O'CONNOR v. Police Commissioner of Boston

Liacos, C.J.

(concurring). I hold fast to my belief that the

court’s reliance on balancing public interests against privacy interests will continue to erode the protections of art. 14. See Horsemen’s Benevolent & Protection Ass’n, Inc. v. State Racing Comm’n, 403 Mass. 692, 707 (1989) (Liacos, J., concurring); Commonwealth v. Shields, 402 Mass. 162, 169 (1988) (Liacos, J., dissenting). The issue of the propriety of such balancing tests, at least with respect to drug testing, has been foreclosed to me by the Horsemen’s case. In my view, this case could be disposed of without resort to a manipuladle balancing inquiry. The court should hold that, when one seeks to become a police officer authorized to carry and use a firearm and agrees in writing to submit to urinalysis testing for illicit drugs, that person has consented to such testing.

Greaney, J.

(concurring, with whom Liacos, C.J., and Abrams, J. join). I agree with the Chief Justice that this is not an appropriate case in which to apply a balancing test to overrule the important constitutional right of privacy established by art. 14. This is especially so when the protected right is being measured against abstract goals of safety and integrity recited in the court’s opinion; goals that are formulated without any factual information in the record to demonstrate the frequency of drug use by police officers or to demonstrate any connection between such use and grave harm to the force or public safety. A dubious foundation is thus laid by the opinion for the future expansion of government power to search large numbers of the public workforce without a warrant, without probable cause, and without reason to suspect them of any unlawful act.

*333In my view, the balancing approach should play no part in the resolution of the art. 14 issue in this case. On the limited record before us, I conclude that the judgment should be upheld on the narrow basis of the plaintiffs job status and the consent form that he signed. The job of a police officer is treated specially under civil service law, as indicated by the Legislature’s provision in G. L. c. 31, § 61 (1988 ed.), that a new officer actually perform the duties of a police officer “on a full-time basis for a probationary period of twelve months before he shall be considered a full-time tenured employee in such position.” During this twelve-month probationary period, the police officer may be terminated pursuant to G. L. c. 31, § 34 (1988 ed.), for reasons relating to his “conduct or capacity” or to “the character or quality” of his work performance.

During such a probationary period of employment, an employer has an interest, which the law recognizes and protects, in closely monitoring the behavior, performance, and capacity of an employee. The probationary employee has a correspondingly diminished expectation of and interest in what may not be required of him by the employer as necessary or appropriate to evaluate his conduct and capacity and the quality of his work. In the case of permanent employees it could be argued that random drug testing “is unnecessary because proper supervision of employees plus [at least] the reasonable suspicion test should ordinarily suffice to turn up those who ought to be tested. But for beginning employees there has been no prior opportunity for such ongoing scrutiny, and thus it is certainly arguable that testing as a matter of course is appropriate in such circumstances.” LaFave, Search and Seizure (2d ed.) § 10.3, 1990 supplement at 86.

The plaintiff in this case is a police officer on probationary status, the consent form which he signed (the substance of which is set forth below)1 is based upon a lawful rule of the *334police department prohibiting the use of prescription drugs, controlled substances, narcotics, or hallucinogens except as properly prescribed for medical needs, and the plaintiffs consent is expressly limited in duration to the period of probationary employment established by the civil service law. During this probationary period, the plaintiffs employer has a legitimate right to be informed about the health, capacity, and character of a prospective permanent employee, and to know, in particular, whether the employee is or will become dependent on drugs or other harmful substances, whether he is or will become impaired by the use of illegal substances, whether he can safely handle a firearm, whether he can perform adequately in emergency and stressful situations, whether he can abide by department regulations, and whether he is otherwise law-abiding. As a condition of probationary employment, an employee can lawfully agree to drug screening tests for a limited period of time as a condition of the proper evaluation of his ultimate entitlement to tenured employment. The issue in this case thus comes to rest at this point, and it is unnecessary to seek out, or urge, any broader analysis that suggests that art. 14 should be read to permit the search of many innocent people in the hope that a few offenders might be discovered.

, [I] n consideration of my appointment as a police officer in the Boston Police Department, [I] agree and consent to submit to certain tests including, but not limited to, laboratory examination and analysis of urine samples which I agree to submit to the Boston Police Department when re*334quested to do so for the purpose of determining whether I have unlawfully used any prescription drugs, controlled substances, narcotics or hallucinogens, so defined in Massachusetts General Laws, Chapter 94C.

“This agreement shall remain in full force and effect for the period of time during which I remain in a probationary status pursuant to Massachusetts General Laws Chapter 32, Sections 34 and 61.
“I acknowledge and understand that Boston Police Department Rule 102, Section 16 prohibits the use of any prescription drugs, controlled substances, narcotics, or hallucinogens except when prescribed by a registered physician or dentist and that I must immediately notify my superior officer or supervisor, in writing, before the next tour of duty of such prescription, when any prescription drug, controlled substance, narcotic or hallucinogen has been prescribed for my use.”