20-000612 The School Board Of Hernando County, Florida vs. Douglas Wiseman Status: Closed Recommended Order on Wednesday, September 2, 2020.

Summary: The greater weight of the evidence demonstrated that Repondent held a safety-sensitive postion and was thus subject to suspicionless drug testing.

S TATEMENT OF T HE I SSUE S

Whether Respondent (“Douglas Wiseman”) violated Petitioner, t he School

Board of Hernando County’s (“the Board”) , 1 drug - free workplace policy; and,

if so, whether his employment with the Board should be term inated.

P RELIMINARY S TATEMENT

The Board’s Superintendent of Schools issued a letter dated December 9,

2019, notifying Mr. Wiseman that he intended to recommend that the Board

terminate Mr. Wiseman’s employment because of the results from a random

drug scr eening:

This letter is in reference to allegations of

misconduct from the outcome or results of a

random drug screen. You have violated [Board] Policies, including but not limited to, 4124, 4139.01 Group II (6), Group III (9, 12,) and Group IV (2),

4162, 4210 I. B and C, and II A.1, and Staff

Handbook p. 6 - 8 or 6A - 10.081 Principles of

Professional Conduct for the Education Profession

in Florida.

A predetermination meeting was held on December

6, 2019. There was a review of the allegations and

you had an o pportunity to share your side for the

record. Please be advised that the process has concluded. As such, probable cause exists for

disciplinary action. I will make a recommendation

to [the Board] for termination of your employment.

This recommendation for termination will be placed on the School Board agenda at its regularly

scheduled meeting of January 14, 2020 . . .

Upon receipt of this letter you should leave the work site. You will be on administrative leave with pay until the date of the Board meeting . You must

return all School Board property (badge, keys, etc.)

1 The Board’s official name is “The School Board of Hernando County.” § 1001.40, Fla. Stat.

(2019) . T he case style has been amended accordingly.

to Mr. Cox immediately. You are not permitted to

access any school site(s).

Mr. Wiseman filed a timely appeal, and the Board re ferred this matter to

DOAH on February 3, 2020.

After granting one continuance, the undersigned convened the final

hearing on June 30, 2020. The Board presented the testimony of John L.

Martin, Matthew Goldrick, and Lisa Becker. Mr. Wiseman did not call any

witnesses and did not testify on his own behalf.

Joint Exhi bits 1 through 22 were accepted into evidence.

The one - volume final hearing Transcript was filed on July 17, 2020.

After the undersigned granted one extension of time, the parties filed timely

Proposed Recommended Orders on August 3, 2020, and those P roposed

Recommended Orders were considered in the preparation of this

Recommended Order.

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hearing,

the entire record in this proceeding, and matters subject to official

recogn ition, the following Findings of Fact are made:

1. Section 381.986, Florida Statutes (2019) 2 , pertains to the medical use of

marijuana and allows patients suffering from chronic, nonmalignant pain to receive marijuana if they have been added to the medical marijuana use

registry by a qualified physician. However, section 381.986(15)(a), provides

that “[t]his section does not limit the ability of an employer to establish,

continue, or enforce a drug - free workplace program or policy.” Also,

2 All statutory references shall be to the 2019 version of the Fl orida Statutes.

section 381.986(1 5)(b), states that “[t]his section does not require an employer

to accommodate the medical use of marijuana in any workplace or any

employee working while under the influence of marijuana.”

2. The Board operates 24 schools, employs over 3,000 people, and h as

approximately 24,000 students.

3. The Board maintains a drug - free workplace. On August 27, 2019, the

Board revised its drug - free workplace policy in order to explicitly prohibit

medical marijuana. The revised policy states , in pertinent part , that:

[m] arijuana is considered a controlled substance under the Federal Controlled Substance Act. The Board does not distinguish between marijuana and medical marijuana for its policies. Use of marijuana

in any form is prohibited. If a drug test result is

positive for marijuana, the employee will be subject

to disciplinary action per Board Policy 4139.01.

4. The Board adopted the above - quoted revision in order to resolve any

ambiguity regarding its position on medical marijuana following the passage

of section 381 .986.

5. The Board’s revised policy mandates that employees who perform

“safety - sensitive functions with Board - owned and/or operated . . . vehicles

must be mentally and physically ale rt at all times while on duty.”

Accordingly, the Board requires “the Su perintendent to establish a drug and

alcohol testing program whereby each regular and substitute bus driver, and any other staff member who holds a CDL license, as well as any staff member

performing safety - sensitive functions , is tested for the presence o f ” alcohol,

marijuana, cocaine, opioids , amphetamines, and PCP. (emphasis added) . The

revised policy further provides that drug tests can be conducted prior to employment, for reasonable cause, upon return to duty after drug or alcohol

rehabilitation, afte r an accident, on a random basis, and on a follow - up basis.

