Hearsay Problems Doom Firefighter’s Drug Test

Edward Neal has served as a firefighter for 25 years with the City of Augusta, Georgia. Department employees are subject to random drug tests. When Neal was tested, a technician collected a urine specimen from Neal and sent the sample to an independent laboratory for testing.

The written lab report indicated a result of “positive” for marijuana, and the result was sent from the lab to a physician employed by the Augusta County Commission. The physician, known as a medical review officer, contacted Neal to ask him if he was taking any medication that might explain the positive test result; Neal was not taking any such medication. The medical review officer sent a report to a manager with the County’s risk management office stating that Neal’s test result was positive for marijuana. The manager notified the Fire Department of the result and recommended termination.

Contending, among other things, that he did not use marijuana and the test result was wrong, Neal requested an administrative hearing. At the hearing, the written lab report and testimony regarding the report were admitted into evidence, despite Neal’s objection based on hearsay and confrontation grounds. No one from the testing lab testified at the hearing. After the hearing, the recommendation to terminate Neal was upheld. Neal challenged the decision in the Georgia Court of Appeals.

The Court agreed with Neal, finding that “Neal was denied the right to confront anyone involved in conducting the test or concluding that marijuana was present in his body. It was not enough for Neal to confront the medical review officer who merely received the test results from the lab, reviewed the chain of custody form ‘to make sure that [the employee’s identification number and the number on the lab report] match up,’ and called Neal to ask if he was taking any medication that might explain the positive test result. Although the medical review officer stated that he ‘put together’ an ‘Employer Drug Testing Summary Report’ which indicated that the test was positive for marijuana, that testimony is of little value since the witness did not elaborate upon what the document consisted of or was based upon, and no such document is in the record.

“The medical review officer testified that he had never been to the testing lab, did not know what procedures were used at the lab, did not know the chemist whose typed name was on the lab report, had never conducted or seen conducted a lab test such as the one used here, and based his testimony on the report he received from the lab. And when asked how he knows that the test results obtained from the lab are accurate, the medical review officer replied that the laboratory is certified by the federal government. He could not ‘say whether that test was good or not,’ only that ‘the test that came back from the lab was positive.’

“Moreover, as Neal urges, the lab results were hearsay. Hearsay is without probative value to establish any fact. We have held that hearsay is not appropriate evidence even in an administrative proceeding. Other than the lab report, there is no factual basis for the medical review officer’s testimony that Neal tested positive for marijuana. It follows that the County erred in terminating Neal on the basis of the positive drug test results.”

Neal v. Augusta-Richmond County Personnel Bd., 2010 WL 1690328 (Ga. App. 2010).

This article appears in the June 2010 issue