My name is Frank Bach and I serve as the President of the City Service Commission.

Ms.

Moore informs me that we are only recording on teams and not on Granica's.

The first item on today's agenda is a call to order.

This March 6, 2026 meeting of the Board of City Service Commissioners is called to order.

The next item is the roll call.

Will the executive secretary please call the roll?

Vice President Miller.

President.

Commissioner Cleary.

Present.

Commissioner Smith.

Present.

Commissioner Wittsburne.

Present.

President Bach.

Present.

Five present.

Thank you.

Next item, please.

Item three, file number 251-741.

Communication for the approval of the February 24th, 2026 meeting minutes.

Do commissioners have any comments or questions concerning the proposed minutes?

No.

No, no.

It's been moved and seconded to approve the proposed minutes of the February 24th meeting.

I'll poll the commissioners.

Commissioner Miller.

Yes.

Commissioner Smith.

Yes.

Commissioner Cleary.

Yes.

Commissioner Wicksparl.

Yes.

The minutes are approved as submitted.

Please announce the next item.

Item number four, file number 251742, the discharge appeal of Deshaun L.

Smith, Electrical Worker, Department of Public Works.

State statute and our rules allow a city employee to appeal a discharge action.

Today we're hearing an appeal from Deshaun Smith concerning his discharge, which was signed on December 23rd, 2025.

The commission will decide whether or not the department had cause to discipline the appellant.

If we find they did have cause, the commission will decide the appropriateness of the penalty.

The court reporter will swear in witnesses just prior to their testimony.

I want to remind everyone that only one person can talk at a time because the reporter has to be able to hear the speaker in order to make a record of the hearing.

The parties have stipulated to certain exhibits and other matters, including the fact that Mr.

Smith filed a timely appeal.

This hearing will be conducted as follows.

First, we'll consider the exhibits.

Second, we'll have opening statements from each of the parties.

Third, we will have testimony from the witnesses.

Each witness will be subject to questions from the commissioners and cross-examination by the other party.

Fourth, we'll have closing statements by each of the parties.

And finally, the commission will deliberate on the matter.

Typically, our deliberations are conducted in closed session, and then we announce our decision in open session.

At each step in the process, the department goes first and the appellant second.

There'll be a lunch break at noon.

If the hearing were not completed by 4:30, staff will work with the parties to select an additional hearing date.

Yes, sir.

I have.

They were submitted by the department, but were not stipulated to by the appellant.

We are now going to consider each of those three exhibits.

Exhibit DU1 is a one-page document titled by staff as manager witness statement.

R.

Gutierrez.

It is a type statement by the supervisor who took Mr.

Smith for a follow-up test on the morning of December 19th, 2025.

However, the author of and the date of the statement are not shown.

The list excuse me.

The list of exhibits identified that supervisor is Mr.

Gutierrez.

I assume that he will be testifying today.

Is that true?

President Bach.

Yes, that is correct.

Andrew Simons.

Oh, Mr.

Simons.

I'm uncomfortable with having an exhibit come in that's unsigned or undated.

And so I'm going to hold off this item to be considered when Mr.

Gutierrez testifies.

At that time, we will consider the objection from Mr.

Smith.

So this one is put on hold until Mr.

Gutierrez testifies.

Exhibit D2, DU2, pardon me, is a two-page document.

Titled by staff is manager witness statement, Mark McRae.

This two-page exhibit was prepared by Mr.

McRae.

Electrical Services Operations Manager is and is dated December 22nd, 2025.

The exhibit reports on a meeting held by management with Mr.

Smith on December 19th concerning that follow-up test.

Mr.

Smith, what is your objection to this exhibit?

Good morning, William Sultan.

I heard you say that this document was prepared by Mr.

McCrae.

I don't have any information on that.

First of all, excuse me.

Are you Mr.

Smith's representative?

Yes, sir.

Are you an attorney?

Yes, sir.

Um I would like to uh draw attention to the fact that our rules and our uh both both the commission rules and the I believe the state statutes both state that if the appellant has an attorney, the department may have an attorney.

Uh so I'm I'm wondering, and I'm uh also looking to our attorney.

Uh Lori Rawlings is here today, but she is not representing the department.

She represents the commission.

So uh I'm wondering about the appropriateness of proceeding when the department is unrepresented.

That's an excellent question, President Bach.

And you are who's speaking?

Oh, I'm sorry, it's Lori Rowling's counsel for the CSC.

Uh you're absolutely correct.

The statute and the rules provide that if the appellant is represented by counsel, the department may also be represented by counsel.

President Bach.

Yes.

This is this is Elizabeth Moore, administrative support specialist in speaking with Mr.

Simons.

I mentioned that detail, and he was confident that this is the way they wanted to proceed with him and uh speaking for the department.

President Bach.

Yes.

This is Andrew Simons, uh HR infrastructure HR administrator, and the the department is willing to waive our um right to counsel and proceed with me as the representative today.

Okay, in that case, uh we will proceed.

Uh, I just felt that uh I should raise the issue since it's uh the language is fairly clear in both the rules and the statute.

Having said that, uh can we go back to uh could the attorney for Mr.

Smith please uh state his name again and spell the last name?

Yes, good morning.

My name is William Sultan S U L T O N.

S U L T O N.

T U N.

Oh, I Sultan.

Uh, thank you, Mr.

Sultan.

Um you were you were making a comment regarding proposed exhibit DU2?

Uh yes, my suggestion is that it be treated in the same manner as DU one, as I believe that Mr.

McCray will testify in this case.

He may testify that he prepared this.

I I don't know.

Um, but that's essentially what I have as uh statement.

So uh that that that's my request is that we would hold a uh ruling, final ruling on it in abeyance pending Mr.

McRae's testimony.

Uh I'm going to uh I'm gonna let you I'm gonna accept that as in a as an objection.

I I think when uh when an exhibit is uh signed and dated, I I and it's a person that's in the record.

It seems a little bureaucratic on your part, but having said that, we will hold up until Mr.

McRae testifies.

So DU2 is also placed on hold, Mr.

Simons.

And uh I would ask you in each case when the witness, the appropriate witness uh is called that we deal with that item first.

Is that President Bach understood?

Yes.

Thank you.

The final exhibit is DU3 is an eight-page document, excerpts from the federal DOT rules, the proposed exhibits.

It consists of three sections.

Uh Section 4191 problems and drug tests, Section 40 299 substance abuse professionals and the return to duty process, section 40.307 substance abuse professionals and return to duty process.

Um, Sultan, any objection to this one?

Uh no, I don't have an objection to it.

Okay.

Um the department uh was up to uh D13 among the stipulated exhibits.

So DU3 will become D14 in our records and is part of the record in this case.

Um the next step in our process in also involves exhibits, and I have to ask the parties if they have, and I'll ask each of them individually.

Do they have additional exhibits which they wish to propose for this hearing today?

I'll start with Mr.

Simons on behalf of the department.

Mr.

Simons, does the department have any additional exhibits?

Uh no, President Bach, we do not.

Okay.

Mr.

Sultan, on behalf of the defendant, do you have any?

No, I do not.

Okay, good.

The chair always appreciates a no in answers to those that question.

At this point, we will have opening statements from each of the parties.

And as I indicated, at each step in the process, the department will go first.

So Mr.

Simons, do you have an opening statement on behalf of the department?

Yes, President Bach.

Please proceed.

Andrew Simons, Infrastructure HR administrator.

Thank you, Commissioners, for the opportunity to appear today regarding Deshaun Smith's discharge appeal.

During this appeal, testimony will be provided to support the discharge action taken by the department.

The appellant held a safety sensitive position that per federal regulation requires drug and alcohol testing.

The Department of Public Works DPW has longstanding straightforward work rules related to drug and alcohol testing program.

Two violations will result in discharge.

DPW properly followed Department of Transportation DOT drug and alcohol testing protocols.

It is a fact the appellant refused to take required testing on multiple occasions, including on July 9th, 2024, the first positive test, and then again on December 19th, 2025.

During the second occasion, the appellant disclosed confidential information related to the frequency and duration of their required follow-up testing program.

In the moment, management strongly encouraged the appellant to proceed with the appropriate required follow-up test.

Specifically, if Deshaun Smith questioned the legitimacy of the test, then they were advised to take the test and then grieve it.

If it was later determined that the test was inappropriate, then they would not have suffered any consequences, including if the results were positive.

The appellant simply refused.

Today, the appellant may make the case that DPW was unable to perform tests outside the assigned substance abuse professional, the SAP's testing plan parameters.

Per DOT regulation, the SAP testing plan follows the employee through breaks in service.

This means, for example, if an employee is signed one year of follow-up test, then and they are gone from work for one month, then the plan is extended to one year and one month.

The appellant was not at work for a substantial period of time.

And they had tests they still needed to complete.

DPW followed the required regulations and extended the follow-up testing plan accordingly.

During the second refusal result, management was alarmed when the appellant disclosed they knew the frequency and duration of their testing plan schedule.

This information is strictly confidential.

It is only able to be known by the employer, the SAP, and never the employee.

It turns out the SAP who oversees the evaluation and prescription of the testing plan is the appellant's mother.

This fact represents a conflict of interest violation and is highly inappropriate.

It is the department's belief that due to their relationship that the appellant could have received confidential drug testing information from their mother.

In closing, the department did what it was supposed to do.

DPW implemented the testing plan in the same manner we have with other safety-sensitive staff and have done this for a very long time.

The appellant was subject to follow-up drug tests.

DPW performed legitimate, performed a legitimate testing attempt.

The appellant refused, citing a reason that was not valid.

The appellant could have taken the test and then submitted a grievance.

Instead, they attempted to void to avoid and circumnavigate a required drug test.

The appellant violated the same work rule twice.

The department told work rules are clear.

This long stand the long-standing work rule, a second drug and alcohol violation will result in discharge.

During today's discharge appeal, the department will present testimony, evidence, and facts.

It is our sincere belief that the discharge action was warranted, appropriate, and should be upheld.

Thank you.

Yes, I am.

Please proceed.

Good morning.

My name is William Sultan.

I represent Deshaun Smith in this action.

The evidence in the case will show that Mr.

Smith uh SAP provider provided notice to both the city uh department of public works and Mr.

Smith that the letters that were submitted by the SAP provider went to both, shows that it's addressed to both, and that that was a common practice by this provider who provided service to city employees before Mr.

Smith's uh program and continues to provide that service.

Uh at no point in time did any uh one at Mr.

Smith's job ever say that that was inappropriate to receive that correspondence of which they were aware.

Um the simple fact of the matter is that Mr.

Smith completed the program as required by the SAP provider.

After he completed the program, he was asked to take a test.

That test was unwarranted.

Mr.

Smith objected to it, and that's sort of the bottom line.

Um, but he uh met every test that took every test that he was supposed to take, and everyone was aware that uh the correspondent went to Mr.

Smith uh as they can see that on the letter, and there was never any objection, and that was an issue.

Frankly, that was raised um only at the pre-D hearing.

Um so we that we would ask that you reverse the discharge decision.

Does that conclude your opening remarks?

It does.

Thank you.

As I indicated, the next step in the process is hearing from uh witnesses.

The department will call its witnesses first.

Mr.

Simons.

Who is speaking?

Sorry, this is William Sultan.

Yes.

I have I have one witness on Teams, and I have one witness that's in the hearing room.

Do you want them sequestered?

We generally do not sequester the witnesses.

Generally speaking, but occasionally we do if we think it's appropriate.

Um it's usually done at the request of the parties.

I am not requesting sequestration.

I was just raising it as an issue.

Okay, well, that's that's for the most part we do not, but we we can sequester witnesses, and we have done so.

Uh, but it's usually done at the request of the parties.

So uh if there's no further uh concern at this moment, I'll go to Mr.

Simons and ask him to please all or identify, pardon me, identify the first witness.

The first witness uh will be Donald Laster.

Okay.

At this point, I would like the court reporter to swear in, Mr.

Lester.

Mr.

Laster, could you raise your right hand, please?

And tell me when you've done so if you're on Teams.

Yes, I'm on Teams.

In the testimony you're about to give out of the pains and penalties of perjury of the state of Wisconsin.

Do you swear or affirm to tell the truth, the whole truth and nothing but the truth?

I do.

Thank you.

Please proceed, Mr.

Simons.

Thank you.

Mr.

Laster, please introduce yourself and identify a brief scope of your work responsibilities.

Well, good morning.

My name is Donald Lastor.

I am the Department of Public Works City Safety Supervisor.

I am responsible for a team of safety specialists.

Uh our responsibilities um include, but it's not limited to uh injury case management, uh training, just ensuring and uh enforcing all OSHA related safety compliance, as well as uh compliance to uh City of Milwaukee drug and alcohol uh policy.

Thank you.

How did you first get involved in this matter?

Uh the uh complaint we received notification from our third party administrator.

Actually, we received notification that there was a uh uh refusal on July 9th, uh 2024 with regards to uh uh drug and alcohol test.

What was the most recent incident?

The most recent incident occurred uh on December 19th, 2025, uh, when there was a refusal to submit to a required follow-up drug test.

You please describe the process from the first positive um through the um second positive result and the eventual discharge action.

Yes.

When an employee uh is tested for a drug and alcohol uh test, uh, or actually in this particular case, uh this was um the first violation occurred on July 9th, 2024.

Uh the employee refused to submit to an observed collection following an out-of-range specimen during a random drug test.

Uh this refusal was recorded as a refusal to test, and in accordance with policy, it was treated as a positive drug test result.

So subsequent to that, the employee uh attended a uh drug and alcohol um, I'm sorry, the uh the employee attended a um predisciplinary hearing.

Uh during that predisciplinary hearing, uh the employee learned of or the employee was advised that they would have to uh uh be subject to SAP substance abuse uh professional uh follow-up drug tests, and they would have to complete a successful SAP program, whatever program that the SAP had for them.

Uh additionally, the uh the employee was advised that there would be a mandatory 10-day suspension as outlined in a uh BPW drug and alcohol policy.

Uh then the employee uh uh continued on with the uh suspension.

Um there was subsequent um uh follow-up tests uh that occurred.

Uh and the employee was advised that uh if there was a second violation of the DPW drug and alcohol policy, that will result in discharge.

So on December 19th, 2025, the employee again refused to submit to a required follow-up test.

This second refusal constituted an additional violation of the city of Milwaukee drug and alcohol policy and the regulations of the Federal Motor Carrier Safety Administration.

Was the appellant properly informed of the rules and what would happen if they had a second violation?

That is correct.

Umce the hearing or prior to the hearing uh that they were that the uh appellate attended, uh the employee was um uh uh read through the uh DPW uh rules with regards to the the drug and alcohol policy, and they were uh they actually signed a uh a required employee notification uh document that indicated you know the rules and or the uh the consequences for uh for a second violation of the drug and alcohol policy.

I believe you're referencing D7.

If we could put D7 on the screen, Mr.

Laser, is this the document you're referencing?

I think I see it.

Can you read the last um check box?

That is correct.

The required screen.

Yes, the next violation of drug and alcohol policy will result in discharge.

Can I just say that I think the witness should be looking at this the screen that's showing the room rather than whatever second screen the witness looking at?

Mr.

Lastrick, could you uh could you identify what you're looking at?

I'm looking at the required employee notification procedure uh with the appellant's name at the top, uh location and date, and the names of uh personnel that were involved in the uh or that participated in the uh mandatory uh predisciplinary hearing.

Okay, thank you.

Uh that's sufficient.

Mr.

Last, there were DOT regulations followed um properly throughout this process as it relates to the appellant.

Yes, that the DOT regulations were followed in terms of uh what city of Milwaukee, but in terms of the uh violation, they were the uh drug and alcohol policy, federal motor care safety administration was violated.

What do you mean by that?

How was it violated?

Meaning uh the refusal to testituted a positive drug test result.

So that in terms was a violation of the federal motor carrier safety administration, the uh regulations with regards to refusal to test.

Thank you.

I have no further questions for this witness.

Okay.

Before we get to cross-examination, I'm going to ask my fellow commissioners if they have a questions for the witness.

And the commissioner should who has a question should identify themselves uh before asking the question.

Commissioners.

I have no questions.

I have none.

No, no.

Okay, we don't have any questions from the commissioners for this witness, which means that we now can go to cross-examination by Mr.

Sultan.

Good morning, Mr.

Lasser.

My name is William Sultan, and I represent Deshaun Smith in this matter.

Good morning.

And I understand from exhibit D7 that you were involved in a meeting with Mr.

