King v. Gorczyk

1. SKOGLUND, J. Plaintiff Mark W. King, an inmate of the North
West Correctional Facility ("NWCF") in Swanton, appeals from the superior
court's denial of his cross-motion for summary judgment and grant of
summary judgment in favor of defendant, commissioner of the Vermont
Department of Corrections ("DOC"), dismissing plaintiff's claims contesting
the propriety of the random drug test he underwent, the analysis and
results of that drug test, and plaintiff's subsequent conviction for a
disciplinary rule violation based on that drug test. We affirm.

2. Plaintiff is currently committed to the custody and control
of the DOC based on a charge of second-degree murder. On the morning of
July 11, 2000, plaintiff was selected for a random drug test and submitted
a urine sample to a NWCF correctional officer for testing. An initial
on-site test of plaintiff's sample indicated the presence of
delta-9-tetrahydrocannabinol, the main active chemical in marijuana,
otherwise known as THC. Plaintiff's urine sample was then sealed and sent
to the Vermont Department of Health Laboratory (the "Lab"). The Lab
received plaintiff's sample on July 12, 2000.

3. Random drug testing is governed by DOC policy 367 and described
in guidelines set forth in policy directive 367.01. In accordance with
policy directive 367.01, the Lab conducted two tests on plaintiff's urine
sample, a screening test followed by a confirming test, both utilizing
"technologies having a 90% . . . reliability rating or any testing process
approved by the federal courts for criminal prosecution." On July 18,
2000, the Lab performed the screening test, which confirmed the presence of
THC in plaintiff's urine sample. Two days later, the Lab performed the
confirmation test, which again demonstrated that plaintiff's urine sample
contained THC. The Lab reported these positive test results to the DOC on
July 20, 2000.

4. As a result of testing positive for THC, on August 2, 2000,
plaintiff was charged with violating DOC disciplinary rule Major B#20
("DR"). (FN2) At a disciplinary hearing held on August 8, 2000, plaintiff
was convicted of violating the DR by a preponderance of the evidence. The
hearing officer based plaintiff's conviction on the incident report,
offender drug testing report, chain of custody log, and the request for
drug analysis form. As punishment, plaintiff received "2 days lock in,"
which was suspended for thirty days. Plaintiff was allowed to maintain his
current employment, as well as visits with his children. Plaintiff
appealed his DR conviction to the disciplinary board on August 20, 2000.
His appeal was denied by the disciplinary board on September 4.

5. Pursuant to V.R.C.P. 75 (review of governmental action),
plaintiff filed a complaint in superior court in September, 2000, alleging
that his due process rights were violated by the DOC's failure to follow
policy directive 367.01 because the department failed to provide plaintiff
with the actual laboratory reports of his drug test and failed to address
plaintiff's claims on appeal with specificity at the disciplinary board
level. Plaintiff also claimed that, because the actual laboratory reports
of the screening and confirmation tests were not part of the evidence
relied on by the hearing officer, there was insufficient evidence to
convict him of the DR. Plaintiff later filed a motion to amend his
complaint, arguing that because the DOC failed to properly promulgate
policy directive 367.01 pursuant to the Vermont Administrative Procedures
Act ("VAPA"), 3 V.S.A. §§ 801-849, the seizure and testing of plaintiff's
urine were unlawful, and the punishment imposed for his conviction was a
violation of due process.

6. The DOC then moved for summary judgment and plaintiff filed a
cross-motion for summary judgment. Following a January 17, 2002 hearing on
both motions, the superior court granted the DOC's motion for summary
judgment and denied plaintiff's cross-motion. The court found sufficient
evidence in the record to support plaintiff's DR conviction and found that
the hearing officer's reliance "on the relevant Incident Report, Offender
Drug Testing Report, the Chain of Custody Log, and the Request for Drug
Analysis" was proper. The court also determined that the DOC had the
authority to conduct random drug tests and searches; that the drug test was
not unreasonable under the Fourteenth Amendment to the United States
Constitution, and was valid under Chapter I, Article 11 of the Vermont
Constitution; that the DOC provided specific documentation detailing the
chain of custody of the urine sample; and that plaintiff failed to provide
any evidence in support of his due process allegations. Plaintiff's appeal
to this Court followed.

