In a first, judge finds teacher’s Colorado high doesn’t count in Texas

By Eric Dexheimer – American-Statesman Staff
January 20, 2017

After Maryam Roland, a public high school teacher in Ysleta, in El Paso, tested positive for marijuana use in 2015, the State Board for Educator Certification sought to suspend her license for two years. In her defense, Roland argued that because she’d smoked the pot during a vacation in Colorado, where the drug has been legal for recreational use since 2013, she had done nothing wrong.

Such explanations typically have not met with success, attorneys said. In an opinion released earlier this month, however, a Texas judge agreed with Roland, comparing punishing her for using pot in Colorado to penalizing someone after returning from a vacation in Las Vegas.

“Possession of a usable quantity of marijuana is a criminal offense in Texas, but so is gambling,” Administrative Law Judge William Newchurch wrote. But the court “would not recommend that the Board find a teacher unworthy to instruct in Texas because she legally gambled in Nevada.”

Paul Armentano, deputy director for the National Organization for the Reform of Marijuana Laws — NORML — said it was the first he’d heard of a judge siding with an employee in such a claim. “I think it’s a big deal,” he said.

Employment law attorneys said conflicts between local drug laws are likely to become more common as the number of states legalizing use of marijuana grows. Eight states now, or soon will permit legal recreational marijuana use. More than 20 others allow use of the drug for medical reasons. Texas law allows neither.

Roland’s case, they add, also raises complicated questions about the government’s reach in monitoring a professional’s behavior that, like Roland’s, is non-criminal, off-the-job and did not affect her work.

While Texas administrative courts can determine facts, a judge’s opinion, called a proposal for decision, is advisory; the licensing agency can either accept or reject it. Either side can then appeal to state district court.

Lauren Callahan, a spokeswoman for the Texas Education Agency, said she could not comment on the case because it is on-going. Roland’s attorney, Nicholas Enoch, also declined to comment pending the educator certification board’s final decision, which will likely come this spring. He said Roland would not speak on the case, either.

Morality police

A handful of state-licensed professions have automatic sanctions for marijuana use. Boxers who fight in Texas get a no-decision and 90-day suspension if a post-fight urine or blood test reveals even low levels of marijuana. Susan Stanford, a spokeswoman for the Department of Licensing and Regulation, said she knew of one case in which a fighter claimed her pot use had occurred legally in Colorado, but the matter was dropped when she agreed to the state’s sanction anyway.

Professions whose practitioners interact with vulnerable citizens, such as children and the sick, also can contain catch-all provisions that give the government broad discretion to punish license-holders for behavior that, even if legal, can discredit the profession generally. Teachers can be sanctioned if regulators deem them “unworthy to instruct or supervise the youth of this state.”

Where, exactly, to draw that line has not always been clear, however. “The state board applies an ‘it-knows-it-when-it-sees-it-standard’ and that’s pretty much it,” said Kevin Lungwitz, an Austin attorney who primarily represents educators in front of the licensing agency.

Last year, the 3rd Court of Appeals found the State Board for Educator Certification was within its rights to revoke the license of a North Texas teacher who’d had an intimate relationship with a student. Such laws are supposed to prevent teachers from abusing the authority and influence they wield over their students.

Yet the student was over the age of 18, did not attend school in the same district as the teacher and didn’t meet him through any school-related activities. In a strongly worded dissent, Justice David Puryear called the teacher licensing agency’s decision “shocking overreach” and compared it to the Texas Medical Board revoking a doctor’s license for having a relationship with a medical patient he hadn’t treated.

“There is simply no authority allowing the Board to appoint itself as the morality police of conduct” in otherwise legal behavior, he concluded.

High for Christmas

A licensed teacher since 2008 without any other disciplinary history, Roland’s problems began in February 2015, when a former Ysleta school district employee sent a “rambling” email alleging that a teacher “always has cocaine on him,” according to court documents.

Two days later, the woman, described by school officials as a disgruntled employee, sent another email that contained only the names of Roland and another employee. Called in by administrators for an interview, Roland admitted to having smoked marijuana “occasionally,” court documents show. (A spokesman for the district said five employees eventually resigned or were fired as the result of its investigation.)

Roland agreed to give breath, hair and urine samples for drug testing. Court filings show the breath and urine came back clean, however, the hair test indicated she’d consumed marijuana.

NORML’s Armentano said marijuana testing is imprecise, because the drug lingers in the body. Hair testing is particularly unrevealing, he added, because it can show evidence of pot use as far back as six months.

Roland explained that she’d traveled to Colorado during the previous Christmas break, during which she’d consumed an edible marijuana product, the records show. She denied using the drug recently.

Lauren Davis, a Denver attorney specializing in marijuana laws, said even in Colorado, where recreational and medical pot use is legal, courts have sided with employers who have fired workers for failing marijuana drug tests. Often, she said, companies cite policies prohibiting an employee from violating federal law, which still lists marijuana as an illegal narcotic.

In his 16-page decision, however, Newchurch concluded Roland hadn’t broken any Texas laws or local policies that would lead to a sanction against her license. (Attorneys for the state licensing board did not bring up federal law.) The judge noted, for example, that while Ysleta’s district policy prohibited marijuana, it specified only that employees couldn’t use or possess it during work hours at school.

And “There is no evidence that (Roland’s) behavior…suggested she was under the influence of marijuana” at school, Newchurch wrote.

The judge also pointed out that district policies called for drug testing only as part of a random screening, after an accident or based on reasonable suspicion. He found that none of those conditions were met in Roland’s case. Because Roland hadn’t used marijuana in Texas so she’d broken no state law, either, Newchurch reasoned.

Finally, he wrote, the teacher licensing board’s lawyers hadn’t made a good case that Roland’s legal Rocky Mountain high made her unfit to teach Texas students: “Aside from her limited marijuana consumption in Colorado, the evidence does not show that (she) engaged in any other conduct that even arguably would render her unworthy to instruct.”

Giana Ortiz, an Arlington attorney specializing in employment law, said that while Newchurch’s decision ultimately may not stand, the question behind it will persist: “Can it be considered unethical for a Texas teacher to smoke marijuana in a state where it’s legal?”

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