March 22, 1997

Michael Janofsky

LOS ANGELES, Feb. 24 -- When the letter from the Orange County government arrived last week, Rod Dunaway knew what it said even before opening the envelope.

A heavy equipment operator from Mission Viejo who smokes marijuana to relieve pain from glaucoma, Mr. Dunaway, 38, had recently taken a random drug test under a Federal law that requires random testing of many transportation workers. He tested positive for marijuana, and is now being dismissed by the county.

But this was no routine dismissal. After voters in a controversial statewide referendum last year approved the use of marijuana for medical purposes when recommended by a doctor, Mr. Dunaway became the first person in California claiming to use marijuana for pain relief to lose his job as a result.

On Monday, he filed for an arbitration hearing through his union, a local of the Service Employees International. The county has two weeks to respond, but anticipating that his dismissal will not be reversed, Mr. Dunaway said that he had already taken steps to sue the county in state court for discrimination.

"It seems like they wanted to ignore 215," Mr. Dunaway said in an interview referring to the proposition known as the Medical Marijuana Initiative, which was approved with 56% of the vote last November. "But maybe this will force the Federal Government and the state to sit down and put in guidelines that make sense."

With evidence that marijuana has been helpful in controlling nausea in cancer patients on chemotherapy, reducing weight loss in people who have AIDS and easing pressure on the eyes of people with glaucoma, California and Arizona last year became the latest states to decide by referendum to legalize marijuana use in some medical circumstances. Other states, including Florida, Idaho, Ohio and Washington have done the same through legislation.

But Mr. Dunaway's case represents a possible clash between state initiatives benefitting people who have exhausted other means of seeking pain relief and Federal regulations intended to protect public safety. Also, it comes as the Clinton Administration, led by Gen. Barry R. McCaffrey, the President's chief adviser on drug policy, is fighting efforts to make access to illegal drugs easier.

While Californians now have the right to use marijuana for medical purposes on a doctor's recommendation, and a bill in the State Senate seeks $6 million to study the drug as a viable medical therapy, buying and selling marijuana remains illegal in all states under Federal law.

In addition, the Internal Revenue Service recently ruled that the cost of marijuana could not be deducted as a medical expense.

For the last decade, Mr. Dunaway received as much as $32,000 a year driving a 10 wheel dump truck, bulldozers, front-end loaders and other heavy equipment. A husband and father of two daughters, ages 13 and 4, he described himself as "a very conservative individual who believes strongly in family values."

He said he began using marijuana to ease pain from glaucoma in 1980, at the suggestion of a friend who had tried it for the same reason and found success. Until then, Mr. Dunaway had taken conventional medications prescribed by his doctor. None brought him relief, he said, and some made him feel worse, with side effects like increased heart rate, headaches and blurred vision.

The marijuana, he said, provided almost instant relief. He told his doctor about it and for the next fifteen years, just before going to bed, Mr. Dunaway said he lighted a small pipe with marijuana and inhaled three or four times. The pain relief around his eyes, he said, lasted all the next day and never left him feeling the effects that recreational users typically seek, like euphoria or giddiness.

"I always did my job effectively," Mr. Dunaway said. "And I never smoked at any other time of the day."

In early 1995, Mr. Dunaway said, the county began randomly testing employees whose jobs could affect public safety. A screen of his urine produced a positive result for marijuana, and he was suspended for thirty days and put on a one-year probation. He was told that if he tested positive again, he would lose his job, and as a further condition of his probation, he agreed to be tested once every two months.

For more than a year, Mr. Dunaway said he avoided using marijuana and tried fighting his pain with conventional drugs, only to suffer side effects again. By last October, a month before the proposition passed and with his doctor's recommendation, he said he returned to using marijuana.

When Proposition 215 was passed, he assumed he was on safe footing. But the measure tacitly acknowledges Federal transportation safety laws by saying that the vote does not "supersede legislation prohibiting persons from engaging in conduct that endangers others."

After Mr. Dunaway tested positive a second time, the county began taking steps to discharge him, which culminated in last week's dismissal.

"You can't be impaired in any way, driving something like that," said John W. Sibley, the director of the department, referring to the size of a dump truck that Mr. Dunaway drove, often along Federal and state highways.

Mr. Sibley, who described Mr. Dunaway as an otherwise competent employee, said that if Mr. Dunaway had notified his superiors that he was using marijuana for medical reasons, the county would have assigned him to a job that did not involve public safety.

But Mr. Dunaway said he chose not to inform the county because his use of marijuana for medical purposes was "none of their business."

Bill Zimmerman, who led the state campaign for Proposition 215, said the resolution of Mr. Dunaway's case would probably depend on his ability to show that his marijuana use had no bearing on his job. "He said he only smoked at the end of the day," Mr. Zimmerman said. "Marijuana can stay in your system for 30 days, but its psychologically active effects only last a couple of hours."