Police Illegally Hid Secret Drug Policy

Police Commission Chair Anthony Dawson: It was a good start.

A longer version of this story was first published in the New Haven Independent.

Former pot smokers, ravers and drunk drivers are all welcome to join New Haven’s police force.

Former steroid-taking bodybuilders, acid trippers, cocaine sniffers, and recovering opioid users need not apply.

Those categories of disqualifying drug use are set out in a policy that the police department illegally discussed behind closed doors and then illegally withheld from the public for more than a year.

The police department released it to the Independent on Thursday afternoon following an order to do so by the Connecticut Freedom of Information Commission.

The rules themselves in the “Employment Drug Policy,” which took effect in January 2018, officially codify New Haven’s move away a “zero tolerance” approach to applicants’ past drug use, especially for marijuana.

Background investigators can now be much more lenient about candidates’ past toking, as the department tries to recruit more racially diverse classes of cadets. That change came out of a recommendation by the mayor’s community policing task force.

“In recent years this culture has grown more accepting of marijuana use –  in palliative care, for medicinal purposes, and increasingly, in a trend toward its decriminalization,” Mayor Toni N. Harp said in a statement. “I think new standards applied to potential police department recruits in New Haven could be seen as a reflection of marijuana’s new legal status in particular.”

Aside from bringing that one aspect up to date, the rest of the policy (all of which appears in this story in italics, and can be downloaded here) has gaps.

It doesn’t set specific rules for whole classes of commonly abused substances, uppers and downers.

It singles out a medication that’s rarely abused.

It equates drunkenly breaking the law with legally getting high.

And it may even violate state law by discriminating against medical-marijuana patients.

Board of Police Commissioners Chair Anthony Dawson called the policy a good first step. He said the board may need to revisit some of its specifics, including to clarify the policy for abuse of prescription drugs.

“At a later date, we may review some of the broader issues,” Dawson said, because raiding medicine cabinets wasn’t among “the issues we were faced with.”

“Some of this stuff is brand new,” Dawson added. “We went through it just to revise the policy. I know we didn’t dot our I’s and cross our T’s. But other departments are nowhere near as flexible as we are.”

Assistant Chief Racheal Cain, who drafted the policy, said the department revisits the policy each time there’s a new civil-service list to keep it up to date with “social expectations and new laws.”

(Click here to read more about inconsistencies within the policy.)

FOI Violation

Flagged recruits wait to plead their case to the Police Commission.

In violation of state law, the police commission and top cops kept the policy secret for more than a year.

Last month, upon reviewing an appeal submitted by the Independent, the Connecticut Freedom of Information Commission (FOIC) ruled that both the police department and police commission had broken the law at nearly every step of the policy’s development.

In a unanimous vote at their Jan. 23 meeting in Hartford, the commissioners approved a decision that said the police shouldn’t have kept the draft secret, the commission should have discussed it in public, and the police should have released a copy in response to a public-records request.

The commissioners didn’t buy the advice city attorney Michael Wolak gave the commission. It wasn’t the first time that Wolak, the senior assistant corporation counsel, has advanced novel legal interpretations in the quest to shield the police department from accountability; when he sought to get a police-misconduct lawsuit thrown out of courts because the press had covered the case, a federal judge reprimanded for not understanding the First Amendment.

To remedy these latest violations, the FOIC ordered the department to turn over both the draft and final versions of the drug policy.

Initially, on March 1, 2018, when the police commission first considered the drug policy, it kicked an Independent reporter out of the room. Wolak, the board’s lawyer, said they could not discuss a draft in public.

The FOIC said it’s true the document was in draft form, but that didn’t mean that it could be taken up behind closed doors. The Freedom of Information Act states that drafts can be withheld only if there’s a special reason.

The police didn’t establish that, the FOIC said. “The respondents failed to prove that they have determined the public interest in withholding the draft employment drug policy clearly outweighs the public interest in disclosure.”

Because the draft shouldn’t have been withheld at all, the police commission also shouldn’t have discussed it in private, the FOIC added. The police commission “conven[ed] in executive session for an impermissible purpose,” the FOIC ruled.

Even after it was approved, the police department continued to withhold the policy, saying that it was exempt as “testing material.”

The FOIC found that just because the policy might relate to a questions that could be asked about candidate’s past does not make it a test, especially when it’s obvious that candidates will be asked about their past drug use already.

Here’s what the FOIC wrote:

“The Commission is not persuaded that asking an applicant about his or her drug use is an ‘examination for employment,’ within the meaning of [the Freedom of Information Act].

“The Commission notes that the respondents’ argument is that knowing the acceptable drug use limits for applicants to the police department may cause those applicants to lie, not that applicants will not already know an acceptable answer.

“Unlike a situation where the applicant may be unaware of the questions that will be asked, such as in a polygraph examination, and where the applicant’s reaction to the questions is measures and observed, there can be little doubt that applicants are aware that they will be asked about previous drug use.

“The department may also have policies regarding the age of applicants, their height and weight, their arrest or conviction history, their residency, or their race, all of which the applicant may expect questions about.

“Applicants may expect these questions, and lie in their answers, but that does not make the questions part of an examination for employment.”

Despite worrying that making the document public would encourage dishonesty, Assistant Chief Cain this week said she still thinks there are “pros and cons” to having it out there. She said she hopes that it clarifies what wannabe cops need to do before they send in their application.

“Obviously we want people to apply. But it’s a long process that we don’t want people to have to go through and pay fees if they’re not qualified,” Cain said. “I’m hoping that by making it public, those individuals who may not qualify will know what they have to to meet the standards that the New Haven Police Department has set.”

(Click here to read the FOIC’s full decision.)

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