Cherry v. Department of Education

289 P.3d 344, 253 Or. App. 90, 2012 WL 5286189, 2012 Ore. App. LEXIS 1306
CourtCourt of Appeals of Oregon
DecidedOctober 24, 2012
Docket58105300061009; A146526
StatusPublished

This text of 289 P.3d 344 (Cherry v. Department of Education) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cherry v. Department of Education, 289 P.3d 344, 253 Or. App. 90, 2012 WL 5286189, 2012 Ore. App. LEXIS 1306 (Or. Ct. App. 2012).

Opinion

ARMSTRONG, P. J.

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 SSl-OSS-OOOGOXa),1 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 [92]*92school 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, 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 CFR § 382.213(a) by ingesting marijuana four days before she reported for duty and had violated 49 CFR § 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 and proceeds through an education and [93]*93treatment program. The department concluded that its decision to revoke petitioner’s certificate was consistent with the federal rules that provide for such a return-to-duty process and with the decision by petitioner’s school district not to provide such a program for its drivers.

Petitioner seeks review of the department’s final order. We address each of her remaining assignments of error. In her first assignment of error, petitioner contends that the department erred in concluding that she had violated federal rules that impose testing requirements for controlled substances and prohibitions against their use by commercial drivers. She focuses her argument on what behavior constitutes the “use” of a controlled substance for purposes of the state and federal rules.

In addition to concluding that petitioner had used marijuana in violation of 49 CFR § 382.213(a), the department also concluded that petitioner had violated 49 CFR § 382.215 by testing positive for marijuana. Petitioner’s challenge to the latter conclusion is limited to her contention that the department’s finding that she had tested positive for marijuana is not supported by substantial evidence. Specifically, she contends that there was no evidence in the record that the drug test that was administered to her met federal requirements for such tests and, hence, there is no evidence to support a finding that she had tested positive for marijuana in violation of federal rules.

In order to preserve an argument for review, the petitioner must provide the agency with an explanation of the petitioner’s objection that is specific enough to ensure that the agency can identify and correct the error, if correction is warranted. Read v. Oregon Medical Board, 244 Or App 603, 612, 260 P3d 771 (2011), rev den, 351 Or 649 (2012). Petitioner did not challenge at her contested case hearing the factual bases for the department’s conclusion that she had violated 49 CFR § 382.215 by testing positive for marijuana. Hence, her argument that the department failed to prove that she had tested positive for marijuana is unpreserved. Other than her unpreserved evidentiary challenge to the department’s conclusion that she had violated 49 CFR § 382.215 by testing positive for marijuana, petitioner has [94]*94not otherwise challenged that conclusion. Consequently, we reject petitioner’s argument that the department erred in concluding that she had violated a federal rule applicable to school bus drivers.

In petitioner’s fifth assignment of error, she contends that the department has a certificate-revocation policy that distinguishes between drivers employed by districts that have a second-chance policy and those employed by districts that do not have such a policy and that such a distinction is arbitrary and capricious. In light of our standard of review, see ORS 183.482

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Read v. OREGON MEDICAL BOARD
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Cite This Page — Counsel Stack

Bluebook (online)
289 P.3d 344, 253 Or. App. 90, 2012 WL 5286189, 2012 Ore. App. LEXIS 1306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cherry-v-department-of-education-orctapp-2012.