Smith in which you went over the city's policy on drug and alcohol testing following a refusal to test.

Is that right?

That's correct.

The this was uh uh brought forth in the uh the uh predisciplinary hearing for the July 2024 incident.

That's correct.

I'm sorry, for the July 9th uh incident, July 9th, 2024.

Sure, sure.

So there was a refusal to test in July 24, correct?

Correct.

And then you were involved in a meeting with Mr.

Smith about that refusal to test, correct?

Correct.

And in that meeting, you told uh Mr.

Smith what about the city's policy, correct?

In the meeting, it was this advised Mr.

Smith what the what he had to uh uh to complete as um he had to complete the SAP program.

So yes, everything that was mentioned on this sheet here, yes, was advised of Mr.

Smith.

And what I understood from your testimony is that Mr.

Smith needed to do two things.

One was he needed to serve a 10-day suspension, and two, he needed to complete an SAP program, correct?

That's correct.

Mr.

Smith did do the 10-day suspension, correct?

Correct.

And he did do the SAP program, correct?

The program was not completed uh by Mr.

Smith.

Okay, let's talk about that.

Um did you learn about the SA?

Well, let me ask you this way.

Do you know how the SAP provider was selected?

Uh by Mr.

Smith.

The SAP would have been selected by Mr.

Smith.

Is that something that you informed him of in that July 10th meeting that he needed to select an SAP provider?

Correct.

And so that's the standard practice.

The employee uh who's subject to discipline selects the SAP provider?

The employees advised that they uh whatever program or whatever SAP that they select, they must be DOT certified and they must uh be in compliance with whatever program that the SAP um renders to them.

All right.

And how does the city determine whether an SAP provider is DOT certified?

The employee has to uh has to confirm that the SAP is uh DOT certified.

And so yes, the city must uh have uh contact or the the SAP must have contact with the uh employer and to uh provide all certifications and uh certifications and and approvals and training.

And how does the city determine that the SAP provider meets the requirements of the city and of and of the federal government?

The city must receive the uh required documentations upon learning of who the SAP uh the SAP's been selected.

So once the SAP does provide the necessary uh documents, then that SAP uh then the city can uh you know clarify and confirm whether or not that you know SAP is uh the LT certified.

All right, let me just make sure that I'm understanding correctly.

So the employee selects the SAP provider, then the SAP provider communicates with the city, and the city confirms that this SAP provider can go forward in the program.

Is that right?

If if documents are all received and the city is able to uh and the city receives all the documents that's necessary, then uh they can um uh follow through on this.

But there is somebody at the city that confirms the uh that the SAP provider can move forward, correct?

Yes, the the city, the uh the the city uh safety supervisor, which is myself, yes.

I have to receive this information from the uh SAP, and then that information has to be reviewed, and then um that's uh when the uh particular employee can uh move forward.

Did you receive communication from the SAP provider from Mr.

Smith?

Not directly uh from Mr.

Smith, but no, I'm what I'm asking is did you receive a communication from the from an SAP provider stating that they were going to be doing the required program for Mr.

Smith?

I did not recall uh specifically what that um conversation was, but uh there was some documents.

I want to be clear, I'm not I'm not asking about the specifics of the conversation.

I'm just asking, did you receive a communication, email, letter, telephone from an SAP provider for Mr.

Smith in July of 24?

Yes.

What are we talking about?

Was it a phone call?

Was it an email?

Was it a letter?

This was a uh email, uh I'm sorry, this was a letter, some uh if some documentation from I believe the uh SAP.

When you got that communication from the SAP provider, what did you do?

Uh specifically, what do you mean?

What did I do, sir?

As I understood uh your testimony, Mr.

Laster, that when you receive a communication from an SAP provider, you then confirm that the um proposed program, including the required certifications of the SAP provider are sufficient under city policy and federal law, correct?

Correct.

Once if we receive everything.

Did you do that for the SAP provider for Mr.

Smith?

Did you did you follow up and conclude that the SAP provider met all the certifications and the proposed program met city policy and federal law?

Unfortunately, there was not a follow-up with that particular SAP, no.

So you didn't follow up?

No, there was not a follow-up specifically from me, no.

Was there a follow up from anyone in your office?

I can't recall if anyone spoke with uh that particular SAP or what was said to this SAP.

Could I direct your attention to exhibit J3?

If you look at at the um, I I just want to make sure you're testifying as to the documents that we're putting up in front of you and not any other documents on any second screen you may have.

Okay.

But this, I'm showing you a letter that's dated July 26, 2024, that's written to the city of Milwaukee.

You see that?

Yes, I'm looking at it.

And it's an attention, Patrick Fitzgerald.

Do you see that?

Yes.

Do you know who Mr.

Fitzgerald is?

Yes.

And what's his position with the city?

He is a safety specialist senior.

Is he a subordinate season?

Yes, he is.

Are part of his job duties and responsibilities to confirm that the SAP provider has all the required certifications?

That's not his responsibility.

His responsibility is to receive and his that's not his responsibility.

So is his responsibility then to forward forward this information to you?

His responsibility is to review that and then forward it onto the uh uh or or create a file for this particular uh employee.

I guess let me ask the question this way.

Is it your responsibility to determine that the SAP provider meets all the certifications?

It is my responsibility to make that determination.

And is it your testimony that you didn't make that determination in this case?

No, there was no determination made that this particular SAP was uh um was is was gonna carry on to be the uh DOT cert that be the SAP for this employee.

And what do you mean by that?

Meaning there was not a follow-up or there was no communication between myself and the SAP.

Was it part of your job duties and responsibilities to ensure that the proposed program was consistent with city policy and federal law?

That's correct.

It wasn't anybody else's responsibility.

Yes, to assist, yes, but it's my responsibility.

Did you make a determination that the proposed program in exhibit J3 was consistent with city policy and federal law?

I did not make a uh determination that it was.

I guess when was the first time you saw exhibit J?

First time I seen I can't recall the first time I saw exhibit A, uh uh J3.

I cannot recall.

You believe that you saw exhibit J3 in July of 24 or sometime later?

I believe that I've seen this sometime later, but I can't recall the specific date.

Was the first time that you saw exhibit J3 in preparation for the predisciplinary hearing for Mr.

Smith last year?

Again, uh attorney, I can't recall the specific time period, but I can say that that may have been a possibility that yes, but I can't specifically uh recall when.

But as you sit here today, you don't recall having reviewed any communication from Mr.

Smith's SAP provider, correct?

I can't recall having any communication, but I can recall uh reviewing this documentation.

I just can't recall when it was reviewed.

Do you know who at the city approved um Mr.

Smith's SAP provider and the proposed program?

Would the city have approved this?

Um based upon you know the the knowledge of um you know the circumstances no, it would not have uh been particularly uh approved based upon you know uh uh the circumstances on record.

Yeah, my question was was different.

Okay.

My my question is do you know who did approve the July 24 SAP provider and proposed program?

Do you know who approved that?

No, I don't.

I don't I don't recall who approved the program.

And uh, I mean subsequent to this letter, which is dated July 26, 2024, you've learned that Mr.

Smith was discharged, correct?

Correct.

And are you telling me today that as you're sitting here, you don't know who approved the SAP provider proposed program?

The SAP was uh the SAP program was you know forward on to the city, so it was not officially a program or officially approved by me.

Well, but what I'm trying to learn, Mr.

Last Um, you know, the city told Mr.

Smith in July 24 that he needed to serve a 10-day suspension and that it needed to complete an SAP program, yeah.

And uh he selected an SAP provider, they proposed a program, and he went through with the program, right?

Correct.

Um let me ask you uh about something else.

Are you familiar with a clearing house?

Yes, I am.

Can you tell me what that is?

Uh clearing house is a national database from the uh federal motor career safety administration where they uh register uh violations uh of drug and alcohol policy.

Where who registers the violations, Mr.

Laster?

Um it could be um a third-party, you know, drug administrator.

It could be the DER.

Um in our case, uh, you know, in most cases, it's usually a you know, whoever the uh drug um administrator is or MRO, um the medical review officer.

And and who does the reporting for the Department of Public World?

The medical review officer, our third-party uh drug administration, uh uh third-party drug administrator.

Is that a requirement of federal law that um the medical review officer report that to the clearinghouse?

That's correct.

That's that that is who we uh uh uh communicate.

That that's who uh communicates this on our behalf.

And is it a part of your job duties and responsibilities to make sure that things are accurately reported to the clearinghouse?

That is correct.

And what did you do in July 2024 to ensure that Mr.

Smith's refusal to test and SAP program were accurately reported in the clearinghouse?

Well, our expectation was and and is that a violation should be entered into the clearinghouse in a timely manner.

Sure.

My question was different.

What did you do to ensure that Mr.

Smith's refusal to test an SAP program were accurately reported in the clearinghouse?

In that particular time, it was not um followed up, it was not done.

Now the SAP program is also supposed to be reported in the clearinghouse, correct?

By the SAP.

Do you know if an SAP provider can report something in a clearinghouse if the employer fails to do so?

If it's not entered into the clearinghouse, then the SAP would not be able to, you know, continue with that.

Did there come a file in time?

If the violation is not entered into the clearinghouse, then the uh then there should be no um SAP, you know uh entered.

There should not be an SAP program that should be moving forward.

So you're aware that there that the city did not report anything to the clearing house relative to Mr.

Smith in the year 2024.

You're aware of that, true.

It was reported, it just wasn't reported in a timely manner.

Could you repeat that?

I said the uh the violation was reported, it just it wasn't reported in a timely manner.

Okay, let me ask my question again.

In the year 2024, the city did not report the anything to the clearinghouse, true.

In 2024, that is true.

In the year 2025, the city did not report anything to the clearinghouse, true.

In 2025, it was reported.

Uh the city did report a violation into the clearinghouse.

When in 2025, um I can't recall the date, but uh for the second violation, it was reported for the first violation.

I can't recall when it was.

I would have to uh go into the clearinghouse and confirm that date.

Okay, well, let's let's back up.

So you're telling me that the December 2025 incident was reported to the clearinghouse.

The December 19, 2025 incident was reported into the clearinghouse, yes.

And so, but what I want to ask you about is the July 2024 incident.

When was that reported to the clearinghouse?

I don't recall the date, but it was uh reported into the clearinghouse.

Do you agree that it was reported after the December 2025 incident was reported?

Um again, I can't recall.

I can't recall exact date, but it was reported.

It was reported late, but it was reported.

I can't recall the exact date.

So is it your understanding that an employee cannot complete an SAP program at all?

It's not reported in the clearinghouse.

The SA for my understanding, the SAP should not move forward with if it's if it hasn't been entered into the clearinghouse.

And why is that, Mr.

Lannister?

That's uh part of FMCSA regulation.

Sure, and can you um sort of spell out that alphabet suit for me?

That's fellow federal motor carrier safety administration.

That's that's clearing house.

That is the uh policy for clearing house that should not uh move through.

I'd like to direct your attention to exhibit D8 a letter written to Mr.

Fitzgerald in July of 24.

Do you see that?

Yes.

Um was this a letter that you reviewed in July 2024?

This is a letter that I reviewed, but it's as I indicated before, I cannot um uh clarify the date that I actually reviewed it.

In this letter, which is dated July 11th, 2024.

Desalyn Smith writes that Mr.

Smith's violation did not appear on the clearinghouse, which is unusual.

Do you see that?

Yes.

Then uh Ms.

Smith goes on to write based on the evaluation, my recommendations for Mr.

Smith are as follows.

Receive five hours of drug education to be completed by July 19th, 2024.

Return for a follow-up appointment on July 26, 2024 with verification of completion.

Do you see that?

Yes.

Have you you have reviewed other proposals from SAP providers?

Correct?

Yes, I have.

That's consistent with other proposals from SAP providers.

It is um a different it there is uh it there's some consistency with this return for a follow-up appointment on this particular day with verification of completion.

And I'd like to go some I've seen similar uh SAP um evaluation report, but this this is different than regular violation reports that we've seen or SAP reports that we've seen.

How is it different?

Well, uh there's a number of different um, you know, uh for instance, um SAP reports generally would you know would indicate uh month to month uh what the follow-up uh plan would be.

Um, you know, how many follow-up plans would be uh conducted for each year.

So this particular one I'm seeing based on evaluation, my recommendation for Mr.

S.

Follow receives five years of drug education to be completed.

So there's an initial assessment, and then there's a follow-up assessment, and then there's an SAP follow-up program.

So this doesn't, this particular chart does not indicate the follow-up program on this year.

Uh that no, no, that that's fair.

Let me sort of back up.

So um exhibit D7 is dated Wednesday, July 10th, 2024.

That's the meeting that you had with Mr.

Smith.

Then exhibit D8 is the letter from the SAP provided that's dated July 11th, 2024.

The letter indicates I've completed an initial evaluation for Mr.

Smith on July 11th, 2024.

So that's the next day.

Then it indicates that that he's to receive five hours of drug education and return for a follow-up appointment on July 26, 2024.

Then exhibit J3 is a letter from the SAP provider that's dated July 26, 2024, uh indicating I've completed the follow-up evaluation for Mr.

Uh indicating I've completed the follow-up evaluation for Mr.

Smith.

Um goes on to identify on page two the 12-month testing schedule.

Do you see that?

Yes.

So are these communications common for the situation that Mr.

Smith was in?

Um I would point out one difference uh was that uh that it occurred based upon the dates you indicated that the um the date for the uh hearing was uh July 11th, if I'm not mistaken, if you back up.

Uh there was a meeting on July 10th, which is exhibit D7.

Correct.

There was a meeting on July 10th, and this particular uh evaluation was July.

If you look at D8, it's July 11th was the initial evaluation.

Correct.

So for an evaluation to be done in just one day, that would definitely send a red flag for myself, considering that generally, you know, the assessments are not uh you know conducted so you know expeditiously, uh just based upon you know uh my dealing with SAPs uh for the past few years.

So is that the only variance that you see between the communications?

Um there also some kind of inconsistencies with the way the uh if you go back to the drug test uh results or are the at least the uh follow-up uh date no uh if you can go back to D8?

And if you want to scroll down to where the follow-up tests are to be completed, I think you mean exhibit J3, the second page, which indicates the testing schedule?

Correct.

Yes, okay.

So the way the testing schedule is uh written on there.

Um that's not you know, pretty much consistent with you know the way the testing schedules are that I I've generally receive.

Um months one and two, one test per month.

So the way I'm looking at it, there's some you know some differences, some variations on you know how we receive those uh the testing schedule.

So I can just point that out.

Um I heard you say two things that one variance was that the initial evaluation was completed in one day, and the second variant was the testing schedule.

Is that correct?

Correct.

Any other variances?

Uh none that I could none that jumps out right up me right now, but um those are two right up, you know, looking at this document as we speak.

Those those are two that I can clearly identify.

Did you express to Mr.

Smith any concerns with the initial evaluation or the testing schedule?

I did not.

Did anyone on your team express any concerns about the initial evaluation or testing schedule with Mr.

Smith?

Um I can't recall when, but uh, I believe this was brought to uh Mr.

Smith's attention um during a meeting, if I'm not mistaken.

I can't recall when, but it was brought brought for.

Do you know if that meeting was was before or after the second refusal to test?

This have been the I believe it was second, but I can't I can't recall exactly, but this was brought to his attention.

Did you ever bring any concerns to the attention of the SAP provider?

No.

This was not anyone on your team ever expressed to the SAP provider any concerns?

I don't believe so.

I don't know.

But as you sit here today, you agree that the SAP shouldn't have moved forward at all because it wasn't inputted into the clearinghouse by the city, true?

True.

I don't have any further questions.

Mr.

Simon, any any redirect for this witness?

Yes, thank you, President Buck.

Mr.

Laster, does the department provide employees contacts for SAPs?

Yes, we do.

Does the city recommend providers?

Or is it up to the employee to secure their own provider?

We recommend, but we also advise the employee that uh if they consider their own provider, that's fine.

They just have to be uh approved, DOT certified.

At what point in this this whole process was it identified that the appellant's mother was their SAP?

I believe this was the uh second part or uh the second violation, if I'm not mistaken.

Um I believe this was the second half of the uh the second part of the violation.

Can you please be more specific?

At what point in the process was it identified that the appellant's mother was the SAP?

It was uh confirmed by the city of Milwaukee that after the second um violation uh that the mother was the um the SAP for this appellant.

As best you are able, please provide a date.

On December 19th, 2025.

Uh thank you.

Please clarify the steps in the process.