7. Our review of summary judgment is de novo. This Court applies
the same standard as the trial court. Cooper v. Cooper, 173 Vt. 1, 6, 783
A.2d 430, 435 (2001). We will affirm summary judgment when the record
clearly indicates there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law. Rennie v. State,
171 Vt. 584, 584-85, 762 A.2d 1272, 1274 (2000) (mem.); V.R.C.P. 56(c). In
applying this standard, we regard as true all allegations of the nonmoving
party supported by admissible evidence and give the nonmoving party the
benefit of all reasonable doubts and inferences. Politi v. Tyler, 170 Vt.
428, 431, 751 A.2d 788, 790 (2000). Additionally, when reviewing
administrative action by the DOC under V.R.C.P. 75, we will not interfere
with the DOC's determinations absent a showing that the DOC clearly and
arbitrarily abused its authority. Vt. State Employees' Ass'n, Inc. v. Vt.
Criminal Justice Training Council, 167 Vt. 191, 195, 704 A.2d 769, 772
(1997). Finally, when reviewing a decision from an inmate disciplinary
hearing, we need find only that there was "some evidence" in order to
uphold a conviction. LaFaso v. Patrissi, 161 Vt. 46, 49, 633 A.2d 695, 697
(1993). The "some evidence" standard requires us to determine whether
there is any evidence in the record that could support the conclusion
reached by the disciplinary board. Herring v. Gorczyk, 173 Vt. 240, 243,
789 A.2d 955, 958 (2001).

8. Plaintiff asserts three arguments on appeal, two of which
challenge the procedure used by the DOC in convicting plaintiff of the DR
violation based on his random drug test. First, plaintiff argues that the
DOC's failure to provide plaintiff with the actual laboratory reports from
his drug test at the disciplinary hearing deprived him of a due process
right to present evidence in his favor. Plaintiff, who, at his DR hearing,
was given a report stating that he tested positive for THC, claims that the
actual laboratory reports would have provided him with exculpatory evidence
because the "identification numbers of the tested samples were not the same
as those ascribed to [plaintiff's] urine sample." We are unpersuaded.

9. The actual laboratory reports from plaintiff's drug test were
provided to plaintiff in the superior court case. Our review of the
laboratory reports indicates that the identification number discrepancy to
which plaintiff refers was an insignificant, non-confusing typographical
error that would not seriously call into question the identify of the urine
tested. (FN3) The identity of a specimen used in drug testing need not be
proved beyond all possibility of doubt to be admissible. State v. Ross,
130 Vt. 235, 240, 290 A.2d 38, 41 (1972). The circumstances need establish
only reasonable assurance of the identity of the sample tested. Id. The
DOC maintained an adequate chain of custody log, and as the superior court
concluded, there is no other record evidence indicating a break in the
chain of custody. The record evidence provides reasonable assurances that
the urine sample which tested positive for THC was the same sample
plaintiff provided to a NWCF correctional officer. Therefore, plaintiff
did not demonstrate that the DOC's failure to provide him with the actual
laboratory reports of his drug test at or before plaintiff's disciplinary
hearing resulted in prejudice. See State v. Mott, 166 Vt. 188, 193, 692
A.2d 360, 364 (1997) (due process claims are resolved on facts before the
Court and individual asserting denial of due process must show prejudice
from asserted denial). As noted by the court below:

Where, as here, provision of the specific laboratory tests, with

their positive quantitative results, would further establish the

existence of THC in the Plaintiff's system, the Plaintiff cannot

show prejudice in the failure to provide them, nor can the Court

reach any other conclusion but that the DOC's basis for a

conviction would be anything but strengthened.

