Seelig v. Koehler

• Decision Date: 12 October 1989
• Citation: 151 A.D.2d 53,546 N.Y.S.2d 828
• Parties: , 58 USLW 2233, 4 IER Cases 1538, 1989 O.S.H.D. (CCH) P 28,692 In the Matter of the Application of Phillip SEELIG, as President of the Correction Officers Benevolent Association of the City of New York, Inc., and the Correction Officers Benevolent Association of the City of New York, Inc., Petitioners-Respondents, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Richard J. KOEHLER, as Correction Commissioner of the City of New York, The Correction Department of the City of New York, and The City of New York, Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 828

546 N.Y.S.2d 828

151 A.D.2d 53, 58 USLW 2233, 4 IER

Cases 1538,

1989 O.S.H.D. (CCH) P 28,692

In the Matter of the Application of Phillip SEELIG, as President of the Correction Officers Benevolent Association of the City of New York, Inc., and the Correction Officers Benevolent Association of the City of New York, Inc. Petitioners-Respondents For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. Richard J. KOEHLER, as Correction Commissioner of the City of New York, The Correction Department of the City of New York, and The City of New York Respondents-Appellants.

Supreme Court, Appellate Division,

First Department.

Oct. 12, 1989.

Irving Anolik, of counsel (Barbara H. Daly with him on the brief; Tellerman, Paticoff & Greenberg, New York City, Attys.) for petitioners-respondents.

Michael S. Adler, of counsel (Francis F. Caputo, him on the brief; Peter L. Zimroth, New York City, Atty.) for respondents-appellants.

Joel C. Glanstein, of counsel (Catherine J. Minuse with him on the brief; O'Donnell & Schwartz, New York City, Attys.) for Lieutenants Benevolent Ass'n of the City of New York, as amicus curiae.

Adam Ira Klein, of counsel (James W. Devor with him on the brief; Adam Ira Klein, P.C., New York City, Atty.) for Correction Captains Ass'n, Asst. Deputy Wardens Ass'n, Sanitation Officers Ass'n, Superior Officers Ass'n of the New York City Housing Authority Police and Transit Police Dept. Sergeants Benevolent Ass'n, as amici curiae.

Before SULLIVAN, J.P., and MILONAS, ROSENBERGER, ELLERIN and RUBIN, JJ.

SULLIVAN, Justice.

Respondents, the Correction Department of the City of New York, its Commissioner and the City, appeal from a judgment invalidating, on constitutional grounds, a program for the random drug testing of all correction officers, and enjoining its implementation. Petitioners, the Correction Officers Benevolent Association of the City of New York, Inc. and its President, Phillip Seelig, had challenged the program, which was initiated by a November 17, 1987 directive issued by the Commissioner.

In its statement of policy, the challenged directive, which covers "all members of the uniformed force ... including the Chief of Operations and the Commissioner", provides:

Correction Officers are peace officers and hold positions of public trust. The use of illegal drugs by officers is a breach of that trust and completely inimical to their status as peace officers.

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The use of illegal drugs either on or off duty shall be cause for suspension without pay. Members on probation shall be terminated. Tenured members found guilty after an administrative hearing face penalties that include termination.

It further asserts that "the Department has documented a serious drug abuse problem among a significant number of its members", and notes that its purpose is the deterrence and detection of drug abusers for internal Departmental use, and not the facilitation of criminal prosecution.

In order to assure neutrality in the selection process, the directive provides for the computer generation of a list of Social Security numbers, programmed to select at random fifty members every two weeks. Thus, approximately 1,300 members will be tested every year. Since the Department currently has 7,100 tenured members, each member will be randomly selected, on average, once every five or six years. ¹ After being selected, the employees will be notified to report for testing at the Health Management Division at a specific date and time. Failure to report or refusal to be tested or to cooperate with the testing procedure is cause for unpaid suspension. Probationers will be terminated, while tenured employees face discharge after a hearing.

The testing procedures in the directive are modelled after those adopted by the United States Department of Health and Human Resources for the Federal Government's drug-testing program--procedures that were recently upheld by the Supreme Court in National Treasury Employees Union v. Von Raab, 489 U.S. ----, 109 S.Ct. 1384, 103 L.Ed.2d 685. The directive enumerates a series of steps designed both to protect personal privacy and assure testing integrity. Each test is overseen by a uniformed supervisor or a Health Management Division staff member of the same gender as the employee being tested, who may have a union representative or lawyer present.

