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The Daily



09-18-03: Suit filed over failed drug test


Celina City Schools board of education is involved in a civil lawsuit over the firing of a preschool bus driver who failed a random drug test.
The board of education last week filed a lawsuit in Mercer County Common Pleas Court against the Ohio Association of Public School Employees (OAPSE), Local 457, which is the union that covers classified staff such as bus drivers, cafeteria workers and other non-teaching staff.
The lawsuit follows a decision by board members to fire Michael Bullock, a Head Start bus driver who failed a random drug test and admitted to smoking marijuana. After the firing, the union brought in an arbitrator who decided that Bullock should be reinstated as a bus driver and said the board did not have just cause to fire him.
Board members are asking in the suit that the arbitrator’s decision be vacated.
School officials believe that — if allowed to stand — the arbitration decision would limit the district’s ability to enforce its drug-free workplace rules.
School board member Joe Bath called the arbitration decision “ludicrous.” The decision essentially says the school district had no just cause to fire Bullock because the district had no proof that he was under the influence of marijuana while driving the bus.
Arbitrator Janet Goulet’s June 7 decision also ordered the school board to give Bullock back pay and to wipe clean his disciplinary record regarding the positive drug test.
“It also keeps (the board) from terminating or disciplining any employee in the future who fails a drug test. We felt we needed to make a stand. On advice of our attorney, we authorized him to file the case as a way of making a stand and putting an end to this whole thing,” said Bath, vice president of the board of education.
Board member Ken Fetters said the matter is being handled by the school district’s attorney and declined comment on the issue.
The difference between the board’s interpretation of the drug policy and Goulet’s decision appear to hinge on three words: “in the workplace.” Goulet said the school board has no rule in place prohibiting safety-sensitive employees from engaging in “off-duty drug and alcohol use.” Therefore, Goulet reasoned, to fire Bullock, the school board “must introduce evidence of impairment on the job in addition to the positive test result.”
But the school board refused to reinstate Bullock following the June 7 decision, paving the way for the lawsuit. The school board’s attorney, Christian M. Williams, of the Cleveland law firm Pepple & Waggoner, says in court filings that Goulet failed to properly do her job as an arbitrator.
Rather than determining if Bullock violated a rule of the board of education, Williams wrote that Goulet “instead dispensed her own brand of industrial justice.”
Abiding by the terms of the arbitration agreement would essentially create a new agreement between the school board and union, Williams said. “Arbitrator Goulet exceeded her powers as arbitrator ... under Ohio law when she decided to ignore such language and come up with her own termination standard.”
The lawsuit also charges that Goulet’s decision does not take into account federal rules regarding commercial driver’s license holders, who can be disciplined or fired for positive drug tests.
Goulet is an economics professor at Wittenberg University. She serves as an arbitrator at the request of the State Employee Relations Board and the Federal Mediation and Conciliation Service. Attempts by The Daily Standard to reach Goulet to discuss her arbitration decision were unsuccessful.
Celina schools Superinten-dent Fred Wiswell is out of the office this week and could not be reached for comment.
OAPSE Local 457 President Carol Henderson, who also is a bus driver, did not return messages left at her home Wednesday.
The school district’s legal saga began after Bullock was ordered on Nov. 4, 2002, to report to Gateway for random drug testing. Four days later, Head Start Executive Director Carol Davis was informed that Bullock’s test came back positive for marijuana. Davis then told Bullock not to report to work and informed him he could challenge the original test, but Bullock declined, court records say.
At a special board meeting Nov. 25, 2002, board members terminated Bullock based on the drug test and his own explanation at the meeting that he “had consumed so much alcohol” the weekend before the aforementioned drug test, that he “blacked out and therefore did not know if he had smoked marijuana.”
Bullock, who drove routes involving 30 to 40 preschoolers, did not deny he had smoked marijuana and did not deny the validity of the drug screen result.
According to information culled from several Web sites, marijuana can remain detectable in the body for 20 to 90 days, depending on the potency of the drug and the frequency of use.
The local union’s grievance claims the termination violated two articles of the negotiated agreement between the union and the school board — one saying there must be written warnings before termination and another saying drug use or possession cannot occur “in the workplace.”
The words “in the workplace” have caused much debate about drug testing in recent years. An April 2002 Daily Standard story on local drug testing noted the American Civil Liberties Union (ACLU) largely follows Goulet’s line of thinking that a positive drug test does not necessarily mean a person is under the influence. The argument has been the basis of several ACLU lawsuits involving drug testing.
“Such tests are unnecessary because they cannot detect impairment and, thus, in no way enhance an employer’s ability to
evaluate or predict job performance,” an ACLU position paper on the issue states.
What remains unclear about the school district’s lawsuit is when and how school board members decided to proceed with formal legal action.
Fetters told The Daily Standard that board members agreed to file the lawsuit during a special meeting “a long, long time ago.” Fetters said no one from the media or public attended the session.
District Treasurer Mike Marbaugh, who keeps the minutes of board meetings, said the board met in executive session with legal counsel to discuss the arbitration issue and ongoing contract negotiations with the union. The attorney urged action and board members agreed by consensus, although no formal vote was held, Marbaugh said.
“My understanding was that we were giving it over to the attorney to deal with,” Fetters said.
Public bodies are prohibited from making decisions in private executive sessions. They may discuss certain issues privately but any decisions are to be made in front of the public, according to Ohio’s Sunshine Law.


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