Pubdate: Wed, 22 Feb 2012
Source: Miami Herald (FL)
Copyright: 2012 Miami Herald Media Co.
Contact:  http://www.miamiherald.com/
Details: http://www.mapinc.org/media/262
Author: Jay Weaver, Miami Herald staff writer Toluse Olorunnipa contributed to this story.

FEDERAL JUDGE RAISES QUESTIONS ABOUT FLORIDA'S RANDOM DRUG-TESTING POLICY

A Federal Judge in Miami Will Decide on the Constitutionality of Gov. 
Rick Scott'S Policy Requiring Random Drug Testing of Thousands of 
Government Employees.

A federal judge in Miami Wednesday cast serious doubts about Gov. Rick 
Scott's order requiring thousands of state government employees to 
undergo a random drug test, suggesting his policy "sweeps too broadly."

U.S. District Judge Ursula Ungaro peppered a government lawyer with 
questions about the constitutionality of Scott's policy, saying she 
had "trouble understanding the circumstances under which the executive 
order would be valid."

Jesse Panuccio, deputy general counsel for Scott's office, did not 
provide specific examples but rather talked generally about the harm 
of drug use among state employees in the workplace. "Drugs are very 
harmful," he told the judge. "They're very dangerous."

Ungaro said she would soon make up her mind about the legal challenge 
to Scott's policy by the American Civil Liberties Union of Florida. 
The group argues that his order violates the Fourth Amendment rights 
of state workers because the testing requirement is "suspicionless" 
and therefore an illegal search and seizure.

"For the consent [to the search] to be valid, it has to be voluntary," 
ACLU lawyer Shalini Goel Agarwal argued. "This blanket drug testing is 
unconstitutional."

The legal challenge to the governor's order, which has been placed on 
hold by Scott himself until the dispute is resolved, centers on 
whether the state has a constitutional right to require random drug 
tests of existing public workers and mandatory testing of all new 
employees. The governor issued his order last March.

Meanwhile, the Legislature is considering a proposed law that would 
mandate random drug tests of state employees every three months.

As it stands, Scott's order affects a pool of 80,000 state employees 
who work for agencies under the governor, but does not extend to 
agencies overseen jointly by the governor and Cabinet, such as the 
departments of Revenue and Education or the Public Service Commission.

Scott has defended the order as a policy the public wants, and a 
protection the state should have.

"Look, the private sector does this all the time," Scott said last 
June, when he suspended his order on drug testing while the federal 
court in Miami hears the ACLU challenge.

"Our taxpayers expect our state employees to be productive, and this 
is exactly what the private sector does," he said.

But the ACLU, which is representing the American Federation of State, 
County and Municipal Employees, the nation's largest union for state 
workers, counters that random drug testing was ruled unconstitutional 
in a 2004 case against the Florida Department of Juvenile Justice.

Random drug testing is not allowed, a federal judge ruled in that 
case, except for those jobs that affect public safety and in instances 
where a reasonable suspicion of abuse exists.

Federal courts in Florida and other states have cited the Fourth 
Amendment right against unreasonable searches, concluding that 
governments cannot require job applicants to take drug tests absent a 
"special need," such as safety.

In October, a federal judge in Orlando echoed that legal view when she 
temporarily blocked Florida's controversial law requiring welfare 
applicants be drug tested to qualify for benefits.
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MAP posted-by: Richard R Smith Jr.