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Judge: Gov. Rick Scott's order to drug test state workers is unconstitutional

MIAMI — A Miami federal judge Thursday slammed Gov. Rick Scott's order requiring random drug testing for tens of thousands of state government employees as "unconstitutional" because his policy failed to specify any "public interests" to justify the invasion of privacy.

Scott said he was disappointed and immediately vowed to appeal the ruling, saying he believes that "drug testing state employees is a common sense means of ensuring a safe, efficient and productive workforce."

But the governor would face a formidable challenge on appeal in the higher courts.

U.S. District Judge Ursula Ungaro declared that Scott's executive order to conduct random drug tests of 85,000 state employees amounted to an "unreasonable" search under the Fourth Amendment of the Constitution. Her decision was based on U.S. Supreme Court precedents that have cited the Fourth Amendment ban on unreasonable searches, concluding that governments cannot require job applicants to take drug tests absent a "special need," such as safety.

Ungaro found that Scott's order was so broadly worded that it failed to meet any drug-testing searches deemed "reasonable" by the U.S. Supreme Court because of "surpassing safety interests," such as mandatory urine tests of railroad workers.

"In the present case, the court searches in vain for any similarly compelling need for testing," Ungaro wrote in a 37-page decision. "The (executive order) does not identify a concrete danger that must be addressed by suspicion-less drug-testing of state employees, and the governor shows no evidence of a drug use problem at the covered agencies."

Scott's executive order, issued last year, required random drug testing of current state employees as well as a pre-testing of prospective job applicants in agencies under his control.

The American Civil Liberties Union of Florida and the American Federation of State, County and Municipal Employees sued the state in June, maintaining that the governor's order was unconstitutional.

Shortly after the suit was filed, Scott suspended his policy, but continued to require some Department of Corrections, Juvenile Justice and Department of Transportation employees to take the drug test. Random tests showed positive results ranging from less than 1 percent to about 2.5 percent over the previous four years.

The ACLU and union hailed the judge's decision, saying she zeroed in on the fundamental flaw in the governor's legal rationale for mandating urinalysis drug tests.

"If the state is going to require a drug test as a condition of keeping your job, it needs to have a reason. And simply being against drugs isn't enough," said Miami lawyer Peter Walsh, who worked on the ACLU suit.

In February, attorneys for the governor's office argued in federal court papers and before the judge that Scott's policy was constitutional, saying it was justified because drug use in the workplace was known to be dangerous, harmful and costly. They cited state and national studies, but provided no specific basis for conducting such random tests on government employees. Scott's office also noted that drug testing was commonplace in the private sector.

In her ruling, Ungaro was deeply critical of the state's legal arguments.

"The evidence that the governor submits demonstrates, at length, that there is a public interest in a drug-free workforce," she wrote. "But this interest is notably broad and general compared to the interests that the Supreme Court has held (to) justify suspicion-less drug testing."

Ungaro cited a handful of relevant Supreme Court cases involving railroad employees, U.S. Customs border agents and student-athletes, saying "all of the upheld drug-testing policies were tailored to address a serious problem."

The judge found that Scott's policy was comparable to a Georgia drug-testing law struck down by the Supreme Court in 1997. The Georgia statute required candidates seeking election to various offices to verify that they had tested negatively for illegal drug use.

"According to the (Supreme) Court, Georgia had failed to present any evidence of a 'concrete danger' that would demonstrate that the hazards the state sought to avoid were 'real and not simply hypothetical,' '' Ungaro wrote, citing the so-called Chandler case.

"In particular, the state had asserted 'no evidence of a drug problem among the state's elected officials,' nor did the covered individuals 'typically … perform high-risk, safety-sensitive tasks.' "

Scott has repeatedly proposed and supported drug testing laws both for welfare recipients and for state employees. He often says that drug testing for state employees would help ensure that it employs a safe and productive workforce, saving taxpayers money.

"As we all know the private sector has drug tested for a long time," Scott said in a visit to Madeira Beach Fundamental School on Thursday. "It's the right thing to do if you want to have a safe working environment, if you want to have good qualified people. . . . Remember, this is your tax money that's being spent."

Times staff writer Kameel Stanley contributed to this report.

Judge: Gov. Rick Scott's order to drug test state workers is unconstitutional 04/26/12 [Last modified: Friday, April 27, 2012 8:51am]
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