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VERNON W. BUTLER Petitioner-Appellant
No. 625
Court of Appeals of Tennessee
June 2 1988 Filed
Sanders P.J. (E.S.); Franks J. Anderson J. concur.
The Hon. Justice Sanders

The Petitioner has appealed from a chancery decree sustaining the action of the Respondents in upholding the dismissal of the Petitioner from the Chattanooga Fire Department.

The Petitioner Vernon W. Butler was employed by the Chattanooga Fire Department in 1976. He was terminated in May 1985 when a urinalysis revealed he had been smoking marijuana. After his termination he filed an application with the City Board of Commissioners for reinstatement. After an extensive evidentiary hearing was held by the Board it upheld his termination. He then applied to the chancery court for a writ of certiorari which was issued and the record was considered by the chancellor. The chancellor found there was evidence to support the findings of the city commissioners and their action was not arbitrary capricious or constitutionally infirm.

Mr. Butler has appealed to this court insisting his rights under the Fourth Amendment to the Constitution were violated when he was required to take a urine test which revealed he had been using marijuana and the Defendants' conduct in terminating him from his employment was arbitrary and capricious. We cannot agree and affirm.

In the case of Watts v. Civil Service Board for Columbia 606 S.W.2d 274 (1980) Cert. denied 450 U.S. 983 101 S.Ct. 1519 67 L.Ed.2d 818 (1981) our supreme court stated the standard of review in cases of this nature both for the trial courts and the appellate courts as follows:

In the trial court under the common law writ reversal or modification of the action of the Civil Service Board may be had only when the trial court finds that the Board has acted in violation of constitutional or statutory provisions or in excess of its own statutory authority; has followed unlawful procedure or been guilty of arbitrary or capricious action; or has acted without material evidence to support its decision. The trial court does not weigh the evidence. The scope of review by the appellate courts is no broader or more comprehensive than that of the trial court with respect to evidence presented before the Board. 606 S.W.2d at 277. It is within that standard we review the issues on appeal.

In 1982 the City of Chattanooga passed an ordinance which provided that any employee of the Department of Fire and Police covered by the Fireman's and Policeman's Insurance and Pension Fund must submit to a physical examination at least once every 36 months. The first such physical examinations for the departments were conducted in three stages. The first was a regular physical examination conducted by a physician. The second involved a heart monitoring examination or an EKG. The third was a blood and urine work up and analysis. The blood and urine tests were conducted by Allied Laboratories which is a local testing organization located in Chattanooga. It is the urine test which is pertinent to the issues on this appeal. Allied Laboratories conducted a "common drug screen" on all the urine samples that were taken. This test is capable of identifying some 15 or 16 drugs including marijuana with which we are concerned on this appeal. This Aabuscreen test for marijuana produces qualitative responses and also semi-quantitative results. It also produces a number which is indicative of the amount of cannabinoids in the system if a person has been smoking marijuana. The testing indicated the number of nanograms of cannabinoids (ng) per milliliter (ml) of urine. For the purpose of the test conducted for the City of Chattanooga if a urine test showed 20 ng/ml to 50 ng/ml it was classified as a "negative trace." If it showed 51 ng/ml to 99 ng/ml it was classified as a "trace" and if it showed 100 ng/ml or more it was classified as "positive." As pertinent here the tests which were shown as "positive" were sent to Research Triangle Park NC to CompuChem Laboratory for verification of the original test. CompuChem is recognized as a "state-of-the-art" laboratory whose testing approaches 100% accuracy.

The Department required all employees whose urine tests showed a "negative trace a trace" or "positive" to take a second urine test. Those whose urine tested "positive" on both tests were given an opportunity to resign from the force. If they did not resign they were terminated. Other disciplinary action was taken on those employees who showed something less than two positive tests.

Mr. Butler tested "positive" at 110 ng/ml on the first test and "positive" at 100 ng/ml on his second test and was terminated from the Fire Department.

The Appellant says the Defendants' drug testing policies violated the Plaintiff's Fourth Amendment rights. In support of this insistence he relies solely on the case of Lovvorn v. City of Chattanooga 647 F.Supp. 875 (E. D. Tenn. 1986); however we think the Appellant's reliance on Lovvvorn is misplaced. In Lovvorn the district court enjoined the Commissioner of Fire and Police for the City of Chattanooga from conducting a proposed department-wide drug test of the Chattanooga Fire Department holding that the manner in which the tests were to be conducted and the lack of purpose for conducting the department-wide tests would be in violation of the firefighters' rights under the Fourth Amendment of the Constitution. However Court in that same opinion said in effect that if tests were conducted as they were in the case at bar there would be "no constitutional difficulty." He said in Footnote 7:

Chattanooga City Ordinance 8012 section 2-536 provides that any employee of the Department of Fire and Police covered by the Firemen's and Policemen's Insurance and Pension Fund must submit to a physical exam at least once every 36 months. Section 2-533 provides that a City employee may be required to take a physical exam if a supervisor is of the opinion that the employee is incapacitated for work on account of mental or physical illness condition or injury. The provisions of this ordinance are not the subject of this litigation. However there would seem to be no constitutional difficulty with the regularly conducted physicals or the requested physicals or a pre-employment physical even if they involve a urinalysis for drugs provided that they are not used as a subterfuge to conduct an unreasonable search and seizure. See Turner v. Fraternal Order of Police 500 A.2d 1005 1011 (D.C.App. 1985); McDonnel v. Hunter 612 F.Supp. 122 130 n. 6 (D.Iowa 1986); Caruso v. Ward 506 N.Y.S.2d 789 797 (Sup.Ct.N.Y. July 1 1986). One of the primary complaints of the plaintiffs is that the urine tests stigmatize them and require them to "prove their innocence." The taking of a physical exam something we all do (or should do) on occasion would not have this effect. 647 F.Sup. 881 Fn.7.

