County drug testing policy relies on SC precedent that lifts politicians above suspicion

By Steve Korris | Oct 2, 2013


St. Clair County employees can expect random drug tests under a policy the county board adopted on Sept. 30.

The new policy comes in the wake of a drug scandal that four months ago forced a judge off the bench and into rehab, and also led to the arrests of the judge's alleged suppliers, one of whom was a county probation officer.

County board members approved a policy which makes testing mandatory for employees and optional for themselves, citing a precedent that lifts politicians above suspicion.

The old policy was just three sentences long, the new one is 17 pages. The policy does not encompass the judiciary.

“Random tests shall be unannounced and conducted at various times during the year,” the new policy provides.

A new employee must pass a test before starting work, and a current employee must pass one before moving up to a managerial position.

The policy also authorizes the county to test any employee for probable cause.

“The decision to test must be based upon a reasonable and articulable belief that the employee is using a prohibited drug or alcohol on the basis of specific, contemporaneous physical, behavioral, or performance indicators of probable drug or alcohol use,” it says.

Supervisors with authority to find reasonable cause must undergo at least 60 minutes of training on indicators of drug or alcohol use.

The county may discipline and possibly discharge any employee who tests positive.

The human resources department will designate a program administrator, a medical review officer, and a sample collector.

The collector “may observe the employee directly when there is reason to believe the employee will substitute or alter the specimen.”

An employee can’t leave the collection site without passing 50 millimeters of urine, or until a minimum of two hours has elapsed.

“If the employee still cannot provide a complete specimen, he or she may be rescheduled for testing or required to undergo a medical evaluation,” the policy states.

It declares that all labor agreements entered into by the county shall at a minimum conform to its standards.

The old policy stated, “Drug testing is handled at the individual department level.

“This testing may include pre-employment and random testing throughout the term of employment.

“Offices with drug testing requirements should have written policies and procedures regarding testing and administrative or disciplinary actions.”

Precedent: Chandler v. Miller

In Chandler v. Miller, the U.S. Supreme Court rejected drug tests for political candidates in Georgia because no one presented evidence of a drug problem among elected officials.

“The need revealed is symbolic,” eight Justices held.

“A demonstrated problem of drug abuse, while not in all cases necessary to the validity of a testing regime, would shore up an assertion of special need for a suspicionless general search program,” they held.

Walker Chandler ran for lieutenant governor of Georgia in 1994, as a Libertarian.

When Gov. Zell Miller tried to enforce a statute requiring drug tests for candidates, Chandler sued for an injunction.

A federal judge denied it, so Chandler complied and made the ballot.

He lost the election, the judge entered final judgment against him, and he appealed to the U.S. Eleventh Circuit.

There, the Georgia attorney general cited Supreme Court decisions that upheld testing of student athletes, railroad workers, and customs officers.

In the case of athletes, the Court found a lower expectation of privacy for students than for society in general.

In the case of rail workers, the Court placed safety above privacy and held that a search might be reasonable in the absence of individualized suspicion.

In both cases, the Court held that drug policies reflected proper responses to open problems.

In the case of customs officers, the Court held that the job poses grave safety threats and exposes them to criminals and large amounts of illegal narcotics.

The Court held that a drug user in such a job might be bribed or blackmailed.

Those precedents satisfied two Eleventh Circuit judges, who found that people place their liberty, safety, and economic well being in the trust of elected officials.

“Those vested with authority to make public policy in general and supervise drug interdiction efforts in particular must be appreciative of the perils of drug use,” they held.

“The nature of high public office in itself demands the highest levels of honesty, clear sightedness, and clear thinking,” they held.

The dissenter found nothing special or immediate enough to warrant suspension of Fourth Amendment protection from unreasonable searches.

Chandler sought Supreme Court review, and the Justices granted it.

At oral argument, Georgia assistant attorney general Patricia Guilday conceded that the record contained no evidence of office holders abusing drugs.

“To be frank,” she said, “there is no such problem as we sit here today.”

That scored eight votes for Chandler in the 1997 decision.

For the majority, Justice Ruth Bader Ginsburg found, “Nothing in the record hints that the hazards respondents broadly describe are real and not simply hypothetical for Georgia’s polity.”

“Proof of unlawful drug use may help to clarify and substantiate the precise hazards posed by such use,” Ginsburg wrote.

She wrote that the state didn’t show or argue that addicts were likely to run for office.

“Moreover, respondents have offered no reason why ordinary law enforcement methods would not suffice to apprehend such addicted individuals, should they appear in the limelight of a public stage,” she wrote.

She wrote that it was not feasible to subject customs officers to day to day scrutiny.

“Candidates for public office, in contrast, are subject to relentless scrutiny by their peers, the public, and the press,” Ginsburg wrote.

“Their day to day conduct attracts attention notably beyond the norm in ordinary work environments.”

Chief Justice Rehnquist dissented, writing that the state need not wait for a drug addict to run for governor before it installs a mechanism of prevention.

“The Court says, in effect, that the kind of drug test for candidates required by the Georgia law is unnecessary, because the scrutiny to which they are already subjected by reason of their candidacy will enable people to detect any drug use on their part,” he wrote.

He wrote that one might as easily say that railroad employees or customs officers would be subjected to the same sort of scrutiny from fellow employees and supervisors.

“The risks of bribery and blackmail for high level officials of state government using illegal drugs would seem to be at least as significant as those for off duty customs officials,” Rehnquist wrote.

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