Highlighting the broad powers of the New York City police commissioner to set policy, the state’s highest court on Thursday ruled that using human hair samples is acceptable for random drug tests for officers.
Several unions, including the powerful Patrolmen’s Benevolent Association, had argued that expanding the use of hair strands for such testing was subject to collective bargaining. It was an argument many union leaders had voiced in similar battles over the department’s move to add steroids to the list of substances officers are tested for and to administer sobriety tests to officers who shoot someone, on or off duty.
In the battle over drug testing, which took root in January 2005, the New York State Court of Appeals issued an 18-page decision that unanimously ratified the commissioner’s authority over thorny disciplinary matters – and not just in situations where officers already face specific allegations of misconduct.
“The police commissioner’s disciplinary authority over the N.Y.P.D. vests him with discretion to choose the scientific methodology to be used for drug testing, and the circumstances prompting testing,” the decision, written by Judge Susan Phillips Read, said.
It went on: “The detection and deterrence of wrongdoing within the N.Y.P.D. – particularly crimes, such as illegal drug use – is a crucial component of the police commissioner’s responsibility to maintain discipline within the force.”
A spokesman for the Patrolmen’s Benevolent Association said the union had no comment.
Any appeal would head to the United States Supreme Court, though the case did not involve issues covered by federal statutes. One possibility is that the union could press ahead with an argument about the federal civil rights of officers, though the union did not specify its aim.
Ed Mullins, the president of the Sergeants Benevolent Association, said the union’s argument lied not with the policy of drug testing itself, but with the implementation of the policy without input from organized labor as well as the often brutal way hair is sometimes taken from an officer’s body. He said most hair was taken from the legs or head, not from the pubic area.
“It’s the dictatorship rule of implementing it without us having any say in the process,” he said. “If you’re on the side of law enforcement, you agree that officers don’t belong doing drugs. We don’t want the general public doing illegal drugs. But we also think that the way they did it is wrong. They are achieving the goals, but they are violating the laws in the process of it, and we are trying to protect our right of negotiation and we are trying to protect the individual, physical abilities of the cops that they are taking the hair from.”
Paul J. Browne, the Police Department’s chief spokesman, said the department was “enjoined from using hair analysis while this case was on appeal from the Appellate Division of the State Supreme Court.”
The department lost its case at that midlevel court, but the Court of Appeals ruling reversed that decision.
Police officials first told representatives of the various unions it was phasing out urine samples in favor of hair samples for all drug screening beginning in the summer of 2005. At that time, some provisions in the department’s Patrol Guide, its policy manual, called for using hair or urine for drug testing. But the department argued that analysis of hair is more scientifically advantageous.
The court, in its ruling, provided the department’s rationale, which was sent to officers in August 2005.
“Hair analysis provides a window of detection of approximately 90 days, compared with a relatively shorter window with urine analysis,” the department said, according to the court. “In addition, hair analysis cannot be evaded in the same fashion as urine analysis, where drug users can attempt to substitute clean specimens, or merely abstain from drug use for a few days, and pass the screening test. Furthermore, drug residues remain permanently embedded in the hair – they cannot be washed or bleached out.”
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