SUSPICIONLESS, INVASIVE DRUG TESTING OF STATE EMPOLOYEES VIOLATES FOURTH AMENDMENT PROTECTIONS AGAINST GOVERNMENT SEARCHES
June 1, 2011
CONTACT: ACLU of Florida Media Office, (786) 363-2737 or media@aclufl.org
MIAMI – The American Civil Liberties Union of Florida (ACLUFL) today announced it filed suit in federal court seeking to block implementation of Governor Scott’s Executive Order 11-58 which mandated drug testing of all state employees in Executive Branch agencies without regard to suspicion of drug use or other related activity.
The suit filed Tuesday, May 31, 2011, in federal court in the Southern District of Florida is on behalf of the American Federation of State, County and Municipal Employees (AFSCME), Council 79 which represents 50,000 public workers who are now subject to the new drug-testing regime and Richard Flamm, a 17-year state employee and Research Scientist with the Florida Fish and Wildlife Conservation Commission located at the Fish and Wildlife Research Institute in St. Petersburg.
“It is an unnecessary and costly invasion of the basic privacy and dignity of all state workers to force us to submit to tests of our bodily fluids with absolutely no just cause,” Flamm said. “For those of us who do our job well, it’s an affront to suggest we may be abusing drugs just because we work for the state.”
Governor Scott’s Executive Order directed all state agencies under the direction of the Governor to develop plans to allow drug testing existing state employees at least quarterly. The order attempts to resurrect a policy previously found unconstitutional by a federal judge in a 2004 ACLU case against the Department of Juvenile Justice (DJJ). That suit found the random drug testing of state employees without suspicion was unconstitutional. The plaintiff was awarded a settlement t of $150,000.
“I’m not sure if Governor Scott does not know that the policy he ordered has already been declared unconstitutional or if he just doesn’t care,” said Howard Simon, Executive Director of the ACLU of Florida. “But I do know that the state of Florida cannot force people to surrender their constitutional rights in order to work for the state.”
Existing law and court rulings allow for drug testing of public employees in positions that are safety-sensitive such as police who are required to carry a weapon as part of the job or those in positions while require operating dangerous machinery. But courts have routinely found that testing of all employees without regard for safety-sensitive positions or suspicion violates the Fourth Amendment protection against unreasonable government searches.
“Government employees go to work, do their jobs, pay their bills and contribute to their communities just like anyone else,” said Alma Gonzalez, Special Counsel of AFSCME. “There is no suggestion that government workers use drugs more than the public at large so to single them out for government searches is unnecessary, expensive and offensive.”
In deciding the 2004 ACLU/DJJ case that struck down a similar drug testing scheme, the court judgment found, “DJJ had (and apparently still has) a random drug testing policy applicable by its terms to all DJJ employees, top to bottom. DJJ now virtually concedes the policy cannot constitutionally be applied to at least some DJJ employees.”
In a 2000 ACLU case a Federal District Court struck down a suspicionless drug screening program imposed by the City of Hollywood on all applicants for employment. The Court’s decision was based on two 1989 decisions by the United States Supreme Court in which the Court set standards for the drug testing government workers – upholding a suspicionless drug testing program for employees of the U.S. Customs Service who are in positions having direct involvement in drug interdiction or are required to carry firearms and for railroad workers involved in “safety sensitive” positions.
“The government has to have a reason to search you and simply working for the state isn’t enough,” said ACLU cooperating attorney Peter Walsh. “If earning a government check was enough to suspect someone of drug abuse, everyone who received any state benefit from walking a sidewalk to drinking clean water could be subject to an invasive government search.”
The filed complaint asks the court to find, in part:
that the Governor and all agencies and persons affected by Executive Order 11-58 are enjoined from implementing the drug-testing regime mandated by the order until final judgment is entered in this action
that Executive Order 11-58 be quashed because it violates the right of the people to be free from unreasonable searches, under the Fourth Amendment of the Constitution of the United States of America and
that the Governor shall immediately direct all agencies and persons affected by Executive Order 11-58 to cease all drug-testing implemented in compliance with the Order
Governor Scott signed Order 11-58 on March 22, 2011. The order gave agencies 60 days to develop new drug testing plans.
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Editor’s Note: A copy of suit filed yesterday:
http://www.aclufl.org/pdfs/Legal%20PDfs/2011-ACLU-AFSCMEComplaint.pdf
A copy of the 2004 judgment declaring the DJJ testing scheme unconstitutional is here: http://www.aclufl.org/pdfs/2004-WenzelBankheadOrder.pdf
About the ACLU of Florida
The ACLU of Florida is freedom's watchdog, working daily in the courts, legislature and throughout Florida to defend individual rights and personal freedoms guaranteed by the United States and Florida Constitutions and the Bill of Rights. For additional information, visit our web site at: www.aclufl.org
