How much do Florida taxpayers have a right to know about public employees?
By signing an executive order last week that requires drug testing for many current state workers and job applicants, Gov. Rick Scott is betting the public is entitled to know a lot.
Legal scholars say the governor has overreached, and that his order contradicts what many consider to be settled law regarding drug testing of government employees.
Both sides appear headed for a legal showdown.
Scott has defended the order as a policy the public wants, and a protection the state should have — similar to private employers.
"It's the right policy, public policy," Scott told reporters last week.
But federal courts generally have ruled that such policies violate the U.S. Constitution's Fourth Amendment right against unreasonable searches, say lawyers and legal scholars.
"You can't do blanket tests like that," said Ephraim Hess, a Davie lawyer who prevailed over the city of Hollywood in April 2000.
In that case, U.S. District Court Judge Kenneth L. Ryskamp ruled that governments cannot require prospective employees to take drug tests unless there is a "special need," such as safety. Ryskamp's ruling led other Florida cities, such as Pembroke Pines, to abandon their policy of drug testing all job applicants.
Random drug testing of current government workers also has been limited to those in jobs that affect public safety and to cases where a reasonable suspicion of abuse exists, according to a December 2004 federal court ruling in a case that involved Florida's Department of Juvenile Justice.
In that case, U.S. District Court Judge Robert Hinkle ruled that the department violated the Fourth Amendment in ordering random drug testing of all the agency's 5,000-plus employees.
Hinkle ordered the agency to stop random drug testing and pay $150,000 to the employee who sued, Roderick Wenzel.
Wenzel, a strategic planner who had no contact with children, was fired for refusing to submit to a drug test — despite his having received positive job evaluations and prizes for his performance, such as the Florida TaxWatch Davis Productivity Award.
"It definitely should have been settled," Wenzel said last week after hearing of the governor's order reinstating the policy. "I take it this is either Rick Scott's lack of respect for public employees, or he's ignorant of the law."
State agencies already are allowed, but not required, to screen job applicants for drugs, under the Florida Drug-Free Workplaces Act. The law allows state agencies to test employees if there is a reasonable suspicion that workers are on drugs. But that suspicion must be well documented, Hess said, and employees must be informed of the policy prior to testing.
Nationally, the U.S. Supreme Court has allowed random across-the-board testing of employees in certain circumstances: "where risk to public safety is substantial and real" or where "public safety is genuinely in jeopardy" by the possible use of drugs, such as with school bus drivers or police officers.
Scott's order applies to all employees and prospective hires in agencies that answer to the governor, and could affect as many as 100,000 people. Scott also supports a state Senate bill that requires all cash-assistance welfare recipients over the age of 18 to pay for and receive a drug test, a policy that could affect about 58,000 people.
Rich Templin, political director for the Florida AFL-CIO, said the governor's drug testing order is part of a broader campaign to vilify public employees.
"It really seems like the governor has declared war on teachers, firefighters, policemen — anybody who serves the public interest," he said.
Howard Simon, executive director of the American Civil Liberties Union of Florida, said rather than giving the people what they want, the governor's order betrays a lack of governmental experience.
Simon likened the governor's three-page order to a corporate memo that raises more questions than it answers, such as the type of test to be performed, the right of appeal, the potential for false positives, and the cost of executing the policy. He said Scott is taking a simplistic approach to the law, pitting the public's expectation of a right to know against each individual state worker's right to privacy.
That's hardly new legal ground.
The U.S. Supreme Court appeared to settle the issue of employee drug testing in 1989 with rulings in two cases that set a standard for such searches, Simon said.
"Except when you're in a safety-sensitive position, it requires some reasonable suspicion, some individual basis, to believe that there is substance abuse," he said. "That is the standard that balances the personal privacy of employees with the right of the government to ensure that workers are capable, ready, willing, able to perform their job."
Though no legal challenge to the governor's order has been filed, Simon suggested one will be forthcoming. The ACLU was a party to the lawsuits that successfully challenged the Juvenile Justice Department's random drug testing policy in 2004, and the city of Hollywood's pre-hire screening policy in 2000.
"I'm pretty certain that there will be a constitutional evaluation of this policy before it goes into effect," Simon said.