By Phillip Smith
"We are taking this action to prevent Gov. Scott from trampling on your rights in Florida," said ACLU of Florida head Howard Simon during a Wednesday afternoon press call. "We don't have a system of government run only by the executive and the legislative branch. It's time for the courts to step up and defend the rights of Floridians. This is an abuse of government power."
The lawsuit was brought on behalf of the American Federation of State, County, and Municipal Employees (AFSCME) Council 79, which represents 50,000 state employees and an additional 200,000 county and municipal employees in Florida. Also joining the lawsuit is Florida Fish and Wildlife Conservation Commission research scientist Richard Flamm.
"AFSCME has for decades supported drug-free workplace policies while preserving the fundamental right of public servants to be free of extreme governmental intrusions," said Alma Gonzales, general counsel for AFSCME Council 79. "We negotiated objective standards for drug testing for reasonable suspicion or if there is a safety risk, but at no point has the governor's office ever contacted us to negotiate over this. We're talking about taking their bodily fluids without probable cause or consent," she pointed out. "It's surprising and disappointing that the chief executive of Florida is unaware or doesn't care that this is the law of the land."
"I've been a state employee for almost 18 years," said Flamm. "There is absolutely no suspicion based on my behavior at work that I am a drug user. I joined as a plaintiff in this lawsuit because I find this extremely costly and wasteful. There is no threat to society. As a Florida taxpayer, I find it outrageous that given our current economic climate, with the loss of services and public jobs, that we would be wasting millions with unnecessary drug tests. As a citizen of the United States, I find this executive order an egregious attack on the Constitution. I'm surprised more people haven't stepped up," the research scientist said.
Scott signed the executive order on March 22, and it called for state agencies to have devised drug testing regimes by May 21, but it is unclear whether any state employees have been subjected to drug testing at this point.
The US Supreme Court has held that suspicionless drug testing by the government is an unreasonable search under the Fourth Amendment. The only exceptions allowed by the high court are "special circumstances," such as employees who work in jobs where there is "concrete danger of real harm."
"This executive order is profoundly un-American," said Simon. "This is a governor who masquerades as a conservative, but who is a radical. We had a revolution in this country that led to the enactment of the Fourth Amendment and the bill of rights, and that was a reaction to warrantless searches by the troops of King George."
"When we were asked to look at this and represent AFSCME, we did a painstaking analysis of constitutional law precedents dealing with employee drug testing," said Peter Walsh, an ACLU of Florida attorney working on the case. "This isn't a case of a governor arguably acting within the bounds of the US Constitution or even pushing the envelope to test the limits; the governor has ripped the envelope apart and jumped way over the line of what is permissible. He has violated the Fourth Amendment's search and seizure clause and done so in a big way."
There is also precedent from the Sunshine State itself. The city of Hollywood, Florida, enacted a municipal employee drug testing law little more than a decade ago, only to have it thrown out by the Florida courts in 2000. Four years later, the state Department of Juvenile Justice's effort to conduct suspicionless drug tests on employees was also thrown out. The department is a state agency covered by the governor's executive order.
"I'm not surprised but a little bit shocked that the governor would go ahead with issuing an executive order when this is about as close to settled law as possible," said Simon. "Federal judges have struck such programs down as searches without probable cause and without reasonable suspicion."
"Employee drug testing by urinalysis is particularly destructive of privacy, offensive to personal dignity, demeaning and an affront to dignity," said Walsh. "Those are the words of Justice Antonin Scalia from his dissenting opinion in a seminal case on employee drug testing."
In that case, the high court upheld suspicionless drug testing by private employers. US law provides few worker protections from employer drug testing. But drug testing by the government is a different matter, and constitutional protections unavailable to private sector workers come into play.
"People say this is so widespread in the private sector that what's the big deal," said Simon. "But just because it's widespread doesn't make it right. Public sector employees are protected by the Fourth Amendment; they have more protection of their rights to privacy. We are proud to be filing this lawsuit on their behalf."
Simon also hinted strongly that the ACLU of Florida would soon be filing another lawsuit, this one aimed at the welfare drug testing bill Gov. Scott signed this week. Like state worker drug testing, the courts have frowned on the suspicionless drug testing of welfare recipients. The last state to try to implement such a plan, Michigan, had its law thrown out as unconstitutional by a US district court in 2003.
Gov. Scott ran on a platform of reducing needless spending in the public sector. But he's about to spend big bucks on defending an executive order that is constitutionally indefensible and likely to spend even more defending the welfare drug testing law that is just as constitutionally indefensible.