Accordingly, plaintiff's alleged denial of due process from the failure to
receive the actual laboratory reports of his drug test prior to his
disciplinary hearing fails.

10. Plaintiff also argues that the DOC must establish a threshold
level for toxins or other indicators found in an inmate's urine to
constitute "use" of illegal drugs, as opposed to second-hand smoke
exposure, in order to convict an inmate of a DR violation based on a random
drug test. Plaintiff contends that this threshold level is necessary to
avoid false positives and the imposition of arbitrary disciplinary
sanctions. Again, plaintiff is incorrect.

11. The DOC, in an effort to implement its zero tolerance policy
against illegal drug use in Vermont's prisons, has established a drug
testing protocol for inmates that requires testing procedures that have at
least a "90% . . . reliability rating or any testing process approved by
the federal courts for criminal prosecution." Setting appropriate testing
standards and procedures is within the expertise of the DOC, and we show
great deference to agency administrators in these matters. See Herring,
173 Vt. at 248, 789 A.2d at 962; see also Bell v. Wolfish, 441 U.S. 520,
548 (1979) (prison administrators have a better grasp of their domain than
a reviewing judge; operation of correctional facilities is the province of
legislative and executive branches of government). In this case,
plaintiff's urine sample was tested on two separate occasions with
appropriate testing technology, each time testing positive for the presence
of THC in violation of the DOC's zero tolerance policy. The record does
not create substantial doubt that plaintiff committed the DR violation for
which he was convicted. Thus, plaintiff's second argument fails.

12. Plaintiff's final argument on appeal is that the DOC did not
have the authority to subject him to a random drug test because that drug
test occurred under the purview of DOC policy directive 367.01, which
plaintiff alleges was not properly promulgated pursuant to Vermont's
Administrative Procedure Act. See 3 V.S.A. §§ 831-843 (establishing
procedures agency must follow in issuing rules, including publication,
notice and comment, hearings and legislative review). According to
plaintiff, the DOC's reliance on policy directive 367.01 renders his drug
test, and consequently, his DR conviction based on that drug test,
unlawful. (FN4)

13. To support his final claim, plaintiff relies on this Court's
decision in Parker v. Gorczyk, __Vt.__, 787 A.2d 494 (2001) (mem.). Parker
involved a challenge by a class of prisoners to an amendment of the DOC's
furlough policy making inmates convicted of violent felonies ineligible for
furlough until the expiration of their minimum sentences. Id. at __, 787
A.2d at 495-96. The prisoners claimed that the amendment was invalid
because it was not adopted pursuant to VAPA. Id. We determined that the
Legislature did not exempt the DOC from compliance with the rulemaking
procedures of VAPA and that "if the Commissioner adopts rules he must do so
by following the statutory rulemaking procedures [of VAPA]." Id. at __,
787 A.2d at 497. The operative question then became whether the amendment
to the DOC's furlough policy constituted a "rule." We held that the
amendment met the VAPA definition of a "rule" because it implemented a
written change in agency policy and was generally applicable to all
prisoners convicted of violent felonies. Id. at __, 787 A.2d at 497-98.
The amendment to the DOC's furlough policy was, therefore, invalid for
noncompliance with VAPA. Id.

14. Plaintiff asserts that policy directive 367.01 is a rule
requiring adoption in accordance with the requirements of VAPA. In policy
directive 367.01, the DOC has, pursuant to its statutory authority in Title
28 of the Vermont Statutes, implemented procedures for, inter alia, the
random drug testing of ten percent of the inmate population in state
correctional facilities each week. The superior court did not specifically
address plaintiff's assertion that policy directive 367.01 is a rule
requiring adoption, but instead found that the drug test occurred pursuant
to "valid, clear and objective guidelines," and that "the DOC's random
seizure and subsequent search of the Plaintiff's urine was lawful under
both Federal and Vermont constitutional standards even if 367.01 was not
duly adopted." We agree with the trial court's result, but given our
decision in Parker, find it necessary to determine whether the portions of
policy directive 367.01 governing the process for conducting random inmate
drug testing in state correctional facilities qualify as a "rule" requiring
promulgation pursuant to VAPA.