So someone gets an employee gets suspended.

Please walk us through simply the steps from there.

Okay.

Once the employee has a violation, there is a mandatory meeting that is.

After the Mr.

Laster, after the suspension.

So a 10-day suspension action occurs.

Please tell us what happens after that point.

Right.

After a 10-day suspension has occurred and they completed that 10-day suspension, they must uh complete or reach out to a SAP to uh initiate a uh assessment of their um you know rehabilitation.

So and then once they uh reach out to that SAP, they must secure that SAP.

They must uh go on to uh clearing house and uh accept their violation.

They must uh approve or uh approve whoever the SAP is that they're going to uh use into the clearinghouse.

Uh once that is approved, um, and the uh violation is entered into the clearinghouse, then the SAP is um uh approved to uh move on with the uh the assessment of the uh appellant.

Uh once that assessment is done, you know, they're either referred to you know uh further treatment, um, or they're or they just complete whatever you know program, whether it be um uh you know tip five or ten hours or whatever particular um amount of time that they're expected to uh uh complete that program.

Uh then they uh follow up with the SAP with a second assessment or at least a follow-up once whatever the program that's conducted, um then they're expected to uh perform or have a uh uh a return to duty drug and alcohol test that tests uh if they pass it successfully, meaning there's no positive uh test results, then they are um uh they return to duty, they return to whatever the job assignment that it is.

Uh they're advised of um that they they will be conducting some um observe uh follow-up drug and alcohol testing.

So from the suspension, in summary, they complete a program that the SAP directs.

At the end of that, they complete a return to duty test, and following that, there's a testing plan program that's provided and then is implemented.

Is that correct?

That's correct.

Uh the letter dated 726, 2024.

How could the department proceed with a plan if this document was not referenced?

I'll ask that differently.

Mr.

Laster.

Sure.

Isn't it true you would have received the the SAP assigned testing plan, and thus you would have the information you needed at that time to proceed?

That's correct.

I would have had, I would have had communication with that particular SAP.

Is that what you did with this instance and all instances?

So objects to the question is compound.

I can read I can ask a different question.

So Mr.

Lester.

Yes.

Isn't it true that you received this letter in July of 2024?

And at that time you would have proceeded with the prescribed treatment plan.

Objective misstanding that this is prior testimony.

Oh let him answer the question.

Yes.

Mr.

Laster, whose responsibility was it to make the entry into the clearing house for the first violation, the one in July of 24?

That would have been the city of uh Milwaukee's responsibility to enter that and our um uh administrators.

I just want to clarify that it was not the the MRO's responsibility to do that, it's the MRO's responsibility and as they work on behalf of the city.

So which is it?

Uh this does the city of Milwaukee employ MROs, medical review officers?

No, we don't.

We don't employ them.

So is the MRO an agent um that works, you know, with this an outside entity that works with the city?

That's correct.

I'm gonna ask the question again.

Whose responsibility was it to make the July the first positive entry into the clearinghouse?

That would have been an MRO.

The medical review officer.

I have no further questions.

Thank you.

Based on that extra testimony, Mr.

Sultan, although you did have a question in there.

Do you um do you have any questions for Mr.

Lassiter?

Um this last portion of his testimony, not additional stuff, just that.

I understand.

Um, Mr.

Laster, uh, I'm I'm a little confused.

I want to make sure that I'm that I'm clear.

The city never approved Mr.

Smith's SAP program, true.

The city did not uh approve the program because it wasn't entered.

Right.

Well, what I'm saying is the city never approved the SAP program, true.

The city did not approve the S well the city approved the SAP program because we followed through, but it wasn't approved by uh by policy or at least by process.

Were you aware that Mr.

Smith?

Well, strike that.

Those are those are all the questions I have.

Thank you.

Thank you, Mr.

Lassiter.

All right.

You're excused.

Thank you.

All right.

Uh we can uh commissioner which world.

I'm not the right now.

That was Janet, come back.

I I have a question, Janet Cleary.

Um I'm looking at the dates of the letters that came from the SAP.

And I'm wondering if the if the predisciplinary hearing was held on July 10th.

How is it possible that you would have already gotten a notice that the SAP met with Mr.

Smith on July 11th?

Doesn't shouldn't the uh shouldn't the um employee have a copy of the discipline in hand when they go to their SAP?

Yes, what would it are you referring if you're referring to the violation, the MRO uh would have it advised the employee, but but but in this case, because it was a refusal, they would not have had a um a violation.

I guess that's the way I'm understanding your your uh question.

Well, even though they didn't test, it was a violation, correct?

It it can constitute refusal to test.

That's correct.

But um there was nothing formal done until July 10th.

Is that correct?

Am I reading the dates correctly?

That is correct.

Um July 10th is when the uh uh hearing was conducted, and uh judging by the letter, the assessment was done on July 11th by the SAP and the appellant.

If if I'm looking at J.

No, if I'm looking at D E the letter to you is dated July 11th.

You am I wrong?

Please tell me if I am.

Um I would expect that the the uh I want to call her SRO, and I know that's not the right title, uh, that his um uh his evaluator, um Ms.

Smith, would have seen the letter.

Um she references in paragraph two, his violation did not appear in the clearinghouse, but based on the information and letters he provided, I met with him.

Um what letters might you have had at that point?

I'm just I'm just confused about how the timing can be so perfect that you have a meeting with him on the 10th, and on the 11th, he's already met with uh the SAP and she's already sending you a letter.

That was uh what I brought to the uh attorney's attention, that would have been a red flag for me.

Um, considering that if the hearing was held on the 10th, an assessment and evaluation was already complete within a 24 hour period.

So as I indicated earlier in my testimony, that that would have immediately sent the red flag to me.

I I have a second question, if I may, President Bach.

Proceed.

You referenced earlier uh, because there were questions from uh Mr.

Smith's attorney, uh, about uh when you um determined that his SAP was his mother.

Um who discovered that and and uh I know you you were unclear about dates, but do you know who it was that put those two pieces together?

There was um employer on our staff, um uh part of our um management team that um uh conducted you know further uh research on this and then it was confirmed during a follow-up uh hearing for uh subsequent to the uh second violation.

Okay, so it was brought up at the after the December at the December 23rd hearing after the December 19th violation that is correct.

Okay, and um is there I imagine there's not a work rule about that, but um is there anything in the whatever language exists in DOT or in um any drug and alcohol that indicates that having uh a relative provide this uh counsel to you and represent you and uh the recommendations made to the employer?

Um boy that I've said 12 things there.

Um is there a rule that says that it cannot be a family member or should not ethically be a family member?

Uh I believe we did provide that as one of the exhibits.

Um I am looking for it at this time.

Um you won't find it.

It doesn't exist in the record, does not exist in the recording.

Objection.

You can object, but who was speaking?

William Sultan.

Mr.

Sultan jumped in with an answer.

Um, that's inappropriate, of course.

Mr.

Laster, do you know?

If there is a rule or any kind of ethical conflict for having a family member be your SAP.

Yes, uh, I'm searching for that now.

It was provided.

If you give me one minute, just a minute.

I see referenced in D13.

Um violation of FMCSA 49 CFR part 40, section 40.299.

Yes, there was an exhibit.

There's an exhibit of that.

Please, if you can post that, that would have been an exhibit that we did uh enter.

Oh, the one that's got the rules in it.

Okay.

There it is.

I've got to go back and find.

So I believe that would have been CFR Title 49 Part 40.

Part 49.299 B.

Okay.

Oh, that would have been to prevent the appearance of a conflict of interest.

Sub D.

Yes.

Okay.

Okay.

So what what are you all looking at?

Uh you lost my DU3?

Do you three?

It's a second part.

Part 40, section 40.299.

Subpart zero.

Substance view professionals and return to duty.

Okay, thank you.

Yes.

All right, Mr.

Laser.

I want to make sure we're talking about the um same thing.

Influenc D13, this is an email from you to Mr.

Simons, correct?

That's correct.

Okay.

And in the middle of your email, you say you say the employee also was an employee for the entity which performed SAP services for the client.

Do you see that?

Yes.

So that's the subsection that you were referring to, correct?

In the code of federal regulations.

Correct.

2999.

4299, yeah.

Okay.

So the question you were asked was whether there's any ethical rule or regulation of which you're aware that prohibits a relative from providing SAP services.

You agree that there is no ethical rule or regulation of which you're aware that prevents a relative from providing SAP services, correct?

I agree that 4029 299 does indicate to prevent a conflict of interest.

So that could uh potentially be the uh the issue that we are describing here.

Isn't it the case that the regulation that you're referring to alleges it relates to employees or someone who has a financial interest, not relatives?

Mr.

Laster.

Yes, yes.

If you if you want to rephrase the question, I mean sure.

Well, let me see if I can just sort of reorient us.

Sure.

After the predisciplinary hearing, right?

Yeah, the department um presented an exhibit from Ms.

Smith's website in which Mr.

Smith appears, correct?

Correct.

Okay.

This email, D13, along with the code of federal regulations, relates to that discovery, not to Mr.

Smith's familial relationship with Ms.

Smith.

True.

This relates to uh the working or the employment with the uh the SAP and the appellate as well as the relationship.

Okay, well, I want to I just want to make sure I'm separating out these two things, right?

Yeah.

So thing one is the familial relationship.

You you agree that there is no regulation or ethical rule that prevents a family member from providing SAP services to another family.

True.

What we agree on is that if that family member is gonna uh represent that employee as an SAP, that they uh don't violate FMCSA rules with regards to you know supplying the uh appellate with um you know uh confidential information.

So the confidentiality was um uh violated in this matter.

I I I heard what you said, but I just want to make sure we're understanding each other.

There's no rule that prohibits someone mother from being an SAP provider, true.

That's a matter of interpretation, Mr.

Sultan.

That'll be and and that doesn't matter what Mr.

Lasseter thinks about that aspect.

He feels there was a problem and he brought it to the attention of the other people in the in the department.

Uh he may or may not be correct.

And uh we'll we can argue about whether it's limited to only to financial aspects or also includes familiar aspects, but the rule the commission can look at the rule itself.

Understood, I don't have any further questions.

Thank you.

I have no further questions.

All right.

Uh if there are no further questions from the commissioners, then uh I'm going to excuse Mr.

Lassiter.

Right.

Thank you.

Thank you.

It's um it's 1030.

I just want to check with my fellow commissioners whether anybody feels we need a uh 10-minute break.

I would appreciate that.

Yes, please.

Uh it is um, I have I have 1033.

We'll we'll come back at 1043, please.

Okay.

Thank you.

Thanks.

Would the court reporter uh please swear, Mr.

Glassman and Mr.

Glassman, please identify yourself?

Uh Joseph Glassman.

If you could raise your right hand again, please.

In the testimony you're about to give out of the pains and penalties of perjury of the state of Wisconsin.

Do you swear or firm to tell the truth, the whole truth, and nothing but the truth?

I do.

Thank you.

Proceed.

Please introduce yourself.

Uh well, my name is uh Joe Glassman.

I'm a substance abuse professional in the greater uh Milwaukee area.

Um I've worn this uh federal service agent hat for 24 years and have taken about uh over 700 employees uh through the return to duty process.

And how long have you worked with the city of Milwaukee specifically?

About seven or eight years.

Joe, in your professional opinion, in choosing your mother as an SAP is choosing your mother as an SAP inappropriate, ill-advised, or represent a conflict of interest.

The regulations uh for the role of a substance abuse professional, and this comes from uh the federal government's guidance to to the SAP.

Uh the federal government offers guidance to employers, MROs, testing sites, and substance abuse professionals.

It's very clear that the SAP is not an advocate for either the employee or the uh employer that that the SAP is not an advocate for either.

The SAP's main responsibility is the safety of the traveling public.

Uh I uh am a father and um you know I have children and I have met many mothers, and and in my experience, a mother would want to advocate and protect their child.

I think it's uh very fundamental.

So it it seems to uh bump up against um uh the requirements of the of the uh guidelines to be neither an advocate for either the employer or the employee.

In your professional opinion, could uh could an SAP have bias or perhaps specifically provide leniency to a family member that is receiving SAP services?

Yes.

What would happen in a follow-up testing time frame if an employee was not at work for a period of time?

Well, um the it the um SAP provides a follow-up testing schedule that the employer must comply with.

It is uh very clear in the regulations that no one is to share that schedule with the employee.

And the employer is the one that chooses the date of the tests.

It is not unusual for employees to have um breaks in service, uh medical leaves, um seasonal layoffs, uh, change jobs, uh things like that that would disrupt uh a follow-up testing schedule.

The regulations are very clear that during those disruptions that that uh follow-up testing schedule goes into hibernation, if you will, until that employee returns to safety sensitive duty, and then the length of the uh follow-up testing schedule is lengthened by the time that that employee was out of service.

Thank you.

Liz, can you pull up D13, please?

Joe, are you referencing the DOT Rule 49 CFR part 40 section 40.307, specifically G.

Oh, sorry, Liz.

Um, it was formerly D or DU3?

D14, I think 14.

Thank you.

Page six page eight.

Well, I'm sorry.

Wait, I'm sorry, page seven number E, letter E.

Joe is E what you were just referencing?

Yeah, I would say that that would address that question.

Thank you.

There's there's something also I want to mention.

May I or should I only answer questions asked?

Please answer questions asked, sir.

Thank you.

On page eight, G you mentioned before that the employees never to receive the confidential follow-up testing plan is uh the information on G what you're referencing?

Correct.

So as an SAP professional, you would under no circumstance provide this to um an employee?

Correct.

And no one should.

Can an employer proceed with a treatment plan without a clearinghouse entry?

Well, I think your question is is can employee can an employer proceed with a follow-up testing plan without a clearing house entry?

And the answer is yes.

So they it would be permissible for them to, for instance, send a letter to the employer and proceed and allow the employer to proceed as well.

Yes.

How many years has a clearinghouse been around?

Uh six.

Um drug and alcohol violations for CDL holders mainly and among other things.

Well, for CDL holders that fall under the federal motor carrier safety administration.

If an employee go ahead.

Yes, it does uh track violations.

And um it it's a public day, it's a federal database to ensure that uh CDL holders with violations are are not doing safety sensitive duties until they complete their return to duty process.

And this is to protect the public safety, correct.

As it relates to the clearinghouse, if an employer, let's say, makes a mistake, then what is the clearing house's general expectation?

Once it's learned that a mistake occurred, what is the employer supposed to do?

The goal is to try and comply with the regulations.

So it's because there are people that engage with the clearing house, we know that mistakes happen.

If uh a violation is late in being entered, then uh and the SAP is notified.

Oh, here's a here's an employee with a violation.

What I would do is I would go to the employer and say, send me a document that proves that there is a violation in place, even if it's not in the clearinghouse.

The employer would provide me with that document, and for me, that would be enough to go ahead with the starting the return to duty process with the employee.

Thank you.

I have no further questions, Mr.

Sultan, do you would you like to pardon me?

Let me start by first asking my fellow commissioners if they have questions for this witness.

Um yes, Mr.

President.

Um Commissioner Smith.

Yeah, uh Steve Smith, Commissioner, uh Mr.

Glassman, I'm referring to that exhibit D 14, page eight, which we referred to recently, uh, paragraph G, where it says as the employer, the SAP uh or other service agents must not provide the employee a copy of the schedule.

Now, what would the reasoning be that the employee shouldn't have a copy of the schedule?

That's an excellent question.

Uh the federal government believes that uh if an employee knows the follow-up testing schedule, that they can plan um they can plan use to try and and circumvent.

So for example, if an employee knows that that schedule is a one-year schedule, and the schedule can be up to five years.

If the employee knows, oh, I'm only going to be tested for one year in this follow-up testing process, after that first year, they can relax and they might start, they might relapse or start using again.

So it it's there, it's again uh these are um designed that I am told as an SAP to create a follow-up testing schedule that if I suspect that a person may relapse down the future, this schedule is designed to to catch that person in a relapse and help them get help again.

So it's so that the employee does not plan or uh uh the the employee is not in charge of their follow-up testing schedule.

The SAP uh creates the plan and the employer executes the the employer picks the dates of the tests, and that and that plan that plan should be at least six follow-up tests in the first 12 months.

And I took a look at the follow-up testing plan that has been provided, and it shows five tests in the first uh 12 months.

Thank you.

I have a question, if I may, President Bach.

Which might have just gone out of my head.

Um, it was such a good question, too.

I can't think of it.

I'm sorry.

But that's fine.

I apologize.

Any other questions from commissioners?

