Police Recruits Get Some Bad News: Smokers Need Not Apply

Three South Bay police departments have a new rule: Smokers need not apply.

New recruits at El Segundo, Hermosa Beach and Manhattan Beach police departments not only have to pledge not to smoke on the job, they must also sign affidavits saying they will not smoke off duty.

Officials say the new policies follow a trend by state and municipal governments across the country to cut workers compensation costs and create a healthier work force. The bans typically were first instituted for firefighters and are now expanding to include police officers. In the South Bay, such policies already are in effect at the fire departments in El Segundo, Redondo Beach, Hermosa Beach and Manhattan Beach. The Los Angeles Fire Department has had the no-smoking rule for new hires since July; the Los Angeles Police Department has none.

The Manhattan Beach policy was written into the police labor contract approved this month by the City Council. Similar provisions are in the labor contracts agreed to four months ago by the police departments in Hermosa Beach and El Segundo.

Police officers hired under the contracts may not smoke at any time. Those who do can be fired, said Ralph Luciani, chief contract negotiator for Manhattan Beach. None of the cities will use medical testing to enforce the rule.

Though he supports the ban, Sgt. Jack Zea, president of the Manhattan Beach Police Officers Assn., is concerned that enforcement might eventually violate officers’ right to privacy. He described a “worst-case scenario” where city officials could conduct unannounced spot checks on officers’ homes. “I don’t think that’s their intent, but it’s potentially possible,” he said.

Luciani said an officer caught smoking one cigarette most likely would face suspension. “A termination would (happen to) someone who had re-established themselves as a regular user,” he said.

Manhattan Beach officers hired before the policy went into effect Sept. 3 will be allowed to smoke, but only in certain patrol cars and not in the station.

The policies have their roots in a state law that declares heart disease a work-related injury when it strikes police officers and firefighters. Cancer is also considered work-related for firefighters. Officials say banning smoking will help keep workers compensation costs down.

Manhattan Beach has set aside almost $400,000 in the last 10 years in workers compensation awards for eight police officers and firefighters for heart and cancer problems, said Risk Manager Larry Peterson. He said the city’s workers compensation totals for heart and cancer problems may actually be higher because cases that are closed are not included in that figure.

Manhattan Beach officials say they cannot speculate on how much money the no-smoking policy could save. The Police Department hires about two employees a year.

None of the cities have hired any officers since enacting the policy, nor received any official complaints about the rule.

Officers interviewed in the three departments offer varying views, from nonsmokers who say they have not given the new policy much thought, to smokers who endorse the rule and admit the habit is no longer in vogue.

“Personally I think it’s great,” said El Segundo Police Lt. Ron Green. “I’m an ex-smoker. I don’t like the secondhand smoke, and I don’t like it on my clothes.”

El Segundo Police Detective John Ogden, a smoker for several years who plans to quit, was less enthusiastic. “I realize the job does require extreme physical exertion, but at the same time, it seems to go too far, infringing on people’s rights” to privacy, he said.

Hermosa Beach Police Officer Ron Fox, who has smoked for the 17 years he has been with the department, said the new rule is an invasion of privacy, but is a good idea. “I may be a smoker, but that doesn’t mean I’m proud of it,” he said.

In Manhattan Beach, Sgt. Mike Milligan said he has heard few complaints about the new requirement. “In general, people should be able to do what they want (at home). But it’s a condition of work and if you can’t live with that . . . you have to get work elsewhere.”

That the policy gets mixed reviews from police officers in the three cities has not deterred other departments from considering it.

In Redondo Beach, city Personnel Director Ray Griest said he plans to bring up a no-smoking policy during police contract negotiations in April. Police Chief Roger Moulton said that his officers had “tossed the idea around informally” and would find it acceptable.

Griest and Moulton said they wonder whether a ban might discourage some applicants.

However, Fred Wiener, personnel director for El Segundo, said in his experience those who apply to become police officers are generally healthy and do not smoke.

“Smoking cuts down on lung capacity and the ability to exert yourself. . . . It can limit job performance,” he said. “And people are all too aware of the risk of getting cancer.” Wiener said a survey two years ago found that the majority of city employees wanted a smoke-free working environment.

Hermosa Beach Personnel Director Robert Blackwood agreed. “You find new recruits are, in general, healthy and not into smoking,” he said.

Blackwood said he dreads the day the department has to fire an officer for smoking. “That’s a battle I don’t look forward to.”

Some South Bay city officials say a legal battle is not likely because courts have never recognized a legal right to smoke.

And last year, a U.S. Circuit Court affirmed the Oklahoma City Fire Department’s smoking ban when it rejected claims by a firefighter trainee that his right to privacy had been violated when he was fired for smoking off the job.

But in Massachusetts, a union representing officers in the Boston Police Department announced three weeks ago it would challenge a new state law that prohibits new police officers and firefighters from smoking on or off the job. Massachusetts this year became the first state in the nation to impose such a ban.

Frank McGee, attorney for the Boston Police Patrolmen’s Assn., said the smoking ban is an attempt by the state to regulate the personal lives of off-duty police officers.

He dismissed the health and workers compensation concerns. “Well, if that’s the case, eggs are just as dangerous as smoking. Are they going to ban them because of high cholesterol? Where does all this end?”

John Fox, who specializes in labor law at San Francisco-based Pillsbury Madison and Sutro, said he expects to see many more challenges to the bans.

“We are just now seeing the beginning of the smokers rights cases,” he said. “The case law has so far been nonsmokers rights cases.”

Fox said bans on employee smoking on and off the job are especially vulnerable when policy differentiates between new hires and current officers. Not having the policy for workers already on the job undermines the legitimacy of the rule, he said. He also said that since smoking is more common among some minorities and younger women, the rules could be challenged as discriminatory.

Throughout the nation, the policies are most commonly included in labor agreements, Fox said. The bans began several years ago with fire departments and have spread to police departments. Nationwide there are about 50 to 60 agencies that have such policies, he said.

In Boston, McGee has successfully challenged random urine testing as a method of enforcing the ban. The U.S. District Court there ruled that the testing violates the Fourth Amendment to the Constitution, which bans unreasonable searches, but the city appealed and a hearing is set for January.

Officials in Los Angeles agree that off-duty enforcement of the ban will not be easy, and do not plan to test for tobacco use.

“I guess it would probably be on the honor system,” said Wiener of El Segundo.

In Manhattan Beach, where officials originally wanted to enforce the ban by testing for drugs, contract negotiator Luciani said: “We backed off because the courts have indicated that’s an invasion of privacy.”