6. The revised policy states that “[t]he term safety - sensitive functions

includes all tasks associated with the operation and maintenance of Board -

owned vehicles.” The revised policy is silent as to whether maintenance

employees or those operating power tools perform safety - sensitive functions.

7. The Board also revised its disciplinary policy on August 27, 2019, to

classify a positive drug test as a “Group IV” offense punishable by

termination. Ho wever, that same policy also provides that

[t]he Superintendent and the School Board retain the right to treat each incident of employee misconduct or performance deficiency on an individual basis without creating a precedent for

other similar incident c ases which may arise and to

determine the appropriate disciplinary [measure]

on a case - by - case - basis.

8. The Board has a department responsible for maintaining its buildings

and its fleet of approximately 50 vehicles.

9. Mr. Wiseman has been employed with the Board for nearly 14 years as

a Carpenter III. Mr. Wiseman is the Board’s head roofer and thus used

ladders up to 36 feet in height on an almost daily basis. In addition, he performed carpentry work such as putting up drywall, installing ceiling ti les,

and repairing doors and shelves. In the course of his duties, Mr. Wiseman

regularly used power tools such as electric drills, circular saws, and nail guns

that have the potential to cause injury if not properly handled.

10. The Board assigned one of its fleet vehicles to Mr. Wiseman, and it

was stocked with equipment and tools. He drove that vehicle every workday.

11. While Mr. Wiseman had no responsibilities relating directly to

students, the Board considered him to be in a safety - sensitive posit ion due to

the nature of his duties and because he drove a Board vehicle.

12. Mr. Wiseman injured his back approximately two years ago, and the

incident resulted in a workers’ compensation claim.

13. Mr. Wiseman initially used muscle relaxers and pain medi cation to

deal with the pain associated with his injury, but he could not tolerate the

side effects. As a result, he became certified to receive medical marijuana in

2018. Mr. Wiseman has benefited greatly from this treatment and plans to

continue using me dical marijuana until he can live without pain.

14. Mr. Wiseman only uses medical marijuana to treat his pain and did

not use it during school/work hours.

15. The Board convened a meeting of the maintenance staff on the

morning of September 19, 2019 , in order to discuss the revisions to the

Board’s drug - free workplace policy. Because the Board considers

maintenance to be a safety - sensitive function, the maintenance staff was put

on notice that they would be subject to random drug testing and that ran dom

testing would start in 60 to 70 days.

16. The Board did not impose immediate random testing because it

wanted to give employees taking medical marijuana an opportunity to confer with their physicians and make arrangements to bring themselves into

comp liance with the revised policy.

17. Mr. Wiseman attended the September 19, 20 19 , meeting, and he was

required to give a urine sample on November 20, 2019. The Board received

the positive test result on December 2, 2019, and immediately prohibited Mr. Wiseman from working on roofs and driving the Board - owned vehicle

that had been assigned to him.

18. The Board leveled several allegations against Mr. Wiseman and

proved by a preponderance of the evidence that he violated the following

polices: (a) Policy 4124 which prohibits the use of any controlled substance by

any staff member at any time while on Board property or while engaged in

Board - related activities; (b) Policy 4139.01 Group II (6) which prohibits

violations of known safety rules or practices; ( c ) Policy 4139.01 Group IV (2)

which subjects a Board employee to termination for a positive drug or alcohol

test; and ( d ) Policy 4162 which prohibits any Board employee with a positive

drug test fr o m driving any school vehicle or using Board - owned equipmen t.”

The Board failed to prove the remaining allegations by a preponderance of

the evidence.

19. The greater weight of the evidence demonstrates that Mr. Wiseman

worked for the Board in a safety - sensitive position.

C ONCLUSIONS OF L AW

20 . DOAH h as juris diction over the subject matter and parties in this

case, pursuant to section s 1012.33(6) , 120.569 , and 120.57(1), Florida

Statutes.

2 1 . The Board is a duly constituted school board charged with the duty to

operate, control, and supervise all free public schools within the school

district of Hernando County, Florida, under section 1012.22.

2 2 . The Board seeks to terminate Mr. Wiseman’s employment and has the

burden of proving the allegations set forth in its December 9, 2019, letter by a

preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence applicable to the loss of a license or

certification. C ropsey v. Sch. Bd. of Manatee C ty. , 19 So. 3d 351 (Fla. 2d DCA

2009), rev. denied , 29 So. 3d 1118 (Fla. 2010); C isne ros v. Sch. Bd. of Miami -

Dade C ty. , 990 So. 2d 1179 (Fla. 3d DCA 2008).

2 3 . The preponderance of the evidence standard requires proof by “the

greater weight of the evidence,” Black’s Law Dictionary 1201 (7th ed. 199 9 ),

or evidence that “more likely t han not” tends to prove a certain proposition.

