Cherry v. Dep't of Educ.

Citation289 P.3d 344,286 Ed. Law Rep. 1213,253 Or.App. 90
Decision Date24 October 2012
Docket Number58105300061009; A146526.
PartiesAnita L. CHERRY, Petitioner, v. DEPARTMENT OF EDUCATION, Respondent.
CourtCourt of Appeals of Oregon

253 Or.App. 90
289 P.3d 344
286 Ed.
Law Rep. 1213

Anita L. CHERRY, Petitioner,

58105300061009; A146526.

Court of Appeals of Oregon.

Argued and Submitted Nov. 16, 2011.
Decided Oct. 24, 2012.

289 P.3d 345

Patrick N. Bryant argued the cause for petitioner. With him on the opening brief were Elizabeth A. McKanna and McKanna Bishop Joffe & Arms, LLP. With him on the reply brief was McKanna Bishop Joffe & Arms, LLP.

Inge D. Wells, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.


253 Or.App. 91

Petitioner seeks judicial review of a final order of the Department of Education that revoked petitioner's certificate to operate a school bus, raising five assignments of error. We reject petitioner's second and third assignments of error without discussion. Because we conclude that petitioner has failed to establish that the department erred in revoking her certificate, we affirm.

Petitioner worked as a school bus driver for the Grants Pass School District. While she was on medical leave from work, she smoked marijuana. Four days later, she reported for work and drove her assigned morning bus route. After completing her route, she was selected for a random drug test and tested positive for marijuana. Based on the drug-test results, the department notified her that, pursuant to OAR 581–053–0006(9)(a),FN1 it intended to revoke her school bus driver's certificate. Petitioner responded by requesting a contested case hearing to challenge the department's proposed revocation of her certificate.

At the hearing, a representative of the department testified that, on previous occasions, the department had discontinued revocation proceedings against drivers who had tested positive for a controlled substance if the school districts that employed them had a second-chance policy. The representative explained that, under a second-chance policy, the driver goes through a substance-abuse program and, after completing the program, is subject to periodic random drug-testing. The representative further explained that petitioner's employer did not have a second-chance policy and the department took that into consideration in pursuing revocation of petitioner's certificate.

Petitioner argued at the hearing that she had not violated any state or federal rules applicable to her as a

253 Or.App. 92

school bus driver and that, consequently, the agency could not revoke her certificate under OAR 581–053–0006(9)(a). Specifically, she contended that the applicable federal rules only prohibit a driver from using, possessing, or being under the influence of marijuana while on duty. According to petitioner, her positive drug test did not establish that she had done any of those things. Hence, the department had failed to prove that she had violated any federal rules applicable to school bus drivers.

After the hearing, the department issued a proposed order revoking petitioner's certificate. Petitioner filed objections to the proposed order, contending, among other things,

289 P.3d 346

that the department's decision was arbitrary and capricious. She reasoned that drivers who are employed by districts that have a second-chance policy are allowed to retain their certificates, notwithstanding a positive drug test, while drivers who are employed by districts that lack such a policy will have their certificates revoked. According to petitioner, the department had failed to provide an adequate justification for the difference in treatment between petitioner and drivers whose employers have a second-chance policy.

The department issued a final order in which it concluded that it “must revoke” petitioner's certificate because she had failed to comply with federal rules applicable to school bus drivers. The department concluded that petitioner had violated 49 C.F.R. § 382.213(a) by ingesting marijuana four days before she reported for duty and had violated 49 C.F.R. § 382.215 by testing positive for marijuana while on duty.

The department rejected petitioner's contention that it had failed to adequately justify its decision to treat drivers who work for school districts that have a second-chance policy differently from drivers who do not. The department explained that, when a driver violates federal rules that prohibit drivers of commercial motor vehicles from using controlled substances, the driver may nonetheless return to duty if the driver participates in an employer-sponsored program under which the driver undergoes a substance-abuse evaluation...

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