If if not, we'll uh we'll go to cross-examination.

Thank you.

Uh good morning.

My name is William Sultan, and I represent Deshaun Smith in this case.

Um, I heard you testify that you've been an SAP provider for 24 years.

Correct.

And do you own your own company?

Correct.

What's the name of your company?

DOT SAP Services LLC.

It's an LLC.

Yeah.

Do you have any employees?

No, sir.

Have you ever had any employees?

No, sir.

I'm sorry.

Owner operator.

I heard you um testify earlier that you disagree that a relative should provide SAP services, correct?

Correct.

But you agree that there's no regulation that says so, true.

Well, I do not believe that there is a regulation that says so.

However, there is lots and lots of guidance that the federal government offers for gray areas.

And um, so I actually um yeah, I I still will stand by what I said uh attorney that um uh that we are as a SAP, we are strongly advised to not be an advocate for either the employee or the employer.

And so if you ask yourself who might be an advocate in the life of the employee, then then you might connect some dots there.

Are you familiar with other SAP providers that are companies?

Uh I know that there are SAP providers that are are there companies that that uh have uh several SAPs on their on their um list, if you will.

So I know I know they're out there.

Are you yeah, I guess let me ask the question this way.

Are you aware of SAP providers that are companies that have more than one employee?

Not personally, no.

Um is it your opinion that an SAP provider that has more than one employee should not allow a non-familial employee to provide the services?

I'm sorry, could you rephrase the question?

Sure.

Imagine an SAP provider that has more than one employee, okay?

So other SAPs on their staff.

Correct.

Like an employee assistance program, for example, that might have three or four or five SAPs on their staff.

Correct.

In that circumstance, is it your opinion that none of the SAP providers can provide services if there's any familial relationship with anyone?

Well, let's take a look at the at the rules of an SAP.

You know, the rules are of the SAP are that uh uh it there's confidentiality to uh um to the employee and that service agents are required to communicate.

So, in that sense, if if I took a phone call from my cousin who said, Joe, I'm a CDL holder, I got a violation, can you bring me through this?

And I would say, no, I won't do that because I'm your uncle or I'm your cousin and I won't do it, and we have other SAPs, then I would I would guarantee you that that other SAP would never ever communicate with me about my cousin and that situation that they just wouldn't do it.

Okay.

Earlier you testified about the testing schedule and specifically about the how the testing schedule should not be provided to an employee.

Do you recall that?

I do recall that.

In that event that a testing schedule is uh conveyed to an employee, do the the regulations do not invalidate the testing schedule, true?

Uh well, there is there is a procedure for it for that, which I've had this happen.

Um this has happened before.

So it's it's a problem that's solvable and has been solved.

And here's the answer to that question.

So in this in a case where the employee learns their follow-up testing schedule, the employer would go to the SAP and say, hey, for whatever reason this person learned what their testing schedule is, and the SAP would be required to create a new follow-up testing schedule that would be different from the first one and would not be shared with the employee.

So uh so and and the federal government has um advised me to do that in cases where I didn't share the follow-up testing schedule, but maybe the employer did as an example.

So the that's the answer to the question.

Okay, I'm not sure that I that I understand.

In the event that an employer learns that an employee has learned the testing schedule, the employer is supposed to go to the SAP provider who is then supposed to create a new testing schedule that the employee doesn't know about.

Is that right?

That is correct.

I want to ask you about um some of your opinions about the testing uh schedule uh itself.

Does the employee's diagnosis inform the testing schedule?

The um the SAP is the one that that is in charge of creating the schedule, whether it's a one-year, two-year, three-year, four-year, or five-year schedule.

And what I'm uh encouraged to do is to take a look at all factors involving the employee uh to create that follow-up testing schedule.

Does that include the specific diagnosis that the employee has?

That's one part of that could be one, that is one part of the of the um of the equation that the SAP uses.

All right.

Um that I'm um clear, Mr.

Glassman.

So in a situation where an employee refuses a test, they're supposed to have an initial evaluation.

Is that right?

Well, if an employee uh it refuses a uh a drug test and it's considered a violation, the the first step is that the employee is taken off their safety sensitive duty.

That's the first step.

And and if they want and the return to duty process is only if the employee desires to maintain their CDL.

That if the if the employee says, I don't want to use my CDL anymore, they they don't have to do this.

So it it's there are many steps involved.

There are many steps involved in this whole thing.

So I just want to close.

So I just want to ask you about those steps.

So the first step is that the employer takes the employee off of the safety sensitive assignment, correct?

Well, the first step is that the employee is is re is told go take a drug test.

That's the first step.

Okay, the employee is told to take a drug test in the event that employee refuses and it's determined a violation, then the next step is that the employer takes the employee off the safety sensitive assignment, correct?

Correct.

And then the next step is that the employee has to engage an SAP provider, correct?

Correct.

That is correct.

And then that SAP provider needs to communicate with the employer.

Is that right?

Well, yes.

Yeah, that's a requirement.

Yep.

And that and that communication includes whatever the evaluation and program is going to be, correct?

Well, what that includes, um sequentially, sequentially, we have the the violation and then the employee uh uh connecting with an SAP.

Before that first meeting, the SAP should communicate with the employer.

So before the initial evaluation, the SAP should communicate with the employer to say what's the date of the test, what's the give me your side of things.

If you have report, send it to me, and then have that initial meeting.

Okay.

And then after whatever the initial meeting is, the SAP provider creates a plan and submits that to the employer.

Is that right?

Correct.

And does the employer approve that plan?

No.

And then the SAP provider goes through with the program, is that right?

I no.

So what happens is after the initial evaluation, the the SAP is the only one that can determine uh the um intensity and duration of the employees uh either education or treatment plan.

The SAP is the only one that can determine that.

Uh employers are not allowed to call and say, hey, Joe, you gave that that's too uh that's too much, or that's too little.

It's the SAP's responsibility.

And and it's not uh that uh plan, the education or treatment plan is not up for approval by by from anybody.

Okay, so the SAP creates the the plan, which includes education and testing schedule.

Well, after that first meeting, the the the SAP might say, oh, I require you to get five hours of education and relapse prevention.

The SAP is required to help that person find an education or treatment provider, and then the employee it has to engage with the program or the counselor and complete that education or treatment.

Once that education or treatment is completed, after the completion of that program, then the SAP has a follow-up meeting with the employee.

And after the follow-up meeting with the employee, then that second uh evaluation, it's called the follow-up evaluation, is written saying the employee uh successfully completed their program education or treatment, they went and saw this person, they started on this date and ended on this date, and they say, here's how I know that they that here's my uh um observations of why they completed the program, and uh, and then uh they create a follow-up testing schedule.

So it's it's after the second meeting, and because just because someone starts a program doesn't mean they're gonna finish it.

So, you know, it and to say uh it's really up to the employee, it's up to the to the CDL holder to say, Yes, I'll go and I'll complete the program, I'll cooperate with the program, I'll communicate um you know with the SAP, uh and and um and and come and do a good job of of uh developing insight and learning and trying to develop a healthier lifestyle.

So and then at that second meeting, the SAP says, Oh, they they did all those things, and now we can create a report to to allow them to take the return to duty test.

And as part of the return to duty test, that includes a regular testing schedule.

The return to duty test is one test that is not a follow-up test, they're different tests.

The return to duty test, the uh employer is required to give that test to the employee before they can be allowed to return to work.

So if an employee is sent for a return to duty test and they fail that test, or they don't cooperate and refuse that test, it is a new violation, and everything starts over.

Okay, but assuming that the employee passes the return to duty test, then they start the testing schedule.

Well, then it's up to the then the employer says, okay, the employee is as of today, they're starting safety sensitive duties, and then the employer looks at the schedule and gets to determine what are the dates of those uh follow-up tests.

So if the if the SAP says I'm gonna require two tests in the first month or three tests in the second, it's up to the employer to choose those dates.

Also, when the employee the employee, when they're working, they're always in a random testing pool.

And companies are required to dip into the random testing pool and to and to send employees on a random basis.

So when the employee gets the notice, you have to go take a drug test, they will not know is this a random test or one of the follow-up tests.

They won't know that until they get to the testing site.

Then they'll say, Oh, this is a random test, my name was pulled out of the hat, or it was a follow-up test.

This is one from the SAP.

Okay.

And in the event that an SAP provider determines that there's 12 months of testing that is necessary, and the employee comes to 12 months and says uh they they go to the test, they learn that it's a follow-up test, and they say, Hey, I know what the testing schedule is, and I've done all the tests.

That they can't that that's not allowed.

If the employer is in that event, right, an employee goes to month 12, says, Hey, I've already done all the required follow-up tests.

Is it your opinion that the employer is then supposed to communicate with the SAP provider that the employee learned the testing schedule and therefore a new schedule needs to be implemented?

Let's back up the train a little bit.

An employee is not allowed to refuse a drug test.

Let's start there.

And and so um, if someone is if an employee, whether whether the employee knows or doesn't know the follow-up testing schedule, that employee doesn't get to say, I I did everything, I'm not taking this test.

The employee, it's it's highly it's everywhere in the federal regulations.

So that the employee, there's no the employee must go and take the test.

If they're directed to go take a test, they must go and do that.

They cannot say, gee, sorry, I'm I'm busy, uh, I've taken all my tests, I can't do it.

No, because it could be a random test.

It could be a follow-up test.

The employee doesn't know that.

Well, what I'm asking you is in the event that an employee knows that it's a follow-up test, and they say, hey, I don't, I've already done all the follow-up tests.

I don't believe I don't believe that an employee can refuse a test under that circumstance.

I don't believe that.

Sure, but my question is different.

My question isn't can an employer refuse a test?

My question is in the event that the employee communicates to the employer that they're refusing the test because they know the testing schedule.

Is it your opinion that the employer is supposed to communicate with the SAP provider and say, hey, the employee has learned the testing schedule and we need to implement a new schedule?

Yeah, those are two separate issues.

And and one is the employee still takes the test, so that's a yes.

The employee still takes that test, and yes, the employer should then also go to the so it's a both and I think it's a both and situation.

Okay.

Those are all the questions that I have.

Thank you.

President Bach.

If I may, Janet Cleary, I remembered my question.

Good.

Uh we'll we'll entertain it.

You're wonderful.

Thank you so much.

Mr.

Glassman.

I I read in the reg um that I perused to some extent that the employer cannot in the in the testing protocol from the SAC, they cannot do more than the SAP has asked of.

So the SAP says drug and alcohol, it's drug and alcohol.

If they say alcohol only, it's alcohol only.

Is that correct?

Correct.

Why would an SAP bifurcate drugs and alcohol and only say drug?

Well, first of all, uh it's in the regulations that that we do that.

The second part of that is uh some people um don't drink or rarely drink or or drinking is never been an issue or concern.

Um and uh often may use uh drugs recreationally or for coping for it with stress or helping them sleep or pain management or things like that.

So if a and again it's it's up to the SAP to determine how much testing, how many years of testing, if it's for alcohol or drugs or both.

So even if someone has a positive uh drug test for marijuana, in that initial assessment, if the SAP learns, hey, this person has a long and loving relationship with alcohol.

And in addition, they weren't positive for alcohol, but it's a part of their profile and a part of their history, uh, then I would certainly include some alcohol testing um separate or maybe included in with the drug testing.

Uh if someone we call this uh addiction hopping, if you will.

So some people, if they give up one addiction, they trade it for another one.

And uh so we're aware of that.

So that's it.

I don't know if that addresses the question.

It does.

Thank you so much.

And then um the other question I have, and it came up uh during Mr.

Mr.

I'm sorry, Sullivan's uh questioning.

Umce once the employee has gone to the SAP, the SAP has confirmed to the employer that they've been compliant with uh coming back for a second meeting or whatever is required.

Um, and then you said there's a back to work test.

At that point, even though for a year or two or three, they're required to do testing, not random testing, but scheduled testing, um, can they still can they do a safety sensitive job during that period of time?

Or do they have to be on a non-safety sensitive job?

That's an excellent question.

The the regulations uh only allow employers to test employees that are doing safety sensitive duties.

point even though for a year or two or three they're required to do testing not random testing but schedule testing um can they still can they do a safety sensitive job during that period of time or do they have to be on a non-safety sensitive job that's an excellent question the the regulations uh only allow employers to test employees that are doing safety sensitive duties so here's an example if I'm a driver with a CDL and I and I say uh I'm no longer gonna drive I'm gonna work in the warehouse right if I'm working in the warehouse which doesn't require me to use my CDL I can't be given a DOT test unless I'm doing DOT safety sensitive duties I cannot be tested if I'm on a a medical leave or if I'm on a seasonal layoff and there's also a caveat there's always little caveats here and there if I am working in the warehouse but part of my job is I may be required at any time to go and make a delivery using a CDL then I'm still subject to to DOT random testing because they call that ready to perform if if I'm in a ready to perform status then I'm subject to testing thank you been very helpful to me I have no further questions attorney Sultan do you have any follow up on these on the issue that uh commissioner cleary brought up no I do not okay then I guess uh thank you Mr.

Glassman President Bach yes may ask one follow-up question yes but then we're I'm also gonna give uh attorney salton a chance to follow up on whatever you bring up so please proceed proceed thank you Joe I just want to confirm I heard you correctly did you say an employee is unable to refuse a test under the under these circumstances correct thank you any follow up mr attorney salton no i do not have any follow up all right uh thank you mr glassman thank you very much mr president yes there's one question yeah mr glass speaking earlier you repeat speaking to the mic uh steve smith commissioner uh mr glassman earlier referred to uh the testing schedule can go into a dormant hibernation period while the person is uh off the payroll and and so on um so if the SAFS treatment plan said you have to do these eight things within a one year period that one year period could be extended because of uh periods of time when the employee was not working correct thank you i i just have a follow up on that is this is this attorney salton it it is uh ask the question sure um mr glassman if um let's say um a testing schedule required um two tests in month um 12 and the employee did both of the tests in month 12 but also in month 12 went out on leave will the employer be able to extend the testing schedule well once the testing schedule is completed then it's completed so another word yeah did you want to elaborate on that answer mr glassman or not if you don't yeah i'm thinking um no okay that's good uh then you're excused thank you for your coming in thank you and can i sign out to the meeting is that all right uh do either of do either of the uh or do i should i hang should i hang around that's what i'm gonna ask the question of the uh the two representatives mr simon and attorney sultan can he be excused from the the hearing yes agreed thank you excused thank you um i have 11 1125 um i think we at the very least we should start with an additional witness when we get close to uh to 12 we'll uh we'll figure out a break point um can you please can you please identify your next witness yes thank you president buck uh ruddy gutieris all right and uh i i see him on the screen um mr gutierz could you please give us your your name and job title

Um can you please can you please identify your next witness?

Yes, thank you, President Bach.

Uh Rudy Gutierrez.

All right.

And uh I I see him on the screen.

Um Mr.

Gutierrez, could you please give us your your name and job title?

Uh hello, my name is uh Rudy Guterres.

I am uh Bureau of Electrical Services uh traffic manager.

Thank you.

Um could the court reporter please swear him in?

Sir, if you could raise your right hand, thank you.

In the testimony you're about to give under the pains and penalties of perjury of the state of Wisconsin.

Do you swear or affirm to tell the truth, the whole truth, and nothing but the truth?

I do.

Thank you.

Mr.

Simon, I believe we're gonna go to the uh to do one.

DU2 or DO2, pardon me, and uh you were correct, do one right.

Which number?

It's uh it's a one-page exhibit, uh do, and it's currently marked DU1, which means it was not stipulated to at the pre-hearing conference for this uh this hearing.

Uh and it was a and I asked that it be deferred until the uh author could uh one confirm that he prepared it, and two uh he could give us a timeline as to when he uh when he prepared it.

And then we'll hear an objection uh if there still is one from uh counsel for for the appellant.

So Mr.

Gutierrez, uh are you looking at do one?

Yes, I am.

Yes, I asked and yes, I did I did prepare this and I prepared this on December 19th.

I I have a clerical error where it says 2015 when it should say 2025.

Um I did not sign it, I see, and uh information you need that I am the author.

I'm just looking at uh to to confirm or document the the authorship and the timing of it.

So you're saying that it was on December 19th that you prepared this note, correct.

All right.

Um now we uh there was an objection at the pre-hearing conference to this note as being an exhibit.

Um attorney.

So Sultan, could you please um uh elaborate if you're still objecting to this exhibit.

I I am not objecting to this exhibit.

