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North Brunswick PBA sues on behalf of 2 officers who had drug tests

1/8/1988 - by AnneMarie Cooke

The North Brunswick PBA has filed suit on behalf of two officers who were administered drug screening urine tests, charging that the officers' civil and constitutional rights were violated.  Named as defendants in the Superior Court action in New Brunswick taken last week by Local 160, Policeman's Benevolent Association were Police Director George Lepre, Deputy Police Chief George Magyar, Mayor Paul Matacera and the Township Council.

Lepre, who said he had not received a copy of the suit, noted a copy of the suit, noted that the two officer signed waivers and voluntarily submitted to drug testing.  "We feel any allegation of wrong doing is unjustified" said Township Attorney Thomas Shamy.  The municipality plans to fight the suit, he said.  Additional court papers the township must file will demonstrate that there was probable cause for the urine test,  according to Shamy.  Shamy also hadn't seen a copy of the suit.

The PBA's attorney, Manuel Coreis of Engelwood was vacationing in Europe, according to his secretary. The litigation was instituted on behalf of Patrolman Patrick O'Brien, a 12-year veteran, and Peter Matyas an officer for seven years.  Both called in sick on Sept. 2, 1987 - O'Brien for the 11 p.m.-to-7 a.m. shift and Matyas for the 6 a.m.-to-2 p.m. tour, according to court papers.

Both had cited exhaustion from shift work as the reason for the absence, they were ordered by acting Capt. Melvin Hoiberg to report Sept. 9 for a physical examination at a Lawrence medical group contracted by the department to conduct annual police physicals, the court papers noted.

As part of the exam, they submitted to a drug screening by urinalysis which violates their rights according to their lawsuit.  The results were negative, Lepre said.  He declined to discuss circumstances surrounding the order for physicals.  Departmental policy permits officers 15 sick days annually; after the first 10 are taken they must provide a physician's note when any of the remaining days are used, Hoiberg said.

The suit is one of several filed statewide over the last 18 months contesting urine tests of workers.  In most cases, the validity of random testing was ruled on negatively by the courts on the grounds that it constituted an unreasonable search and and invasion of privacy according to Edward Martone, executive director of the state chapter of the American Civil Liberties Union in Newark.  He said the outcome of the North Brunswick case will likely depend on whether the township can prove it had sufficient cause.

Probable cause is determined "on a case-by-case basis," Martone said.  But "it's damaging to their (the officers') case that they signed waivers," he said.  "...They also didn't lose standing in the way of pay or job status."  

The urine test is most successfully challenged on invasion of privacy and illegal search grounds -- both constitutionally based -- by those who test positive for the presence of illegal drugs and who lose standing as a result, Martone added.  The issue is further complicated because employers have a right to know whether workers are impaired on the job.

"There are other testes for impairment -- eye tests, coordination tests, Breathalyzer tests.  If you want to check for impairment, use those," Martone said.  Patrolman Kevin McNamara the PBA local's president, acknowledged that the two officers signed waivers but they said they had no real choice and they would have faced disciplinary action otherwise.

Although the incidents took place in September, McNamara said the PBA delayed the suit against township officials so as not to jeopardize the official's political support for the November 1987 pension referendum.  North Brunswick voters overwhelmingly approved the referendum that allowed the transfer of police pension funds to a system that provides a better financial return.

Dodie Wagner, public information officer for the state Division of Division of Civil Rights, said the hearings were held by her agency last year but that no statewide policy has yet been established regarding drug testing in the workplace.  However the attorney general working with advice from New Jersey aw enforcement groups such as the state PBA, established guidelines in November dealing only with applicants for police jobs, police recruits and veteran police officers, according to Fred Devesa, assistant director for the state Division of Criminal Justice.  

Under the guidelines, veteran officers, he said should be tested only when there is evidence that would lead "a reasonable person to conclude the officer was involved in illegal drug use."

Read original copy of the article here.