[Sativa]

A custodian in a suburban Williamsport elementary school who admitted using marijuana outside work might get her job back.

The Commonwealth Court, in a 5-2 decision yesterday, reversed a Lycoming County judge who had allowed the Loyalsock Twp. School District to fire Connie Hamilton in 2005.

Unless the school district appeals yesterday's decision to the Supreme Court -- which solicitor E. Eugene Yaw said might happen -- Hamilton could seek reinstatement to a job she held for 28 years.

Hamilton was injured on the job Jan. 14, 2005, but when directed to submit to a drug test offered not to pursue a worker's compensation claim and offered to pay her medical expenses. She submitted to a drug test Jan. 26 and the results came back positive, according to court documents.

Hamilton then said she did not use marijuana during school hours and offered to enter rehabilitation.

The school board fired her, saying she had violated the district's drug-free policy, but an arbitrator ruled a nine-month suspension without pay was sufficient punishment. He found school policy does not restrict employees' behavior off duty and the board had failed to refute her claim that she was not a regular marijuana user.

County Judge Kenneth D. Brown overturned the arbitrator's decision, saying to re-hire Hamilton would "reinsert an admitted drug user into an elementary school environment."

Hamilton's union, the Loyalsock Custodial, Maintenance, Secretarial and Aide Association appealed her case to Commonwealth Court.

Writing for the majority, Judge Rochelle S. Friedman said there is no evidence Hamilton's drug use affected the core function of the school district and agreed with the arbitrator that the union contract does not affect off-duty conduct.

In a dissenting opinion, Judge Renee Cohn Jubelirer wrote that the majority disregarded laws and precedent that have established schools as drug-free zones. Hamilton's work put her near children and gave her the opportunity to put them at risk, Jubelirer wrote.

Her opinion also stated, "The arbitrator's decision effectively provided that, while the district as part of its core function, can absolutely control drugs at school, it can 'kind of' control drug use at home -- as long as it does not fire the employee. I would suggest that this simply is not rational."

Jubelirer, who was joined in dissent by Judge Bonnie B. Leadbetter, called the arbitrator's finding that Hamilton could be suspended although her actions did not affect the district's core functions was inconsistent.



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Source: The Patriot-News
Author: JOHN BEAUGE
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