ACLU challenging drug testing for state workers
Published: Wednesday, June 1, 2011 at 3:34 p.m.
Last Modified: Wednesday, June 1, 2011 at 3:34 p.m.
MIAMI — The American Civil Liberties Union of Florida filed a lawsuit Tuesday seeking to halt Gov. Rick Scott's executive order mandating drug testing for state employees regardless of suspicion in what the organization called an extreme overreach of Scott's powers.
Scott ordered drug testing of new hires and spot checks of existing state employees under him in March and gave state agencies 60 days to decide how to implement the plan. The state already has the power to test employees if they suspect drug abuse, but this order could apply to state employees regardless of suspicions.
"This is a governor who is willing to use the power of government to intrude upon your rights in Florida," said Howard Simon, executive director of the ACLU of Florida. Simon said the lawsuit was the first of several the organization plans to file against Scott and the Republican-led Legislature after a session Simon said trampled on civil rights.
"The analysis of urine also tells a lot more about you that is nobody's business," said Simon, including whether an employee is pregnant, or taking heart, diabetes, depression or other medications.
The ACLU won a similar lawsuit on behalf of a Department of Juvenile Justice employee in 2004 after a federal judge said random testing without suspicion was unconstitutional.
U.S. District Judge Robert Hinkle of Tallahassee determined the department was wrong to fire an office employee because he had no direct contact with children nor were there any safety reasons for the testing, such as carrying a gun or driving. Hinkle did not reinstate the employee but ordered mediation. The state settled with the former employee for $150,000.
The U.S. Supreme Court has allowed blanket suspicion-less drug testing only if "the risk to public safety is substantial and real."
The ACLU filed the lawsuit on behalf of a union representing about 50,000 state employees and Richard Flamm, a 17-year state employee from St. Petersburg who works as a researcher for the Florida Fish and Wildlife Conservation Commission. The lawsuit comes one day after Scott signed a bill also requiring drug testing for welfare recipients. The ACLU is also considering action against that law.
"It's kind of insulting that my boss, in essence the governor, is treating his staff like this," said Flamm. "It's an egregious use of taxpayer money."
A spokeswoman for the governor's office called the ACLU's lawsuit oddly hypocritical, pointing out the organization supports other disclosures by public employees but not whether they're fit to be in the workforce.
"Floridians overwhelmingly support drug testing state employees because their tax dollars should support a safe, healthy and productive government workforce. The governor is confident the courts will see that this policy makes sense and is legally sound," spokeswoman Amy Graham said in a statement.
Florida's Constitution guarantees public employees the right to bargain, but it also prohibits them from striking, giving them little leverage.
An attorney for the American Federation of State, County and Municipal Employees, or AFSCME, said the governor's office has not contacted them about the issue.
Critics say the tests could cost the state millions, creating unnecessary expenses while government budgets have been slashed.
"We have a chief executive saying I want to put perhaps millions of dollars out of my state budget to pay for unnecessary, unconstitutional drug testing when he have an economic crisis, when we have budget slashes. It is disappointing," said Alma Gonzalez , an attorney for AFSCME.
The governor's office could not provide an estimate on how much the testing may cost, saying they are still working out logistics.
"If it makes good business sense for private sector companies to drug test their employees, why wouldn't it make good business sense for the state," Graham said.
Agreements between private citizens and private companies are not protected under the same Constitutional rights as state employees, according to ACLU attorneys.
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