See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

2 4 . The Board alleges that Mr. Wiseman violated the following Board

policies: (a) Policy 4124 which prohibits the use of any controlled substance

by a ny staff member at any time while on Board property or while engaged in

Board - related activities; (b) Policy 4139.01 Group II (6) which prohibits

violations of known safety rules or practices; (c) Policy 4139.01 Group III (9)

which prohibits conduct that a dversely affects the employee’s ability to

perform his or her duties; (d) Policy 4139.01 Group III (12) which prohibits

any fraudulent, criminal, or dishonest acts; (e) Policy 4139.01 Group IV (2)

which subjects a Board employee to termination for a positi ve drug or alcohol

test; (f) Policy 4162 which prohibits any Board employee with a positive drug

test fr o m driving any school vehicle or using Board - owned equipment;

(g) Policy 4210 I. B. which requires Board employees to exercise the best

professional ju dgment and integrity; (h) Policy 4210 I. C. which requires

Board employees to sustain the highest degree of ethical conduct; (i) Policy

4210 II. A. 1 . which requires Board employees to make reasonable efforts to

protect students from harmful conditions; an d ( j ) Florida Administrative

Code Rule 6A - 10.081 which sets forth the “Principles of Professional Conduct

for the Education Profession in Florida.”

25. As noted above, the Board proved that Mr. W iseman violated

Policy 4124 , Policy 4139.01 Group II (6) , P olicy 4139.01 Group IV (2) , and

Policy 4162. The Board’s remaining allegations were not proven by a

preponderance of the evidence.

2 6 . Rather than disputing the aforementioned allegations, Mr. Wiseman

argues that the Board violated his rights under the Fou rth Amendment of

the United States Constitution by conducting an unreasonable search and seizure.

2 7 . “The Fourth Amendment protects ‘[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and se izures . . . and applies to the states through the Due Process Clause of

the Fourteenth Amendment.” AFSCME v. Scott , 717 F.3d 851, 866 (11 th Cir.

2013). “Testing a urine sample, which can reveal a host of private medical facts about an employee, and which entails a process that itself implicates privacy interests, is a search.” Id. In determining whether a random drug test

violated the Fourth Amendment, the first question to answer is whether the

government employee subjected to random drug testing holds a “safety -

sensitive” position. Shepherd v. City of East Peoria , 2015 WL 2455084, at *5

(C.D. Ill. 2015). Employees may be tested randomly and without suspicion

consistent with the Constitution if they are employees in “safety - sensitive”

positions . Crager v. Bd. of Educ. of Knott Cty, K y , 313 F.Supp.2d 690, 702

(E.D. Ky. 2004). An employee holds a safety - sensitive position if “the

employee’s duties were fraught with such risks of injury to others that even a

momentary lapse of attention could have disastrous consequences.”

Shepherd , at *5.

2 8 . Mr. Wiseman argues that he does not hold a safety - s ensitive position.

Therefore, t he Board had no lawful basis to subject him to a random drug test

and terminate his employment. For instance, Mr. Wiseman argues in his Pr oposed Recommended Order that driving a Board - owned vehicle is not a

safety - sensitive function:

A requirement for all employees holding a commercial driver’s license to transport students to

be drug tested is obviously reasonable. However, no

such obvious rationale exists for maintenance

employees who drive Board - owned vehicles. The

evidence established that Mr. Wiseman does not transport students, and has no meaningful

interaction with students.

The tasks Mr. Wiseman performs driving a Board - owned vehicl e [are] indistinguishable from those

performed by any driver on the road. Mr. Wiseman has no special license to drive the vehicle. There is no distinction between Mr. Wiseman’s driving the vehicle, and [other Board employees] driving their vehicles to scho ol sites, other than the ownership

and title of the vehicle. The titling of a vehicle is

not a sufficient basis to deprive an individual of his constitutionally protected rights against unreasonable search and seizure.

2 9 . Mr. Wiseman drove a fleet veh icle stocked with equipment and tools

every workday, and other jurisdictions have held that driving an employer -

owned vehicle can be classified as a safety - sensitive function. See Burka v.

New York City Transit Auth. , 739 F.Supp. 814, 822 (S.D. N.Y. 1990)( holding

that “[t]he cleaners are in safety - sensitive positions because they perform the

duties of a clerk during the clerk’s break, and because they must drive the

mobile wash unit trucks. Like a gun, a motor vehicle on a public motorway

can instantly beco me a deadly instrument if misused.”); Watson v. Sexton ,

755 F.Supp. 583, 589 (S.D. N.Y 1991)(suggesting the establishment of a “rule of thumb” that “[w]hen the employee’s duties require driving, such as the

duties of one who patrols or makes pick - ups, that employee’s position is

safety sensitive. When driving is only incidental to other duties that engage

no safety concern, the employee’s position is not safety sensitive.”).

