On appeal from the Merit System Board.
Before Judges Pressler, Wallace and Carchman.
The opinion of the court was delivered by: Pressler, P.j.a.d.
This appeal raises questions respecting the random drug testing required by federal law, 49 U.S.C.A. § 31306 and its implementing regulations, for operators of commercial motor vehicles holding a commercial driver's license (CDL). In sum, petitioner John Reames, a then twenty-four-year employee of respondent Department of Public Works of the City of Paterson (DPW), was terminated by his employer for his asserted refusal to submit to a random drug test, and that termination was affirmed by the initial decision of an administrative law Judge (ALJ) following a contested hearing and, in turn, by the Merit System Board, which accepted the ALJ's findings of fact and Conclusion. He appeals and we reverse. We are satisfied that the DPW's total failure to comply with the testing policies and procedures mandated by the applicable federal regulations resulted in irremediable constitutional infirmities in the test here conducted, rendering it an unreasonable search and seizure.
Much of the salient factual background is undisputed. As noted, petitioner is the holder of a CDL authorizing him to drive vehicles whose weight exceeds 32,000 pounds. On the morning of September 25, 1995, the DPW Director, Juan Santana, purporting to be doing so in compliance with federal law, radioed all employees of the department holding a CDL instructing them to proceed immediately from wherever they were and from whatever they were doing, to the DPW garage. About fifty employees, including petitioner assembled there. When they had all arrived and a roll call had been taken, Santana advised them that, pursuant to federal law, they were then and there being required to submit to drug testing by supplying a urine sample. According to his testimony, I informed all the employees as to why I had
called them in. I indicated to them that there was a specific law that required all employers to test any employee that had a CDL license and that they were there for that purpose. I explained to them that the general policy- - - -it was the policy itself, I indicated that I had to do this and what we were going to do is test everybody. That failure to take the test would be an admission. I also told them that they had an opportunity to come forth, because we do have a policy which indicates that if you come forth and you volunteer, you can go on rehab. I explained to them you have- - - -and I reiterated several times that, please come forth now.
Respondent concedes that this was the first notice given to DPW employees holding a CDL of the random drug testing required by federal law or of the fact that a random test would be administered.
Accompanying Santana for the purpose of administering the test were two Paterson police officers and an employee, Mark Marlow, who was both a clerk in the personnel department and a part-time radio dispatcher for DPW. The municipal attorney was also present. There was no medically certified person on the premises. The request by at least one of the employees that a union representative be permitted to attend the proceedings was denied. According to Santana, the test procedure involved one of the police officers accompanying the employees, one by one, to a bathroom in the garage. Although the procedure must have taken some time, Santana, respondent's sole witness at the hearing, spent much of it in his office and only looked into the bathroom once. He saw that the door of the stall being used for the specimen collection was open and that the police officer was standing directly behind the employee, facing in the same direction as the employee while the specimen was being produced. Petitioner testified that as he was trying to produce a specimen, he was aware that the police officer was watching his attempt to urinate, making it impossible for him to do so. Another employee who was tested that morning also testified that the officer was observing the actual act of urination. Although the ALJ made no factual finding as to just how intrusive the observations of the police officer were, Santana himself conceded on cross-examination that the collection of the specimen was performed without affording the employee either privacy or dignity. We also understand from this record that Marlow's role was to seal the specimen jars, obtain the necessary signatures, take care of the paper work, and transport the specimens to the DPW's contract laboratory. The record does not indicate his training for or experience in performing these functions.
We return to petitioner's conduct during the testing procedure. His version and Santana's are widely disparate. According to petitioner, he had no conversation with Santana before the test and certainly had made no inculpatory statements to him. Rather, when he was assertedly unable to produce a specimen by reason of the officer's close observation of his attempt to do so, the officer called Santana, told Santana that petitioner had refused to take the test, and Santana immediately suspended him. Petitioner further asserted that he was not offered the opportunity to consume liquids and then to try again. Santana testified, however, that petitioner told him he was not going to take the test because he was on crack cocaine, and in fact, he, Santana, noticed that petitioner's eyes were glassy and ready to "pop out," leading him to believe that petitioner was under the influence of drugs. In any event, both agree that petitioner then left the garage in a DPW vehicle, was instructed by radio to come back to the garage, and did so. It was only then, according to Santana, and after the testing had been completed, that he gave petitioner a so-called Loudermill *fn1 hearing, advising him that he was forthwith suspended without pay until the hearing on the charges that were to be brought against him. Petitioner's offer to take a drug test the following day was rejected.
A Preliminary Notice of Disciplinary Action was served on petitioner several days later, charging him as follows:
1. Violation of [N.J.A.C.] 4A:2-2.3(a)(2) - insubordination
2. Violation of 4A:2-2.3(a)(3) - inability to perform
3. Violation of 4A:2-2.3(a)(10) - violation of City of Paterson anti-drug use policy as ...