Posted at: 01/05/2013 11:55 PM
By: Dan Levy
CLIFTON PARK - Does a local school district have the right to fire one of its school bus drivers who tests positive for marijuana? That's a question the State Court of Appeals is mulling over right now.
Cynthia DiDomenicantonio had been driving a Shenendehowa school bus for about decade until she failed a random drug test more than three years ago.
The district fired her, an arbitrator reinstated her, and then a State Supreme Court justice reversed the arbitrator, which left her without a job. But the Appellate Division overturned the lower court which allowed DiDomenicantonio to be reinstated.
That's an outcome the school district wasn't comfortable with and so now the case will be decided in the state's highest court.
The school district is arguing DiDomenicantonio should be fired because they've adopted a zero tolerance police, but it's unclear if that policy was in place at the time of the drug test in 2009.
"The zero tolerance policy didn't exist, there's no evidence that it exists," Daren Rylewicz, an attorney representing CSEA, the union DiDomenicantonio belongs to, argued Thursday afternoon before the five (remaining) judges of the State Court of Appeals.
Rylewicz further argues the district ignored a collective bargaining agreement that allows less severe penalties, drug counseling or a suspension, for example.
"What we have here was intentional, completely unmitigated drug use," said attorney Beth Bourassa, representing the school district. "We have a greivant who is entirely likely to do it again."
Rylewicz believes more discretion should have been used.
"Here you had a bus driver who had almost ten years of blemish-free employment with the district," he said, "passed at least half a dozen prior drugs tests, and suffered a great penalty, six months without pay."
Bourassas argues the cost of rehiring DiDomenicantonio could be a lot higher.
"The reinstatement of a school bus driver who has used illegal drugs and failed their drug test shortly after she finished driving children to school, jeopardizes the safety of children," Bourassa said.
"If the district wanted the absolute power to terminate an employee who failed drug tests, they should have negotiated that into the contract," Rylewicz points out.
"It violates the trust that parents place in the school district and in the bus driver behind the wheel of the school bus," Bourassa added.
The court's decision is expected next month.