Judge Restores NYPD Right To Drug-Test Hair; Rules BCB Erred In Ordering Talks With Unions

By REUVEN BLAU

The NYPD's plan to switch from random urine drug exams to hair-sample screenings for all officers has been revived based on a judge's ruling that the issue is a disciplinary matter and not a new department policy.

RAYMOND W. KELLY: Guided by experts.

Manhattan Supreme Court Justice Lottie E. Wilkins overturned the finding of the city Board of Collective Bargaining, which ruled that the Police Department failed to bargain in good faith with its unions when it switched to the new system.

Not Required to Bargain

Justice Wilkins concluded that decision was "arbitrary and capricious" and that the matter was not a mandatory subject of collective bargaining, as the city's police unions have long contended.

"In this court's view, requiring that drug screening methodologies and practices be submitted to collective bargaining seriously limits the commissioner's ability to effectively enforce discipline within the New York City Police Department," she ruled.

The decision was unusual because judicial courts tend to defer to administrative bodies' interpretation of statutes, as Justice Wilkins noted.

On March 17, the police unions were successful in obtaining a restraining order issued by an Appellate Division First Department panel against the NYPD on its use of hair-follicle testing. As a result, the department was forced to revert to urine testing, pending the outcome of a final decision by the appellate court.

The unions have long contended that the new hair-follicle test was a mandatory subject of collective bargaining. Shortly after the new test was implemented on Aug. 1, 2005, they filed grievances with the BCB.

In December 2006, the 5-to-2 BCB decision stated that the unilateral move violated the unions' collective-bargaining agreements, and ordered the NYPD to restore the traditional urine tests and negotiate any future changes to the policy with the affected unions.

Unfairly Invasive

The unions successfully contended that the hair test was unfairly invasive, as some of their members without hair on their heads have had their legs cut by allegedly unsanitary razors.

But city attorneys appealed the decision, arguing that ruling was arbitrary and capricious.

The NYPD has maintained that it didn't have to bargain the issue because it did not constitute a change in existing policy, since it currently uses hair tests for new recruits and officers under "reasonable suspicion."

Police Commissioner Raymond W. Kelly has said that the NYPD switched from urine drug-tests to hair exams based on expert recommendations. "We are governed by the scientific community and our Medical Division," he remarked in 2006. "Their belief is that this is the most-effective way to do this test."

The NYPD's change to hair-testing makes it harder for officers to cheat than with the urine-based tests. The hair test doesn't require as much privacy as a urine screening, so there is no chance for workers to substitute someone else's sample for their own or slip in a fake substance.

The hair screening also can detect a wider array of drugs within 90 days of use. Standard urine tests only show illegal drug use within the previous day or two. The department calls 20 percent of the force each year for random urine tests.

Critics of hair-testing have charged that it unfairly violates the privacy of union members who are bald or who have no body hair. In those cases, lab technicians remove pubic hair.

The unions have also claimed that dark-haired individuals, including African- Americans, are more likely to come up positive. Medical testing experts have cited scientific studies that have proven there are no statistical differences between different populations under the hair test.

Others contend that hair can be contaminated by exposure to illicit smoke at a party or a concert. It also can yield false positives among narcotics officers who are exposed to drugs by the nature of their activities on the streets.