15. In cases challenging the validity of an administrative
agency's policy based on a failure to promulgate that policy pursuant to
VAPA, a court must determine whether the challenged policy is a "rule"
subject to the rulemaking procedures of VAPA or whether that policy is
exempt from those procedures. See Parker, __ Vt. at __, 787 A.2d at 497.
In Parker, we rejected the DOC's argument that the contested furlough
policy constituted a "practice" exempt from the rulemaking provisions of
VAPA. Id. at __, 787 A.2d at 498. We noted that, while the furlough
policy may have also been a practice, some policies constituting an agency
practice may also qualify as a rule requiring promulgation pursuant to
VAPA. Id.

16. VAPA includes distinct provisions defining both a rule and a
practice. A "practice" is defined as "a substantive or procedural
requirement of an agency, affecting one or more persons who are not
employees of the agency, which is used by the agency in the discharge of
its powers and duties. The term includes all such requirements, regardless
of whether they are stated in writing." 3 V.S.A. § 801(b)(7). A "rule,"
on the other hand, refers to:

each agency statement of general applicability which implements,

interprets, or prescribes law or policy; or a practice which has

been adopted in the manner provided by sections 836-846 of this

title, either as the result of a requirement of law or as the

result of a request under section 831(c) of this title.

Id. § 801(b)(9) (emphasis added). "[W]here due process or a statute
directs an agency to adopt rules," those rules must be adopted according to
VAPA's rulemaking procedures set forth in §§ 836-844. Id. § 831(a). A
practice, however, is exempt from those rulemaking procedures unless an
interested person requests an agency to "adopt a procedure describing an
existing practice." Id. § 831(b). An agency is also required to "initiate
rulemaking to adopt as a rule an existing practice or procedure when so
requested by 25 or more persons or by the legislative committee on
administrative rules." Id. § 831(c). However, the DOC is exempt from the
rulemaking requirements of § 831(c) when existing practices concern "only
inmates of a correctional or detention facility . . . ." Id. § 832(b)(4).

17. The Legislature, through the statutory language and structure
of VAPA, distinguishes between a rule and a practice, and exempts some
agency practices from rulemaking. See In re Picket Fence Preview, __ Vt.
__, __, 795 A.2d 1242, 1244 (2002) (to determine legislative intent, Court
first looks to the language of the statute itself ); see also In re S.
Burlington-Shelburne Highway Project, 13 Vt. L. W. 374, 375, 376 (2002)
(mem.) (Court presumes the Legislature intended the plain, ordinary meaning
of the adopted statutory language and that this language was inserted
advisedly without the intent to create surplusage). In our view, the
aspects of policy directive 367.01 governing the process for conducting
random inmate drug testing in state correctional facilities qualify as a
practice exempt from the rulemaking procedures of VAPA. In policy
directive 367.01, the DOC has established a written "procedural requirement
. . . used by the agency in the discharge of its powers and duties." 3
V.S.A. § 801(b)(7).

18. The Legislature has conferred upon the DOC statutory
authority to "establish, maintain and administer such state correctional
facilities and programs as may be required for the custody, control,
correctional treatment and rehabilitation of committed persons, and for the
safekeeping of such other persons as may be committed to the department in
accordance with the law." 28 V.S.A. § 101(1). The DOC commissioner is
charged with the responsibility of "prescrib[ing] rules and regulations for
the maintenance of discipline and control at each correctional facility,"
id. § 102(c)(5), and "maintain[ing] security, safety and order at the
correctional facilities." Id. § 102(c)(6). Guarding against drugs and
other contraband, thwarting escape, and maintaining a sanitary and heathy
prison environment for both prisoners and correctional officers
necessitates the use of random prisoner searches. State v. Berard, 154 Vt.
306, 312, 576 A.2d 118, 121-22 (1990) (adopting conclusions of majority in
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984), that the volatile prison
environment justifies random searches of prisoners' cells); see also Bell,
441 U.S. at 558 (holding that strip and body cavity searches of prisoners
did not violate the Fourth Amendment because of unique prison setting).
Random drug tests, "because of the uncertainty they involve, are one of the
most effective weapons against the increasing presence of drugs . . . in
our prisons." Berard, 154 Vt. at 317, 576 A.2d at 124. Without an
effective procedure for detecting contraband, the DOC could not fulfill its
"primary objective [of] the disciplined preparation of offenders for their
responsible roles in the open community." 28 V.S.A. § 1(b); see also id. §
101(1) (outlining department's powers and duties); Berard, 154 Vt. at 313,
576 A.2d at 122.

