Fired state worker challenges order on substance abuse

October 28, 1990|By Michael K. Burns

A state health department employee, fired by the state for an off-duty drunken-driving conviction, has gone to court to challenge Gov. William Donald Schaefer's controversial executive order covering substance abuse in "sensitive" state jobs.

The employee of the Holly Center for the developmentally

disabled in Salisbury, who is among the 17,000 employees in designated state "sensitive" safety or health jobs, asked the Wicomico County Circuit Court yesterday to overturn his discharge.

Daniel Coles, a direct-care aide for seven years, was suspended without pay after his March conviction for driving under the influence of alcohol. He was fired this month after exhausting his administrative appeals, becoming the third Holly Center employee to be fired under the governor's order requiring automatic dismissal upon conviction.

"This decision just flies in the face of justice," said William Bolander, executive director of Council 92, American Federation of State, County and Municipal Employees, which represented Mr. Coles in the termination appeal.

"This is particularly inappropriate since the employee had no way of knowing he could face termination as a result of an arrest," the union official said. Mr. Coles was arrested in August 1989, but his job was not designated "sensitive" until January 1990, Mr. Bolander said.

The governor's office disputed that claim. Raymond Feldman, a spokesman for Governor Schaefer, said, "The terminology of these sensitive positions should have been broad enough for this employee to understand he was covered" by the April 7, 1989, order.

Lists of "sensitive" jobs later were developed by the Department of Personnel in several stages, Mr. Feldman added.

Under the order, a state employee who is not in a "sensitive" position also may be fired upon conviction, although less severe discipline may be imposed.

Altogether, eight state employees have been fired under the order for alcohol or drug abuse, either because of court convictions or on-job testing, Mr. Feldman said. Several other cases are on appeal, he added.

AFSCME argued on behalf of Mr. Coles that the order covering off-duty conduct is unconstitutional, was applied for an offense committed before its enactment, and has been applied inequitably. The order is irrelevant to job performance, it contended.

"There has been no suggestion by anyone that he [Coles] would represent a harm to people if he was kept on the job," said Susan Estey, an AFSCME staffer.

At hearings, supervisors testified that Mr. Coles had no previous record of alcohol abuse or other problems in his work as a direct-care aide at the center, she said, and he was found not to be an alcoholic by the state's drinking driver screening program.

Holly Center officials testified they learned of Mr. Coles' conviction through scanning the local newspaper, as they had in the two previous cases, Ms. Estey said. Other state facilities are not actively looking for such convictions, "so the Holly Center employees are unfairly treated," she said.

(Under the governor's order, employees must report a drug conviction to their supervisors, while those convicted of alcohol abuse are not subject to that rule.)

Michael Golden, a spokesman for the health department, denied that Holly Center was more strict than other facilities in applying the governor's policy. Dismissal charges have been brought against seven other department employees, he said.

"There is no discretion [about firing] according to the policy on sensitive employees," he said.

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