Anjeanette Damon

adamon@rgj.com

Reno firefighters can show up to work with up to a .08 percent blood alcohol level or more than twice the legal driving limit of a variety of illegal drugs in their system without facing discipline under a 12-year-old policy negotiated by the city and the fire union.

According to the policy obtained by the Reno Gazette-Journal, drug and alcohol use "shall not be permitted." But an alcohol test is not considered positive below .08 percent, which is also the limit for driving under the influence.

The allowable limit of marijuana is five times the legal limit for driving. The allowable limit of amphetamines and cocaine is twice the legal limit for driving.

The policy, which dates back to 2002, cannot be changed unless it goes through the collective bargaining process — during which the city and union must agree on any changes. Yet, despite the high threshold in the policy — which exceeds the policy limits for firefighters and law enforcement who work for Washoe County and Sparks — neither the fire chief, nor the president of Reno Firefighters Local 731 believe it is a high enough priority to change.

"The policy seems to work," union president Dennis Jacobsen said. "If you could show me eight or nine occurrences where you've proven the policy is inadequate, then absolutely we would sit down with the city. But I don't want to try and fix something that is so rarely used."

Fire Chief Michael Hernandez echoed that sentiment.

"What I'm sensing is you're trying to make an issue out of something that really isn't an issue," Hernandez said. "Granted it's a higher threshold, but does that mean firefighters are coming to work drunk? No."

The policy is rarely used, according to both the chief and the union president. Hernandez said he has had three firefighters tested under the policy and all three came back negative in the four years he's been chief. A firefighter can only be tested if two coworkers independently observe signs of intoxication.

But because of the policy and medical privacy laws, Hernandez doesn't know the exact results of the tests — whether they came back at .079 percent, .01 percent or zero, for example.

Jacobsen said he's aware of only one instance of a positive test. That firefighter received the proper rehabilitation and is now a "viable employee," he said.

How does Reno compare?

Reno is the only entity in Washoe County to have a collectively bargained drug and alcohol policy.

Every other employee in Reno — including police — fall under the city's general drug and alcohol policy. That policy does not set specific limits for what constitutes a positive test, but dictates a clear prohibition on drug and alcohol use.

"While on duty, whether on or off city property, employees are prohibited from using, being under the influence of, possessing, manufacturing, distributing, dispensing, ingesting and/or inhaling alcohol or illegal drugs," the policy reads.

Washoe County, to which the Truckee Meadows Fire Protection District subscribes, and the city of Sparks follow the requirements in the federal government's commercial driver's license policy. Any employee with a blood alcohol level between .02 percent and .04 percent won't be allowed to conduct safety sensitive operations.

In Sparks, employees are subject to disciplinary action for anything over a .04 limit. In Washoe County, a .02 percent level can subject an employee to disciplinary action.

The difference in Reno is that the city chose to negotiate its policy with the firefighters union.

While impairment puts both firefighters and the public at risk, Reno's policy is not exactly unusual. According to an investigation by NBC Chicago last year, several communities in Illinois have policies allowing for a .08 percent blood alcohol level or higher.

In Massachusetts, the Legislature became involved in the issue after two firefighters died in a restaurant fire in 2007. One had cocaine in his system. The other had a .27 percent blood alcohol level.

Firefighters in Boston now are subject to random drug and alcohol testing, a provision that the union conceded to in exchange for a hefty salary increase.

Where did the policy come from?

While Hernandez and Jacobsen say the policy works, they both disavow responsibility for it, arguing it was negotiated long before they were named to their leadership positions.

"I didn't write the policy," Hernandez said. "It's one that I inherited and the one I have to work under."

So how did it come to be?

The catalyst was a firefighter who was caught smoking marijuana at fire station nearly two decades ago, said former Fire Chief Chuc Lowden. But the city had no policy in place, which made it difficult to discipline and ultimately terminate that firefighter.

"We fought some wars taking disciplinary actions against individuals who had problems with alcohol or drugs," Lowden said. "And any time you get into a legal discussion with an attorney or an arbitrator, they ask why you don't have something in writing."