19. Given this statutory mandate, the DOC has the authority to
administer constitutionally permissible random drug tests to its inmates.
See Daye v. State, 171 Vt. 475, 478, 769 A.2d 630, 633 (2000)
(administrative agency has "only such powers as are expressly conferred
upon it by the Legislature, together with such incidental powers expressly
granted or necessarily implied as are necessary to the full exercise of
those granted" (quoting Trybulski v. Bellows Falls Hydro-Elec. Corp., 112
Vt. 1, 7, 20 A.2d 117, 120 (1941))). Prisoners in the care and custody of
the DOC have an "expectation of privacy [that is] considerably diminished
at best," Berard, 154 Vt. at 311, 576 A.2d at 121, and can and should
expect to be subjected to constitutionally permissible procedures for the
detection of contraband. See Spence v. Farrier, 807 F.2d 753, 755 (8th
Cir. 1986) (prisoner's diminished privacy interest justified random,
warrantless urinalysis testing). The DOC does not, however, have the
unfettered right to invade even the diminished privacy interests of inmates
committed to the state's correctional facilities. Berard, 154 Vt. at 317,
576 A.2d at 124. Procedural guidelines are necessary to protect the
constitutional rights of inmates when the DOC acts upon its statutory
authority to maintain safety, security, and discipline; that is, when the
agency is discharging its powers and duties.

20. However, the need for procedural guidelines does not equate
to a need for rulemaking. Recently, this Court held that an agency is not
required to adopt rules or regulations to carry out what its authorizing
statute specifically directs it to do. State v. Wuerslin, __ Vt. __, __,
816 A.2d 445, 446-47 (2002) (mem.) (promulgation of rules pursuant to VAPA
not required by Department of Liquor Control where agency expressly
authorized to enforce state's liquor laws). In Wuerslin, we rejected the
defendant's assertion that the Department of Liquor Control must promulgate
detailed regulations governing sting operations in order to avoid abuse of
discretion by department agents, in part because the undercover sting
operations utilized by the department did not implicate Fourth Amendment
rights. Id. at __, 816 A.2d at 448. Further, we stated that "assuming for
argument that there was a Fourth Amendment right at stake, rule making
under VAPA would not be the remedy." Id. That conclusion was based on our
decision in State v. Record, 150 Vt. 84, 584 A.2d 422 (1988), a case which
involved a challenge to the constitutionality of DUI roadblocks. In
Record, we held that DUI roadblocks are constitutionally permissible when
the police conduct those roadblocks pursuant to detailed guidelines
designed to ensure stops that are not unduly intrusive and do not
arbitrarily single out drivers. Id. at 86, 584 A.2d at 424-26. We did
not, however, require police to engage in formal rulemaking when
implementing these guidelines.

21. Unlike the undercover sting operation at issue in Wuerslin,
Fourth Amendment rights are implicated in this case, just as they were in
Record. Accordingly, drug tests administered by the DOC must adhere to the
procedural safeguards we require for random, warrantless searches in a
prison setting. Those safeguards are: (1) the establishment of clear,
objective guidelines by a high-level administrative official; (2) the
requirement that those guidelines be followed by implementing officials;
and (3) no systematic singling out of inmates in the absence of probable
cause or articulable suspicion. (FN5) Berard, 154 Vt. at 314, 576 A.2d at
122.

