Cherry v. Dept. of Education

A proposed final order revoking a bus driver's certificate is not arbitrary and capricious if the rule provides the agency with discretion in doing so, and there is no other agency rule, policy, or practice inconsistent with the exercise of that discretion.

Bus Driver sought review of a final order by the Department of Education revoking her certificate to operate a school bus. Bus Driver smoked marijuana while on medical leave, and, upon her return, was selected for a random drug test. She tested positive and, pursuant to regulations, the Department revoked her certificate. Driver assigned as error the department's failure to follow federal guidelines for testing, the department's arbitrarily distinguishing between drivers that work for school districts with second-chance policies and those that don't, and the department's reading of the regulation as requiring revocation of her certificate. The Court held that Driver failed to preserve the first error, that Driver failed to explain how the Department's policy of allowing drivers working for districts with second-chance policies was inconsistent with another agency rule, position, or practice, and that there was no evidence suggesting that the Department misread the permissive nature of the regulation authorizing, but not requiring, revocation. Affirmed.