In that case, I I believe we've already gone to we originally started with 13 department exhibits.

We added one.

This would be adding two, so du one becomes D15 for the record.

And that's in terms of admissibility.

We can the parties can uh elaborate or dispute uh what's what's in the memo that uh I'm not talking about the merits so much as I am about the authenticity of it.

That the witness has confirmed that he wrote it on the day in question.

Uh with that, Mr.

Simon, I'll uh turn it over to you.

Thank you, President Bach.

Rudy, please tell us what occurred on this date related to this matter.

Uh okay.

Um December 19th at uh nine o'clock.

I informed Deshaun Smith that I was taking him in for the required drug follow-up test at a nearby clinic.

And I re I read to him the required statement for the city monkey safety form.

Um, which states refusing is equivalent to a positive test result.

And I I relaid that to him after after I completed reading it.

Um he said that I cannot take him for a follow-up test due to being over the record recommended number of tests sent to the DOT and was gonna refuse to take this test based on his understanding of the rules.

I then explained to him again.

I said I explained to Mr.

Smith again that with him refusing, the test would count as a positive test result.

He again said he had already finished taking his required number of tests, and the city could not do more follow-up tests, only random tests, which he said he would do.

I then went for assistance, went and got some assistance from my operations manager, uh Mark McRay to see how to proceed.

Uh Mr.

McRae asked me to bring Mr.

Smith to the conference room.

We had a discussion with Mr.

Smith with Mark explaining to him that he had two choices.

One to take the test and grieve it afterwards, or two to refuse and be sent home.

Uh Mr.

Smith chose to go home.

Thank you.

I have no further questions.

Uh good morning.

My name is William Sultan.

I represent to Sean Smith in this matter.

Um, what is your current position with the city?

My current position as a Bureau of Electrical Services Traffic Manager.

How long have you held that position?

Since 2019, seven years.

So that was the same position you had in December of 25, correct?

That is correct.

And a part of your job duties and responsibilities is um taking employees to do drug tests.

That is correct for follow-up and randoms.

And um so in this case, um, where were you when you had the conversation with Mr.

Smith?

In my office.

Um the first conversation when I when I asked him to come to my office was that he came to my office.

So you asked him to come to your office in your office.

You told Mr.

Smith that you were going to take him to a clinic to do a follow-up drug test.

Correct.

And you were gonna drive him there, correct?

That is correct.

I have to stay with anybody that I'm taking uh drug test to, I have to I have to stay with them and drive and drive them there unless it was some other manager's responsibility, they would do the same.

So Mr.

Smith learned uh from you in your office that this was a follow-up test, correct?

And Mr.

Smith told you that he had completed all the follow-up tests, correct?

That is correct, and then you contacted Mr.

McRae.

That is correct to see how to proceed.

Is that normally what you would do in the case of a refusal to test?

Yes, I would uh I would go see um move up the chain of command and go to my higher management uh for when I get a refusal because at that point it becomes uh operation management's um responsibility and everything to move forward to safety.

And how did you contact Mr.

McCrae?

I walked over to his office, and I also see in your statement that there's a Neo Carwick.

Uh yes, he was in uh the office at the time.

Uh when I talked to Mr.

McRae.

And you told um those two gentlemen that you told Mr.

Smith that you were gonna take him for a follow-up test, and he said that he was not going to take the follow-up test because he had completed all such required tests.

Is that right?

That is correct.

And then did Mr.

Smith come to Mr.

McRae's office?

I brought Mr.

I brought Mr.

Smith to Mr.

McRae's office.

Oh, I see.

There's four of you in there.

Correct.

You, Mr.

Smith, Mr.

McRae, and Mr.

Carwick.

Yes.

Okay.

And so the four of you are having this conversation, and Mr.

Smith tells Mr.

McCray and Mr.

Harwick the same thing that he told you, which was that he had completed all such required tests.

Yes.

During that conversation, um, you did not tell Mr.

Smith that he shouldn't know how many follow-up tests, true.

That is true.

I did not.

You didn't hear Mr.

McCrae or Mr.

Carwick say that Mr.

Smith shouldn't know how many follow-up tests, true.

No.

No, that's not true.

No.

They did they said that he shouldn't know that because nobody else knows that.

They don't even know that.

Tell me about that part of the conversation.

What was what was said?

I believe this statement was said you can't know that because management team, we don't even have that information.

That's strictly safety.

That's strictly safety's information.

And Mr.

Smith says, no, I know for sure.

Was anything else said on that subject?

Not that I recall.

And then that was that the end of the meeting.

The end of the meeting went with uh Mr.

McRae explaining to Mr.

Smith that he had and the very very end conclusion was that he had two choices.

One was to take the test and it to grieve it later, or two that he's going to be sent home.

And asked them to reconsider, and that he would be given you know an extra 30 minutes just to think this over if this is actually what he really wants to do.

And he didn't, he did not reply after that 30 minutes.

So after Mr.

Smith left, did you have any further conversations about Mr.

Smith and this refusal to test?

No.

Now you mentioned um I think you mentioned another department or division that you called safety.

Is that a different department or division?

That is uh what Mr.

Lasseter is responsible for.

Um, so that safety that determines whether there should be a test or not.

That is who I get my forms from to they decide who takes the test for either follow-up or random.

Can I I receive those forms from them?

And then I just implement that.

Did you have any follow-up conversation with Mr.

Laser or anyone in the safety department about this refusal to test?

No.

Those are all the questions that I have.

Commissioners, do you have any follow-up on this last uh round of questioning?

I do not.

Okay.

Um Mr.

Gutierrez, um thank you.

Uh you're excused.

Thank you.

Commissioners, I have 1140 on my watch.

Um should we take a lunch break now, or would you be willing to postpone lunch a little bit and take one more witness?

Um I'm willing to postpone.

Yes.

Then uh we had apples.

Yes, we all right.

Well, then that's sounds like a consensus that we're going to uh we're gonna go ahead.

And uh Mr.

Simons, do you have another witness?

Do Mark McCrae?

Could somebody take down this um this exhibit?

It's blocking the whole screen.

There we go.

Okay, I see Mr.

McCrae over there in the right-hand corner of my screen.

Um sir, would you please give your name and title for the record?

Uh Mark McCray, Electrical Services Operations Manager for the City of Milwaukee.

Uh, thank you.

Uh would the court reporter please swear Mr.

McRae in?

Sir, if you could raise your right hand, please.

In the testimony you're about to give under the pains and penalties of perjury of the state of Wisconsin.

Do you swear or affirm to tell the truth, the whole truth and nothing but the truth?

I do.

Thank you.

Mr.

Simons, uh you can begin.

Thank you, President Bach.

I I did want to just to address the matter of DU2 in the in the same way we did Rudy Gutierrez.

Thank you very much.

Mark wants to affirm if this was his statement.

Well, just a moment.

This is the um DU2 is a two-page document, dated December 22nd, 2025.

And it's um the name and job title on page two is Mr.

McRae operations manager.

So uh it's it was properly identified, but it was objected to by the uh appellant.

Uh I'll just do the obvious.

Mr.

McCrae, did you did in fact um prepare this document, correct?

Yes, and you did prepare it on December 22nd.

I believe that was the day I completed it.

Yes.

Yes, okay.

Um attorney Sultan, uh do you object to this statement being made part of the record?

No, I do not.

All right.

Um I think uh we're up to 16.

So this what had been marked DU2 will become D16.

And with that, uh I'll turn you back over to Mr.

Simons for the uh uh direct testimony.

Thank you, President Bach.

Mark, what happened on December 19th related to this matter?

Um all right.

Uh at about nine o'clock in the morning, I was speaking with uh Neil Karwick, who's a senior manager under me.

Mr.

Gutierrez came into Neil's office and stated that uh he was attempting to take Mr.

Smith for a follow-up drug test.

Mr.

Smith stated that he had completed all of his required tests, and so he was refusing to go.

Um, I believe my reaction at the time was he can't know that.

And like, but go back and tell him that if he doesn't take it, he's gonna be sent home and there will be a hearing and he may be discharged.

Uh Rudy Mr.

Gutierrez said that he had already communicated that to him.

I instructed him to go back, get Mr.

Smith and to meet Mr.

Carwick and myself in the conference room.

Um, we met Mr.

Smith there.

He reiterated the same statements that he had that document, that he had a document that said that he only had six tests to complete in a 12-month period.

Um Mr.

Carwick and I were of the belief at the time that what he was actually referring to was the disclosure which we read out to the employees when we take them for the test.

The states are being taken for this many tests for a follow-up.

You're required to have a minimum of six tests within a 12-month period.

And that's it's basically the language in there.

We pointed to that.

He insisted that wasn't what he was talking about, and that he actually had the document that said how many appointments he had.

I don't think I've ever seen that document.

It's never presented to us, and I've never known an employee to have that.

Um so it seemed odd to me that he would actually have made that claim.

So what I suggested was that he actually take the test and argue with it later if he was in the right, just take it, it gets him in the clear, and he's fine, and he moves on.

But then you know, or he was going to end up if he refused the test, it was going to go down as a refusal, and he would have to go for a hearing.

We were gonna send him home, and there would probably be a discharge action.

He was he would not take the test.

He stated that he would take a random test, but he wouldn't take the follow-up test because he wasn't required to do so.

Um this went on for close to half an hour.

We got to a point where you know.

Um, and you'll have to wait instructions from safety.

Because I was hoping he would change his mind or go home and realize the document he had wasn't actually outlining those dates.

We offered you, I told him I would wait until 10 o'clock to contact safety to report the refusal, um, just in case he decided to change his mind.

Uh, he did not contact us within a half an hour.

I gave him a little bit longer, and I contacted Patrick Fitzgerald for the safety at uh just after 10 o'clock.

Thank you.

I have no further questions for this witness.

Do commissioners have any questions for Mr.

McRae?

Ms.

Bach, did we accept that document and rename it?

Yes.

Sorry, I messed with Hill's job, for instance.

It's uh President Bach.

Was this witness sworn in?

Okay, I don't believe Mark introduced himself and his job title.

Yeah, no, I did.

I'm paused, just making sure.

Okay.

Um Mr.

President, yes.

Uh, can I ask Mr.

McGray a question?

First of all, Mr.

McRae, you're saying you did identify yourself by name and title, correct?

But you did not get sworn in.

No, I was sworn in.

Oh, you were.

Okay.

I'm sorry, I misheard.

Uh Commissioner Smith.

Yeah, Mr.

McRae.

When when Mr.

Smith said that he knows the schedule, he's completed the six tests, so he doesn't need to do another one.

Did you ask him how how would you know that?

He said he had a letter from his SAP that told him that.

Okay, thank you.

Okay.

So we're back to it.

Attorney Sultan, do you have um cross-examination for this employee?

Uh yes.

Uh good.

Good morning.

All right.

So my understanding is that um you were in your office with Mr.

Carwick when Mr.

Gutierrez and Mr.

Smith came in.

Is that right?

It was in Mr.

Carwick's office.

He went, um Mr.

Goodyear is entered Mr.

Carwick's office.

The both of us were there.

Okay.

And Mr.

Gutierrez told you that he told Mr.

Smith that he needed to do a follow-up test, and Mr.

Smith was refusing, right?

Correct.

Yes.

Is that normally what would happen with a follow-up test?

That Mr.

Gutierrez would tell the employee, hey, this is a random test, hey, this is a follow-up test.

From my recollection of how we've been trained on it, that's how we've done it.

Um, I thought there was the direction that essentially we have to inform the employee that they're going for a test, right?

But prior to transport.

Um, that's standard practice in part because we have to tell them that they need their ID on them before we go, right?

And some of the employees, for whatever reason, may actually have their ID in their locker for reasons I've never understood.

But um, yeah, we would we've always stated whether it was a follow-up or a random.

Um, we have there is a statement on the form that we use that actually it has that verbiage in it.

And it's something to the effect of I am taking you for a required follow-up test based on these regulations.

You have to take a minimum of six of these tests within a 12-month period, something like that.

So, yeah, that would be standard protocol.

And when you were having this conversation with Mr.

Smith, your thought was that the SAP provider required more than six tests because he had said he had done six tests, correct?

I didn't know what the SAP had.

I was disputing the fact that he had a document that claimed that because, like I said, I've never been aware of an employee having that document.

Um, and also there was a previous incident where Mr.

Smith had actually misinterpreted another document that put him in jeopardy of his job.

So I was very concerned that that was what he was doing, that he had a different, he was misinterpreting the document that he had, which is why one of the main reasons I gave him the additional half an hour.

My my my question was was different.

So I believe I answered that.

Well, I just want to make sure that that I'm understanding.

So Mr.

Smith is is telling you that the reason he's refusing the follow-up test is because he completed all the follow-up tests required by his SAP provider, correct?

That is correct.

And what I understood from your testimony is that you believe that Mr.

Smith was incorrect and instead was misinterpreting language about what the minimum, the sixth minimum required tests, right?

I didn't know whether he was incorrect.

I was erring on the side.

If safety had directed us to do it, my impression was that we would follow the direction of safety because they would have that document.

So I had no impression whether he had more or he had completed that many.

I didn't even know how many had completed at that point in time, other than what he was stating.

So I the only I was following the direction of safety, assuming that safety's documents were correct.

Got it.

Um do you agree that an employee should only have to do the number of tests recommended by the SAP provider?

I have no opinion on that, sir.

You then contacted Patrick Fitzgerald?

Correct.

And that's the protocol that to contact Mr.

Fitzgerald as the specialist.

So I contacted him.

Those are all the questions that I have.

No, no.

No.

Okay.

In that case, um thank you, Mr.

McRay.

Excuse.

I've got seven minutes uh I've got uh 1153.

I think uh I think we'll call a lunch break at this point.

And uh please come back within in one hour at one o'clock.

This discharge appeal hearing for Mr.

Smith will resume.

Um Mr.

Simons, do you have additional witness to call?

I do.

Thank you, President Bach.

Like to call Joshua Stratton, Mr.

Stratton, could you uh identify yourself by name and title?

My name is Joshua Stratton.

I'm a human resources representative in the administrative services section of DPW.

Could the court reporter please um swear the witness in?

You could raise your right hand, sir.

In the testimony you're about to give under the pains and penalties of perjury of the state of Wisconsin.

Do you swear or firm the truth?

I do.

Thank you.

Mr.

Simons, you could proceed.

Thank you.

Liz, could you put up D12, please?

Josh, can you please explain this document?

Uh yeah.

So uh this is uh uh one part of a spreadsheet um that shows information from a report that is run by our internal time tracking system for employees city time.

Um an absence report shows all of the days that an employee was away from work, or in this case, hours.

Um, and then it it also breaks it down further by the reason for each absence, whether that was sick leave, uh vacation, fmla leave, work injury absences, a-wall from work, um, etc.

How is this document relevant to this matter?

Um this document shows the amount of time that Mr.

Smith was away from work while the um follow-up program was in effect.

Um, and it is sort of the math that shows um why his testing program um was extended beyond a regular 12 months um because of uh the large amount of time that he had been away from work in that 12 month period.

Liz, could you please show J2?

Josh, what is this document?

And um, then specifically towards the bottom of the narrative.

Um, would you please read those last few sentences, the ones that start on page two since 85 2024?

Um sure.

So this is the discharge notice that gets created um after um we have our disciplinary hearing um with the person and a discharge action is taken.

Um this is a document that gets created that summarizes um why the person is being discharged and specifically to the language on the bottom.

Um we noted that since August 5th, 2024, um you missed a total of 800 hours, which amounts to 100 work days.

Uh these occurrences include vacation, sick leave, FMLA, AWAL, etc.

Um, as a result of these breaks in service, the 12-month period of time uh based on actual service and your return to work on each of these occasions um was uh 1226 2025.

Um management followed the prescribed testing plan with the intent to complete the remaining follow-up tests in the uh to ensure SAP requirements were met per DOT Rule 49 CFR Part 40, section 40.307 subpart O, the requirements of the SAP's follow-up testing plan, quote, follow the employee, end quote, to subsequent employers or through breaks in service, uh which was the case um with Mr.

Smith, many breaks in service.

Liz, please pull up D14 on the page four.

Uh Josh, would you please identify how um section B from this regulation relates to this matter?

Um sure.

I'll read the section and then explain.

Um 40.299 letter B says to prevent the appearance of a conflict of interest, you must not refer an employee requiring assistance to your private practice or to a person or organization from which you receive payment or to a person or organization in which you have a financial interest.

You are precluded from making referrals to entities with which you are financially associated.