22. In this case, the portions of policy directive 367.01
challenged by plaintiff outline the process for conducting random drug
testing in DOC facilities. In addition to establishing the procedure for
randomly selecting inmates for testing, the challenged portions of policy
directive 367.01 include a seven-step "Drug Testing Procedure," a two-step
process for "Storage and Transfer" of urine samples, a three-step procedure
for "Urine Specimen Testing," and a procedure to follow after receipt of
either a negative or positive test result. (FN6) Our review of the
directive indicates that the commissioner has established the "clear,
objective guidelines" that this Court found necessary for constitutionally
adequate random inmate searches in Berard, 154 Vt. at 314, 576 A.2d at 122,
and memorialized those guidelines in the procedural requirements of policy
directive 367.01, to ensure that the agency and its officials discharge
their powers and duties in an appropriate manner. The DOC's establishment
of procedural requirements for conducting those tests has, in effect,
created an agency manual or reference guide for DOC officers in carrying
out the practice of constitutionally permissible random inmate drug
testing. And while establishment of those clear guidelines is necessary to
protect Fourth Amendment rights, this requirement does not, in turn,
necessitate promulgation of those guidelines pursuant to VAPA. See 3
V.S.A. §§ 801(b)(7), 831(a)-(b) (procedural requirements of agency used to
discharge powers and duties qualify as practice exempt from rulemaking);
Record, 150 Vt. at 90, 548 A.2d at 426 (holding that police must conduct
DUI roadblocks in accordance with written procedural guidelines, but not
requiring police to engage in formal rulemaking ). "Agency protocols and
procedures, like agency manuals, do not have the force or effect of a
statute or an administrative regulation. Rather, they provide officials
with guidance on how they should perform those duties which are mandated by
statute or regulation." Wanzer v. Dist. of Columbia, 580 A.2d 127, 133
(D.C. Ct. App. 1990). Moreover, as we noted in Wuerslin, a department's
use of an investigative technique does not qualify as a rule of general
applicability simply because the department utilizes that technique
frequently, as the DOC must in order to conduct constitutionally
permissible random inmate drug testing. __ Vt. at __, 816 A.2d at 447.
"[F]requency of use does not make a practice a rule." Id.

