20-004794 Sarasota County School Board vs. Betty Register Status: Closed Recommended Order on Thursday, January 7, 2021.

Summary: Petitioner proved that Respondent committed misconduct in office by failing a drug test. Termination of employment is recommended.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T HE S CHOOL B OARD OF

S ARASOTA C OUNTY ,

Petitioner ,

Case No. 20 - 4794

vs.

B ETTY R EGISTER ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, on December 7, 2020, Administrative Law Judge

Lynne A. Quimby - Pennock of the Division of Administrative Hearings

(DOAH) conducted an evidentiary hearing via Zoom conference from

Tallahassee, Florida.

A PPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Rob Robinson Attorney, P.A.

500 South Washington Boulevard, Suite 400

Sarasota, Florida 34236

For Respondent: No Appearance

S TATEMENT OF T HE I SSUE S

Whether Petitioner, the School Board of Sarasota Co unty (the Board) , 1

proved Respondent, Betty Register (Ms. Register), committed misconduct in

1 The BoardÔs official name is The School Board of Sarasota County . § 1001.40, Fl a. Stat.

(2020) . The case style has been amended accordingly.

her employment as alleged in the Administrative Complaint (AC) dated

November 17, 2020, 2 and if so, the appropriate discipline.

P RELIMINARY S TATEMENT

The BoardÔs Superintendent Brennan W. Asplen , III, Ed.D., issued a

letter dated October 23, 2020, 3 notifying Ms. Register that he intended to

recommend that the Board terminate her employment because of the results

from a random drug test:

During a random drug test, you have tested

positive for the use of illegal substances. Following

a thorough investigation of this matter, we have

concluded you have committed the following

offenses among others: Misconduct in office.

Therefore, based upon the substantial information

presented to me as a result of this investigation, I

have found just cause to terminate your

employment with the Sarasota County School

Board.

Accordingly, I will recommend to the School Board

that your employment be terminated effective

November 11, 202 0. The School Board will vote to

accept or reject my recommendation at its

November 10, 2020 meeting. Meeting will be held

at 1960 Landings Boulevard, Sarasota, Florida at

6:30 p.m.

If you wish to contest this recommended

termination/discipline, you must submit a written

request for a hearing pursuant to Florida Statutes

2 This case originated when the BoardÔs Superintendent issued a letter advising Ms. Register

that her employment would be terminated based on a positive drug test. After the matter

was referred to DOAH, and without complying with Florida Administrative Code Rule 28 -

106.202, the Board filed the AC. Ms. Register never objected to the filin g of the AC, and the

case proceeded to hearing.

3 T his October 23, 2020 , letter was sent to Ms. Register advising her that the date of the

Board meeting was changed to November 10, 2020. A n earlier letter provid ed the Board

meeting would be held on Novemb er 3, 2020.

Section §120.569 within 21 calendar days of the

date of this letter.

Ms. Register timely requested a hearing. On October 27, 2020, the

General Counsel for the Board forwarded Ms. Register Ôs hearing request to

DOAH. On November 17, 2020, the Board filed the AC 4 setting forth th at

M s. RegisterÔs positive d rug test constituted just cause , specifically

misconduct in office , for her employment termination.

The final hearing was scheduled for a nd completed on December 7, 2020.

At the final hearing, the Board called: Lynn Peterson, the BoardÔs

supervisor of risk management; Teresa Clarke, the BoardÔs transportation

operations supervisor; Joanna Hutchinson, the BoardÔs transportation

operations s ecretary; and Regina Doural, FSSolutionsÔ general manager of

compliance services. The Board Ô s Exhibits 1 through 10 were admitted into

evidence. Ms. Register did not appear for the hearing. 5

The one - volume Transcript of the proceeding was filed with DOA H on

December 23, 2020. Later that day, a Notice of Filing Transcript was issued

advising the parties that the Transcript had been filed. The Board timely

submitted its proposed recommended order (PRO), which has been considered

in the preparation of this Recommended Order. To date, Ms. Register has not

4 At the start of the hearing, the Board asked to correct a date found in paragraph 12 of the

AC. The allegation is amended to reflect that September 22, 2020 , is the date Ms. Register

was notified of her selection to provide a sample. Two add itional errors are noted in

paragraph 22: t he Superintendent sent correspondence to Ms. Register on October 6, 2020 ,

and October 23, 2020, not September 15, 2020; and Ms. Register is a female, and thus the

pronoun ÑherÒ should have been used in the last sentence.

5 Ms. Register did not appear in the Zoom conference waiting room when the hearing was

called to order. The undersigned recessed the hearing, and asked DOAH staff to contact

Ms. Register. The telephone call went straight to Ms. RegisterÔs voice mail, and a message

was left. After waiting until 9:15 a.m., the undersigned proceeded to conduct the hearing.

T hrough out the hearing, t he undersigned watched the Zoom conference waiting room for

Ms. Register to appear, however she never did.

submitted a PRO. To the extent that the BoardÔs PRO contained hearsay

evidence not supported by direct testimony or evidence, that information has

not been considered.

