Public Employment and Drug Testing

In 2007 a Dayton Firefighter, acting under the Labor Agreement with the City of Dayton and his Union, submitted to a random drug test and allegedly tested positive. He attended a training course and went back to work. Several months later, he was called in and required to submit to a drug test and again allegedly tested positive. I use the term “allegedly” because neither my client nor I (nor any Board or Court) ever saw competent, admissible evidence that the urine was properly tested or any results interpreted.

His counsel entered a Plea of No Contest and he was terminated from his employment after 15 years of honorable and heroic service.

I was retained and appealed his case to the Dayton Civil Service Board, a three member panel of citizens charged with hearing employment issues for the City of Dayton. Their duty is to keep politics out of hiring at City Hall. They have a number of rules, including an evidentiary rule that requires evidence introduced at hearings to comply with the Rules of Evidence in Ohio Courts.

The City Attorney did not call the testing laboratory chemist who tested the urine, nor the doctor who interpreted the results as required by law. Two Human Resource employees who received the report testified as to what they thought the firefighter’s file revealed.

Some years ago, a local County Prosecutor and I travelled to New York City to take depositions in a testing laboratory in a drug case. I found the most deplorable conditions imaginable. Body fluids were not refrigerated, evidence tags were missing or torn, and employees were untrained.

Cross-examination of chemists in drug testing cases is absolutely mandatory.

The Civil Service Board unfortunately overruled my vehement objections and admitted the only evidence presented that this firefighter had violated a substance abuse policy—these flawed, unsubstantiated test results.

Unfortunately for the firefighter, this case wound slowly through the courts. We appealed the case to the Montgomery County Common Pleas Court, who upheld the termination.

The Second District Court of Appeals in July of 2011 overturned the lower court, agreed that this was merely hearsay and ordered the Court to return him to work. The City of Dayton Law Department unfortunately appealed the case to the Ohio Supreme Court, who agreed to hear the case.

After hearing oral arguments, the Supreme Court of Ohio decided on June 13, 2012 that they had improvidently accepted the case and returned the case to the Montgomery County Common Pleas Court to order the Firefighter’s reinstatement. The Civil Service Board complied with the Order.

On August 20, 2012, the Firefighter was returned to duty.

Employment issues, especially in public employment cases, are involved and require experienced attorneys.

Attorneys Terry W. Posey and Robert L. Caspar, Jr. have litigated literally hundreds of Civil Service/public employment cases.  Continued public employment for any employee is so serious that to enter a hearing of possible long-term consequences without an attorney is foolish.  We have seen employees enter a hearing with the belief that he/she would explain the facts and the employer would treat him/her fairly.  Such situations are sad.  Employers often have their own problems/agendas – public criticism, elected officials outside pressure and personal vendettas.  Call us for a free no-obligation meeting.