The employee is asked to furnish a listing of any medication, alcohol or food ingested within the preceding 24 to 72 hour period. Specimens are furnished, without observation, in a private closed stall. A supervising staff member is present, but remains outside the stall to receive the specimen, which is inspected for signs of irregularity or contamination. In addition, the toilet water in the stall is tinted blue to deter the dilution of specimens. A supervisor who suspects that an employee has tried to adulterate or substitute a specimen is to document his suspicions and order the employee immediately to provide another specimen under direct observation; both specimens are then sent to the laboratory. In any event, if the laboratory report indicates adulteration, that finding will provide the basis for disciplinary charges and re-testing under direct observation.

After concluding that the specimen is legitimate, the supervisor caps the container and seals and labels it in the presence of the employee, who initials both the label and any accompanying forms. In an effort to maintain an unbroken chain of custody, the Health Management Division has the responsibility of supervising the storage, transportation and surrender of specimens to the laboratory for testing.

Specimens are to be tested for marijuana, cocaine, opiates, amphetamines, phencylidine and barbituates at an accredited laboratory by means of the thin layer chromatography test and the enzyme multiplied immunoassay technique. Positive findings must be confirmed by a different technique, a gas chromatography/mass spectrometry, which is apparently virtually infallible. Positive samples are to be kept for six months. An employee who has tested positive may arrange for retesting at a state-certified laboratory of his choice.

Petitioners, arguing that drug testing not based on individualized suspicion of drug usage constitutes an unconstitutional search and seizure, and relying largely upon this court's majority opinion in Matter of Caruso v. Ward, 131 A.D.2d 214, 520 N.Y.S.2d 551, subsequently reversed by the Court of Appeals (72 N.Y.2d 432, 534 N.Y.S.2d 142, 530 N.E.2d 850), and that court's decision in Matter of Patchogue-Medford Congress of Teachers v. Board of Educ., 70 N.Y.2d 57, 517 N.Y.S.2d 456, 510 N.E.2d 325, commenced the instant Article 78 proceeding to invalidate and enjoin implementation of the Commissioner's directive. Although they did not present any expert opinion or other evidence to support such contention, petitioners further argued that random testing is unnecessary, since the Correction Department's legitimate interests in deterring drug abuse in the uniformed force can be adequately satisfied by "a more aggressive program of educating superior officers in making observations with a view toward the detection of reasonable suspicion of possible drug usage ...".

In their answer, which was supported by affidavits from Thomas Murray, the Correction Department's Chief of Operations, and Dr. Robert L. DuPont, a nationally recognized medical expert on drug testing, respondents cited, inter alia, the limited expectations of privacy of correction officers, the planned program's reliance upon procedures that minimize privacy intrusions, the compelling government interest in deterring and detecting drug abuse, the evidence of an incipient drug problem within the Department that lesser measures had been unsuccessful in abating, and expert scientific opinion that reasonable-suspicion testing and other measures short of periodic testing are incapable of meeting the Department's needs.

The court hearing the matter conceded that respondents' interest in detecting drug abuse among correction officers was indeed substantial, but accepted petitioners' argument that alternative less intrusive measures, such as careful monitoring coupled with reasonable-suspicion testing or annual physical testing, would adequately meet the Department's deterrence and detection needs. Accordingly, it granted the petition and enjoined implementation of the directive.

We find, in light of the Department's compelling interest in deterring and detecting drug use among correction officers, whose diminished privacy expectations are outweighed by that interest, and its promulgation of detailed regulations which, with respect to such drug testing, are sufficient to prevent unbridled administrative discretion and to preserve privacy to the maximum extent feasible, that the Commissioner's plan is not constitutionally infirm. Accordingly, we reverse.

" 'The operation of a correctional institution is at best an extraordinarily difficult undertaking.' " (People ex rel. Vega v. Smith, 66 N.Y.2d 130, 141, 495 N.Y.S.2d 332, 485 N.E.2d 997, quoting Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2980, 41 L.Ed.2d 935). Prisons are "fraught with serious security dangers. Smuggling of money, drugs, weapons, and other contraband is all too common an occurrence." (Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447.) As this record discloses, the duties of a New York City correction officer are especially demanding. Working largely in a confined environment with violence-prone, anti-social inmates who, during any work period, outnumber them at least tenfold, correction officers have a responsibility to see that prisoners strictly conform to prison regimen and requirements; to protect the safety and security of inmates, prison personnel, visitors, and prison facilities; and, generally, to insure that sentences of incarceration...