTETA - mandated

Ðsplit sampleÑ approach as described at 49 C.F.R. Part 40.

86. In spite of the clear language of its own rule, and

the similar language in Article XII of the CBA that drug testing

for non - OTETA employees holding positions requiring valid

driverÓs licenses Ðshall be t he same as for OTETA covered

employees,Ñ the School Board has consciously chosen to deviate

from these requirements and provide only non - DOT drug testing

for non - CMV employees such as Ms. Williams. The School BoardÓs

a ssistant s uperintendent for Human Res ources testified that he

could not remember a time when the School Board had complied

with the rule. The School Board is mistaken in contending that

its longstanding practice of disregarding the rule is an

argument in its favor here.

87. In Monroe C ounty Sch ool B oar d v. Barber , Case No. 97 -

3878 ( Fla. DOAH July 30, 1988), Administrative Law Judge (ÐALJÑ)

Errol H. Powell decided an issue precisely on point with the

instant proceeding: whether a school board employee should be

dismissed for testing positive on a random drug test, where

regulations called for collection of the DOT - mandated split

specimen collection but only a single specimen was collected.

The employee did not request a retest because he was unable to

pay for it, being unaware that he was no t required to pay for

the retest before it was performed. Barber at ¶ 21. ALJ Powell

noted:

Accordin g to DOTÓs Regulations, had

Mr. Barber requested a re - analysis, the MRO

would have been notified at that point that

no split sample was available for a re -

analysis, and the MRO would have cancelled

the test and reported the testing as being

negative, not positive.

Id . at ¶ 28.

88. The Monroe County School BoardÓs view of discipline

following a positive drug test was remarkably similar to that of

the Clay County School Board in the instant case:

Even though . . . School Board policies do

not provide for mandatory termination from

employment for employees who test positive

in the School BoardÓs Testing Program, the

established practice of the School Board i s

to terminate such employees. The rationale

for the School BoardÓs established practice

is that, because the results of a positive

DOT drug test does [sic] not indicate

precisely when the employee used drugs, the

School Board has decided to Ðerr . . . on

the side of childrenÑ and terminate the

employee.

Id . at ¶ 32.

89. Judge PowellÓs conclusions of law as to the decisive

issue were as follows, in relevant part:

51. The undersigned is not persuaded by the

School BoardÓs position. It was not

harmless error to fail to use the split

sample method. Mr. Barber was denied a

fundamental right, a substantive right,

provided to him by the federal government,

the School Board, and the collective

bargaining agreement. Mr. Barber was denied

his right to the spl it sample method and the

procedures associated therewith. The test

results should not be considered valid.

* * *

54. Additionally, the School Board was

given the option by the federal government

to choose which method, the single sample

method or the sp lit sample method, to use in

the School BoardÓs Testing Program. The

School Board, not its employees, chose the

split sample method, and, thereby, agreed to

be bound by DOTÓs Regulations pertaining to

the split sample method. In the collective

bargaining agreement, the School Board

agreed that DOTÓs Regulations would be

followed. DOTÓs regulations provide, among

other things, the Ðminimum precautionsÑ

which must be taken. The failure to use the

split sample method, as required by the

School Board, faile d to provide the minimum

precautions required by DOTÓs Regulations

and to prote ct the rights of the donor,

Mr. Barber.

90. ALJ PowellÓs reasoning is entirely persuasive. The

drug test administered to Ms. Williams should be voided because

it denied her t he right, established by School Board policy and

the CBA, to the split sample method and the procedural

safeguards associated with it. There is no reasonable way to

unwind the sequence of events back to the moment Ms. Williams

was handed the consent form for a non - DOT test and conclude that

the following cascade of errors was Ðharmless.Ñ

91. Once the test results are held invalid and

disregarded, there is no just cause for discipline of any kind

against Ms. Williams.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Clay County School Board enter a

final order:

1. Dismissing the ÐCharges and Recommended ActionÑ issued

by the Superintendent of Schools Addison Davis to Respondent

dated April 17, 2018; and

2. Reimbursing Respondent for any pay or benefits that she

did not receive as a result of the School BoardÓs actions in

this case, plus interest from the date that any such pay or

benefit was withheld, as appropriate under applicable law.

DONE AND EN TERED this 12th day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 12th day of February , 2019 .

ENDNOTE S

1/ The Ðsplit samplingÑ or Ðsplit specimenÑ technique is

detaile d at 49 C.F.R. § 40.71. The collector pours at least 30

mL of urine from the collection container into one specimen

bottle to be used as the primary specimen. The collector then

pours at least 15mL of urine from the collection container into

a second spe cimen bottle to be used as the secondary specimen.

The collector secures the lids on the bottles, seals the bottles

with tamper - evident bottle seals, writes the date on the bottle

seals, then has the employee initial the bottle seals to certify

that the b ottle contain s the specimens he or she provided.

2/ This sentence does not state, but clearly means to say, that

the MRO has made all reasonable efforts but has failed to

contact the employee .

3/ It is noted that the quoted portion of the Substance A buse

Policy makes no provision for ensuring that the testing of the

secondary sample occurs in a timely manner , even if the employee

is unable or unwilling to pay for it at the outset. The policy

thus contravenes the provisions of 49 C.F.R. § 40.173(b): Ð[I]f

you ask the employee to pay for some or all of the cost of

testing the split specimen, and the employee is unwilling or

unable to do so, you must ensure that the test takes place in a

timely manner, even though this means that you pay for it.Ñ The

r ule goes on to provide that the employer may then seek

reimbursement from the employe e for the cost of the test.

40 C.F.R. § 40.173(c).

4/ The specific times are taken from a timeline created by First

Source Solutions and later provided to the School Bo ard. See

Finding of Fact 37, infra . It is noted that the First Source

Solutions timeline actually states that this call was made at

Ð12:57 a.m.Ñ The undersigned presumes that this was a

typographical error.

5/ The timeline actually states t hat the cal l was made at

Ð15:26 a.m.,Ñ an obvious typographical error.

6/ Mr. Broskie was referencing Substance Abuse Policy 6GX - 10 -

2.17B.9.e., set forth in full at Finding of Fact 9 above. It is

noted that the policy by its terms gives an employee 72 hours to

req uest testing of the secondary sample taken under the split -

sampling technique prescribed by the DOT test. Ms. Williams was

not afforded the split - sampling test, hence Mr. BroskieÓs offer

to retest the remains of the single sample she provided on

November 28 , 2017 .

7/ See Endnote 3 above for discussion of the School BoardÓs

responsibility to pay for testing of the secondary sample.

8/ There was no Ðsplit sampleÑ because the School Board deviated

from its Substance Abuse Policy and directed Ms. William s to

take a non - DOT test.

COPIES FURNISHED:

Eric J. Holshouser, Esquire

Buchanan Ingersoll & Rooney PC

Suite 2800

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

Mark S. Levine, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Talla hassee, Florida 32301

(eServed)

Michael Jeffrey Lufkin, Esquire

Buchanan Ingersoll & Rooney, PC

Suite 2800

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

Ronald G. Stowers, Esquire

Levine and Stivers, LLC

245 East Virginia Street

Tallahass ee, Florida 32301

(eServed)

Addison Davis, Superintendent

Clay County Public Schools

900 Walnut Street

Green Cove Springs, Florida 32043 - 3129

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

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 wit h the agency that

will issue the Final Order in this case.