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Governor’s drug policy announcement draws some criticism

By Staff | Mar 22, 2011

BILL KACZOR,Associated Press

TALLAHASSEE, Fla. (AP) — Florida Gov. Rick Scott ordered drug testing Tuesday of new hires and spot checks of existing state employees under him, but civil rights and labor lawyers questioned whether the directive was legal.

Scott issued an executive order requiring each of his agencies to amend its drug testing policy within 60 days to require pre-employment screenings of all job applicants and random testing of the existing work force.

The American Civil Liberties Union, though, pointed out that a federal judge in 2004 ruled random drug testing of most state employees was an unconstitutional violation of privacy rights.

U.S. District Judge Robert Hinkle of Tallahassee determined the Department of Juvenile Justice was wrong to fire an office employee because he had no direct contact with children nor were there any safety reasons for the testing, such as carrying a gun or driving. Hinkle did not reinstate the employee but ordered mediation. The state settled with the former employee for $150,000.

“The state of Florida cannot force people to surrender their constitutional rights in order to work for the state,” said ACLU of Florida executive director Howard Simon. “Absent any evidence of illegal drug use, or assigned a safety-sensitive job, people have a right to be left alone.”

Scott also cannot unilaterally order drug testing of existing employees without safety issues if they are covered by labor contracts, said Tom Brooks, a lawyer for the Federation of Physicians and Dentists. The federation is a union for health care professionals who work for the governor’s agencies including the departments of Corrections, Juvenile Justice and Children and Families.

“Drug testing is considered a mandatory subject of collective bargaining” for most public employees, Brooks said, although he acknowledged the Florida Supreme Court has made an exception for police officers.

The Florida Constitution guarantees public employees the right to bargain, but it also prohibits them from striking, which gives them little leverage, Brooks acknowledged.

“It’s a big, ‘So what?’ most of the time,” Brooks said.

Scott spokesman Brian Hughes said the governor believes he’s on sound legal ground.

“Top-notch legal advisers to the governor have assured him he has the authority to do this,” Hughes said.

Immediately after Hinkle’s 2004 ruling, a Juvenile Justice spokesman said the agency planned to continue drug testing all employees on grounds that the court ruling applied only to only one person. Current Juvenile Justice spokeswoman Samadhi Jones declined comment on whether the agency stuck with that policy.

Scott’s order does not cover independent constitutional agencies and those of Cabinet members or that he jointly administers with the Cabinet. It also does not cover the Legislature or court system.