Pubdate: Thu, 20 May 1999
Source: Fresno Bee, The (CA)
Copyright: 1999 The Fresno Bee
Contact:  http://www.fresnobee.com/
Author: Lewis Griswold, The Fresno Bee

FRESNO IRRIGATION DISTRICT WINS IN DRUG-TEST APPEAL

An appeals court has reversed a decision on a lawsuit filed by a ditch
tender who was fired from the Fresno Irrigation District after flunking a
drug test.

The 5th District Court of Appeal in Fresno ruled in a 3-0 decision that
random drug tests for workers who hold "safety sensitive" positions is legal
and outweighs a worker's constitutional right to privacy. The decision
reverses a jury verdict that awarded ditch tender Ron Smith $240,000 for
being fired as a result of failing a drug test.

"I kind of figured that's what would happen," Smith said in a telephone
interview Wednesday. Smith, who now remodels apartments and houses, had
helped maintain the irrigation district's pipes and trenches. "It seems to
me that the judges thought all of society should be drug tested."

Smith's lawyer, Don Oliver, vowed to appeal the decision to the California
Supreme Court.

Patrick Wiemiller, chief administrative officer of the Fresno Irrigation
District, said the decision "put a smile on my face."

"It's a safety vs. privacy issue," he said.

Smith, a six-year employee of the district, was fired in 1996 after he
tested positive for amphetamines, methamphetamines and marijuana in a random
drug test.

The district had told employees six months earlier that it was starting a
random drug-testing program for most of its 80 employees who worked in
positions where others could get hurt if a mistake were made by someone
under the influence of drugs.

Smith sued, and Fresno Superior Court Judge Franklin Jones ruled that
Smith's right to privacy had been violated. A jury later awarded Smith $240,000.

The district appealed, holding up the payment to Smith, and then won in a
decision made public Monday.

"We conclude that the district's interests in minimizing risk of injury to
its employees outweighs the plaintiff's privacy interests," Associate
Justice Herbert Levy wrote in the decision.

Random drug testing "is justified by the hazards inherent in plaintiff's
employment," Levy wrote.

Smith learned of the ruling Wednesday when The Bee telephoned him for comment.

"This is a bad blow for the people of this country," Smith said. "A free
country? It's disgusting, disgusting. I was not fired for what I did at
work. I was fired for what I did on my own time.

"What this tells me is everybody can be tested. If my job was safety
sensitive, there's not a job in the world that's not safety sensitive."

Smith's job involved construction and maintenance of the district's 800
miles of canals and pipes. Ditch tenders at Fresno Irrigation District earn
between $11.73 and $16.50 an hour.

The district argued that Smith's work environment is inherently dangerous
because employees work inside pipes, work in trenches that can collapse and
are climbing in and out of steep ditchbanks.

Oliver said the constitutional issues are serious enough that a higher court
would be inclined to review it.

"The U.S. Supreme Court ruled 8-1 that a public agency like the Fresno
Irrigation District must show that there's a clear and present danger to
substantial numbers of the public before drug testing is legal," Oliver said.

But Ari Kleiman, the irrigation district's lawyer, said the court of appeal
"simply applied existing law to the facts of this case. The lower court
considered the hazards associated with the job not significant enough to
curtail his privacy rights, and the court of appeal unanimously disagreed." 

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