And the reason that a part of the code of federal regulations is relevant today is because um the SAP, um, the treatment provider that the SAP referred Mr.

Smith to and Mr.

Smith himself all work for the same company.

Um it is a nonprofit local organization called Uniting Garden Homes Inc.

And so the fact that they all um are members of this organization um means that um they should not be making any sort of referral um to someone else that is in that organization based on this regulation.

Is it true there's no DOT guidance that says um a parent cannot be the SOP of a child?

It is true that there is no specific regulation um talking about that, though I um remember that uh previous um witness testified um to their uh belief of that being an inappropriate um setup.

Please explain the clearinghouse entry process as it relates to this matter.

Um so the clearinghouse process is um basically once a specimen is collected by a collection agency that is certified to do this work um by the federal government, uh the collection agency sends the test results to a certified testing laboratory.

Um those results are then sent from the lab to the medical review officer or referred to as an MRO.

Um the MRO is the one that examines the results and makes a determination as to positive or negative, and the MRO then communicates those results to the employer.

Um and then as far as the clearinghouse, the MRO is responsible for entering a positive result into the FMCSA clearinghouse.

Um so it is the MRO that is required to enter the violations.

Um that's that's their role to play with uh regard to the clearinghouse.

So it's a fact the MRO did not make the required entry related to the first positive test result in the time in which they should have.

That is true.

Um we have procedural expectations that uh they would enter this violation in a timely manner in a way that is described by the federal regulations.

Um unfortunately, in this case, that expectation was not met.

Um but that is uh separate um procedural aspect related to um general requirements of all CDL holders.

Um the the sort of reason that we're here today for the discharge action that was taken for Mr.

Smith, um, it was because two times he refused to submit to required testing that he had no right to refuse.

Um and so that that's why he was discharged from his position for twice refusing to comply with the federally mandated process.

Um, and uh the um entries into the clearinghouse are the way that that information is tracked and shared among employers when it was related to CDL holders, but it is not something that our work rules require um to happen in order to take a discharge action.

Is it true these two violations are entered into the clearing house now?

Yes, that is true.

Thank you, Mr.

Stratton.

I have no further questions.

Do my fellow commissioners have questions for Mr.

Stratton.

President Bach, I have a question, but it's not on anything that's been brought up in direct testimony, so I don't think it's appropriate I ask.

Okay, then we'll we'll hold on that.

Um we'll go to cross-examination.

Mr.

Shelton.

Good afternoon.

My name is William Sultan, and I represent Deshaun Smith in this matter.

Um I'm sorry, could you remind me of your job title?

Human resources representative.

And what are your job duties and responsibilities?

Um some of my job duties and responsibilities include um helping to process administrative functions related to unemployment claims and hearings, um, uh FMLA leave, uh, the ADA process, um, drug and alcohol testing procedures, disciplinary matters, um, other various duties.

Uh, one of my roles is to help administer the department's CDL drug and alcohol testing program, and I serve as the backup designated employer representative.

And when Mr.

Smith had the first refusal to test in July 2024, were you involved in any way in that?

Um I would have been uh present at the disciplinary hearing and uh would have been taking notes.

After the disciplinary hearing, would you have been involved otherwise?

Um what I uh I sort of assist Donald as the safety supervisor and uh on certain occasions when he's out of the office, um I I can be his backup for certain um processes.

Uh and so I wasn't directly involved in the follow-up testing of Mr.

Smith, um, but I have a general knowledge of how that all works for us here in DPW.

Okay.

Um my understanding based upon what you said is that you were not involved in the follow-up testing for Mr.

Smith.

Is that accurate?

Um no, I would not have been the person who created any of the follow-up testing documents.

Um I would not have been the person who selected any of the testing dates.

Um as an HR representative, I have access to all of that information and I sort of um help guide the process what it needs to be.

Um, but uh there wouldn't have been um uh any interaction with me uh regarding this one um while the follow-up testing was going on.

So um everything that you know about Mr.

Smith's situation came after the December refusal to test.

Is that fair?

No, I mean I was I was certainly aware of the first one.

Um because as I said, I took notes at the first hearing, and so I was definitely aware that he had one positive on his record.

Um so I was aware of all that prior to December of 2025.

Well, you were not aware of anything involving the SAP provider or the follow-up test, right?

Um it was actually the morning of the hearing in December of 2025, December 22nd.

That's when I discovered uh the relationship between um Deshaun Smith, Desi Lynn Smith, and then um that that was the the day that we discovered their relationship.

All right, I heard you say two different things, but um I just want to make sure that I'm just understanding this correctly, which is I know you were aware of the first refusal to test.

I just want to make sure that that I'm clear that you weren't aware of anything other than that first refusal to test until December of 25.

Is that right?

What else would there have been for me to be aware of?

Sure.

So like you weren't aware of um you uniting Garden Homes Inc., you weren't aware of the number of tests, you weren't aware of the education that was required.

You weren't aware of the initial evaluation or the follow-up interview, you weren't aware of any of that stuff, right?

Well, I'm aware that that is what has to happen after a person has a positive, but I was not um following his case in any sort of particular detail.

Okay.

All right.

Um let me um try it this way.

So if you look at exhibit D8, which is a letter from Uniting Garden Homes Inc.

dated July 11th, 2024.

Um was the first time you saw this document?

Um the first time that I reviewed that document was in preparation for the uh second hearing in uh December 2025.

And this letter, this July 11th letter is sent to Patrick's Fitzgerald.

Do you know who that is?

Yes, he's a member of the safety staff.

He's a safety specialist senior for the city of Milwaukee.

And is that who letters like this should go to?

Um they're supposed to go to the safety department um for the city of Milwaukee.

Uh, I would expect that any member of the safety staff.

There's only three.

Um, there's the supervisor Donald, and then he has two staff members that work for him, Patrick and Justin.

And uh you mentioned earlier that you're familiar with the procedure, and I just wanted to know that you know, given that this letter was sent to Mr.

Fitzgerald, Mr.

Fitzgerald would then take it forward.

Is that right?

Does it yes?

He he would have it in the files that we all have access to.

He would have taken it directly to his boss Donald.

And um, is there some prescribed procedure for the city to approve of the SAP provider and the proposed plan?

Not an approval procedure that I'm aware of.

And then if you look at uh exhibit uh J three.

This is a uh letter also written to Mr.

Fitzgerald that's dated July 26th of 2024.

When was the first time you saw that document?

Um also in in preparation for the hearing in December of 2025.

Is it part of the process that the SAP provider would send a follow-up letter like this?

Um explaining that drug education had been completed, but there was a follow-up appointment and a suggested testing schedule.

Um yes, I would say that all SAPs probably have their own formatting and their own uh header that they use.

Um, but in general, there's a few pieces of information that are supposed to be on all of these.

Um yes, this one contained, you know, his uh his program that he went through, and it um I think on if you scroll down to page three, it shows the eight follow-up tests that he was um supposed to take.

There's nothing out of the ordinary with these two letters, correct?

Um I would say that this one on page three here has some odd um uh, you know, maybe editing mistakes.

Um you'll notice that it says months and then just the number four.

Um and you know, an S at the end of the word month would imply plural.

Um, and so I I would say that there were a few sort of like editing errors um on there, but in general, it's it's similar to other ones we've seen.

Now the testing schedule here says months one and two one test per month.

Do you see that?

I do.

Okay.

That suggests to me that in um August of 24, there should be a test.

And in September of 24, there should be a test.

Is that how you're reading this?

Um that would be uh uh uh appropriate reading of the document.

Although I would say that as we've talked about, the federal regulations um actually leave it up to the employer as to when they're gonna test their employee.

Um, and so it is actually the responsibility of the SAP to say how many tests the employee is supposed to take, but the SAP does not have any authority to say when those tests should be taken.

And so even though they might go into some detail like this, it is ultimately the responsibility of the employer to choose the days when the person is going to be tested.

Okay.

So it doesn't really matter then.

You know, the schedule doesn't really matter.

What matters is that uh the city gets to decide um when the tests occur, correct?

Yes, I believe there was previous testimony that the SAP determines the number of tests and the employer determines when those tests will be taken.

So you mentioned that part of your job duties and responsibilities is um drug testing, right?

Yes, sir.

Um, but you didn't make any decision as to when any tests should occur relative to Mr.

Smith, right?

No, that's uh that's up to the safety staff.

As I as I mentioned, I'm sort of a backup for them and I I work with them, but I I don't assert myself over their um prerogatives.

Who on the safety safety staff made that decision?

Um I believe that uh we we have uh sort of a collaborative setup where we track all of our employees who need follow-up testing, um, and then we uh determine when we're gonna take them out.

Um it's an internal process that's the responsibility of our employer.

Yeah, that was a bad question on my part.

Who made the decision, the test the testing decision with respect to Mr.

Smith?

That's what I'd like to know.

Who who decided the schedule?

Um I would say that ultimately it's the safety supervisor who's in charge of the safety section, and they would be the one um who would determines when the tests are going to be taken.

No, no, I'm asking you based on your review of all the documents and information that you have access to in human resources.

Who made the decision?

Objection.

This has been asked and answered.

It hasn't been answered.

I said the safety supervisor, sir.

It's Donald Laster, safety supervisor.

I said a couple times.

I I think it has been uh has been answered.

Is there a document that you reviewed that shows when Mr.

Smith is supposed to take the tests?

I'm not sure I understand your question.

As the employer, we decide when he takes the test.

Sure.

What I what I'm asking is is there any document that shows when the that decision was made that the tests must occur on this day?

I would say that we have an internal, as I mentioned, we have an internal tracking document.

Um, have you seen that internal tracking document for Mr.

Smith?

Yes.

Isn't an exhibit?

Um, uh that is a confidential uh piece of information.

Uh it contains information about all of our employees' follow-up testing schedules.

It wouldn't be appropriate to share um that information about all those other employees.

Can that information be redacted relative to Mr.

Smith?

I'm not sure what the goal would be.

We're we're the ones who get to decide when he takes the tests.

No, I under I understand that, but what you're telling me is there's some tracking document that you're reviewed that identifies when Mr.

Smith is supposed to take the test, right?

Um I I don't know how much more clearly I can say that we're the ones who decide when he takes the test.

So yes, it's a document that we create um that we're the ones who who made it were the ones who said when he takes his tests, yes.

And can you tell me when he was supposed to take his first test?

Um no, I don't know off the top of my head when he was supposed to take his first test, no.

Nope.

You tell me when he was supposed to take the third test?

Nope.

Tell me when he was supposed to take the fourth test.

Nope.

Tell me when he was supposed to take the fifth test.

Nope.

Tell me when he was supposed to take the sixth test?

No.

You tell me when he was supposed to take the seventh test.

Uh if I recall correctly, it was test number seven that he refused.

I think you're right about that.

I know I am all right.

You mentioned that um you determined based on the number of hours that Mr.

Laster worked and didn't work that the testing should go through the day after Christmas, December 2025, correct?

I'm not sure that the number of hours that Mr.

Laster worked would have any effect on any of this.

Okay.

How did you determine talking about Mr.

Smith?

Excuse me.

Yes.

Oh, you said Mr.

Laster, sir.

That's why I'm asking.

Oh, I said, sorry.

Mr.

Smith, sorry.

How did you determine that it went through December 25 for Mr.

Smith?

Um that was the spreadsheet document that showed the total number of hours that he'd been away from work.

Um, and so you know, you divide that by eight, um, and then you get the number of days that he was away from work.

Uh, and that's that's how we got there.

So you're talking about D12, correct?

The spreadsheet that was shared earlier.

Yes.

And my question is, um if an employee is supposed to take a test and let's say September of 24, but they're on leave until the next month, they would have to take the test in the next month, not September, because they weren't there.

Is that right?

Well, I I would agree that it is not possible for them to take tests when they are not at work.

That's true.

Sure, but I'm just asking your sort of procedure.

If somebody's supposed to take a test in the month of September, but they're not in September, would they then take that test in October?

Or could they take that test in November or December?

That's what I'm trying to learn.

Uh it depends on how long the testing program is supposed to last for the person.

Um in Mr.

Smith's case, he was gone for uh well over one month.

Um, and so his testing program had to be extended by numerous months.

Well, sure, but the amount of time that Mr.

Smith was out uneven, right?

He wasn't out for like one month and then came back and then out for two months.

It wasn't that kind of a situation, right?

Um if I recall correctly, it was uh an extended um FMLA leave, uh, I believe related to birth of a child.

So he was gone for three or four months.

Um and so that that pushes the program back three or four months.

Um let me ask the question this way is it the number of hours, or is it the number of days missed in a specific month?

As pertaining to as to pertaining to extending the testing time.

Well, I would I would say that it would be if you're gone from work one day when you're supposed to be tested, um, that it would extend to one following day.

Uh, if you're gone for one month, it would extend one more month.

If you're gone for five months, it would extend for five more months.

But what if you were gone for one month over a 12-month period?

Would it extend to the 13th month?

Is that what you're telling me?

Well, that's not what I'm telling you.

That's what the code of federal regulations stipulates.

But you would also agree that the code of federal regulation stipulates that you can't provide more tests, you can't require more tests than ordered by the SAP, correct?

Um that's true, but that did not happen in this instance, so I'm I'm not sure why it's relevant.

Okay.

Let me ask you.

Um, and you're not a lawyer, correct?

No, sir.

I want to ask you about your understanding of the code of federal regulations.

So you learned at the pre at the pre-discharge meeting that Mr.

Smith had a familial relationship with Ms.

Smith, correct?

I discovered that prior to the meeting.

Okay.

Now, as I understand your testimony earlier, you agree that the code of federal regulations doesn't prohibit familial relationships, right?

No, it prohibits the type of relationship that they all have by working for the same company.

Well, what evidence do you have that Mr.

Smith works for Uniting Garden Homes?

So that morning, um, December 22nd, uh, I did a Google search of his mother's name, Desi Lynn Smith.

Um, that will take you to uh website for their um uh nonprofit group that was mentioned earlier.

Um the United Garden Homes Inc.

And uh if you look on that web page, you can find pictures of Desi Lynn and Deshaun.

Let me give this straight.

You know that Desolyn Smith is Mr.

Smith's mom, correct?

Yes, yes, sir.

Yeah, you gotta say yes or no because we got a court reporter, so she can't take down okay.

So you know that Deslin Smith is Mr.

Smith's mom, correct?

Correct.

You know that it's a nonprofit, correct?

Correct.

And she's got a picture of her son on her nonprofit website.

That's what we're talking about, right?

Yeah, she's listed as the executive director, and he's listed as the manager uh firearm instructor, um, and his name and phone number provided uh next to her.

So have you seen any employment related documents for Mr.

Smith and Uniting Garden Homes?

No, no, uh only the website.

Have you seen any membership list that has Mr.

Smith as a member of the nonprofit?

He's listed on the website as a manager for the nonprofit, yes.

He's listed as a manager for the nonprofit?

Yep.

On their crisis interruption team.

I can send you the link if you'd like.

So your understanding okay.

Let me ask the question this way.

What the code of federal regulations prohibits is a financial relationship, correct?

You are pro you're precluded from making referrals to entities with which you are financially associated.

I mean, we agree.

It prohibits financial relationships or associations, right?

That that would be the the language from 40.299, yes.

To prevent the appearance of a conflict of interest, you must not refer an employee requiring assistance to your private practice or to a person or organization from which you receive payment, or to a person or organization in which you have a financial interest.

You are precluded from making referrals to entities with which you are financially associated.

And it's our understanding that um all three of the people listed, Desi Lynn, Sean, Deshaun, and Roxy are members of this Uniting Garden Homes Inc.

You don't have any membership record that shows that, true.

No, it's it's easily available on the internet.

I think we've how much payment Mr.

Sultan, we've we've proceeded long enough on this line of questioning.

No, I understand.

I have a different question.

Yeah, well, let's let's move to that.

We're taking a lot of time on something that's at best peripheral.

You don't have any information that's that Mr.

Smith paid any money to his mom, true?

No, I would not have any knowledge of any payment that went between Mr.

Smith and his mom.

Likewise, you don't have any information that Ms.

Smith paid her son anything, true.

No, what she did was she recommended that he receive treatment from someone else in the same organization.

Um, and that's that's the conflict of interest.

Those are all the questions that I have.

Yeah.

Uh thank you, Mr.

Thank you, Mr.

Stratton.

You're excused from the hearing.

Mr.

Simon, do you have additional witnesses?

Yes, President Bach.

Thank you.

