It Depends on How You Define "Use"
By Ralph Smith
Friday, September 17, 2004
How many times have you used drugs in your lifetime?
In applying for a federal job, your answer could be important. So, if you ask the agency something to the effect of "How do you define ‘use of drugs?' ", the agency is probably going to pay close attention to your answer—especially when applying for a job in a law enforcement agency.
In retrospect, Jeffery Hathaway's problems with the government's job application process started in 1996. He applied for a job with the FBI and was given a polygraph. Both the polygraph examination and the written application asked about illegal drug use. Unsure what the agency meant by "use," he asked for clarification. He was told to consider "any and all" instances that he was around illegal drugs as "use."
Hathaway said his marijuana use was within the FBI's standards by initialing the statement on the written application, "Applicant cannot have used cannabis more than fifteen (15) times in his life." He passed the polygraph examination.
He didn't get the FBI though. Undaunted, he also applied for a job with the Immigration and Naturalization Service. This agency also asked about drug use.
On this application, he wrote that between June and December 1991 he used marijuana "no more than 10 times." The INS hired Mr. Hathaway as an immigration inspector.
He also continued to apply to other agencies, including the Drug Enforcement Administration (DEA). On this application, he wrote he used marijuana five times. He also passed the illegal drug use question on the DEA's polygraph test. As part of the application process, he was also asked about other instances where he had been the subject of a federal background investigation. He listed his application to other law enforcement agencies but did not mention his unsuccessful FBI application. The DEA hired Hathaway.
According to the court, within days of his arrival at the DEA Academy, an altercation at a bar in Georgetown involving one of his classmates changed the path of his DEA career. Although cleared of any wrongdoing in the incident, Hathaway was reassigned to DEA's Boston office.
He subsequently received a proposal to fire him based on three charges: (1) conduct prejudicial to DEA; (2) omission of material information from official documents; and (3) false statements.
The MSPB upheld the removal. The case was appealed to the Federal Circuit Court of Appeals.
The court considered the agency's argument regarding Hathaway's different statements about drug use. On different applications, he indicated he had used marijuana "no more than 15 times," "no more than 10 times" and "5 times." The court found these statements were consistent as the only specific answer was "5 times" and that 5 is "no more than 15" and also "no more than 10."
The only charge upheld by the court was Hathaway's omission of having not told DEA he had been the subject of a background investigation when he applied for a job with the FBI.
Since most of the charges were not upheld, the court sent the case back to the Merit Systems Protection Board to reconsider the penalty to be imposed.
Hathaway v. Dept of Justice, Case No. 03-3288, September 16, 2004.
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