Stueart v. Arkansas State Police Comm'n

Thomas B. STUEART v. ARKANSAS STATE POLICE
COMMISSION

96-1129                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered June 9, 1997


1.   Administrative law & procedure -- appellee State Police Commission failed
     to follow its own rules -- unlawful-procedure standard of review. -- By
     affirming appellant's termination in the face of an admitted
     failure to follow the Department's stated policy, appellee
     State Police Commission failed to follow its own rules; this
     failure distinguished the appeal from a typical appeal from an
     exercise of judgment by an administrative agency in which the
     appellate standard of review is limited to a determination
     whether the agency's action was arbitrary and capricious or
     whether its findings were unsupported by the record; instead,
     the appellate court was concerned with whether appellee
     Commission's decision was based upon unlawful procedure.

2.   Administrative law & procedure -- unlawful procedure defined -- agency
     bound by its own regulations. -- A procedure is "unlawful" when an
     agency fails to follow that which it has prescribed; an agency
     is bound by its own regulations; the fact that a regulation as
     written does not provide the agency a quick way to reach a
     desired result does not authorize it to ignore the regulation;
     the decision of an administrative agency may be reversed if
     the substantial rights of the petitioner have been prejudiced
     because the administrative findings are made upon unlawful
     procedure.
3.   Constitutional law -- drug testing -- procedure must satisfy reasonableness
     requirements. -- Although the United States Supreme Court has
     definitively approved drug testing, even when conducted
     without a reasonable suspicion that the subject is "using,"
     the Court has said that the collection and testing procedure
     must satisfy reasonableness requirements in order to protect
     the employee's constitutional rights.

4.   Constitutional law -- drug testing -- determining reasonableness --
     instructive guidelines. -- For a drug test to be reasonable, it
     must be reasonably related to the objectives of the test "as
     actually conducted"; the supreme court set forth instructive
     guidelines for determining whether a methodology of drug
     testing meets the reasonableness requirement: in determining
     whether the searches "as actually conducted" were reasonable,
     the methodology of the searches must be examined in relation
     to the goals of the drug-testing methods; if the testing is
     not conducted in ways in which there is absolute confidence in
     the reliability of the results, then the purposes of testing
     are not secured; treating someone for drug abuse who is not a
     drug user is counterproductive, as is disciplining someone who
     is not a drug user; it is critical that testing procedures be
     accurate and reliable.

5.   Constitutional law -- drug testing -- appellant had substantial rights
     placed at risk -- appellee Commission's failure to follow its own rules
     deprived appellant of rights that procedure was designed to protect. --
     Appellant clearly had substantial rights that were placed at
     risk by the screening for drugs; not only did he have a right
     to standards of reasonableness under the Fourth Amendment and
     under the Due Process Clause, but he also had a substantial
     interest in continued employment; adherence to the procedure
     adopted by the agency to ensure absolute confidence in the
     reliability of the results was essential to protect these
     substantial interests; in affirming appellant's dismissal,
     however, appellee Commission ignored its own requirement that
     the results be confirmed by a medical review officer; this
     failure to follow its own rules deprived appellant of the
     rights that the procedure was designed to protect.

6.   Administrative law & procedure -- appellant deprived of opportunity for
     expert to provide other explanation for positive result -- breach could not
     be cured with affidavits and testimony. -- Appellant was deprived of
     the opportunity for an expert to determine whether there might
     have been another explanation besides marijuan use for the
     positive result in his drug screening; unlike flaws in the
     chain of custody, this breach could not be cured with
     affidavits and testimony.

7.   Administrative law & procedure -- appellee Commission's failure to follow
     its own rules required reversal of decision to terminate appellant --
     supreme court directed reinstatement -- reversed and remanded. -- The
     supreme court held that appellee Commission's failure to
     follow its own rules prejudiced the same substantial rights
     that the rules were promulgated to protect and that this
     failure required reversal of appellee's decision to terminate
     appellant; the court directed that appellant be reinstated and
     restored to the benefits of his employment, with appropriate
     consideration given to set-offs from earnings and benefits
     that he may have received, and reversed and remanded to the
     trial court with instructions to remand to appellee Commission
     for further consistent action.


