HomeMy WebLinkAboutMinutes Civil Service Board - 05/14/2008 MINUTES RECEIVED
538TH CIVIL SERVICE BOARD MEETING
1201 LEOPARD ST., CITY HALL FEB S 2010
HUMAN RESOURCES DEPARTMENT
May 14,2008
CITY SECRETARY'S OFFICE
BOARD MEMBERS PRESENT CITY STAFF PRESENT
John P. Silvas,Member Cynthia C. Garcia,Director of
Eileen Butler,Member Human Resources
Jennifer Knox-Walker,Asst. City Attorney
Foster Crowell,Director of Wastewater
Deanna Galan, Human Resources Analyst
Chairperson Silvas states it is 9:05 a.m., and calls the 538th hearing to order. Two items on the
agenda:
Item#1 Review and approve the minutes of the 537th Civil Service Board hearing held on
April 9,2008.
Vice-Chairperson Butler makes motion to accept the minutes. Chairperson Silvas seconds motion.
Ms. Galan states the minutes from the 536th hearing were not signed and asks both members to
sign them as well. Chairperson Silvas reads the next item on the agenda:
Item#2 Review and consider the termination of Willie Davis, Wastewater Collection,
Technician, Wastewater Department.
Ms. Knox-Walker asks that the rule be invoked. Chairperson Silvas explains what this means and
invokes the rule. -
Ms. Knox-Walker states this involves a post-accident drug test and was Mr. Davis was terminated
on January 15, 2008 for testing positive for propoxyphene in violation of City policy HR 15.0 and
Civil Service Rules and Regulations. Facts are: on December 17, 2008,Mr. Davis was on duty as a
Wastewater Collection Technician, safety sensitive position. Mr. Davis was operating a city tractor
when he damaged underground cables resulting in the post-accident drug test. On December 26,
2007, the MRO reviewed the results for the test and no legitimate explanation was given. He did
not have a valid prescription for this illegal drug. Considering the violations of City policies, the
termination is justified and should be upheld.
Mr. Davis states around December 9th or 10th he was sick and mistakenly took a pill in from
wife's purse. States ee does not use drugs. States he did not know he'd taken this medication. On
December 17, he was trying to get ojt training, had previously talked to Foster about treatment he
was getting while trying to obtain ojt training. Mr. Davis states Mr. Crowell stated if he didn't like
the way things were going to quit and go elsewhere. Mr. Davis states he made a mistake, states
he's taken many drug tests with the City and has never failed one. Mr. Davis states his wife told
him she put other medications in another bottle to take at work. He went in her purse without
permission and took a capsule.
Ms. Knox-Walker states the City calls Deanna Galan as first witness.
Ms. Galan: Deanna Galan, 1201 Leopard, worked for 5 years. Currently working as HR Analyst,
duties include administering drug/alcohol policies for the City and Fire recruitment. Statese is
SCANNEO
familiar with circumstances of Mr. Davis. States when there is a positive drug test, she contacts
employee(or supervisor)and asks them to go for follow-up.
Ms.Knox-Walker—City exhibit#1
Ms. Galan—this is the post-accident worksheet to record information. Ms. Galan took information
from Narciso Aguirre on December 17, 2008, EE was operating a small tractor and damaged
cables,tested under City HR 15.0.
Ms. Knox-Walker offers as evidence exhibit#1 —accepted by Chairperson Silvas
Ms. Galan — received post-accident phone call, record information, have ee driven for testing.
Usually about 1-2 days to receive results. If something was positive, I will contact ee to go for
follow-up and take any prescription meds from last 30 day. After seeing MRO, I will receive
paperwork from MRO indicating positive/negative. Mr. Davis did fail a drug test and tested
positive for unauthorized drug.
Ms. Knox-Walker—City exhibit#2
Ms. Galan — this document is the City Policy HR 15.0 and was in effect at time of Mr. Davis'
accident and applies to all city employees. Describes the definitions of an accident, controlled
substances,failing a drug test,and illegal drug
Ms. Knox-Walker asks if Mr. Davis violated policy HR 15.0.
