BROOKSVILLE — The judge is wrong. Fire the teacher who smoked pot.
That's the recommendation to the Hernando School Board from board attorney Paul Carland for how to handle Michael Provost, the Parrott Middle School health teacher who tested positive for marijuana in March after admitting to off-campus use of the drug.
An administrative law judge was incorrect in his interpretation of the law when he determined last month that the district did not have legal authority to fire Provost, Carland says.
The ruling is not binding, so Carland and interim school superintendent Sonya Jackson are recommending that the board fire Provost anyway.
"The superintendent feels strongly that based upon our current policy and application of law, under the circumstances it's appropriate to terminate his employment," Carland said Thursday.
Provost offered his admission after being confronted by Parrott principal Leechelle Booker, who told him about a phone call she received from a woman who said she witnessed Provost smoking marijuana. He agreed to a drug test and enrolled in an employee assistance program.
Then-superintendent Wayne Alexander recommended Provost be fired.
Provost appealed and got a hearing in June. Early last month, Judge P. Michael Ruff recommended the School Board 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 Provost because state statute and the district's personnel policy prohibit termination for a first positive drug test, Ruff wrote in the recommendation.
Ruff said the crux of the case is whether Florida's Drug-Free Workplace Act applies to school boards. 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, he wrote, by firing Provost, the district would be violating its own policy that states an employee who admits to drug use and voluntarily submits to a rehab program cannot be disciplined.
Carland, citing his own interpretation of precedent-setting cases, says the board should reject that notion. He still contends that the Drug-Free Act does not apply because the board should not be considered an agency within state government, and Provost's violation of the district's drug-free policy justifies his termination.
Carland had argued that Provost's admission of drug use was not voluntary 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.
The board is slated to decide Provost's fate in a special meeting at 1 p.m. Tuesday. A labor attorney will also be on hand during the meeting to offer additional counsel, Carland said.
If he the School Board follows Carland's recommendation, Provost can appeal to the 5th Circuit Court, Carland said.
Provost's attorney, Mark Herdman of Clearwater, did not return a call seeking comment on Thursday. Provost, reached Thursday, declined to comment.
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.
In an August interview with the St. Petersburg Times, 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 hypocrite, 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 also 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 can be reached at email@example.com or (352) 848-1431.