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Dashiell v. Maryland State Department of Health and Mental Hygiene. Daniel Coles6/23/1992
These cases involve the application of the State's Substance Abuse Policy, as originally promulgated by an Executive Order of the Governor of Maryland on April 7, 1989, to two State employees whose employment was terminated following their convictions for drunken driving offenses.
I.
Executive Order 01.01.1989.05 was, in part, a response to the federal Anti-Drug Abuse Act of 1988, 41 U.S.C. §§ 701-707, which requires states receiving federal funds to establish a drug-free workplace, a policy on use of substances, a drug awareness program for employees, and a procedure for self-reporting convictions. The order provided, in paragraph B(7), that "employees convicted of off-the-job drug or alcohol offenses will be in violation of this policy." Paragraph B(11) of the order specified that "employees who are assigned to designated sensitive classes will be terminated if they are found to be in violation of this policy." (Emphasis added.)
Paragraph A(6) of the Executive Order defined "'Sensitive classes'" of State employees as
"those in which the Secretary of Personnel has determined that all of the following conditions exist:
"(a) A substantially significant degree of responsibility for the safety of others;
"(b) A potential that impaired performance of the employee could result in death of or injury to the employee or others; and
"(c) Lack of close monitoring of the employee 's behavior which reduces the possibility of intervention or assistance by another when necessary."
A.
Dashiell Case
Charlene Ellen Dashiell commenced her employment with the State of Maryland on July 3, 1975 at the Holly Center, a facility of the State Department of Health and Mental Hygiene which serves developmentally disabled persons. At the time of her discharge, Dashiell was a Direct Care Assistant II. She was required by her job to care for disabled residents of the Holly Center by, among other things, lifting and positioning patients and providing for their personal hygiene and grooming. From 1975 through 1987, Dashiell's annual work evaluations were satisfactory. In 1981, her job performance was recognized with the Silver Medallion Exemplary Service Award. In 1988 and 1989, however, problems arose. Dashiell's annual evaluations for those two years rated her performance as unsatisfactory, citing attendance problems. Eighteen days after the Governor's Substance Abuse Policy took effect, Dashiell signed a form acknowledging receipt of a copy of the policy.
On July 3, 1989, while off-duty, Dashiell was arrested and charged with several drunken driving offenses. On October 23, 1989, she was found guilty in the District Court of Maryland, sitting in Wicomico County, of driving while intoxicated in contravention of Maryland Code (1987, Repl.Vol., 1991 Cum.Supp.) § 21-902(a) of the Transportation
Article. Thereafter, on January 17, 1990, the Personnel Director of the Holly Center issued a memorandum notifying Dashiell that her position had been classified as "sensitive" for purposes of the State's Substance Abuse Policy.
Charges for her removal from State service were subsequently filed against her by the Department, it being alleged that she had violated paragraph B(11) of the State's Substance Abuse policy, as well as the Code of Maryland Regulations (COMAR) 06.01.01.47(M), viz., that her conduct tended to bring the State classified service into disrepute.
On March 27, 1990, a hearing was held before a State administrative law judge. He concluded that the "agency did prove the charges filed against Ms. Dashiell," and therefore recommended to the Secre
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