Wood v. State Personnel Bd.

• Decision Date: 08 August 1997
• Citation: 705 So.2d 413
• Parties: 13 IER Cases 440 William WOOD v. STATE PERSONNEL BOARD and State Department of Corrections. 2951407.
• Court: Alabama Court of Civil Appeals

Page 413

705 So.2d 413

13 IER Cases 440

William WOOD v. STATE PERSONNEL BOARD and State Department of Corrections.

2951407.

Court of Civil Appeals of Alabama.

Aug. 8, 1997.

Certiorari Denied Oct. 24, 1997

Alabama Supreme Court 1961923.

David G. Flack, Montgomery, for appellant.

R. Taylor Abbot, Jr., and Joseph V. Musso of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, and R. Frank Ussery, State Personnel Department, Montgomery, for the State Personnel Board.

On Application for Rehearing

CRAWLEY, Judge.

This court's opinion of June 6, 1997, is withdrawn, and the following opinion is substituted therefor.

William Wood was employed by the State Department of Corrections ("DOC") as a Correctional Officer I assigned to Kilby Correctional Facility. Effective February 12, 1993, he was terminated from his employment because his urine tested "positive" for marijuana on a random drug screen. He appealed his dismissal to the State Personnel Board ("the Board"). After a full hearing, the hearing officer recommended that the Board uphold the DOC's decision to dismiss Wood. The Board agreed, and Wood then appealed to the Montgomery Circuit Court. In addition, he filed a complaint and a declaratory judgment action, alleging claims under 42 U.S.C. §§ 1983 and 1988. In December 1993, the case was removed to the United States District Court for the Middle District of Alabama. In June 1994, the federal district court remanded the cause to state court for a determination of the state law issues; the federal court retained jurisdiction of the federal claims pending resolution of the state law issues. The Montgomery Circuit Court entered two orders in April 1996: one affirming Wood's termination by the DOC and one upholding the constitutionality of the DOC administrative regulation at issue in this case. Wood appealed to this court.

1. The Validity of Administrative Regulation 227

The DOC Administrative Regulation 227 sets out the procedure for random drug testing of DOC employees. On appeal, Wood raises several issues with respect to the validity of Regulation 227. First, he contends that the regulation is invalid because it was not promulgated in accordance with the rulemaking provisions of the Alabama Administrative Procedure Act ("AAPA"), which require advance public notice and an opportunity for interested persons to comment on a proposed rule. See Ala.Code 1975, §§ 41-22-5 and -6. We hold that Regulation 227 was not subject to the formal rulemaking requirements of the AAPA.

One of the primary purposes of the AAPA is "to provide a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public." Ala.Code 1975, § 41-22-2(a)(emphasis added). Promulgation of the DOC regulation concerning employee drug testing was not an "action affecting the rights and duties of the public." Instead, the regulation is an internal policy and procedure statement relating strictly to DOC personnel.

The AAPA excludes from the requirement of administrative rulemaking:

"a. Statements concerning only the internal management of an agency and not directly and substantially affecting private rights or procedures available to the public.

"....

"c. [I]ntra-agency memoranda, directives, manuals or other communications which do not substantially affect the legal rights of, or procedures available to, the public or any segment thereof."

Ala.Code 1975, § 41-22-3(9)(a) and (c).

The Court of Appeals of Hawaii dealt with an exclusion similar to that appearing in § 41-22-3(9)(a) in In the Interest of Doe, 9 Haw.App. 406, 844 P.2d 679 (1992). In that case, the court held that a police department's field sobriety testing procedures were not subject to administrative rulemaking because they came within a statutory exclusion for matters "concerning the internal management of an agency ... not affecting private rights." See also Rossie v. State/Dep't of Revenue, 133 Wis.2d 341, 395 N.W.2d 801 (1986), review denied, 134 Wis.2d 457, 401 N.W.2d 10 (1987) (departmental directive that prohibited smoking in certain areas of building and authorized discipline for infractions concerned internal management of agency and was not subject to statutory rulemaking procedures).

"An agency need not use rulemaking procedures for its rules which affect only the internal personnel practices or internal management of the agency.... The mere fact that a rule relates to agency personnel is not always sufficient to remove it from rulemaking procedures.... The agency carries the burden of justifying its avoidance of [rulemaking] notice and comment procedures by showing that the effect of the rule is within the personnel or management classes and is solely internal, with no effect on the public."