I'd like to call Dan Thomas.

Good afternoon, Mr.

Thomas.

Good afternoon.

Could you please give your uh your full name and job title?

Dan Thomas is my uh full name D A-N T H O M A S.

My job title is administrative services director for the Department of Public Works.

Would the court reporter please sign Ms.

Pardon me swear, Mr.

Thomas in?

Mr.

Thomas, and the testimony you're about to give under the pains and penalties of perjury of the state of Wisconsin.

Do you swear or affirm to tell the truth, the whole truth and nothing but the truth?

I do.

Thank you.

Mr.

Simons, could you proceed?

Thank you.

Dan, how are you involved in this matter?

Um I provide advice and um counsel to the department as it relates to matters involving discipline.

And so Mr.

Smith's um circumstances and the facts surrounding his case were brought to my attention.

Does the city or department rather recommend SAP providers or does the uh department direct DEs to a specific SAP?

We provide um choice for employees.

We do recommend um establish SAP providers, people who would we've had some you know history of um relationships with for obvious reasons.

We are familiar with um how they do their work, how they you know communicate um their findings and recommendations to us.

Um so there is a uh reason why we make um recommend uh recommendations, but we do allow people to choose their own providers.

Um on occasion they do that.

Is it your do you have the belief that uh an SAP that is um somebody's parent would be um okay or would it be inappropriate?

I believe that there would be a built-in um conflict of interest, and while the regulations do not um say family, I think a common sense reading of conflict of interest um would allow for conclusion that a mother providing services to a son or being involved in those uh provision be or being involved in the provision of those services could lead to um a conflict of interest, certainly, um in that there would be uh potentially some inherent bias involved in in that um dynamic.

Um also potentially some lean leniency um as it relates to treatment plan recommendations that might be made.

Does the department approve the SAP provided testing plan?

I'm sorry, repeat the question.

Does the department approve the SAP provided testing plan?

I think we accept the testing plan.

I you know, I I think approve would be a word that I would not use.

I I would I would use a word accept because they are the professionals they are charged with making the the determination as to whether a plan is required, and if so, what that plan would contain.

Um, our responsibility is to implement that plan in a manner consistent with what um has been prescribed by the provider and is consistent with the regs.

Is it true there's various layers and entities involved in this process?

For instance, DOT regulations, SAP guidelines.

Yes.

Yes.

How do the DPW work?

How are the DPW work rules important to this matter?

The DPW work rules, I think provide unequivocal guidance as to the drug testing protocol in place in DPW.

It provides for certain consequences for certain behaviors or uh test results.

For example, our program uh or the protocol in place in DPW provides for two distinct outcomes.

Um or provides for distinct outcomes relative to um protocol or rule violations.

The first violation results in a 10 day suspension, the second violation results in discharge.

It has been that way forever.

Um and and basically, as far as the department is concerned, um if there are positive test results as um described or outlined in the regulations, we take um certain um actions as it relates to those um outcomes.

And so if a and again, if if an employee tests positive for a first time, they get suspended for 10 days.

If they test positive a second time, they get discharged.

Now positive test results include um completed urinalysis or blood um uh alcohol content test results or refusals to test.

So if a employee has a pot or prohibited substance in their urine and is and it's detected to detected by your analysis, that would be considered a positive.

It's a if it's a positive out blood alcohol test result, that's a positive.

If it's a uh uh submitted sample out of range, that can be considered and is considered a positive.

If it's a refusal to test, meaning that the employee just simply refuses to provide any sort of sample, that is also a positive.

And so two positive test results in the history of DPW um has resulted in a discharge action for every affected employee.

As it relates to this matter, please summarize why the department's action was appropriate.

Well, it came to my attention that um that Mr.

Smith had information with regard to the testing um uh duration um uh for his program, which he should not have had access to.

Um, we believe that um you know, fact um uh was representative of the fact that there was a conflict of interest that in fact did take place and that um confidential information was shared with him.

Um we were we were and still are of the position that um if Mr.

Smith believed that the that the test um the request for the test by management was inappropriate for any reason, he should have submitted to the test.

He could have grieved that um action on on uh on the part of management, and if he was successful, there would have been no consequence, as opposed to or contrasted with his simple refusal to take the test or submit to the test, which in all cases um uh over the course of history has have always resulted in the determination that the refusal was a positive.

Thank you, Mr.

Thomas.

I have no further questions.

Do the do the other commissioners have questions for Mr.

Thomas?

Then we'll go to cross-examination.

Good afternoon.

Good afternoon.

Um I want to direct your attention to exhibit J1.

This is the um pre-disciplinary hearing notice that you presented to Mr.

Smith.

Um I'm assuming familiarity with it, correct?

Um, I'd like to find it before I say that, but it is up on the screen.

Could you take Mr.

Thomas to the second page, please?

You see your signature on it, right?

I do, yeah.

Um, so if we go back to the first page, um and this is sort of a standard form letter that you're being notified to pre-disciplinary hearing.

You know, these are the reasons, correct.

Yeah, generally that that's accurate, yes.

And this is this is part of the due process that's required, right?

Correct.

And in this letter, um, you explain that on July 9th, 2024, Mr.

Smith received a positive test because of uh a positive result because of a refusal test, right?

Well, I think the what the document says is that there was a an initial specimens submitted that was determined to be out of range, which means that the clinic um staff determined that this um specimen was problematic and that it it uh deviated from what is expected um in terms of temperature um of a sample of urine as it leaves the human body.

All right, and then in the next paragraph, you talk about uh what happened on December 19th, 2025, correct?

That's what the document says, yes.

And um then you in the next paragraph, you explain that you know, two violations result in discharge, right?

Correct.

And this is that's the the notice that was provided to Mr.

Smith, right?

This is a notice that we would have um typically sent to an employee, yes.

No, I mean this is the notice you sent to Mr.

Smith, right?

I I assume it is, yes.

And there's nothing in the notice about um there being uh any sort of concerns about the SAP provider, right?

There may not be anything in this document, but that was discussed during the hearing.

No, no, I'm gonna I'm gonna get to that.

I just want to talk about exhibit J1 for a minute.

Nothing in the document about there being concerns about the SAP provider, correct?

Right.

No, this is just about the the first and second refusal.

Nothing in the document about um uh Mr.

Smith knowing the number of tests, right?

That was discussed during the hearing.

Okay, let's let's go to that.

You sort of provided over that pre-disciplinary hearing, right?

I did.

And you asked Mr.

Smith if he was related to Miss Smith, correct?

I did.

And Mr.

Smith told you that he was, correct?

He did.

And he told you that Ms.

Smith was his mother, correct?

That was the question that you just asked, yes.

Yes, he did say that.

And um, I just want to make sure that that my memory is accurate.

You were you asked him that question, and he provided the answers, right?

Not some other person, right?

I asked the questions, he provided the answers.

You did not ask um Mr.

Smith whether he had any financial relationship with his mother, true.

We didn't talk about financial relationships, no.

You didn't ask him if he worked for her company, right?

I believe we did talk about that, yes.

You believe you asked him about that?

About the whether or not he worked there, yes.

I believe we did have a discussion about that.

What did he tell you?

Um, my recollection is that he didn't deny it.

We didn't talk a lot about that because that wasn't really um my focus.

My focus was on his refusal to take the test, not about whether he worked um at the Garden Homes facility or what he did.

You didn't ask Mr.

Smith um whether he paid his mother any money through again.

We didn't talk about financial relationships, we didn't talk about the payment of money to or from anyone.

We simply talked about whether or not he was an employee there, whether his mother worked there, whether he was related to his mother.

I believe he answered in the affirmative to all of those questions, and then we focused on his refusal to submit to the test.

You're telling me that your memory is you asked Mr.

Smith whether he was an employee of his mother's company, and he said that he was.

That's your testimony.

I believe we talked about whether or not he worked there, and I and my recollection is that he did not deny that he did.

Did you is your memory that you asked Mr.

Smith any questions about Roxy Brown?

I didn't mention Roxy Brown at all.

I don't recall, I don't recall mentioning the word Roxy or the name Roxy Brown at all.

Is there any um work rule that um requires an employee to disclose a familial relationship with an SAP provider?

Is there a work rule that requires an employee to disclose a familial relationship with an SAP provider?

Is that the question?

Yes.

Uh not that I'm no, there isn't.

No.

Are there any?

And it's not about it, um, attorney Sultan, it's not about the relationship, it's about the conflict of interest.

Okay, is there any work rule that uh describes a conflict of interest?

There may there may be, and I don't recall.

I mean, our work rules are voluminous.

Um, we have work rules um for just about every aspect of our work in our various divisions.

Um, and so I don't recall whether work rules specifically talk about conflict of interest as it relates to drug test.

I'm pretty certain that they don't.

I think a general conflict of interest section is included in our work rules that you know just generally talks about um conflict of interest, warns against um you know participating in things that might um result in a conflict of interest, but it isn't related to drug testing in any way um in my uh according to my recollection.

Um, my understanding from your testimony is that the city makes recommendations for SAP providers, but also tells employees that they can pick anyone they want, right?

Mm-hmm.

Correct.

Is there any guidance or guidelines that say accept someone that you have a familial or financial relation?

I'm not sure if I understand your question.

You wouldn't could you please re-ask it?

Sure.

It it as it relates generally to the process, right?

When an employee has a positive test, they're told they have to go out and get an SAP provider.

Is there any guidance provided to them on as to conflicts of interest or financial or familial relationships?

No, we no, no.

I mean, it's not unlike, you know, when an employee gets injured at work.

We, you know, I I mean, we can recommend um healthcare providers or employees can select their own.

We don't ask for the credentials um or where a medical uh a doctor graduated from medical school, for example, um, when an employee selects uh healthcare provider for the treatment of an injury that might have been sustained.

So this in my view is not a whole lot different.

Um we we provide recommendations for SAP providers.

Those recommendations are for those providers that we are familiar with, but we also allow people to choose their own provider.

And when they choose their own provider, they do that.

I I would I would say um maybe at some risk here uh in this environment, but I think when an employee chooses their own um SAP provider, they kind of do that at their own peril.

They need to make sure that they're selecting somebody that is certified, um, you know, who has the proper credentials and and has the integrity to provide this work.

We don't, you know, we don't get involved in and and digging into the background of every SAP provider.

We would not have the ability to do that.

We don't have the staff to do that.

I want to direct your attention to exhibit D 14.

These are these sections of the code of federal regulations that were talked about before.

15 EU3, yes, D U3.

Yeah, or it's now D14.

Mr.

Thomas, you have legal training, right?

Yes.

Um we get exhibit D14 on the screen, please.

So on the first page of D14, which is on the screen here, talks about section 40.191.

And if you look at sub A, it says as an employee.

Do you see that?

As an employee, you have failed to, or you have refused to take a drug test if you coin.

Yeah, so this subsection, sub AXEQR, relates to employee obligations, right?

Right.

All right.

Now if you go to page four of document D14, this takes us to section 40.299.

And if you look at sub A, it begins as an SAP upon your determination of the best recommendations for assistance.

Do you see that?

Yes.

So the exequitor here applies to obligations on SAPs, correct?

Is that a question?

Yes, that's a question.

This subsection.

Section 299.

Section 299.

Refray refers to the obligations of SAPs, correct?

Correct.

Not the obligations of employees.

True.

This is about SAPs.

I don't have any further questions.

If um, unless unless one of my fellow commissioners has a question at this time for Mr.

Thomas, I'm ready to excuse him.

Thank you.

In that case, um Mr.

Thomas is excused.

Mr.

Simon.

Thank you, President Bach.

The department does not have any more witnesses to call.

Okay.

Thank you.

That was my question, and you you nailed it.

Um I think uh well, we've only been at it for uh 55 minutes.

I think it's uh I don't I don't need a break.

Does anyone else need do any fellow commissioner need a break?

No, no.

Okay.

Then um was an exhausting 55 minutes.

Um we're gonna go to Mr.

Shelton um and uh ask him if uh if if he has witnesses to call.

I have three witnesses, Deslin Smith, Roxy Brown, and Jason Smith in that order.

Well why don't you call your first witness?

We will call Deslin Smith.

No, you sit here, she can sit here.

Yeah, yeah, but she won't do it.

Sure.

And how do you how do you want me to do the exhibits on this on the why don't we do them on the screen that way we all know what we're looking at?

Oh yeah, let me move out the way.

What I'd like uh for starters is to have have the witness identify herself and give her um her organization and uh and or job title.

My name is Dezlan Smith, and I have a couple job titles, but here United Garden Homes Inc.

is a nonprofit organization that I am the executive director of could we have the court reporter swear her swear in Ma'am, if you could raise your right hand, please in the testimony you're about to give.

Thank you.

In the testimony you're about to give under the pains and penalties of perjury of the state of Wisconsin.

Do you swear or firm to tell the truth, the whole truth and nothing but the truth?

Yes.

Thank you.

And I know, Mr.

Sultan, you moved away from the table for viewing, but I will need you close to the microphone when you speak.

Thank you.

Um good afternoon, uh Ms.

Smith.

Could you um spell your name?

The first is D S I L Y N last is S M I T H.

And um you own a or you're the executive director of a nonprofit organization?

Yes.

What's it called?

Uniting Garden Homes Inc.

You're also the mother of Mr.

Smith, right?

Yes.

At some point, did you learn that your son needed an SAP provider?

Yes.

When did you learn that?

On the day of his um the refusal, um, which would have been around July 10th.

Does Uniting Garden Homes Inc.

provide SAP services?

I provide SAP services, and because I'm the executive director, I'm the only one that provides it.

I am the I could use the letter AID, but it's me that provides the services.

How long have you been providing SAP services?

Six years.

Since 2020, so six years.

Have you provided SAP services or strike that?

Did you provide SAP services to City Milwaukee employees before July 2024?

Yes.

Have you provided SAP services to City Milwaukee employees after December 2025?

Yes.

Are you familiar with the photo federal regulations?

Yes.

Are you familiar with City Milwaukee policies relating to SAPs?

No.

So your son came to you at one point and said that he needed SAP services.

Yes.

And why did you choose to provide SAP services?

When initially he came, we looked in the clearing house and he was not in the clearinghouse.

So he was um more upset at the treatment versus the and the issue at hand, and he is very strong and opinionated in that.

So I reached out to someone I know also is an SAP, and she's like, she he's not in a clearing house.

So okay.

I provided the initial assessment, initial scene.

He went through the biopsychosocial spiritual ASAM assessment.

I can only put in what he reports as any other person that I see.

Um based on his report, he I could not give him a diagnosis.

So that's where how I ended up seeing him at that point.

Now I want to show you uh exhibit D8 on the screen here.

Yes.

And you sent it from Patrick Fitzgerald?

Yes.

And why did you write this letter?

I wrote the letter to let them know that he had started the process and more so to inform them that he was not in the clearing house.

That was my initial thought process.

I also had Deshaun reach out several times to inquire and ask what should he do.

Um to do the follow-up.

He didn't not get a response.

Um, and so we followed through again, still reaching out to another SAP to see um about him being in the clearing house.

Because my understanding is the employer has three days to enter him into the clearing house, and the MRO has until the end of the business day, if that's who's entering it.

So it was not still entered.

So, but my initial reason for sending that letter as I put in the second, I had to say why I'm seeing him, but I'm like, he's not in the clearinghouse.

Did you ever get a response to this letter?

I've never gotten a response from anyone at the city.

All right, let's take a look at this letter.

Um, the first sentence says, I have completed an initial evaluation for Mr.

Deshaun L.

Smith on July 11th, 2024.

Is that true?

Yes.

You go on to write based on the evaluation.

My recommendation for Mr.

Smith is receive five hours of drug education that could be completed by July 19th, 2024 and return for a follow-up appointment on July 26, 2024 with verification of completion.

Do you see that?

Yes.

How did you make that recommendation?

Based on what the information he provided as far as any drug and alcohol use.

Um whenever someone is denying or saying they're not using or they're not, um, drug education for me is applicable for anyone, and I couldn't um mandate or recommend any higher level of care because there's no diagnosis to go with it.

Um whoever he would have gone to, they should do their own assessment and evaluation, and it wouldn't have matched if the same information was provided.

So, based on the information that he provided to me, um, I recommended the education, which is a little higher from the information that he um based that he provided to me, but it doesn't hurt.

Uh, you also go on to write, I have scheduled a follow-up evaluation with Mr.

Smith on July 26, 2024 at 10 a.m.

to determine his return to duty status.

What did you mean when you said return to duty status?

