NYPD Drug Testing Methodology and Testing Triggers Within Police Commissioner's Disciplinary Authority

In furtherance of it's zero tolerance policy for the use of illegal drugs by uniformed members of the service, the New York City Police Department Patrol Guide Procedures (PGPs), effective January 1, 2000, directed the testing of either urine or hair samples.  Specifically, PGP No. 205-30 specified testing either the urine or hair of members reasonably suspected of illegal drug use; and PGP No. 205-35, which allowed members subject to unsubstantiated allegations of illegal drug use to request voluntary testing, provided for testing of either hair or urine samples.  In addition, all probationary NYPD officers (PPOs) received an end-of-probation medical examination, which included drug testing of hair samples.  RIAH was the methodology used for hair testing. 

Patrol Guide Procedure No. 205-29 addressed random drug testing, whereby an automated database was used to select uniformed members who were directed to appear at a specified time and date for testing.  While this PGP did not identify urine analysis as the testing methodology, it incorporated a number of steps specific to urine testing.  Three other PGPs similarly did not actually identify the method of drug testing, but referred only to the collection of urine samples: PGP No. 205-32 (covering members applying for and assigned to the Organized Crime Control Bureau); PGP Nos. 205-31 and 205-33 (covering members applying for assignment to designated specialized units); and PGP No. 205-34 (covering members applying for discretionary promotions).

Several unions, including the Patrolmen’s Benevolent Association, had argued that expanding the use of hair strands for such testing was subject to collective bargaining.  It was a position that union leaders had expressed in similar disputes concerning the department’s move to add steroids to the list of substances that MOS are tested for and to administer sobriety tests to those who discharge their firearm, either on or off duty.  The dispute over the applicability of collective bargaining was taken up to the Court of Appeals in The Matter of The City of New York, et al., v. The Patrolmen's Benevolent Association of the City of New York and The Sergeants' Benevolent Association of the City of New York, et al.

In an eighteen page opinion dated December 18, 2009, the Court unanimously held that the method of drug testing and the triggers for such testing are excluded from collective bargaining as a matter of policy.  The Court explained its rationale in that the detection and deterrence of wrongdoing within the NYPD -- particularly crimes, such as illegal drug use -- is a crucial component of the Police Commissioner's responsibility to maintain discipline within the force.  Both the Board and the unions conceded that the Commissioner may unilaterally institute drug testing of uniformed officers. They would, however, check his discretion to select the investigatory measures that he deems most effective to discover and deter illegal drug use by requiring collective bargaining over testing methodology and testing triggers. In the Court's view, however, these subjects are inextricably intertwined with the Commissioner's authority to conduct drug testing in the first place.  

Nonetheless, the Court emphasized that they are not holding that that every step that the Commissioner takes or every decision that he makes to implement drug testing is excluded from bargaining.  To the contrary, the full extent or the limits of the Commissioner's unilateral disciplinary authority in the context of drug testing were simply not presented on the record before the Court.