Ms. Galan states yes. States #3 and #23 on page 4-5 apply to Mr. Davis. States city employee has
responsibility to report use of prescribed/non-prescribed drugs if it impairs their functions. States
propoxyphene is listed on page 7 of policy and his positive is listed as safety sensitive position as
listed on page 16 of policy. States consequence of this policy is termination on first offense.
Ms.Knox-Walker offers exhibit#2 as evidence—accepted by Chairperson Silvas
Ms. Galan states Mr.Davis did not have a valid prescription for drug,making it illegal.This policy
is strictly enforced and does include provisions on post-accident drug testing. Mr. Davis was
operating motor driven equipment at time of accident. This policy does not include exceptions
when an employee mistakenly takes an unauthorized controlled substance.
Ms. Knox-Walker—City exhibit#3,#4,#5,#6,#7
Ms. Galan — states these are acknowledgement forms for city policies and signed by employees
stating they understand the policies, they are kept in the HR file and Mr. Davis' signature appears
on all documents.
Ms. Knox-Walker offers exhibit#3 -#7 as evidence—accepted by Chairperson Silvas
Ms. Galan states compliance is a condition of employment and they indicate if an employee fails
to comply a violation is up to and including termination on first offense. Mr. Davis did not comply
with HR 15.0.
Ms. Knox-Walker—pass the witness
Mr. Davis asks Ms. Galan if the first offense can include un to termination and asks who has the
final call on what an employee is disciplined with. Ms. Galan states the HR department does the
investigation, recommends an action to the Director of the department. Mr. Davis states his test
took 10 days to get results back. Ms. Galan states the testing can go into further testing at the lab if
there is a positive outcome initially so it can take more than 1-3 days to get results. Mr. Davis
states his drug tests have never come back in 9 days and asked director to check into it. Mr. Davis
states he talked to Dr.Rose and Dr. Rose told him it was too late to take a"retest".
Ms. Galan states once the employee meets with Dr. Rose, our policy states the employee has up to
72 hours from the time you meet with the Dr.to decide if you want to test the split specimen.
Mr. Davis states on December 27th or 28`h, Ms. Lee called you, Ms. Galan. Ms. Galan states she
was out on vacation but may have spoke with Karen Harling.
Mr. Davis states Ms. Lee told him he may have asked for the wrong thing from Dr. Rose (asked
for 2nd opinion or a retest)they informed him he was too late. Mr. Davis asked the difference of a
second opinion or a retest and Ms. Lee said it was the same thing.
Ms. Garcia asks Mr. Davis and Ms. Knox-Walker if Ms. Galan will be need to recalled. Both
stated yes.
Ms.Knox-Walker calls Dr.Rose as the next witness.
Ms.Knox-Walker asks Dr. Rose name/address:
Dr. Rose: Keith Rose, 4637 SPID, CC, 78411, Dr. Center is the designated collection site, is the
MRO for the City for the past 4 years. Is responsible for sending/receiving lab results, evaluating
medical explanations, is familiar with post-accident drug testing. Post-accident test was collected
by standard procedure— ee fills out form, pees in cup, chain of custody is completed, Mr. Davis'
specimen was collected at Dr. Center, SPID, the lab recorded they received specimen sealed. Dr.
Rose states Mr. Davis did not request the split sample test. The SOP for split sample is offered in
case where the ee says the result cannot be positive and it is sent to a separate lab from initial
testing. Dr. Rose states the question was whether or not Mr. Davis had a prescription for the
positive test so he wouldn't have needed a retest
Ms. Knox-Walker offers exhibit #8 - Dr. Rose states this is part of the non-regulated testing
control form prepared by the collector at the Dr. Center and it is a standard document
Ms.Knox-Walker offers exhibit#8 as evidence—accepted by Chairperson Silvas
Ms.Knox-Walker offers exhibit#9—Dr. Rose states the document was prepared at the lab by
Medtox and is standard document reviewed by MRO. Dr. Rose states Mr. Davis'.name/id appears
on document and it was positive.