     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
reversed and remanded.
     Benny M. Tucker, for appellant.
     Winston Bryant, Att'y Gen., by:  Rick D. Hogan, Deputy Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     Appellant Officer Thomas B. Stueart was terminated from the
Arkansas State Police after he tested positive for marijuana use
during a random drug screening pursuant to the Department's Drug
Free Workplace Policy.  He appealed his termination to the Arkansas
State Police Commission, which upheld it.  The Pulaski County
Circuit Court affirmed on appeal.  Stueart argued to the
Commission, as he does to this court, that certain required
procedures set forth in the Drug Free Workplace Policy were omitted
and that this prejudiced substantial rights.  This point is well
taken, and establishes reversible error.  We hold that because the
Commission ignored its own rules in affirming Stueart's
termination, its decision was based upon unlawful procedure.  Ark.
Code Ann.  25-15-212(h)(3) (Repl. 1996).  Accordingly, we reverse.
     Pursuant to the Drug Free Workplace Act of 1988, the Arkansas
State Police adopted a Drug Free Workplace Policy by General Order
No. 104.  The stated purpose of the order was to establish "the
policies and procedures of the Arkansas State Police governing
alcohol or drug testing of employees" and to prohibit "alcohol or
drug abuse or drug misuse by employees, either on or off duty."  
     The policy sets out specific steps to be taken in the chain of
custody to ensure the reliability of the testing and to prevent
tampering.  A Drug Custody and Control form is used to properly
document each step of the testing process.  This required
documentation is to show who received the samples, who opened them,
and who tested them.  The employee is required to sign the form at
the time he is tested to confirm that he is the donor of the
sample, that he has not altered it in any way, that the bottle was
sealed in his presence with a tamper-proof seal, and that the
information provided on the form and on the label affixed to the
specimen is correct.  
     At the end of the testing, the laboratory is required to
submit any positive results to the authorized Medical Review
Officer for confirmation of results.  The Medical Review Officer is
defined in the policy as "[a] licensed physician or designated
person who reviews all positive drug test results to determine
whether or not such results were due to the tested employee's
proper use of a prescribed medication."  The policy states, "A
positive test result shall only be reported when both the initial
and confirmatory tests have been completed and the positive result
is not adequately explained to the satisfaction of the Medical
Review Officer by consultation with the employee or the employee's
physician."  [Emphasis in original.]
     At the hearing, both sides agreed that the chain of custody
was flawed because the forms were not filled out correctly by the
persons in the chain.  However, there was testimony at the hearing
that established who received the specimen at each point, who
opened it, that it remained sealed until received by the testing
facility, and who tested it.  The specimen was taken from Stueart
at his home in Ashdown.  The officer in charge of collecting the
specimen took it to his home and put it in the refrigerator
overnight.  He then delivered it to another officer, who delivered
it to yet another officer at a designated point on the highway, and
that officer took it to Baptist Medical Center in Arkadelphia.  The
specimen was taken by courier the next day to Baptist Medical
Center in Little Rock, the testing facility, where it was tested.
     While Stueart did not sign the donor certification on the
form, he testified that he gave a specimen to the officer as
established by the testimony at the administrative hearing. 
However, the fatal flaw was that the final steps in the procedure
were omitted entirely.  These requirements are, as stated in the
policy:
(1) that any positive results be submitted to
