FIRED DEPUTY WANTS HIS JOB BACK

But County Says Edward Mccall 'May Be A Serious Liability Risk'

Edward McCall wants his job back as a deputy -- three years after the Cecil
County Sheriff's Office fired him because he allegedly tested positive for
marijuana use.

His bid for reinstatement comes six months after a court ruling in which a
judge scrutinized the accuracy of the drug test performed on McCall.

The judge also reversed a decision by the Disciplinary Board of the Cecil
County Sheriff's Office, which found McCall guilty of conduct unbecoming a
deputy and another violation in 1999, leading to his firing.

Circuit Court Judge Dexter M. Thompson Jr. issued those rulings in an order
of reversal filed in September, summarizing that the action taken against
McCall was "not supported by substantial evidence and was arbitrary and
capricious."

Based on that development, according to McCall's attorney, Michael D.
Smigiel Sr., the Sheriff's Office should give back McCall's job.

Smigiel recently filed a "show cause" motion in circuit court, asking a
judge to order the Sheriff's Office to reinstate McCall to his former
position, which paid an annual salary of $25,883.

He also wants the agency to reimburse McCall for lost pay dating back to
mid-1999 and to make other financial compensations, including lost benefits
and legal fees.

Lawyers representing the Sheriff's Office, however, are petitioning a judge
to deny McCall's show cause motion. They're countering that McCall is
ineligible to be a deputy sheriff.

In a court document filed Monday, Sheriff's Office attorneys reported that
McCall failed a polygraph exam when asked questions about his alleged
illegal drug use.

Maryland State Police gave that lie detector test to McCall about three
years ago, shortly after his first drug screening came back positive for
marijuana, court records show.

"An applicant who shows deception regarding personal illegal activity,
including illegal drug use, is not eligible for employment as a deputy
sheriff,'' according to attorneys representing the Sheriff's Office.

County officials view McCall as a "potential illegal drug user" because of
his polygraph results and, therefore, hiring him as a law enforcement deputy
"may be a serious liability risk," Sheriff's Office lawyers wrote.

Those lawyers listed other reasons the judge should block McCall's motion.

One of them is that the integrity of the law enforcement agency would
"suffer irreparable injury" if it hired someone who had failed the
polygraph.

In addition to their response to McCall's show cause motion, lawyers
representing the Sheriff's Office filed a copy of McCall's polygraph
results.

The document indicates that McCall told investigators he took four Tylenol
III tablets, which contain codeine, and six Advil pills "a day or two"
before providing urine for the drug test he failed.

He also told investigators that he had been near marijuana smoke within a
few days before submitting that urine sample.

"Deputy McCall also made reference to his attending a KISS concert at the
Philadelphia Spectrum the Friday prior to the first urinalysis. He went on
to state that he was exposed to heavy concentrations of second-hand
marijuana smoke for approximately two hours,'' according to that document.

McCall, now 34, of Perryville, started working as a sheriff's deputy in
August 1992, Smigiel said. Since being fired in 1999, McCall has worked
construction, Smigiel added.

Court records and articles published in the Cecil Whig provide the following
chronology:

On Jan. 7, 1999, McCall provided a urine sample at Union Hospital in Elkton
after suffering injuries while arresting a combative suspect, who also
required medical treatment.

McCall provided the sample because a county policy adopted by the Sheriff's
Office makes drug testing mandatory in certain situations, including cases
in which workers are injured on the job.

His urine sample was sent to American Medical Laboratories, Inc., (AML) in
Virginia, and it came back positive for marijuana metabolites.

Officials notified McCall of the drug test results on Jan. 12, 1999. McCall
denied using marijuana and asked to take a new drug test, a request that the
county government denied.

On the same day, Cecil County Sheriff Rodney Kennedy suspended McCall
without pay. McCall appealed his suspension, maintaining that he should be
paid.

On Jan. 18, 1999, 11 days after providing his first urine sample, McCall
submitted a new urine sample to the same laboratory for a second test. He
paid for the second test.

(Detectable amounts of marijuana can remain in a user's system for several
weeks.)

McCall's second drug test proved negative for marijuana.

Handling the suspension-related appeal in April 1999, a local judge ruled
that the county must provide salary and benefits for the suspended McCall
until a disciplinary board makes a ruling in his case.

The judge also ordered the county to give McCall about three months' back
pay and medical benefits, which dated to Jan. 12, 1999, the effective date
of McCall's suspension.

According to the judge, state law requires an employer to pay a suspended
police officer unless he's charged with a felony. McCall hadn't been charged
at all.

Because McCall tested positive for marijuana on the first screening, the
sheriff's office launched an internal investigation. It resulted in McCall
being charged with five violations of the Sheriff's Office Rules and
Regulations.

In July 1999, at the conclusion of a four-day hearing, a disciplinary board
comprised of three police officers found McCall guilty of two of those
charges - conduct unbecoming a deputy and conformance to laws: Violation of
any law.

The board found McCall not guilty of the remaining three violations,
including the two relating to consuming or being under the influence of
alcohol and/or drugs.

Kennedy fired McCall after the disciplinary board rendered its decision.

McCall appealed the board's decision, leading to a case review by Thompson.

The judge concluded that the findings of fact and the decision by the board
"were not supported by competent, material and substantial evidence."

Thompson noted that the "unrefuted testimony" of an expert witness, a doctor
who specializes in drug testing, "seriously brought into question the
reliability of the accuracy of the test results."

Specifically, McCall's alleged reading on the drug test exceeded what is
scientifically possible, calling into question the procedure used by lab
technicians, the judge reported.

"That result is as much as eight times greater than expected. According to
test results, there was a greater concentration of a single part, than there
was the whole,'' Thompson wrote.

He continued, "Common sense tells us that this is impossible in a test that
was accurately performed."

Based on his review and findings, Thompson reversed the disciplinary board's
decision. The judge filed his order of reversal Sept. 10.