But putting something in writing was not that simple. At the time, the city had a contentious relationship with the fire union. It took years to develop the policy now on the books.

"They were a bunch of great people, but they were very, very protective of the membership and very, very suspicious of anything that looked like it would take away or infringe upon the benefits they currently enjoyed," Lowden said.

Lowden said he would've preferred a policy with a .02 percent or .04 percent blood alcohol level. But the city decided to simply get a policy in place rather than continue fighting for a lower limit. Lowden signed the policy.

"We decided first to get a policy in place, even a soft policy and then make it tougher as we went along," Lowden said. "Some policy was better than none."

Jacobsen said neither the union nor the department tolerates drug or alcohol impairment by anyone on duty.

"No, we don't want people with a .079," Jacobsen said. "That would not be tolerated in the slightest."

Jacobsen said he's not an expert on what levels should be in the policy.

"I would contend those numbers were absolutely appropriate for the date and era it was signed," he said.

At the time, Nevada's legal alcohol limit was .10 percent. That was changed to .08 in 2003.

Meanwhile, no national standard appears to exist.

The National Fire Protection Association, which crafts voluntary safety standards, does not address the question of an acceptable limit. The association has recommendations for how to screen job applicants and how doctors should react if they become aware a firefighter has a substance abuse problem.

Ken Willette, division manager for the association's public fire protection division, said it's not uncommon for cities to have to balance public safety with a union's legal right to negotiate a policy that protects the employee.

"I would not think any firefighter would want to be working with somebody that's impaired, regardless of the reason for impairment," said Willette, a former fire chief from Massachusetts. "Firefighters depend on one another to such an extent that if the guy next to you in a burning building is impaired it would expose you to a higher degree of risk."

What's next?

So what would need to happen to change the policy in Reno?

At present, the city is in a legal battle with the fire union over the City Council's decision to lay off 32 firefighters — nearly a third of the force. The two sides also are in the midst of a labor contract negotiation, which has been described as contentious at best.

Tensions are extremely high between the two sides.

As part of the contract negotiations, the city attempted to bring up the drug and alcohol policy for bargaining, according to a city document dated May 20.

"IAFF refuses to discuss Drug & Alcohol Policy in these negotiations," the document reads.

Jacobsen said the policy is not a part of the labor contract and he refuses to include it in contract negotiations. Nor does he think it's a priority to be addressed at the moment.

"With the layoffs, the negotiations, reconsolidation being brought up in the next Legislature, now is not the time to modify a policy that took six years to create and still doesn't have a failure," Jacobsen said. "It seems to be over burdensome."

Hernandez also objected to the idea it be renegotiated now.

"You have to prioritize what you negotiate in a contract and right now, in terms of things that are important, that is pretty low on the threshold," Hernandez said.

The city's priorities include ending retirement health benefits for new employees and splitting the cost of future retirement contribution increases.

But Reno City Manager Andrew Clinger, who was unaware of the high threshold for drug and alcohol use at the fire department until a reporter brought it up, said the current policy is unacceptable.

"We have employees who are of high moral character and I don't think we have people out there somehow abusing the system," Clinger said. "But these are our first responders. These are our public safety employees. Why should there be any level (of alcohol or drugs) that is OK?"

Clinger said the inability for the city to put in place a more reasonable policy highlights a problem with the state's collective bargaining law, Chapter 288.

"This epitomizes the challenges we have under 288," he said. "That we have to compromise on a drug level just to get a policy in place is crazy to me."

City of Reno limits for a positive drug or alcohol test for firefighters:

Alcohol: .08 percent

Marijuana: 50 ng/ml

Cocaine: 300 ng/ml

Opiate: 2000 ng/ml

Phencyclidine: 25 ng/ml

Amphetamines: 1,000 ng/ml

State of Nevada limits for driving under the influence:

Alcohol: .08 percent

Marijuana: 10 ng/ml

Cocaine: 150 ng/ml

Opiate: 2000 ng/ml

Amphetamines: 500 ng/ml

Source: City of Reno, state of Nevada