State employee drug test bill fails, then gets resurrected

Feb 15, 2012

A bill that would have required state employees to submit to a random drug test narrowly escaped death, at least for now. As Sascha Cordner reports, the bill initially failed to pass in a House budget panel due to worries over its constitutionality, but was later revived by that same panel Wednesday.

Currently, the state is embroiled in a lawsuit filed by the American Civil Liberties Union. The group is challenging an executive order issued by Governor Rick Scott last year, calling for the mandatory drug testing of some state employees.

But, that did not stop Republican Representative Jimmie Smith of Lecanto from filing legislation to make it law:

“HB 1205 amends the Drug Free Workplace Act to authorize random drug testing, once every three months. These tests will be selected by random computer generation, and also authorize pre-employment drug testing of all public job applicants as all people when under the influence of  drugs are dangerous to the public’s safety.”

But, Pamela Burch Fort with ACLU of Florida says subjecting public employees to “universal, suspicionless drug testing” is clearly unconstitutional:

“The United State Supreme Court has previously ruled that universal, random suspicionless drug testing of employees by Government in a safety sensitive safety job violates the Fourth Amendment of the U.S. Constitution, which protects against unreasonable search and seizure. House Bill 1205 subjects state employees to suspicionless universal drug testing, and therefore violates the constitution.”

Smith’s bill also failed to muster any support among most of the lawmakers on the House Appropriations Committee.

Democratic Representative Martin Kiar of Davie says it doesn’t make sense to move forward with the legislation because in addition to the U-S Supreme Court case, the staff analysis cited two other cases that show the bill is unconstitutional:

“The other two are Florida federal district court cases: one from the northern district of Florida and one from the Southern district of Florida, with both made conditions of employment, had universal suspicionless drug testing as conditions of state employment. And, the courts have all ruled that it is unconstitutional to do that.”

The bill’s staff analysis doesn’t specify how much random drug testing would cost taxpayers. And, House Democratic Leader Ron Saunders says not only is he troubled by the bill’s potential for lawsuits, he’s also concerned that the bill’s sponsor and even the staff analysis could not show the fiscal impact:

“I think it’s not responsible for us to be passing a bill that we cannot determine the cost of the drug test, how many people that this would apply, since you made this so broad, which makes I think unconstitutional, you’ve also made it so broad,  that you’re putting a very big responsibility on the state to be responsible for something that we don’t know the cost.

Smith’s bill also received opposition from several of his Republican colleagues, including Representative Bill Proctor of St. Augustine:

“I can understand the need to drug test randomly those people in sensitive positions, and even perhaps where the employer has cause to believe, but just randomly testing anybody, who works for the state. I have a real question, that that would hold up in court. I’m not a lawyer, but I would like to see some case law that addresses that issue.”

When the bill came up for a vote, it initially failed. However, in a surprise move, the motion was called to reconsider the vote:

“So, Representative Coley moves to reconsider the vote by which the bill passed. All those in favor signify by saying aye. [AYE]All those opposed say no [NO].”

The panel agreed to postpone the bill until further notice. It’s unclear if they are taking the ACLU’s suggestion and waiting on the outcome of the court case scheduled for Wednesday, February 22nd in the Southern District Court of Florida on the constitutionality of the Governor’s executive order.