LAWSUIT BY FIRED OFFICER DISPUTES METRO DRUG TESTING

An appeal in Chancery Court calls into question the criteria used to order
Metro employees to submit to a drug test.

Former police Sgt. Philip Clark, fired in 1998 after refusing to submit to
a drug test, contends that he was fired after an anonymous tip to Metro
Police Chief Emmett Turner accusing Clark of using cocaine. Clark's lawyer
argues that the Police Department violated its own drug-testing policy
because an accusation from a confidential informant doesn't constitute
grounds to order a test. The police contend the tip came from a reliable
but unnamed source.

Clark's case, now under review before a Davidson County Chancery Court
judge, comes soon after a Metro firefighter died while under investigation
for cocaine use. The firefighter died of natural causes and did not have
drugs in his system.

Fire officials said they opened an investigation into firefighter Richard
Majors after receiving two written reports from employees alleging that the
firefighter had drug paraphernalia and cocaine in the fire hall. A drug
test was never ordered for Majors.

The Metro Law Department has said that it denied the request to order a
suspicion-based drug test for Majors because Metro's attorneys didn't have
all the facts. The Law Department never received the reports from the two
Fire Department employees and was told that the reports were rumors.
Regardless of the bureaucratic mix-up, the Fire Department has maintained
that accusations alone are not enough to justify ordering an employee to
take a drug test.

The drug-testing policies used by the Metro Police Department and the
Nashville Fire Department appear almost identical, yet the two cases show
that starkly different decisions were made about what's necessary to order
a drug test.

Clark's attorney argues that the Police Department violated its own
drug-testing procedure when it ordered Clark to take a drug screen and that
it acted arbitrarily.

The test, he argues, can be ordered only when a trained supervisor
witnesses and documents a specific set of behaviors that may indicate drug use.

"Specifically, no trained supervisor observed and documented anything about
Clark that would have led to reasonable suspicion that he was using drugs,"
Clark's attorney argues in a brief submitted before the court. The
attorney, John M.L. Brown, refused to comment on the case because it is
before the court.

"The only 'knowledge' that the (Metro Police Department) had in regard was
from an anonymous tipster," the brief further states.

Brown is referring to a sentence in both the Metro Police Department
drug-testing policy and the policy used for Metro employees -- which is
what the Fire Department uses.

Both policies say that suspicion-based drug tests are "ordered when a
trained supervisor observes and documents appearance, behavior, speech or
body odors of an employee which are characteristic of the use of alcohol or
controlled substances."

Vanderbilt law professor Don Hall says the decision to order Clark to take
a drug test "doesn't seem to be in compliance with the policy."

"The policy requires more protection of the employees than the current drug
policies in this country typically require," Hall said.

Metro police and lawyers for Metro government, however, think that they
were well within their rights to ask Clark to take a drug test.

Metro argues that Turner knew but did not name the informant.

"In contrast, Chief Turner knew the identity of the informant supplying the
information to him that Philip Clark had been using cocaine," the Metro Law
Department said in a brief. "Chief Turner was comfortable that the
information he was receiving was truthful based upon his knowledge of the
informant."

Karl Dean, director of the Metro Law Department, refused to comment because
the case is before the court.

The Law Department argues that Clark was fired only because he refused to
take the test. Metro and police drug policies say that a refusal to take a
test will be treated the same as a positive drug test. The Law Department
also argues that it could use "a report of drug or alcohol use, provided by
a reliable and credible source" to order a test.

The Police Department isn't limited to having a supervisor observe certain
behaviors before a drug test can be ordered and confidential informants can
be used, Assistant Chief Steve Anderson said. There simply has to be
reasonable suspicion that an employee is violating the drug policy before
the department orders him to submit to take a drug test, he said.

Members of the local chapter of the Fraternal Order of Police are outraged
over how Clark's case was handled.

"We're supporting his case and actually financing part of his appeal,
strictly based on the situation that it was an anonymous informant, and we
don't know the reliability of it," said FOP President Calvin Hullett.

Ultimately, Chancellor Carol McCoy will decide what standard should be applied.