Pubdate: Sun, 24 Feb 2002 Source: Tennessean, The (TN) Copyright: 2002 The Tennessean Contact: http://www.tennessean.com/ Details: http://www.mapinc.org/media/447 Author: Sheila Burke LAWSUIT BY FIRED OFFICER DISPUTES METRO DRUG TESTING An appeal in Chancery Court calls into question the criteria used to order Metro employees to submit to a drug test. Former police Sgt. Philip Clark, fired in 1998 after refusing to submit to a drug test, contends that he was fired after an anonymous tip to Metro Police Chief Emmett Turner accusing Clark of using cocaine. Clark's lawyer argues that the Police Department violated its own drug-testing policy because an accusation from a confidential informant doesn't constitute grounds to order a test. The police contend the tip came from a reliable but unnamed source. Clark's case, now under review before a Davidson County Chancery Court judge, comes soon after a Metro firefighter died while under investigation for cocaine use. The firefighter died of natural causes and did not have drugs in his system. Fire officials said they opened an investigation into firefighter Richard Majors after receiving two written reports from employees alleging that the firefighter had drug paraphernalia and cocaine in the fire hall. A drug test was never ordered for Majors. The Metro Law Department has said that it denied the request to order a suspicion-based drug test for Majors because Metro's attorneys didn't have all the facts. The Law Department never received the reports from the two Fire Department employees and was told that the reports were rumors. Regardless of the bureaucratic mix-up, the Fire Department has maintained that accusations alone are not enough to justify ordering an employee to take a drug test. The drug-testing policies used by the Metro Police Department and the Nashville Fire Department appear almost identical, yet the two cases show that starkly different decisions were made about what's necessary to order a drug test. Clark's attorney argues that the Police Department violated its own drug-testing procedure when it ordered Clark to take a drug screen and that it acted arbitrarily. The test, he argues, can be ordered only when a trained supervisor witnesses and documents a specific set of behaviors that may indicate drug use. "Specifically, no trained supervisor observed and documented anything about Clark that would have led to reasonable suspicion that he was using drugs," Clark's attorney argues in a brief submitted before the court. The attorney, John M.L. Brown, refused to comment on the case because it is before the court. "The only 'knowledge' that the (Metro Police Department) had in regard was from an anonymous tipster," the brief further states. Brown is referring to a sentence in both the Metro Police Department drug-testing policy and the policy used for Metro employees -- which is what the Fire Department uses. Both policies say that suspicion-based drug tests are "ordered when a trained supervisor observes and documents appearance, behavior, speech or body odors of an employee which are characteristic of the use of alcohol or controlled substances." Vanderbilt law professor Don Hall says the decision to order Clark to take a drug test "doesn't seem to be in compliance with the policy." "The policy requires more protection of the employees than the current drug policies in this country typically require," Hall said. Metro police and lawyers for Metro government, however, think that they were well within their rights to ask Clark to take a drug test. Metro argues that Turner knew but did not name the informant. "In contrast, Chief Turner knew the identity of the informant supplying the information to him that Philip Clark had been using cocaine," the Metro Law Department said in a brief. "Chief Turner was comfortable that the information he was receiving was truthful based upon his knowledge of the informant." Karl Dean, director of the Metro Law Department, refused to comment because the case is before the court. The Law Department argues that Clark was fired only because he refused to take the test. Metro and police drug policies say that a refusal to take a test will be treated the same as a positive drug test. The Law Department also argues that it could use "a report of drug or alcohol use, provided by a reliable and credible source" to order a test. The Police Department isn't limited to having a supervisor observe certain behaviors before a drug test can be ordered and confidential informants can be used, Assistant Chief Steve Anderson said. There simply has to be reasonable suspicion that an employee is violating the drug policy before the department orders him to submit to take a drug test, he said. Members of the local chapter of the Fraternal Order of Police are outraged over how Clark's case was handled. "We're supporting his case and actually financing part of his appeal, strictly based on the situation that it was an anonymous informant, and we don't know the reliability of it," said FOP President Calvin Hullett. Ultimately, Chancellor Carol McCoy will decide what standard should be applied. - --- MAP posted-by: Beth