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State worker suing Gov. Rick Scott over drug tests wouldn't be tested

TALLAHASSEE — Thousands of state employees could be subjected to random drug tests under an order from Gov. Rick Scott. But not the man suing to stop Scott's new policy.

Richard Flamm of St. Petersburg announced Wednesday that he would join the largest union of state workers in a legal challenge of Scott's executive order.

But the 55-year-old research scientist works for the Florida Fish and Wildlife Conservation Commission. The commission is not controlled by Scott and has no plans to implement his drug policy.

Scott spokesman Brian Burgess questioned Flamm's standing to challenge the policy, which is not yet in place. Scott ordered agencies under his control to create a random drug test program by May 21, but Burgess said "policy and logistical issues" caused a delay. He would not elaborate.

American Civil Liberties Union Florida director Howard Simon said Scott and the Republican-controlled Legislature have made a "concerted attack on the rights of personal freedom for all Floridians." He said the actions could inspire a "tsunami of anti-civil rights litigation this year."

The group is considering suits over laws that require drug tests for welfare recipients, make abortions more difficult and crack down on voter-registration groups. Simon said the ACLU could announce a second lawsuit a soon as this week.

"This has to be stopped here," Simon said.

But in their haste to foil the Republican stronghold in Tallahassee, attorneys mistakenly identified Flamm as a state worker who would be subjected to the new drug tests.

ACLU spokesman Derek Newton acknowledged confusion over whether the wildlife commission was controlled by Scott. The governor appoints the commissioners, but voters gave the commission constitutional independence.

If Flamm has no legal standing, the ACLU will find a replacement, Newton said.

But finding Flamm was difficult, said Alma Gonzalez, an attorney for the American Federation of State, County and Municipal Employees, the lead plaintiff in the suit.

"There were a number of employees that voiced concern about retaliation," Gonzalez said.

Newton said the plaintiffs' attorneys would ask a judge to declare the order unconstitutional and block implementation.

Despite the coordinated attempt to block Scott's order, the policy is one of the most popular changes suggested by the embattled governor.

While just 29 percent of voters approve of Scott's job performance so far, 78 percent say it's a good idea to drug-test state employees. Those who say it's a bad idea: 20 percent.

The overwhelming support for the order cuts across demographic, political and geographic lines, according to a Quinnipiac University survey.

"Most of the taxpayers in our state, if they have a job, a lot of them have been drug-screened," Scott said Wednesday on CNN.

"They're the ones paying for this," Scott said. "And what's fair for them should be fair for somebody that's going to get free money from the government."

But courts haven't always agreed.

Flamm's suit cites a number of cases where courts have dismissed similar random drug testing programs.

In 2000, the same federal court in Miami ruled in favor of a Hollywood employee who challenged the constitutionality of the city's random drug testing program. The ACLU also won a suit in 2004 when a federal judge in Tallahassee ruled a Department of Juvenile Justice worker was wrongly tested for drugs.

Peter Walsh, the union attorney, said government agencies can only drug-test workers if there is a reasonable suspicion of drug use or in other special circumstances, such as for workers who carry firearms or railroad workers involved in accidents.

Scott's policy, Walsh said, is an unreasonable search of the government that violates the Fourth Amendment of the U.S. Constitution.

Times/Herald staff writer Marc Caputo contributed to this report. Michael C. Bender can be reached at mbender@sptimes.com. Follow him on Twitter @MichaelCBender.

Suing Scott

This lawsuit is at least the fourth time that Scott has been sued in his first five months. Here are the others:

Feb. 3: League of Women Voters vs. Scott. Supporters of a voter-approved constitutional amendment reducing lawmakers' power to draw voting districts sued Scott to force him to ask for federal sign off on the changes (a requirement for any elections changes in the state). Scott was given extra time to respond to the suit, but then submitted the necessary paperwork before that date.

March 4: Thad Altman vs. Scott. Altman and fellow state Sen. Arthenia Joyner sued to stop Scott from declining federal money for a high-speed rail system in Florida. The state Supreme Court ruled in favor of Scott.

March 28: Rosalie Whiley vs. Scott. Whiley, a blind woman from Opa-Locka, sued along with Disability Rights Florida to block Scott's executive order that froze new rules from being implemented. The complaint alleges that Scott's delay puts unreasonable burdens on people with disabilities. The case is being litigated.

State worker suing Gov. Rick Scott over drug tests wouldn't be tested 06/01/11 [Last modified: Wednesday, June 1, 2011 9:33pm]
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