LEGAL POTHOLE, Part 2

This is the second in a two-part look at how easy access to legal marijuana in Washington has presented a headache for many North Idaho institutions — particularly schools in Kootenai County.

In some ways, the puzzle can be explained fairly simply.

For instance, Coeur d’Alene School District Superintendent Matt Handelman summed up his dilemma — or at least part of it — with a single hypothetical situation.

“For example, if alcohol were prohibited in Idaho but not in Washington,” Handelman said, “and someone legally consumed alcohol in Spokane over the weekend, he or she would not be breaking any laws, policies or (district) codes of conduct.

“Since alcohol does not stay in one’s system for very long, it is unlikely that someone tested for reasonable suspicion once at school would test positive — unless (they were) truly still ‘under the influence.’

“This is not the case with marijuana.”

Kootenai County Prosecuting Attorney Barry McHugh explained the science of the issue.

“Reliable testing for marijuana is almost impossible,” McHugh said. “Unless a person is obviously impaired right at the time they are confronted, you’ve got a problem right away.

“It’s just a fact that THC (Tetrahydrocannabinol, a chemical component of marijuana) stays in your system quite a while. So if a person tells you that, yes, they smoked in Washington a day or two earlier, there is no legal way to dispute that.”

Handelman and other local school officials insist their first priority must be the safety of the students in their care.

“So we’ll always err on the side of caution,” he said.

But how can any administrator manage that, especially when the effects of marijuana often are subtler than if, say, an employee entered school property smelling of liquor and acting strangely?

Furthermore, even though most school districts have policies in place that allow drug testing if there is “reasonable suspicion of impairment,” employees have rights, as well.

“It’s a tricky little dance,” admitted Post Falls School District Superintendent Jerry Keane. “We obviously have to think of student safety first, but if you make an error (accusing a teacher or staff member of drug use), you’re taking a risk. It’s a delicate balance.”

Keane said he encourages principals and supervisors to be vigilant, so that obvious cases of impairment can be spotted immediately.

But with marijuana, there’s such a gray zone.

“Drug offenses, even outside of ones which fit into our human resources protocols and policies, can potentially have serious impacts on the person’s professional life — especially in a public profession where educators are role models for our youth,” Handelman said.

“Understanding how a neighboring state’s laws (Washington effectively allowed recreational marijuana sales in late 2014) is new ground for us.

“I expect more uncharted territory on this topic as we continue to review our policies, and make certain our policies and procedures protect both our students and us as the employer, while honoring the individual rights of our employees.”

The situation would seem easier for the school districts if they had to deal with a clear-cut case of an employee being arrested for a drug-related offense.

That would appear to take most guesswork out of a resolution, but it didn’t work that way earlier this year when Royce Johnson, an English teacher at Coeur d’Alene High, was arrested for possession of a controlled substance and possession of paraphernalia.

Johnson was not on school property during the event in question, however, and on top of that, Kootenai County prosecutors let him plead down the drug charges to inattentive driving — since the entire incident had begun with a road rage accusation.

Johnson, who gave The Press a statement expressing “regret” and “full responsibility for my actions,” is still teaching at the school despite complaints from some parents.

“Safety of students comes first always,” Keane said, “but that doesn’t mean we can listen to rumors and go around accusing and even testing teachers and other employees.

“It’s difficult, unless law enforcement actually proves a case for us. And even then, our focus has to be on how an employee acts at school or at school-sponsored events.

“If things are fine at work, we don’t have the right to tell anyone not to do something that is now perfectly legal.”

McHugh hinted there may be more difficulty on the horizon, if managers expect to practice discipline based on court decisions.

“At the moment, we are enforcing Idaho law as written,” McHugh said, “but it’s clear that public perception is changing.

“We’ve already seen it at trials, where it’s obvious some jurors think marijuana ought to be legal. It’s quite possible that same attitude eventually will carry over to how the public feels about prosecution of possession cases, although we’re not there yet.”

Add that forecast to McHugh’s flat statement that there is no reliable test for marijuana impairment, and schools — not to mention other Idaho employers — face some difficult decisions.

“For now,” Keane said, “we’re treating marijuana and its effects much the way we would deal with prescription drugs. If it causes a problem at school or around students, we have to step in.

“As for the legality, and whether or not an employee’s rights have been infringed ... ”

Could a lawsuit against the district and subsequent decision point a direction?

“You hate to think in those terms,” Keane said, “but it’s certainly not impossible.

“But even then, what about the next case? We can’t ever stop protecting students. It’s all just very, very difficult.”