J. O'Reilly, Administrative Rulemaking § 3.06 at 47-48 (1983).

The Commentary to § 41-22-3(9) states that in determining what agency actions are subject to administrative rulemaking it is important to

"distinguish the regulatory activity that resembles legislation, applicable to all persons or a relatively large segment of the population outside the context of any specific controversy, from administrative activity that has a more judicial character and which, therefore, ought to be subject to judicial review. See generally K. Davis, Administrative Law Text § 5.06, at 137-38 (3d ed.1972)."

Regulation 227 is not analogous to "legislation applicable to all persons or a relatively large segment of the population outside the context of any specific controversy." Instead, it is more like "administrative activity that has a judicial character" because it arises out of a specific controversy (an employee's alleged use of a controlled substance) and addresses personal rights within the context of a personnel action. Because Regulation 227 relates strictly to the internal personnel practices of the DOC and has no appreciable effect on the public, it was not subject to the rulemaking requirements of §§ 41-22-5 and -6.

2. Evidentiary Issues

2.(a). Chain of Custody

Wood argues that the circuit court erred in determining that there was legal evidence to support the Personnel Board's decision. Specifically, he claims that the admission of the drug test result was erroneous because the DOC did not show a complete chain of custody of his urine sample. Without the test result, he argues, there was no evidence to support his termination.

In Ex parte Holton, 590 So.2d 918 (Ala.1991), our supreme court stated:

"The chain of custody is composed of 'links.' A 'link' is anyone who handled the item. The [proponent of evidence] must identify each link from the time the item was seized. In order to show a proper chain of custody, the record must show each link and also the following with regard to each link's possession of the item: '(1) [the] receipt of the item; (2) [the] ultimate disposition of the item, i.e., transfer, destruction, or retention; and (3) [the] safeguarding and handling of the item between receipt and disposition.' Imwinklereid, The Identification of Original, Real Evidence, 61 Mil.L.Rev. 145, 159 (1973).

"If the ... proponent of demonstrative evidence, fails to identify a link or fails to show for the record any one of the three criteria as to each link, the result is a 'missing' link, and the item is inadmissible. If, however, the [proponent] has shown each link and has shown all three criteria as to each link, but has done so with circumstantial evidence, as opposed to the direct testimony of the 'link,' as to one or more criteria or as to one or more links, the result is a 'weak' link. When the link is 'weak,' a question of credibility and weight is presented, not one of admissibility."

Holton, 590 So.2d at 920. "Alabama law does not require each link to testify." Ex parte Slaton, 680 So.2d 909, 919 (Ala.1996), cert. denied, --- U.S. ----, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997).

Captain Terrence McDonnell, a correctional officer supervisor at Kilby, testified that he personally witnessed Wood give a urine sample at 5:10 p.m. on December 17, 1992. McDonnell sealed the sample with tape and watched as Wood wrote the last four digits of his social security number on the tape. At approximately 5:12 p.m., McDonnell placed the sealed specimen in a cooler in the evidence room at Kilby. He said that he and a Captain Garrett had the only keys to the evidence room.

At 10:25 a.m. the following day, McDonnell retrieved the sealed specimen from the evidence room and transported it to Staton Correctional Center, where he gave it to correctional officer Larry Thompson. Officer Thompson testified that he was the drug testing operator at Staton, that he was certified to operate the SYVA-ETS (EMIT) drug testing equipment there, and that on December 18 he received from Captain McDonnell a urine specimen marked with Wood's Social Security number. Thompson said that he tested the specimen and received a positive result for marijuana. He then resealed the specimen and gave it to Captain McDonnell. McDonnell then took it to the Forensic Sciences Laboratory in Auburn and gave it to Dr. Sarawanee Parish.

Dr. Parish testified that she received a sealed urine specimen from Captain McDonnell on December 18. She stated that she tested the specimen for the presence of a metabolite of a cannabinoid by means of a gas chromatograph/mass spectrophotometer (GC/MS), and that she received a positive result for marijuana. Dr. Parish said that in order to test for marijuana via the GC/MS method, one must "extract" and "derivatize" the urine. She testified that a co-worker, Donald Phillips, had performed the extraction, and that she had performed the derivatization. Donald Phillips did not testify.

Wood argues that there were two missing links in the chain of custody--Captain Garrett, the holder of the other key to the evidence room at Kilby, and Donald Phillips, the laboratory assistant who performed the extraction on the urine sample...