the authorized Medical Review Officer for
confirmation of results; and (2) that a
positive test shall only be reported when both
the initial and confirmatory tests have been
completed and the positive result is not
adequately explained to the satisfaction of
the Medical Review Officer by consultation
with the employee or the employee's physician.
[Emphasis in original.]
     It was undisputed that these steps were omitted.  Dr. Don
Cashman, supervisor of the toxicology lab at Baptist Medical
Center, testified on cross-examination as follows:
Q. What did you do when you saw that the
results of this test were positive?
A. We sent those results to the Arkansas State
Police.
. . .
Q. You have reviewed the policy.  Now have you
come to an opinion that you did not follow the
policy?
A. It's correct, yeah.  Our process did not
follow their policy.
. . .
Q. The last page of the drug policy, number 5,
it says, "Submit any positive results to the
authorized Medical Review Officer for
confirmation of results."  Was that done?
A. No.
Q. And the bottom part, it says in 6a, "A
positive test result shall only be reported
when both initial and confirmatory results
have been completed and the positive result is
not adequately explained to the satisfaction
of the Medical Review Officer by consultation
with the employee or the employee's
physician."  Was that done?
A. There [sic] results were not submitted to a
medical review officer.
Q. So 6a was not done, either; is that
correct?
A. That's correct.
By affirming Stueart's termination in the face of an admitted
failure to follow the Department's stated policy, the Commission
failed to follow its own rules.  This failure distinguishes this
appeal from a typical appeal from an exercise of judgment by an
administrative agency in which our standard of review is limited to
a determination of whether the agency's action is arbitrary and
capricious, or whether its findings are unsupported by the record. 
See, e.g., Arkansas Dep't of Human Servs. v. Kistler, 320 Ark. 501,
898 S.W.2d 32 (1995).  Rather, we are concerned with whether the
Commission's decision is based upon unlawful procedure.  Regional
Health Care Facilities, Inc. v. Rose Care, 322 Ark. 767, 912 S.W.2d 409 (1995).  We have held that a procedure is "unlawful" when an
agency fails to follow that which it has prescribed.  Id.  As the
District of Columbia Circuit Court of Appeals stated in Panhandle
Eastern Pipeline Co. V. F.E.R.C., 613 F.2d 1120 (D.C. Cir. 1979),
which we quoted in part in Rose Care, "It has become axiomatic that
an agency is bound by its own regulations.  The fact that a
regulation as written does not provide [the agency] a quick way to
reach a desired result does not authorize it to ignore the
regulation . . . . "  Id. at 1135.  The decision of an
administrative agency may be reversed "if the substantial rights of
the petitioner have been prejudiced because the administrative
findings . . . are . . . made upon unlawful procedure."   Rose
Care, 322 Ark. at 771, 912 S.W.2d  at 411 (quoting Ark. Code Ann. 
25-15-212(h)(3)).
     The rights that were prejudiced in this case were indeed
substantial.  Although the United States Supreme Court has
definitively approved drug testing, even when conducted without a
reasonable suspicion that the subject is "using," the Court has
said that the collection and testing procedure must satisfy
reasonableness requirements in order to protect the employee's
constitutional rights.  National Treasury Employees Union v. Von
Raab, 489 U.S. 656 (1989); Skinner v. Railway Labor Executives
Ass'n, 489 U.S. 602 (1989). 
     For such a test to be "reasonable," it must be reasonably
related to the objectives of the test "as actually conducted." 
National Federation of Fed. Employees v. Weinberger, 818 F.2d 935
(D.C. Cir. 1987).  We find the following guidelines instructive in
determining whether a methodology of drug testing meets the
reasonableness requirement:
     In determining whether the searches "as
actually conducted" were reasonable, the
methodology of the searches must be examined
