Gov. Rick Scott signed an executive order on Tuesday that will require random drug testing of many current state employees as well as pre-hire testing for applicants.
“Floridians deserve to know that those in public service, whose salaries are paid with taxpayer dollars, are part of a drug-free workplace,” Scott said. “Just as it is appropriate to screen those seeking taxpayer assistance, it is also appropriate to screen government employees.”
The reference to taxpayer assistance referred to a push by Scott and legislative Republicans to require those who apply for state benefits under the Temporary Assistance to Needy Families program to submit to a drug test before getting benefits. That proposal (SB 556) was approved unanimously on Tuesday by the Senate Criminal Justice Committee. It has another stop before the Senate floor.
Under Scott’s proposed order, current employees in agencies that answer to the governor, would be subject to periodic random screening. The executive order signed by Scott says the tests would require testing of each employee “at least quarterly.” The random testing of current employees will begin in 60 days under the order.
“A better, healthier, more productive workforce is something taxpayers deserve,” said Scott spokesman Brian Hughes.
Effective immediately, any new hires in governor’s agencies would also be subject to pre-hire drug testing under the order.
State agencies are already allowed – though not required – to do pre-hiring drug screening under the Florida Drug-Free Workplaces Act. State officials couldn’t say Tuesday which, if any, agencies already do that.
State agencies, under that law, also can already require drug testing when there’s suspicion that a current employee is using illegal drugs, but courts have generally found that random testing of government workers who aren’t in jobs that affect public safety, such as bus drivers, or in security positions, amounts to a “search” by the government. Such searches must be “reasonable,” generally, and some courts have interpreted such requirements of ordinary government workers as a violation of the U.S. Constitution’s Fourth Amendment right against unreasonable searches.
In fact, almost immediately Scott’s order came under fire from the ACLU, which said that a 2004 federal court ruling in Florida on exactly this issue made at least part of Scott’s order unconstitutional.
In that case, U.S. District Judge Robert Hinkle ruled that the Department of Juvenile Justice was violating the Fourth Amendment in ordering random drug testing. Hinkle ordered DJJ to halt the random drug testing and pay the employee who sued, Roderick Wenzel, $150,000.
It’s not clear whether the DJJ ever did stop its random drug testing. A spokeswoman for the agency referred that question to the governor’s office.
Hughes, the Scott spokesman, said he didn’t know enough about the case to comment on what ever happened to the Wenzel case, or why it didn’t have a bearing on Tuesday’s order.
But the ACLU contends that random searches of all employees aren’t allowed.
“I’m not sure why Gov. Scott does not know that the policy he recreated by executive order today has already been declared unconstitutional,” ACLU of Florida Executive Director Howard Simon said in a statement. “The state of Florida cannot force people to surrender their constitutional rights in order to work for the state. Absent any evidence of illegal drug use, or assigned a safety-sensitive job, people have a right to be left alone.”
Hughes said Scott, obviously, believes otherwise.
“The governor has some of the best legal advisors available,” Hughes said. “This executive order is within his legal authority.”
By David Royse
The News Service of Florida