23. The distinction between a rule requiring promulgation pursuant
to VAPA and a practice exempt from the statute's provisions is less than
precise, but the Legislature's adopted language demonstrates a specific
legislative intent to create a rule/practice dichotomy. (FN7) See Payea v.
Howard Bank, 164 Vt. 106, 107, 663 A.2d 937, 938 (1995) (Court presumes
legislative language is inserted advisedly). Other jurisdictions, while
not expressly adopting this dichotomy, do exempt certain agency policies
and procedures from administrative rulemaking requirements. For example,
the federal act exempts "interpretive rules" from rulemaking procedures,
see 5 U.S.C. § 553(b)(3)(A), and many state courts have held that specific
provisions of their administrative procedure acts exempt, inter alia,
interagency directives, interpretive statements, and guidelines. See Kent
County Aeronautics Bd. v Dep't of State Police, 609 N.W.2d 593, 603-04
(Mich. Ct. App. 2000) (holding that under Michigan's administrative
procedure act, which exempts directives and guidelines that do not alter or
affect existing rights, police department's "equivalent site criteria" for
construction of communications tower was exempt from rulemaking); Downeast
Energy Corp. v. Fund Ins. Review Bd., 756 A.2d 948, 953-54 (Me. 2000)
(holding that under Maine's statute, which exempts agency guidance or
instructions intended to advise persons in determining their legal rights
and duties, agency guidelines for cleanup of hydrocarbon spill were exempt
from rulemaking requirements); N.J. Builders Assoc. v. N.J. Dep't of Envtl.
Protection, 703 A.2d 323, 326-28 (N.J. Super. Ct. App. Div. 1997)
(department order providing guidance to department staff on applying
departmental policies and regulations was exempt from rulemaking under the
state's administrative procedure act excluding statements concerning
internal management and discipline and interagency statements from
definition of a "rule"); Rossie v. State/Dept. of Revenue, 295 N.W.2d 801,
804-05 (Wis. Ct. App. 1986) (department directives prohibiting smoking in
department facilities exempt from rulemaking under Wisconsin's
administrative procedure act, which exempts agency action concerning
internal management). Courts have recognized that there is no bright line
between exempt procedures and those rules requiring adoption pursuant to
rulemaking requirements. See Warder v. Shalala, 149 F.3d 73, 79 (1st Cir.
1998) ("The line between a legislative or substantive rule and an
interpretive one [exempt from rulemaking] is, as many courts have noted,
far from clear."); see also Batterton v. Marshall, 648 F.2d 694,703 (D.C.
Cir. 1980) ("Particular [agency] actions combine the qualities of
interpretative rules, polices, internal procedures, and legislative
rules."). Therefore, in an effort to provide some clarity to the
legislative intent of these acts, courts have looked beyond
labels-statutory or otherwise-and examined the purpose and effect of agency
procedures to determine their status. See Warder, 149 F.3d at 80 ("Where a
rule falls along the interpretative/legislative spectrum will turn in many
cases on the novelty of a rule's substantive content."); Sweetman v. State
Elections Enforcement Comm'n, 732 A.2d 144, 159 (Conn. 1999) ("The criteria
that determine whether administrative action is a 'regulation' is neither
linguistic nor formalistic . . . . "The test is, rather, whether a rule
has a substantial impact on the rights and obligations of parties . . . .")
(internal quotation omitted).

24. Many of these courts have applied a persuasive approach:
agency procedures that do not alter or affect substantive legal rights do
not qualify as rules requiring adoption pursuant to statutory requirements.
See Sweetman, 732 A.2d at 159; United States v. Alameda Gateway Ltd., 213
F.3d 1161, 1168 (9th Cir. 2000) (for rule to be subject to rulemaking
requirements, it "must be legislative in nature, affecting individual
rights and obligations") (internal quotation omitted); Warder, 149 F.3d at
80 (rule substantive if it "creates rights, assigns duties, or imposes
obligations the basic tenor of which is not already outlined in the law
itself"; rule exempt from rulemaking requirements if it does not effect a
substantive change) (internal quotation omitted); Kent, 609 N.W.2d at 604
(agency guidelines akin to instructions exempt from rulemaking procedures
because they did not create any legal obligation, nor did they "enlarge,
abridge, or in any way affect the rights of the public."). Admittedly,
many state courts have followed this approach because their administrative
procedure acts specifically exempt certain practices that do not affect
substantive legal rights. See, e.g., id. at 603 (statute exempts from
rulemaking interagency directives that do "not affect the rights of, or
procedures and practices available to, the public"). Federal courts,
however, apply this approach to distinguish between "substantive" rules,
which are subject to rulemaking, and "interpretive" rules, which are
exempt, because the federal act does not define those terms. See 5 U.S.C.
§ 551; Warder, 149 F.3d at 79 (examining a rule's effect on substantive
rights because federal act does not define "substantive" or
"interpretive"). We conclude, given the broad definition of "practice" in
3 V.S.A. § 801(b)(7), and the omission of language specifically limiting
certain exempt practices to those which do not affect substantive legal
rights, that the Legislature, in creating a rule/practice dichotomy, at
least intended to exempt from VAPA practices "used by the agency in the
discharge of its powers and duties," id. § 801(b)(7), that do not alter or
affect substantive legal rights. (FN8) As such, this approach is
instructive in determining whether the provisions of policy directive
367.01 challenged by plaintiff are exempt from VAPA's rulemaking
requirements. (FN9)