3

30 . Mr. Wiseman also argue s that his duties as a Carpenter III are not

safety - sen sitive in nature:

The facts in the instant case establish that

Mr. Wiseman had little, if any, contact with

students. He had no supervisory responsibility for

students. The performance of his job duties presented no risk of injury to himself or others

b eyond that risk inherent in doing any skilled labor

job. The School Board presented no persuasive

evidence [that] being a carpenter created a safety

and security risk sufficient to extinguish Mr. Wiseman’s constitutionally protected right against an unreas onable search.

31 . The Fifth Circuit Court of Appeals addressed in Aubr e y v. School

Board of Lafayette Parish, et al. , 148 F.3d 559 (5 th Cir 1998) whether a

custodian employed by the Lafayette Parish School Board held a safety -

sensitive position. The Fifth Circuit described the appellant’s duties as

follows:

As a custodian at the Prairie Elementary School,

Aubrey’s duties included cleaning the fourth and

fifth grade bathrooms each day, using various

3 While there was no testimony from Board witnesses regarding potential liability, it is

reasonable to infer that the Board would be facing substantial liability if a Board employee

caused a traffic accident while driving a fleet vehicle u nder the influence. See Heifetz v. Dep’t

of Bus & Prof’l Reg . , 475, So. 2d 1277, 1281 (Fla. 1 st DCA 1985)(stating that “[i] t is the

hearing officer's function to consider all the evidence presented, resolve conflicts, judge

credibility of witnesses, draw p ermissible inferences from the evidence, and reach ultimate

findings of fact based on competent, substantial evidence. ”).

chemicals. He mowed the grounds immediately

adjacen t to the building and was responsible for

securing the premises at the end of the day, making

minor repairs to buildings, furniture and

equipment, lighting pilot lights, maintaining HVAC equipment, cleaning and replacing light fixtures, and trimming trees. He constantly was in the

presence of the young students.

Aubrey , 148 F.3d at 561. The Fifth Circuit ultimately held that the

appellant’s Fourth Amendment protections were not violated. Id. at 565

(holding that “ the Board’s need to conduct the suspicionle ss searches

pursuant to the drug testing policy outweighs the privacy interests of the

employees in an elementary school who interact regularly with students, use

hazardous substances, operate potentially dangerous equipment, or

otherwise pose any threat o r danger to the students.”).

3 2 . While there was no testimony indicating that Mr. Wiseman spent any

significant time in the presence of students, his duties, like those of the custodian in Aubrey , put him in positions where he could be a danger to

himself or others if he were in an impaired state. As discussed above in the

Findings of Fact, Mr. Wiseman was the Board’s head roofer and used ladders up to 36 feet in height on an almost daily basis. He regularly used power tools such as electric drills, circul ar saws, and nail guns that have the potential to

cause injury if not properly handled. Moreover, if Mr. Wiseman were

impaired and did a poor job of putting up drywall, installing ceiling tiles, or

repairing doors, it is certainly conceivable that students could be injured.

3 3 . The greater weight of the evidence and the current state of the law

compel the undersigned to conclude that Mr. Wiseman held a safety - sensitive

position and that the Board did not violate his rights under the Fourth

Amendment by subj ecting him to a suspicionless drug test.

3 4 . As for the recommended penalty, the Board’s revised disciplinary

policy classifies a positive drug test as a “Group IV” offense punishable by

termination. However, that same policy states the offense groupings merely

“guide the resulting disciplinary action.” The Superintendent and the Board

retain the right to treat each incident on a case - by - case basis.

3 5 . There are compelling reasons in the instant case for the Board to

utilize a disciplinary measure other t han termination. For example,

Mr. Wiseman’s use of medical marijuana was legally authorized under

section 381.986. Also, Mr. Wiseman uses medical marijuana to ameliorate pain resulting from a workers’ compensation injury suffered while he was

fulfilling h is duties as a Carpenter III. In addition, Mr. Wiseman has been

employed by the Board for nearly 14 years, and there is no evidence of

previous disciplinary action by the Board.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the School Board of Hernando County issue a written

reprimand to Respondent .

D ONE A ND E NTERED this 2 n d day of September, 2020 , in Tallahassee,

Leon County, Florida.

G. W. C HISENHALL

Administrative Law Judge

Division of Admi nistrative 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 n d day of September, 2020 .

C OPIES F URNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1526

(eServed)

Gregory A. Hearing, Esquire

GrayRobinson , P.A.

Suite 2700

401 East Jackson Street

Tampa, Florida 33602

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1 244

325 West Gaines Street

Tallahassee, Florida 3299 - 0400

(eServed)

John Stratton, Superintendent

The Hernando County School District

919 North Broad Street

Br ooksville, Florida 34601 - 2397

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.