A ll references to Florida Statutes , administrative rules, or the BoardÔs

policies are to the versions in effect at the time of the allegation, except as

otherwise indicated.

F INDINGS OF F ACT

Based on the competent substantial evidence adduced at the final hearing,

the following F indings of F act are made:

I. The Parties

1. The Board is responsible for operating the public schools in the

Sarasota County School District and for hiring, firing, and overseeing both

instructional employees and non - instructional Ñeducational supportÒ

employees wit hin Sarasota County, Florida. The Board employs

approximately 300 school bus drivers each school year , each is considered an

educational support employee .

2. On or about September 22, 2020, Ms. Register was employed by the

Board as a school bus driver. As a school bus driver Ms. Register was

required to and did possess a Florida issued Commercial DriverÔs License

(CDL).

II. Other Entities

3. The Florida Department of Transportation (DOT) requires that anyone

who holds a CDL to drive a commercial vehicle is subject to quarterly random

drug and/or alcohol testing. Currently, DOT requires that fifty percent of the

CDL holders be tested quarterly randomly.

4. FSSolutions (FSS) is a third - party administrator that handles drug,

alcohol, and other testing services for multiple clients. FSS has a contract

with the state of Florida to provide these services, and individual entities

may purchase the FSS services using the statewide contract. FSS also

provides each entity with a list of companies that are approved colle ction

agents.

5. When an entity contracts with FSS to facilitate the testing, that entity

will send a list of all its eligible employees to FSS. FSS will then generate a

random list of the employees to be tested. The randomly selected employees

are notifie d of the date, time, and location for a sample to be provided. The

selected employees report to the collection site and provide a sample for

testing. That sample is sent to a certified laboratory for analysis, and a test

report is created for each sample t ested.

6. Each test report is reviewed by a trained medical doctor , who has been

qualified to be a DOT medical review officer (MRO). The MRO will speak to

Ñany donor whose laboratory result is not negative.Ò A non - negative test

result could mean that the sample was positive, adulterated , or substituted.

7. The test re ports are then provided to the entity that ordered the test.

III. The BoardÔs Process

8. The Board requires quarterly random drug tests of its CDL holders,

specifically its school bus drivers . Beginning in 2020, the percentage of the

BoardÔs school bus drivers to be randomly drug tested rose from

approximately 20 percent to 50 percent.

9. The Board has a contract with FSS to administer the DOT required

quarterly random drug and/or alcohol test ing. FSS provided the Board a list

of approved collection companies. The Board selected an approved collection

company . O nce the samples ar e collected, the y a re sent to a certified

laboratory for testing.

10. Each quarter , Ms. Peterson , the risk management supervisor, sends

Ms. Clarke , the transportation and operations supervisor, a n initial list of the

BoardÔs school bus drivers. Ms. Clarke reviews that list and removes the

names of school bus drivers who are no longer employed by the Board. Then

Ms. Clark e add s the names of all newly hired school bus drivers to the list.

That list is then sent to FSS. FSS then provides the Board with the randomly

selected names of the school bus drivers to be tested.

1 1 . Once the randomly selected school bus drivers are id entified, the

BoardÔs transportation department sends out the notice to those employees to

be tested. The notice contains the date, time , and location for each employee

to report for testing.

IV . September 22, 2020 , through October 6, 2020

1 2 . The alleged conduct giving rise to this proceeding occurred on or about

September 22, 2020.

1 3 . The BoardÔs quarterly testing period was July 1, 2020 , through

S eptember 30, 2020. Ms. Peterson followed t he routine set forth in paragraph

11 above. Ms. RegisterÔs name w as included in the initial list of school bus

drivers sent to Ms. Clarke for her review. Following her review and necessary

edits, Ms. Clarke returned the revis ed list, which included Ms. RegisterÔs

name , to Ms. Peterson. Ms. Peterson sent the revised list to FSS. FSS

programed its random generator to select the requisite percentage of names

required by DOT and the Board. FSS then provided the Board with the

randomly generated list of employees to be tested. Ms. RegisterÔs name was

on that randomly generate d list of employees to submit for the quarterly drug

testing.

14. Ms. Register was notified of her selection for the testing to be provided

on September 22, 2020, at 10:30 a.m. Ms. Register reported to the collection

location and provided a sample. Ms. Reg isterÔs sample was sent to the

LabCorp location in Research Triangle Park, North Carolina , for testing.

15. On October 6, 2020, the test re port s were made available to

Ms. Peterson, and she became aware that Ms. RegisterÔs sample was positive

for marijuana and opioids, specifically: Ñmarijuana, hydrocodone, and

hydromorphone.Ò

1 6 . Ms. Peterson called Ms. Clarke and notified her of Ms. RegisterÔs

positive test result s . Ms. Clarke Ñautomatically pulled [Ms. Register] from the

route.Ò Further, Ms. Clarke test ified Ms. Register never drove another school

bus after that notification.