One of the landmark cases approving testing of personnel for drugs is The Committee for G.I. Rights v. Calloway 518 F.2d 466 (D.C.Cir. 1975). This was a class action brought on behalf of the enlisted men in the European Command. It challenged physical inspections and urine analysis of the soldiers. Court found it was not a violation of the soldiers' Fourth Amendment rights holding consideration was given to keeping a proper balance between legitimate military needs and individuals' right of expectation of privacy.

A more analogous and recent decision is Jones v. McKenzie 833 F.2d 335 (D.C.Cir. 1988). Court approved drug testing of school bus drivers holding it was reasonable for the school system to test employees for drugs whose duties involved contact with children. The testing was conducted pursuant to a routine employment-related physical exam and there existed a nexus between the testing and the school system's concern for safety.

In National Treasury Employees v. Von Raab 816 F.2d 170 (5th Cir. 1987) Court said [G]overnment may exact from its employees what it may not from others. The case involved drug testing of Customs Service personnel requesting promotions. Court also said [G]overnment employees may be subjected to such procedures as long as the program is reasonably aimed at assuring integrity and competence.

In Shoemaker v. Handel 795 F.2d 1136 Cert. denied 107 S.Ct. 577 (1986) the Third Circuit held it permissible for the state Racing Steward of the State of New Jersey to order daily selection of jockeys at random for breath and urine testing for drugs. The court found the testing to be reasonable and constitutional based upon the state's interest in assuring the "appearance of integrity of racing performance." Court further said The state has a strong interest in conducting unannounced searches and seizures to justify a reduced privacy expectation.

In the case of O'Brien v. DiGrazia 544 F.2d 543 (C.A.1 1976) police officers challenged the requirement of filing a financial disclosure statement as an invasion of their right of privacy. n holding that such a questionnaire was not constitutionally infirm the court said:

[E]ven if the Fourth Amendment applies to this sort of intrustion the Commissioners Order is not so lacking in justification as to be an "unreasonable" invasion of the patrolmen's "legitimate expectation of privacy". See United States v. Miller 425 U.S. 435 96 S.Ct. 1619 48 L.Ed.2d 71 (1976). C.f. Fisher v. United States 425 U.S. 391 96 S.Ct. 1569 48 L.Ed.2d 39 (1976). . . . And questions about a policeman's finances are "specifically directly and narrowly" related to his job. Even a hint of police corruption endangers respect for the law. In order to establish an officer's probity it may well be necessary to ask as this questionnaire does about several years income and expenses as well as current assets.

In the case of O'Connor v. Ortega 55 U.S. 4405 107 S.Ct. 1492 (1987) the Supreme Court drew the distinction between job-related search and seizure and those in criminal cases. Appellee in its brief quotes from Ortega as follows:

Court therein stated: "We have no talisman that determines in all cases those privacy expectations that society is prepared to accept as reasonable." (91 L.Ed.2d 722). "The operational realities of the workplace however make SOME employees' expectations of privacy unreasonable when an intrusion is made by a supervisor rather than a law enforcement official." (Page 723 emphasis in original). Court then stated: "The employee's expectation of privacy must be assessed in the context of the employment relation." (Page 723). "Given the great variety of work environments in the public sector the question of whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis." (Page 723). "In the case of searches conducted by a public employer we must balance the invasion of the employee's legitimate expectations of privacy against the government's need for supervision and control and the efficient operation of the workplace." (Page 724). Court recognized that "there is a plethora of contexts in which employers will have occasion to intrude to some extent upon employees' expectation of privacy" (page 727.)

The Appellee has filed an exceptionally helpful brief in this case. It cites many cases not addressed in this opinion which support the holding of the chancellor in the case at bar. To address each of these cases would serve only to lengthen this opinion.

In the case at bar urinalysis was merely the third phase of a physical examination program provided for by city ordinance. The ordinance specifies firemen and policemen can be required to submit to pre-employment physicals as well as periodic ones. The periodic physicals may be conducted "at least once every thirty-six (36) months . . . and the department shall pay the expense." The purpose is to ensure and maintain high-level physical and psychological fitness for such critical public employment. A fireman's duties particularly those of Mr. Butler whose job was as an emergency medical technician directly impact public safety. He was frequently involved in emergency situations; he sometimes acted as an ambulance driver and as an EMT he was authorized to do IVs and EKGs. The testing was part of an employment-related physical not a criminal investigation. A close nexus existed between the testing and the government's public safety concern. The purpose of the physical including the drug screen was quite reasonably aimed at preserving the integrity of the Chattanooga police force and fire department. There is ample material evidence in the record to conclude the drug testing program was reasonable in purpose and scope. Also there is no evidence the commissioners' action in terminating Mr. Butler was arbitrary or capricious.

The decree of the chancellor is affirmed. The cost of this appeal is taxed to the Appellant and the case is remanded to the trial court for such further proceedings as may be appropriate.

Clifford E. Sanders P.J. (E.S.)

CONCUR: Herschel P. Franks J. E. Riley Anderson J.