in relation to the goals of the drug testing
methods.  If the testing is not conducted in
ways in which there is absolute confidence in 
the reliability of the results, then the
purposes of testing are not secured.  Treating
someone for drug abuse who is not a drug user
is counter-productive, as is disciplining
someone who is not a drug user. . . .  It is
critical that testing procedures be accurate
and reliable.
Kevin B. Zeese, Drug Testing Legal Manual,  5.01[3][d] at 5-18.39
(1995).
     Stueart clearly had substantial rights that were placed at
risk by the screening for drugs.  Not only did he have a right to
standards of reasonableness under the Fourth Amendment and under
the Due Process Clause, but he also had a substantial interest in
continued employment.  Adherence to the procedure adopted by the
agency to ensure absolute confidence in the reliability of the
results was essential to protect these substantial interests. 
However, in affirming Stueart's dismissal, the Commission ignored
its own requirement that the results be confirmed by a medical
review officer. This failure to follow its own rules deprived
Stueart of the rights that the procedure was designed to protect.
     The testimony of Dr. Henry F. Simmons at the hearing
illustrates the importance of the responsibilities of the Medical
Review Officer.  Dr. Simmons, who serves as a medical review
officer for the Little Rock Police Department, testified as
follows:
[A]ssuming [the chain of custody is] intact,
then I have to conduct, as a licensed
physician . . . an interview with the
individual, unless he or she expressly
declines the opportunity, to look for a
medical basis for the result.
     If I can find a medical basis, then I can
make a negative report to the company.  If I
can't, I have to make a positive report.  
It is readily apparent from this description of this medical review
officer's duties, which are identical to those of the Medical
Review Officer in the Arkansas State Police Program, that Stueart
was deprived of the substantial rights protected by this procedure. 
He was deprived of the opportunity for an expert to determine
whether there might be another explanation, besides marijuana use,
for the positive result.  Unlike the flaws in the chain of custody,
this breach cannot be cured with affidavits and testimony.  
     Stueart properly raised this issue during the hearings before
the Commission, and it ruled that the omission of the Medical
Review Officer's report was irrelevant.  His argument and the
Commission's response are quoted in pertinent part as follows:
MR. YEARGAN: What I'm saying, sir, is the
State Police has used the policy to terminate
an individual, but it did not follow the
procedures set forth in the policy to
terminate him.
CHAIRMAN EILBOTT: I understand, but my
question is, what is the relevance of a
medical review officer where the substance is
not a substance that is due to the tested
employee's proper use of a prescribed
medication?
MR. YEARGAN: It wasn't followed through.  No
one ever checked with him.  It wasn't done.
The Commission was clearly presented with Stueart's argument that
the failure to follow procedure, the required final step of a
medical review officer's evaluation, deprived him of substantial
rights.  The Commission determined -- notwithstanding its own
requirement for a final evaluation by a medical review officer --
that the failure to follow its own rules was irrelevant.
     We hold that the Commission's failure to follow its own rules
prejudiced the same substantial rights that the rules were
promulgated to protect, and that this failure requires that we
reverse the decision of the Commission to terminate Stueart.  We
direct that Stueart be reinstated and restored to the benefits of
his employment, with appropriate consideration given to set-offs
from earnings and benefits that he may have received.  We reverse
and remand to the trial court with instructions to remand to the
Commission for further action consistent with the holdings of this
opinion.
     Glaze and Brown, JJ., dissent.