Ms. Knox-Walker offers exhibit#9—accepted by Chairperson Silvas
Dr. Rose states date collected was 12/17/2008, lab received 12/19/2007, date report was generated
12/22/2007. Propoxyphene is a controlled substance is brand name for dorvecot. Dr. Rose
) reviewed the results before reporting to HR and found no alternative explanation for results.
Ms.Knox-Walker offers exhibit#10—Dr. Rose states the document was prepared at office by staff
and given to him at time of meeting with Mr.Davis.
Ms. Knox-Walker offers exhibit#10 as evidence—accepted by Chairperson Silvas
Dr.Rose states he met with Mr.Davis on 12/26/2007 to discuss results. The decision was a
positive. Based on city guidelines,Mr. Davis did not have explanation. Based on other medical
review,Dr. Rose states in the guidelines,there is an allowance for if someone took someone else's
medication but they do not supersedes city guidelines. But,in all fairness to Mr. Davis,after
interviewing him, Dr. Rose does not feel he was abusing medication,had no reason to believe he
was not telling the truth.Dr. Rose states Mr.Davis stated he mistakenly took wife's medication.
Dr.Rose states propoxyphene does not look like Tylenol pm.
Ms. Knox-Walker passes the witness.
Mr. Davis—refers to meeting with Dr.Rose on 12/26/2007,states he was talking to Dr. Rose
about results,brought other meds, states he asked for a second opinion,retest. Dr.Rose said it was
too late.Dr.Rose explained the split specimen to Mr. Davis.Mr. Davis states Dr. Rose was talking
on the phone to someone else several times. Dr. Rose denied talking on the phone and stated he
was trying to help him. Dr. Rose explained about specific rules of city handbook,that he has
complete discretion if it's not in the handbook(but it is). According to rules of city handbook,the
test was positive,per Dr. Rose.
Mr.Davis asks if any city employee comes and says they've taken another med by mistake,would
the outcome be different. Dr. Rose says it would be positive. Mr. Davis states if the protocol can
• be suspension up to termination and someone else went to Dr. Rose's office with a positive result,
Dr. Rose told that person not to do it anymore,that he didn't want to get the employee terminated.
Dr. Rose says that isn't true and would be glad to talk to that person. Mr. Davis asks if this is for
any department and Dr. Rose states yes.
Mr. Davis would like to ask Dr. Rose another question at a later time.
Ms. Knox-Walker states the city calls Foster Crowell and asks him to state:
Foster Crowell,5253 Holly Rd, Service Center, Currently director of wastewater.
Ms. Knox-Walker offers city exhibit#11 —Mr. Crowell states it is the job description of
wastewater collection technician and is accurate for work performed by Mr. Davis. Mr. Crowell
states Mr. Davis was performing ojt,must do so safely to avoid power/gas lines, etc.
Ms. Knox-Walker offers exhibit#11 as evidence—accepted by Chairperson Silvas.
Mr. Crowell—told by doctor Mr. Davis was under the influence of a drug without a prescription
which created danger to himself. States they hold several safety meetings a year,reminding them
of city polices. States Mr. Davis endangered his coworkers and citizens,according to city policy.
Ms.Knox-Walker offers exhibit#12—Mr. Crowell states this document is an office memo to Mr.
Davis for contemplated hearing. States the document references the violation and consequence.
Ms.Knox-Walker offers exhibit#12 in evidence—accepted by Chairperson Silvas
Mr. Crowell states Mr.Davis operated equipment while having an illegal drug in body.
Ms. Knox-Walker offers exhibit#13 —Mr. Crowell states document is what is sent to Civil Service
board notifying of termination of Mr.Davis.
Ms. Knox-Walker offers exhibit#13 in evidence—accepted by Chairperson Silvas
Mr. Crowell states Wastewater department follows all procedures regarding post-accident drug
testing. States Mr.Davis did violate HR 15.0 and the termination is justified.
Ms. Knox-Walker passes the witness.
Mr. Davis states on 1/10/08,had meeting with Mr. Crowell,that was rescheduled by Mr. Crowell.
Mr. Davis states Ms. Lee was also present at the meeting. Mr. Davis asks Mr. Crowell to recall
him telling Mr. Davis to go home, look in the mirror and call himself stupid. Mr. Crowell states he
did not say that.
