Hair Test Now Illegal, But Cops It Snared Still Gone

The Chief-Leader/Eric Weiss SAYS TARNISHED TEST DESTROYED CAREER: Roxann Hayes charges that she was the victim of a false positive on a hair drug test that led to her being fired as an NYPD Detective. An appeals court has since ruled that the testing was illegal because the Police Department failed to negotiate its use with the affected unions.

Close to midnight on Valentine's Day 2006, a doorbell's ring awoke Det. Roxann Hayes from a heavy sleep. She was startled to find three Internal Affairs Bureau officers at her door. Her first thought was that something had happened to her husband, who at the time was also an NYPD Detective. These men, however, were there for her.

Ms. Hayes, who spent eight years protecting then-Mayor Rudy Giuliani, had tested positive for cocaine in a hair drug test, even though she was so averse to the presence of illicit substances that it strained her first marriage.

"I just kind of looked at him," she said recently of the IAB officer who broke the news of her testing positive. "It wasn't registering. I thought it was a joke. That is the only thing I could have thought it was."

No matter how many times Ms. Hayes replayed those life-changing moments in her head, there was no punch line. Because the NYPD has a zero-tolerance drug policy, the 17-year veteran lost her badge, her gun, her pension and her job and faced a diminished prospect of finding another.

Ms. Hayes is one of at least four former NYPD officers who are suing the department over their termination after receiving what they claim were "false positives" on the hair drug test, which itself is the center of another lawsuit that might be heard in the state's highest court in the next few months.

Must Be Bargained

Last October, a state appellate court ruled hair drug-testing by the NYPD, which was implemented unilaterally in 2005, must be negotiated with its unions. Ms. Hayes and three others who failed the drug test prior to the court ruling recently consolidated their lawsuits to have their "false positives" overturned. Her lawyer, Eric Sanders, has considered a class-action suit, but said he would need union support for it to be effective because those cases are so costly.

In a little more than a year after the drug test, Ms. Hayes went through the trauma of an NYPD trial, where Mr. Sanders argued that her sample was subject to cross-contamination through shoddy work at the NYPD collection and the laboratory. He alleged in a Federal lawsuit that the laboratory does not check for crosscontamination that could have been present if another hair sample was in the lab.

"Once you have a contamination, it can't be reliable evidence," Mr. Sanders said. "Evidence is supposed to be reliable."

Regardless, on Oct. 30, 2006, Police Commissioner Raymond W. Kelly dismissed Ms. Hayes from the NYPD. "They destroyed my wife," said Darryl Hayes. "This job takes you from a high level of protecting life and property to a low level of being treated like less than a criminal."

After she was fired, Ms. Hayes could not find work even as a department store security guard. The fall from grace changed her perceptibly, her husband said. The couple is now broke because they are living on one salary instead of two, but they are not broken.

"This is not about just Roxann," said Mr. Hayes. "She is fighting for everyone out there."

"I'll be the Rosa Parks of hair-testing," Ms. Hayes interjected to lighten the mood.

On Aug. 1, 2005, the NYPD changed its drug-testing method to use hair samples without the unions' consent. The police unions quickly brought the matter before the Board of Collective Bargaining in 2006, which found the procedural change needed to be negotiated before it could be implemented.

The case then found its way into the courts. In December 2007, Manhattan Supreme Court Justice Lottie E. Wilkins overruled the BCB, saying its decision "seriously limits the Commissioner's ability to effectively enforce discipline." After a union appeal, Appellate Division Judge Peter Tom in October found otherwise, stating for the appellate panel, "Public policy strongly favors the use of collective bargaining and procedures agreed upon by public employees and their employee organizations for the resolution of disputes over the implementation of their collective bargaining decision. Unless NYPD is barred by public policy from negotiating the terms of its drug-testing program, it must bargain with the police unions before implementing changes in testing procedures."

NYPD: No Policy Shift

Commissioner Kelly said at the time that the Corporation Counsel would appeal the case to the state's highest judicial authority, the Court of Appeals. The NYPD has maintained that it did not need 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."

The Appellate Division Dec. 30 denied the city's motion to reargue the case, as well as permission to take the matter to a higher court, which forced the city to seek a judgment directly from the Court of Appeals, according to city appeals attorney Julian Kalkstein. Legal paperwork is due in early February, but it could be several months before the top court decides whether it will take the case.

Detective's Endowment Association President Michael J. Palladino, who challenged the hair drug test in court as a violation of officers' Fourth Amendment rights prohibiting an illegal search, noted that the Federal Government still uses urine testing because officials find it more reliable. "One of the reasons we challenge the test is the validity and integrity of it," he said.

Mr. Palladino said officers like Ms. Hayes fall into a gray area where the procedure that convicted them has been nullified, pending appeal, but they have already been tossed from the department. The court case brought by the police unions made no mention of those caught in limbo by a "false positive." A firing based on a test that has been repudiated by the courts can now only be overturned in that venue.

'Only Recourse Is In Court'

"I don't see any recourse outside of the courts," Mr. Palladino said. "It needs further review."

Former Police Officer Jonathan J. Bodenhorn tested positive for marijuana in November 2005 based on a hair sample sent to Quest Diagnostics, just 18 days after the NYPD adopted the new policy. Mr. Bodenhorn, who maintained he never used drugs, sent another sample to the same lab and it came up clean. Nevertheless, in a little more than a month, the Police Department dismissed him.

Former Police Officer Brian Alexander and former Detective Second Grade Serena Jones, who are suing to get their jobs back also, have similar stories of dreams dashed by a test for drugs that is no longer valid. Mr. Alexander tested positive for cocaine and was suspended beyond the 30-day Civil Service Law maximum and then unceremoniously dumped by the department. Ms. Jones, in fact, was on her way up the ladder: she had been recommended for a promotion to Detective First Grade three days prior to her drug test. Rather than being promoted, she was suspended indefinitely on Nov. 15, 2006 after the NYPD notified her that she tested positive for cocaine.

"Zero tolerance, done," Mr. Hayes said. "You could be charged as a Detective of raping a child and have more respect from the department where they have the evidence, they have the DNA, but they still bring you back after 30 days and place you on modified.

"This is only based on a piece of hair, that's what this test is all about," he said.

"I can't even get a job at Wal-Mart," Ms. Hayes interjected matter-of-factly. "I can't even get a job at Wal-Mart."