                 Tom Glaze, Justice, dissenting.

     I respectfully dissent.  To the Arkansas State Police
Commission's credit, it has adopted a Drug Free Workplace policy,
and in being called on to enforce that Policy, the Commission
upheld Officer Thomas B. Stueart's test, showing he was positive
for marijuana use.  While minor deviations occurred in following
the State Police Department's drug-testing rules when testing
Stueart, the Commission upheld Stueart's test because he failed to
show how those deviations in any way tainted his test results.  
     If a criminal defendant had been arrested and tested for
drugs, and procedural deviations occurred in the handling of the
defendant's specimen, our case law would require the defendant to
show the evidence had not been tampered with before the test
results would be excluded at trial.  Crisco v. State, 328 Ark. 388,
___ S.W.2d ___ (May 5, 1997) (The trial court must be satisfied
within a reasonable probability that the evidence has not been
tampered with, but it is not necessary for the State to eliminate
every possibility of tampering).  Here, the majority opinion
declines to follow that accepted case law.  Instead, the majority
adopts a rule whereby Officer Stueart can have his test excluded
from the Commission's consideration even though he has failed to
show his test had been tampered with or that he had been prejudiced
by the manner in which the test had been processed.  I submit that
Officer Stueart's rights were fairly protected, and the
Commission's right to terminate him was supported by substantial
evidence -- which, from the record, is the only issue addressed and
decided by the Commission and circuit court.
     Even the majority opinion expresses agreement that the
evidence reflects that Officer Stueart's voluntarily-given specimen
was properly taken from Stueart and sealed, and that the specimen
remained sealed until it was tested at the Baptist Medical Center
in Little Rock.  And while the majority seems to agree that no
tampering appears to have occurred with Stueart's specimen, it
complains only that (1) Stueart failed to sign the urine-donor
form, and (2) no medical review officer was asked to confirm
Stueart's positive test results or to consult with him to determine
if there might be another explanation for the results.  
     Two observations need to be made.  One, Stueart's failure to
sign the donor form was insignificant, and he made no assertion
that anything occurred to the specimen as a result of his having
failed to sign the form.  In fact, the record reflects Stueart's
urine specimen had been taken and sealed in his presence, and the
sample remained sealed until tested.  Two, although no medical
review officer was assigned to review Stueart's drug test to
determine another explanation for the positive results, Stueart had
every opportunity to present an expert at his hearing to offer
explanations that might have accounted for such results.  Instead,
Stueart merely relied on the testimony of Dr. Henry Floyd Simmons,
who gave no alternative explanation except to say, categorically,
"I can tell you with utter confidence that as soon as I realized
that the employee applicant had not signed the chain of custody, it
(the test) would have been over."  Simmons stated that, in federal
(not state) testing procedures, federal law required him to end his
review in such circumstances.  Under the State Police Department's
policy, a medical review officer's function is to review all
positive test results to determine whether such results were due to
the employee's proper use of a prescribed medication. 
Significantly, Dr. Simmons and Dr. Cashman testified that there is
only one FDA drug that would actually make one positive for
marijuana and that was Marinol -- which Stueart was not taking. 
Dr. Simmons's opinion concerning the law or legal validity of the
chain of custody matter in this state case is irrelevant.  State
law places the Commission in the role to weigh the evidence to
determine if discrepancies in the chain of custody in this case
tainted Stueart's test.
     At this stage, I would point out that there was more than
substantial evidence to support the Commission's findings and
termination decision, and that evidence, bearing on Stueart's test
results, was largely made by Dr. Dan Cashman, supervisor of the
toxicology lab at Baptist Medical Center.  
     Again, the evidence reveals that the specimen was taken and
sealed in Stueart's presence and remained sealed until received for
testing.  Cashman testified that when he received the subject
specimen, the external chain of custody information contained
Stueart's name which was entered into the computer.  The specimen
was assigned lab number 62149 which followed the specimen
throughout the testing procedure.  This numbered, urine specimen
received a value number of .2872, meaning it tested positive for
THC.  The specimen was then retested and THC was confirmed. 
Cashman further explained that he had satisfied himself that the
chain of custody was proper and that he had a clean specimen.
     Finally, the majority opinion cites Regional Health Care
Facilities, Inc. v. Rose Care, Inc., 322 Ark. 767, 912 S.W.2d 409
(1995), for the rule than an administrative agency may be reversed
if the substantial rights of the petitioner have been prejudiced
because the administrative findings are made upon unlawful
procedure.  That rule is good law, but, as discussed above, Stueart
simply offered no evidence concerning how he was prejudiced by the
minor deviations found in the State Police Department's chain of
custody in handling Stueart's specimen.  While I agree the
Department failed to comply with its own drug-testing procedure and
Stueart's right was violated in this respect, Stueart was not shown
to have been prejudiced.  Obviously, his job termination is not the
prejudice in issue.  If that were true, a defendant charged with a
drug offense could always have his test results suppressed when
minor discrepancies occurred in the State's chain of custody merely
because he had been arrested, tried, and convicted.
     In conclusion, the record here reflects Stueart's urine sample
had been taken and sealed in his presence, and the sample remained
sealed until tested.  Furthermore, substantial evidence reflects
that the specimen tested was Stueart's and the test showed positive
for marijuana.  The majority opinion fails to mention any prejudice
which affected Stueart as a result of the procedural deviations
that occurred in this matter.  The only prejudice I can conceive is
that Stueart was prevented from giving his explanation as to why
his tests returned positive, but Stueart was given an extensive
hearing where he could have offered such an explanation and did
not.
     Because I believe substantial evidence exists that supports
the Commission's decision, I would affirm. 
     Brown, J., joins this dissent.