25. In drafting procedural guidelines for random inmate drug
testing, the DOC has not crafted a rule comprising an "agency statement of
general applicability which implements, interprets, or prescribes law or
policy." Id. § 801(b)(9). Instead, these guidelines establish the process
correctional officers must follow when conducting random drug testing-from
the way in which inmates are chosen, to the way in which urine samples are
collected. "An internal agency 'practice or procedure' is primarily
directed toward improving the efficient and effective operations of an
agency, not toward a determination of the rights [or] interests of affected
parties." Batterton, 648 F.2d at 702 n.34; see also W. Radio Servs. Co. v.
Espy, 79 F.3d 896, 901 (9th Cir. 1996) (agency manual and handbook
establishing guidelines for exercise of Forest Services's prosecutorial
discretion exempt from rulemaking requirements because manual did not
affect individual rights and obligations); Kent, 609 N.W.2d at 604 (state
police department's "equivalent site criteria" for construction of
communications tower analogous to set of instructions for proposing
alternative site and did not alter or affect existing rights). Here, while
implementing the department's statutory mandate to maintain discipline, the
DOC's establishment of procedural guidelines in policy directive 367.01
protects and does not alter or affect the guaranteed constitutional rights
of agency inmates during random drug testing. Given the diminished privacy
rights of inmates in DOC facilities, these procedural guidelines simply
ensure testing that is neither unduly intrusive, nor arbitrarily applied.
See Record, 150 Vt. at 88, 548 A.2d at 425. Therefore, the challenged
portions of policy directive 367.01 did not affect or alter the individual
rights and obligations of plaintiff when followed by the correctional
officers conducting plaintiff's drug test. (FN10)

26. In contrast, the DOC's amended furlough policy at issue in
Parker represented a generally applicable change in existing agency policy
affecting or altering the legal rights of its prisoners, and thus met the
statutory definition of a rule requiring proper promulgation. __ Vt. at
__, 787 A.2d at 497-98; see also In re Diel, 158 Vt. 549, 554-55, 614 A.2d
1223, 1227 (1992) (agency adoption and subsequent rescission of policy
change affecting calculation of welfare benefits invalid for failure to
promulgate pursuant to VAPA). As a result, the testing procedures
plaintiff contests are markedly different from the amended furlough policy
this Court invalidated in Parker.

27. Consequently, the provisions of policy directive 367.01
governing the process for random inmate drug testing in state correctional
facilities qualify as a "practice" under 3 V.S.A. § 801(b)(7), and not as a
"rule" requiring promulgation pursuant to the rulemaking procedures of
VAPA. Therefore, plaintiff's random drug test was not illegal for
noncompliance with VAPA. Moreover, apart from plaintiff's first two
claims on appeal, plaintiff does not suggest that the DOC failed to follow
its established guidelines when conducting the drug test. Neither
plaintiff nor the record evidence indicates any pattern of arbitrary
conduct or particularized unfairness present in the administration of
plaintiff's random drug test. See Berard, 154 Vt. at 314, 576 A.2d at 122
(prohibiting "systematic singling out of inmates" in carrying our random
searches of prisoners' cells); see also Spence, 807 F.2d at 755 (when state
employs random drug tests utilizing urinalysis, the procedures for
selecting inmates must be truly random to avoid violation of Fourth
Amendment). Accordingly, plaintiff's final claim on appeal fails.

28. We hold that the provisions of policy directive 367.01
governing the process for random inmate drug testing in state correctional
facilities do not qualify as a "rule" requiring adoption pursuant to VAPA,
but instead outline the agency's practice for conducting constitutionally
permissible random inmate drug testing. Additionally, the drug testing and
disciplinary hearing procedures utilized by the DOC did not violate
constitutional safeguards afforded to plaintiff. For these reasons, we
uphold the superior court's grant of summary judgment in favor of the DOC.
Plaintiff presents no genuine issues of material fact and the DOC is
entitled to judgment as a matter of law. Plaintiff's DR conviction is
supported by at least "some evidence" in the record and, therefore, must be
upheld. See Herring, 173 Vt. at 243, 789 A.2d at 958.

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