Meaning that if he making sure that he had completed all of the um follow through with the five hours of education and returned back to me before his um meeting on the 26th.

Was it your opinion at the time that you wrote this letter that he should not return to duty as of July 11th?

No, not at all.

So you thought he could return to duty the same day that you wrote the letter?

Yes.

I want to direct your attention to exhibit J 3.

This is uh a letter that you wrote to Mr.

Fitzgerald, correct?

Yes.

Did you receive a response to this letter?

No.

Um this letter, you write, I have completed the follow-up evaluation for Mr.

Deshaun L.

Smith on July 26, 2020.

That's true.

Yeah.

You go on to write um that uh based on the evaluation.

My recommendation for Mr.

Smith was receive five hours of drug education to be completed by July 19th, 2024, return for follow-up appointment on July 26, 2024, correct?

Yes.

You go on to write Mr.

Smith attended his scheduled appointment today on July 26, 2024.

Is that true?

Yes.

Uh it goes on to say provided verification that he attended and completed five hours of Drudge drug education program with Miss Roxy Brown.

Do you see that?

Yes.

Is that true?

Yes.

Do you know Miss Roxy Brown?

Yes, I do.

How do you know her?

I know her as a um professional rapport.

Um, and with my organization, we have a mental wellness team, and I asked her to be a part of that team.

Um, so when we do community events or things like that, that her expertise in the area of um mental wellness that relates to substance issues could be afforded.

Did Mr.

Did your son pay you for SAP services?

No.

I've I provided SAP services.

My commitment for the first six years of my license was to provide it free.

So I've seen about six to seven um employees that needed my service, and I was provided that service for free for all of them because that was my commitment back to my community.

The reason I got this license.

Did you pay Miss Roxy Brown for the services she provided to Deshaun?

Not at all.

You go on to write in this letter that he also provided verification that he produced a witness UA sample via a CLIA approved testing cup with Miss Roxy Brown.

Is that true?

Yes.

Go on to write based on this information of verification.

I am recommending a return to duty date for July 29th, 2024.

Do you see that?

On your screen?

Yes.

And why were you recommending a return to duty day for July 29th, 2024?

I just felt that was just a time for him to kind of collect itself, get his thoughts together.

If I can say his refusal was not due to not wanting to provide the UA, he was more feeling violated as an employee as well as feeling bullied in a sense.

Because when he came in for the assessment, not as a mom, but during the assessment with the letter, he stated he asked for clarity when they said his UA sample was invalid.

Well he said they said it was cold.

He asked just to see the temperature because he knew he had provided an appropriate sample.

He was refused that, and it's you know, it's difficult with that, trying to get, you know, it's hard to say, just do what they say as him trying to be a young black male growing up.

So his the issue was more not of the refusal to do the test and during my assessment.

It was more of him feeling violated um through the process and what he was told he had to do to provide the witness UA as in pulling his pants down, doing a 360 in front of a male, um, his history of whatever has in, you know, he said it just was too violating, and he was trying to explain that to them.

They were refusing to talk to him.

So that was where the issue was.

So my recommendation for him, not you know, to give him a couple more days to get himself together on that.

Now you wrote this letter on July 26, 2024, but your recommendation for a return to duty is July, it's three days later, July 29th, 2024.

Do you see that?

Yes.

Were you aware when you wrote this letter on July 26th that he had already returned to duty?

No.

Did you do anything different for your son that you would do for anyone else?

Not at all.

I want to show you exhibit D10.

Can we get that on the screen?

Uh Miss Moore, could you help us put D10 on the screen?

Um, do you recognize Exhibit D10?

Yes.

It's a it's a web page for Uniting Garden Homes, correct?

Yes, it's been updated since well, yes.

Okay.

All right.

Does United Garden Homes have a board of records?

Yes.

Is your son on it?

No.

Uh is your son an employee of United Garden Homes?

No.

Is Roxy Brown an employee of United Garden Homes?

No.

Um, your son appears on uh H two with an arrow.

Do you see that?

Yes.

And it says Sean.

Um it says crisis intervention team.

Do you see that?

Yes.

Um.

What does your son do for Uniting Garden homes?

Deshaun is a um certified national gun safety instructor.

So he provides gun safety training free for children.

Um my organization is a um CVI community violence interruption.

Um we work with that and we're part of the ecosystem.

So Deshaun has his own business with the gun safety training, and he provides that free for children um 17 and under.

And he also does provide CCW training um for adults.

However, that's just for his business.

Does your son's firearms training business have a contract with United Garden Homes?

No.

As your son's firearms constructing business ever been paid any money from United Garden's homes.

No.

Have you ever paid any money to a spirearms business?

No.

So this is on the website as a free service to the community?

Yes.

Did you have any conversations with your son about the fact that you were his mother and providing SAP services?

Yes, I did have that conversation with him.

Okay.

What was the conversation?

That I was he wouldn't get any special treatment.

He had to come to the office for his appointments.

And whatever the recommendation was, he had to follow through.

I also informed him that we contacted another SAP that when it's entered in the clearing house.

Um if it was ever entered into the clearing house, that um well, I didn't say if, I just thought it was gonna be entered into the clearing house that we would consult and make sure that we followed everything um appropriately.

Basically to have her review what I did.

Those are all the questions I have.

My fellow commissioners, do you have any questions for this witness?

I do.

Please ask.

Thank you very much.

If we could go back to is it D8 or is it J3?

Um this is the two-page one.

Okay.

Um exhibit J3, which is up on the screen.

Um in the paragraph after the bullet points when you talk about Roxy Brown and her mental health America, Wisconsin.

Um the the last sentence in that paragraph is he also provided a verification that he produced a witness QA sample via a CLIA approved testing cup with Ms.

Brown.

Um, who witnessed that sample?

That would have been a male with where um Miss Roxy was at?

It wouldn't.

Oh, I'm sorry, I didn't mean to cut you off.

No, please finish.

No, yeah, it would have been someone at the where she was working at.

Yeah.

Is there a reason why?

Um, to your knowledge, I can ask this question of Deshaun when he testifies.

To your knowledge, is there any reason why he was willing to have a witness sample with Vince Brown's organization, but he was not willing to have a witness sample at the organization with which MPS contracts.

From my understanding, it was because the presentation of how it had to be witnessed, pulling your pants all the way down and then turning a 360 in front of a male versus where when we do a witness, the male just stands in the bathroom, make sure that they don't wash their hands, they don't everything is emptied out of their pockets, and then they just kind of stand to the side and make sure that it that their urine providing the urine sample.

So the door to the stall would be open or the the urinal.

Right.

And they're actually like just standing kind of to the side.

Yes.

That's my understanding.

Okay.

Um I'm not a lawyer and never pretended to be, although I did look into going to law school at one point, as you can imagine.

I like to talk.

Um I'm just wondering the reason I ask is because I had some experience with witness collections in a previous employment.

And the reason that I was that was explained to me of the 360 is that they could have something taped to their groin.

And that's one of the ways that you can have urine that's out of temperature.

Um to your knowledge, the person who witnessed it perhaps saw the backside of your son or the side of your son, saw that the witness that the collection was happening, but uh didn't uh observe, because obviously they're not gonna pass movie down, they didn't observe whether or not there could have been anything not to be.

Secured on his body.

Okay, that's that was that question, and I think I had another question, if I can find it.

Oh, uh on the letter of July 11th, which is the other document that you that you prepared, um, which must be D 10.

No, D eight, the letter.

Yeah, yeah, there it is.

I'm sorry.

Thank you for helping.

Um you D 10th was the day of the meeting.

Yes.

On the 11th, you prepared this letter after you met with your son.

Yes.

In um paragraph two, just before the bullet points, you indicate based on the information and letters he provided to verify what letters might you have had since the letter from the city from the city had not gone out yet.

He had something from his disciplinary hearing.

Well, she's aside.

Yeah, he had he provided the disciplinary um action or hearing, and it had that he needed to see the SAP on there.

He had that.

So that's what you had.

Yeah, you referenced it as a letter, so that's why I was confused.

Yeah, okay, those were my two questions.

Thank you, President.

All right.

If there are no further questions or cross-examination, I would excuse this witness.

Um, Mr.

President, I have one question for Ms.

Commissioner Smith.

Okay, um I understand that the appellant um had information regarding the schedule of testing that you as an SAP recommended.

Now, normally would the individual have that detail?

So I'm glad you had say um up until this day, I always sent CC the employer as well as the employee.

This is the first time that it had been brought to my attention that I shouldn't CC or that the employee shouldn't have it.

Um hanky trucking services, there's another trucking service that I've always CC the employee employer.

I've never like tried to hide anything or things like that.

And in that is because when I have to wear two separate hats because I'm also a substance abuse counselor, the stipulations are a little different because in that they're entitled to everything.

So it was a learning curve for me as well, but I have sent it to every other place.

This was the first time where it was said I did just do some retraining and I did just retake the test um yesterday to be exact or two days ago.

But I did go and after this was brought to my attention, I realized that I went back, I conferred with people that I trust, and I went back into and did additional training for myself.

I just wanted to get clarification from you on something, Mr.

Joel Glassman, an SAP person said that uh one of the reasons why they don't want the individual to have that schedule.

It could modify they could modify their own behavior based on the dates.

Does that make sense?

It makes sense, yes.

If yeah, but um, yes, it does make sense.

If if they have they know they're going to be tested within that year or two years or time frame, if they have a some type of issue, that's what they could adapt their behavior.

So I do agree with that.

Um President Baphe vote for the question based on Commissioner Smith when he's done.

Commissioner.

Um regarding the um issue of notifying the employee of the testing schedule.

Um in the discipline, the final discipline that occurred after the December incident.

Um your son, it's been testified, asserted that he didn't have to because it was past the end of his dates.

Um, where would he have gotten that notion from?

If you know, I can just go off that I CC'd him.

He had the testing schedule, and there seems I'm hearing different numbers.

Um, but that's the only thing that I can go off of.

I haven't had that conversation with him because he did get that letter showing what the testing scale, how many tests that that he was supposed to take?

It was nothing, I don't know when he was tested.

So I don't know, you know, when they they actually started the months or not.

That's something I don't know.

I couldn't have been privileged to that at all.

I just know that up until now I was CC and the employee as well as the employer, everything that I was sending.

But let me just get just like one further question, which is maybe impolite, I'm not sure.

Um at any point, did you advise your son to assert that he did not have to test?

Not at all.

Okay.

Thank you very much.

I'm finished, President Bach.

If um, if there are no further questions for the witness, uh, I'm going to excuse the witness.

President Bach, if I may.

Yes.

Right over you.

I do have some questions.

Um, Andrew Simons.

All right.

Uh, Mr.

Simons.

Do you think your relationship with this client could be deemed inappropriate in any way um as serving as a SAP to them?

Yes, I I do think it could be deemed.

Are you aware that as part of any follow-up testing that all tests are observed collections?

Yes.

Did you withhold the letter, the J3 with the testing plan from the department to ensure the clearinghouse entry was properly made by the MRO and by association, the department?

I'm not.

You said that I withhold a letter.

Like um not providing the treatment plan until the entry was made.

No, I went in the order, I sent everything in I felt was timely.

Do either of the letters, the one dated July 11th or July 26th, request a response.

No, I didn't request a response.

Did you feel any urgency to depend to send the department the appellants' testing plan to ensure your client, your son was able to return to work as soon as possible?

No.

Are you aware that your son did not return to work on 729, but rather they returned to work on August 5th?

No.

Can I elaborate a little bit?

I do know that um he did come and mention that he returned to work but was sent home because of a um uh he had to do another test.

So I I was aware, I didn't know the dates that he actually went back to work.

I do know that he did go and he called and said, hey, they sent me home and so I can't come.

And I said, well, just follow what they say, just do the test.

So I do know that.

I just don't know what date that he actually went.

Believe that may have been a circumstance related to the re the official return to duty test that the employer coordinates.

I believe you mentioned this.

Do you know any SAPs in the Greater Milwaukee area?

Yes.

If so, why did you not refer your son to someone else?

We did call, and they were under the understanding that he was not in the clearinghouse, they could not service him.

That was what exactly was told to me.

Correct me if I'm wrong in your testimony.

Did you say your son is not an employee of Garden Homes Incorporated?

He is not.

And that Roxy Brown is not an employee of Garden Homes.

Even though they're listed on the web page?

Right.

She's listed as a mental health well uh on the mental wellness team.

I'm not even paid.

I forfeited my salary from Garden Home so I can keep the organization.

I work another job.

I'm actually starting a new job on Monday.

Um I don't have like a lot of money.

I'm strictly a community-based organization.

I literally work for my community.

I'm dedicated to my community, and however it may appear, charity does start at home.

So if I'm out fighting for the community, I'm definitely going to fight for people around me that are that I know relationship or not.

I'm not gonna lie, I'm not gonna jeopardize myself.

However, I'm gonna do what I need to do.

So no one is getting paid at United Garden Homes at this present time.

No one is employed.

I forfeited my salary.

I had a contracted job with my own organization that I was being paid as a contractor.

So I'm not, I don't, I'm I'm on no one is so, but we're listed in order to get grants, and when we get the grants, it's clarified.

We all are volunteers, but Deshaun has established his own business, and we're trying to uh get him going on that so it helps his presence and everything in the workforce.

Thank you.

I have no further questions.

Yeah, Attorney Shulton, any um any follow-up on uh his follow-up on your cross?

No.

Okay.

Uh in that case, uh then the witness is excused.

All right, we will call Roxy Brown.

Hello.

Okay.

Um Ms.

Brown, would you uh state your name and and um and your relationship to the uh to this case?

Yes, um, my name is Roxy R-O-X-I-E, last name Brown, B R O W N.

And I provided uh five days of AODA education to um Deshaun back in the Would the Would the court reporter please um swear in the losing Ms.

Brown Yes?

That's better, Sprout.

If you could raise your right hand, please in the testimony you're about to give under the pains and penalties of perjury of the state of Wisconsin.

Do you swear or firm to tell the truth, the whole truth and nothing but the truth?

Yes, thank you.

Okay, uh please begin.

Uh good afternoon.

Could you spell your name for the record, please?

R-O-X-I-E Last name B-R-O-W-N.

Um did you provide drug education to Deshaun Smith?

Yes.

How many hours of drug education did you provide?

Five.

Have you provided drug education to anyone else before Mr.

Smith?

Yes.

Have you provided drug education to anyone after Mr.

Smith?

Yes.

Do you know what Uniting Garden Homes is?

Yes.

What is your relationship to Uniting Garden Homes?

Um I am the um wellness.

I I forget my title.

I haven't been there so long, but I just help out with wellnesses when they put on events and things like that, then Desalina asked me to come because so that I can you know talk to other uh event goers um about um substance abuse safety and um you know wellness and all of that kind of stuff actually um provide them resources for uh help assistance um if they have any um anyone have substance use disorders that they know if they have them themselves paid by uniting garden home I'm sorry do you get paid by United Garden Homes?

Oh no.

Do you know what Mental Health America of Wisconsin is?

Yes.

What is your relationship with Mental Health America of Wisconsin?

At the time of um that I provided the services, I was the clinic manager for Mental Health America, Wisconsin.

Did um uniting garden homes pay mental health America of Wisconsin?

No.

Did Deshaun Smith pay you?

No.

Did um did Deshaun Smith do a uh urine sample?

Yes.

Why did he do a urine sample?

He asked for a urine sample because um he just wanted something to show that he wasn't um that he hadn't didn't that he was testing negative.

Um we we typically don't always do urine samples for uh clients at uh mental health America unless that it's been court ordered or something like that, but that's the only way.

But he volunteered and asked if he could have um a test to provide proof that he was sober.

Did you provide the drug education via Mental Health America of Wisconsin?

Well, yes, I actually was the clinic manager, but I also contracted with them to um to do I did um substance abuse treatment groups, and because um the referral from United Garden Holmes didn't he didn't need groups because I did not find him to be to have a disorder.

I agreed to do um just give him some education on what uh substance use disorder is um and what different substances do to the brain, the body, you know, socially and things like that.

You have any licenses or certifications to provide drug drug education?

Yes.

Well, what do you have?

I am an independent clinical supervisor and a uh clinical substance abuse counselor.

How long have you had those um qualifications?

I've had the substance abuse, the clinical substance abuse counselor since 20.

I think 2017.

And I just I had been a substance abuse um uh a clinical supervisor in training up until last month when I got my independent clinical supervisor's license.

There are all the questions that I have.

Um Mr.