Mr. Davis states that is all.
Ms. Knox-Walker states City rests.
Mr. Davis calls Regina Lee.
Ms. Lee states she recalls meeting with Mr. Crowell and did not recall him calling Mr. Davis
stupid. Ms.Lee states she remembers Mr. Davis called and asked about second opinion test,
paying for split specimen, and to talk to Dr. Rose about the test.
Mr. Davis asks Ms. Lee to recall Mr. Crowell to find out why he was not allowed to take a second
opinion or retest. Ms. Lee said she does remember. Ms. Lee states there was no proof to take a
second test, Mr.Davis did not pay for another test. Ms. Lee states the employee has to request at
the time the employee sees the doctor and pay$100.
Ms. Knox-Walker discusses HR 15.0 with Ms.Lee,primarily the split specimen details. Ms. Lee
states by the time Mr. Davis called her it was too late to ask for the split specimen.
Mr. Davis calls Mary Davis as witness. Ms. Davis was a city employee,crossing guard. Mr. Davis
states he asked for a copy of Mary Davis' drug test and he received a letter on 4/18/08 that said he
would not be able to get a copy of the test. Mrs. Davis stated she had a positive drug test as an
employee and spoke with Dr.Rose. Mrs. Davis stated she took one of her mother's prescription
pills. She states Dr. Rose said he would not let her loose her job. Mrs. dAvis states there was an
inconsistency with Dr. Rose and the city policies. Mrs. Davis said she took zanex for another drug
test and was told to take 5 days off and then come back to work.
Mr.Davis calls Dr. Rose for witness testimony. Mr. Davis tells Dr. Rose what Mrs. Davis stated.
Dr. Rose states he does not remember and that it cannot be true.
Mr. Davis asks for Mrs. Davis drug test. Mrs. Knox-Walker states Mrs. Davis can sign a release
for the drug test.
Chairperson Silvas agrees to a recess to gather the requested information from Mr. Davis.
Ms. Knox-Walker states before break Mrs. Davis states her drug test was positive.
Dr. Rose states she had a prescription for the medication. It was a pre-employment test. It wasn't a
narcotic and she already had a prescription for that type of medication. Dr. Rose states she hadn't
signed the employee handbook so he used judgment.
Chairperson Silvas asks what propoxyphene is?Dr. Rose states it's a narcotic for mild to moderate
pain, low class of hydrocodone. It can be abused but is mostly abused by females.
Ms. Galan is called back by Ms. Knox-Walker. Ms. Galan testifies to the drug test result for Mrs.
Davis and states it is the City's responsibility to rely on what the MRO gives us.Ms. Galan states
• if the test had been positive,the applicant would not have been eligible for hire for one year.
Member Silvas asks for other witness,brief summation.
Ms.Knox-Walker states Mr.Davis is a safety sensitive employee,had an accident while working
and submitting a urine sample for testing. Confirmed result was positive and no legitimate medical
explanation was found.City Policy HR 15.0 states having an illegal drug present in body and
failing a drug test are reasons for termination. Compliance with HR 15.0 is condition of
employment.Dr.Rose confirmed procedures were followed and confirmed the positive result.
Mr. Davis violated HR 15.0 and consequences for this violation is automatic and mandatory
termination and should be held accountable.Evidence supports termination and the City ask that
the termination is upheld.
Mr.Davis states he wasn't feeling good and took a pill. States he did not abuse his paid leave time
off,reached in wife's purse and took a capsule. States he asked for the second opinion test and was
not given it. States he'd like to have everything thing done correctly.
Chairperson Silvas states it is 12:10 pm—closed meeting.
Chairperson Silvas states it is 12:58 pm—returning from closed meeting. Vice-Chairperson Butler
makes motion to uphold the City's decision. Chairperson Silvas seconds motion.
Chairperson Silvas states it is 12:59 pm and the meeting is adjourned.
46„
Joh P. Silvas, :irperson Eileen Butler,Vice-Chairperson
Ci it Service Board Civil Service Board
Cyn 'a C.Garcia, Secretary
Civil Service Board