V. District Policies

1 7. Ms. Peterson testified that the Board is an alcohol and drug - free

workplace. Ms. Peterson further testified that the BoardÔs policies provide

that when ther e is a positive drug test , the employee is subject to an

immediate termination of their employment.

1 8 . Ms. Peterson testified that Ms. RegisterÔs employment was terminated

based on her positive drug test, which constituted misconduct in office.

19 . Ms. R egister is no longer employed by the Board.

2 0 . Ms. Register did not appear or testify during the hearing to offer any

evidence to the contrary.

2 1 . Based on the greater weight of the evidence, the undersigned finds

that the Board had sufficient just caus e to terminate Ms. RegisterÔs

employment as a school bus driver.

C ONCLUSIONS OF L AW

2 2 . DOAH has jurisdiction over the parties and subject matter of this

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

2 3 . Ms. Register is an educational support employee. §§ 1012.40(1)(a) and

1012.01(6) , Fla. Stat.

2 4 . The BoardÔs superintendent has the authority to recommend to the

Board that an employee be terminated from employment. § 1012.27(5), Fla.

Stat.

25. The Board is a duly constituted school board charged with t he duty to

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

district of Sarasota County, Florida. Art. IX, § 4(b), Fla. Const. ; §§ 1001.30

and 1001.33, Fla. Stat.

26. A district school board has the statutory authority to adopt ru les

governing personnel matters pursuant to sections 1001.42(28), 1012.22, and

1012.23 , Florida Statutes .

2 7 . Section 1012.40(2)(c) provides:

In the event a district school superintendent seeks

termination of an employee, the district school

board may su spend the employee with or without

pay. The employee shall receive written notice and

shall have the opportunity to formally appeal the

termination. The appeals process shall be

determined by the appropriate collective

bargaining process or by district sch ool board rule

in the event there is no collective bargaining

agreement.

2 8 . Section 1012.22 provides , in pertinent part:

The district school board shall:

(1) Designate positions to be filled, prescribe

qualifications for those positions, and provide for

the appointment, compensation, promotion,

suspension, and dismissal of employees as follows,

subject to the requirements of this chapter:

* * *

(f ) Suspension, dismissal, and return to annual

contract status. Ð The district school board shall

suspend, dismiss, or return to annual contract

members of the instructional staff and other school

employees; however, no administrative assistant,

supervisor, p rincipal, teacher, or other member of

the instructional staff may be discharged, removed,

or returned to annual contract except as provided

in this chapter.

2 9 . The BoardÔs Policy 6.33 provides in pertinent part:

II. No employee shall unlawfully manufactu re,

distribute, dispense, possess, use or be under the

influence of, on the job or in the workplace, any

narcotic, drug, amphetamine, barbiturate,

marijuana or any other controlled substance, as

defined in the Controlled Substances Act (21 USC

812) and as further defined by regulations at 21

CFR 1300 or Florida Statutes, Chapter 893,

without a valid prescription.

30 . In pertinent part, Florida Administrative Code Rule 6A - 5.056 provides

the following:

Criteria for Suspension and Dismissal.

Just causeÒ mea ns 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 su ch charge is hereby defined:

* * *

(2) ÑMisconduct in OfficeÒ means one or more of the

following:

* * *

(b) A violation of the Principles 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 studentÔs learning

environment; or

(e) Behavior that reduces the teacherÔs ability or his

or her colleaguesÔ ability to effectively perform

duties.

31 . The Board bear s the burden of proving by a preponderance of the

evidence that Ms. Register violated the Board Ô s policy. That policy prohibits

employees from unlawfully using or being under the influence of, on the job

or in the workplace, marijuana or a controlled subst ance. The unrefuted

testimony and evidence provide d Ms. Register failed a properly administered

random drug test given to the BoardÔs CDL holders.

3 2 . Preponderance of the evidence is evidence that Ñmore likely than notÒ

tends to prove the proposition set forth by a proponent. Gross v. Lyons , 763

So. 2d 276 (Fla. 2000).

3 3 . There is no dispute that the Board has the authority to discipline

Ms. Register, up to and including termination, for Ñjust cause.Ò

34. The Board satisfied its burden and proved by a pr eponderance of the

evidence that Ms. Register failed a drug test. Having considered all of the

facts set forth above , the undersigned concludes that termination of

employment is appropriate.

R ECOMMENDATION

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

RECOMMENDED that the School Board of Sarasota County affirm its

termination of Ms. Register Ô s employment as a school bus driver.

D ONE A ND E NTERED this 7th day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

L YNNE A. Q UIMBY - P ENNOCK

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 Adminis trative Hearings

this 7th day of January , 2021 .

C OPIES F URNISHED :

Betty Register

4715 Greenwich Road

Sarasota, Florida 34233

Robert K. Robinson, Esquire

Rob Robinson Attorney, P.A.

500 South Washington Boulevard , Suite 400

Sarasota, Florida 34236

(eSer ved)

Dr. Brennan Asplen , III, Superintendent

Sarasota School Board

1960 Landings Boulevard

Sarasota, Florida 34321

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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 t he Final Order in this

case.