Pubdate: 02 Mar 1997
Source: New York Times (NY)
Copyright: 2001 The New York Times Company
Author: Michael Janofsky


LOS ANGELES, Feb. 24 - When the letter from the Orange County
government arrived last week, Rod Dunaway knew what it said even
before opening the envelope.

A heavy-equipment operator from Mission Viejo who smokes marijuana to
relieve pain from glaucoma, Mr. Dunaway, 38, had recently taken a
random drug test under a 1991 Federal law that requires random testing
of many transportation workers. He tested positive for marijuana, and
is now being dismissed by the county.

But this was no routine dismissal. After voters in a controversial
statewide referendum last year approved the use of marijuana for
medical purposes when recommended by a doctor, Mr. Dunaway became the
first person in California claiming to use marijuana for pain relief
to lose his job as a result.

On Monday, he filed for an arbitration hearing through his union, a
local of the Service Employees International. The county has two weeks
to respond, but anticipating that his dismissal will not be reversed,
Mr. Dunaway said he had already taken steps to sue the county in state
court for discrimination.

"It seems like they wanted to ignore 215," Mr. Dunaway said in an
interview, referring to the proposition known as the Medical Marijuana
Initiative, which was approved with 56 percent of the vote in
November. "But maybe this will force the Federal Government and the
state to sit down and put in guidelines that make sense."

With evidence that marijuana has been helpful in controlling nausea in
cancer patients on chemotherapy, reducing weight loss in people who
have AIDS and easing pressure on the eyes of people with glaucoma,
California and Arizona last year became the latest states to decide by
referendum to legalize marijuana use in some medical circumstances.
Other states, including Florida, Idaho, Ohio and Washington, have done
the same through legislation.

But Mr. Dunaway's case reflects a possible clash between state
initiatives benefiting people who have exhausted other means of
seeking pain relief and Federal regulations intended to protect public
safety. Also, it comes as the Clinton administration, led by Gen.
Barry R. McCaffrey, the President's chief adviser on drug fighting
efforts to make access to illegal drugs easier.

While Californians now have the right to use marijuana for medical
purposes on a doctor's recommendation, and a bill introduced last week
in the State Senate seeks $6 million to study the drug as a viable
medical therapy, buying and selling marijuana remains illegal in all
states under Federal law.

In addition, the Internal Revenue Service recently ruled that the cost
of marijuana could not be deducted a medical expense.

For the last decade, Mr. Dunaway earned as much as $32,000 a year
driving a 10-wheel dump truck, bulldozers, front-end loaders and other
heavy equipment. A husband and father of two daughters ages 13 and 4,
he described himself as "a very conservative individual who believes
strongly in family values."

He said he began using marijuana to ease pain from glaucoma in 1980,
at the suggestion of a friend who had tried it for the same reasons
and found success. Until then, Mr. Dunaway had taken conventional
medications prescribed by his doctor. None brought him relief, he
said, and some made him feel worse, with side effects like an
increased heart rate, headaches, and blurred vision.

The marijuana, he said, provided almost instant relief. He told his
doctor about it, and for the next 15 years, just before going to bed,
Dunaway said he lighted a small pipe with marijuana and inhaled three
or four times. The pain relief around his eyes, he said, lasted all
the next day and never left him feeling the effects that recreational
users typically seek, like euphoria or giddiness.

"I always did my job effectively," Mr. Dunaway said. "And I never
smoked at any other time of day."

In early 1995, Mr. Dunaway said, the county began random testing of
their employees whose jobs could affect public safety. A screen of his
urine produced a positive result for marijuana, and he was suspended
for 30 days without pay and put on a one-year probation. He was told
that if he tested positive again, he would lose his job, and as a
further condition of his probation, he agreed to be tested once every
two months. For more than a year, Mr. Dunaway said he avoided using
marijuana and tried fighting his pain with conventional drugs, only to
suffer side effects again. By last October, a month before the
proposition passed and with his doctor's recommendation, he said he
returned to using marijuana.

When Proposition 215 was passed, he assumed he was on safe footing.
But the measure tacitly acknowledges Federal transportation safety
laws by saying that the vote does not "supersede legislation
prohibiting persons from engaging in conduct that endangers others."

After Mr. Dunaway tested positive a second time, the county began
taking steps to discharge him, which culminated in last week's dismissal.

"You can't be impaired in any way, driving something like that," said
John W. Sibley, the director of the department, referring to the size
of a dump truck that Mr. Dunaway drove, often along Federal and state

Mr. Sibley, who described Mr. Dunaway as an otherwise competent
employee, said that if Mr. Dunaway had notified his superiors that he
was using marijuana for medical reasons, the county would have
assigned him to a job that did not involve public safety. But Mr.
Dunaway said he chose because his not to inform the county because his
use of marijuana for medical purposes "was none of their business."

Bill Zimmerman, who led the state campaign for Proposition 215, said
the resolution of Mr. Dunaway's case would probably depend on his
ability to show that his marijuana use had no bearing on his job. "He
said he only smoked at the end of the day," Mr. Zimmerman said.
"Marijuana can stay in your system for 30 days, but its
psychologically active effects only last a couple of hours."