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Hernando health teacher who smoked pot should get his job back, judge says



BROOKSVILLE — Michael Provost wanted school officials to be on his side.

The popular health teacher who led drug education programs at Parrott Middle School admitted earlier this year that he’d made a mistake by using marijuana at home. But he said he deserved another chance and not to be fired, as Superintendent Wayne Alexander had recommended.

Provost appealed that recommendation. Now, an administrative law judge has ruled that the law and the school district’s own policy are on Provost’s side.

Judge P. Michael Ruff has issued a recommendation stating the School Board should reinstate Provost, who has been on unpaid suspension since March, and pay him back wages and benefits.

The board did not have legal grounds to fire the 37-year-old teacher because state statute and the district’s personnel policy prohibit termination for a first positive drug test, Ruff wrote in the recommendation released late Wednesday.

Ruff presided over a June 23 hearing on Provost’s appeal. The School Board, which typically follows a judge’s recommended order in such cases, must now vote on whether to reinstate him.

Provost’s attorney, Mark Herdman of Clearwater, argued that the district should have never tested his client. School officials based their decision on a phone call in March from a woman who would only give her first name. The woman said she witnessed Provost smoking marijuana.

That was essentially an anonymous tip and not a credible source for reasonable suspicion required to order a drug test, Herdman argued. When confronted about the call by Parrott principal Leechelle Booker, Provost admitted to using marijuana and agreed to the test. He also referred himself to the district’s employee assistance program to receive drug counseling.

School Board attorney Paul Carland argued that the witness was credible because she gave a cell phone number for Booker to call her back.

But Ruff brushed aside the issue of reasonable suspicion and said the crux of the case is whether Florida’s Drug-Free Workplace Act applies to school boards.

Carland argued that the act does not apply because the board is not an agency within state government. Rather, Provost’s violation of the district’s drug-free policy justifies his termination, Carland said. The statute does apply in the case, Ruff wrote, because school boards have been considered agencies of the state, and the school district policy cannot trump state law.

The statute prohibits an employer from terminating all but law enforcement and fire safety personnel upon a first positive drug test, “unless first given the opportunity to participate in a drug rehabilitation program,” Ruff wrote.

In fact, Ruff wrote, the district in firing Provost would violate its own policy that states an employee who admits to drug use and voluntarily submits to a rehab program cannot be disciplined.

Carland had argued that Provost’s admission of drug use was not voluntarily because he confessed after he was confronted by school officials. Ruff disagreed. Provost “candidly admitted drug use” before there was independent proof in the test results.

“Thus, even under the Board’s disciplinary policy, the Respondent cannot be subjected to discipline for this first offense situation,” he wrote.

Carland and other school officials did not return calls for comment Thursday. Provost did not respond to messages left on his home and cell phone.

Provost did not face criminal charges. He has no criminal history in Florida, records show.

In an interview with the St. Petersburg Times last month, Provost said state education officials had indicated he may face a fine or probation but would not lose his teaching license.

Provost lives with his wife and two sons in Homosassa. He had said that he’d like to return to Parrott if he is reinstated.

That job has been filled, Joe Vitalo, president of the Hernando Classroom Teachers Association, said Thursday. Provost would have to be placed in a comparable position based on his certification, Vitalo said.

The head of Parrott’s physical education department and the school’s health teacher, Provost led the STAND Club -- Students Taking Action, Not Drugs -- for two years. The teacher, in his early 30s when hired at Parrott in 2003, also headed up the school’s DARE drug-prevention program for a few years.

Carland argued that for those reasons, Provost should be held to the highest standard when it comes to drug use. Carland cited a couple of prior blemishes in Provost’s personnel file, though none involved drug use.

In last month’s Times interview, Provost said the district should have given him the chance to confidentially address his drug use, which he characterized as recreational — “a couple of times a week” in the months leading up to March.

He acknowledged that he’d be viewed as a hyprocrite, but said school officials didn’t take into account the other efforts to encourage students to make healthy choices, such as leading a Biggest Loser weight loss competition. He led guitar and chess clubs.

“I screwed up,” he said. “I understand there needs to be consequences. I just feel they could have taken it easier on me. Instead, they raked me over the coals.”

-- Tony Marrero, Times Staff Writer

[Last modified: Tuesday, May 25, 2010 10:35am]


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