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Welfare drug tests proved problematic, court documents show

Wednesday, September 12th, 2012 by Dara Kam

New court filings in a lawsuit over Gov. Rick Scott’s mandatory drug testing of applicants for welfare assistance reveal a hastily patched-together system marked by a lack of protocol and uniformity and concerns by state workers that the process was overreaching.

Documents filed by the American Civil Liberties Union of Florida on Monday revealed that one applicant with kidney failure and on dialysis was forced to submit urine via a catheter. Another had to leave her young children alone with a drug test company employee while going to the bathroom to provide a urine sample. And one batch of drug tests from an unapproved lab in West Palm Beach was found in a box in a Department of Children and Families office.

Dozens of applicants who tested positive for drugs were then referred to the state abuse hotline and investigated, the records showed, although testing positive for drugs alone is not a reason for an investigation under other circumstances.

The documents, uncovered by the ACLU as part of the discovery in the lawsuit against Scott’s administration, also reveal that some counties did not have approved testing labs and the department would not provide funds for transportation.

Read the ACLU’sACLU’s and DCF’s motions, and the rest of the story.

UPDATE: Gov. Scott’s state worker drug testing unconstitutional, federal judge rules

Thursday, April 26th, 2012 by Dara Kam

UPDATE: Gov. Rick Scott said he will appeal a federal judge’s ruling that random, suspicionless drug testing of state workers is unconstitutional.

“As I have repeatedly explained, I believe that drug testing state employees is a common sense means of ensuring a safe, efficient and productive workforce. That is why so many private employers drug test, and why the public and Florida’s taxpayers overwhelmingly support this policy. I respectfully disagree with the court’s ruling and will pursue the case on appeal,” Scott said in a statement.

Gov. Rick Scott’s random drug testing of state workers is unconstitutional, a federal judge ruled today.

Miami U.S. District Judge Ursula Ungaro Thursday morning ruling that random, suspicionless testing of some 85,000 workers violates the Fourth Amendment ban on unreasonable searches and seizures also raises doubts about a new state law quietly signed by Scott this spring allowing the governor’s agency heads to require urine tests of new and existing workers.

“To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing,” Ungaro wrote in her order issued this morning, citing previous U.S. Supreme Court orders which decided that urine tests are considered government searches.

Scott issued an executive order requiring random drug testing of new hires and all state workers after he took office last year. But he suspended the tests in June after labor unions and the ACLU challenged the order, objecting that the tests are a violation of the constitutional right to protection from unreasonable searches and seizures by the government. Instead, Scott limited his order for all but corrections officers pending the outcome of the Miami case.

Lawyers for AFSCME, the union representing government workers, and the ACLU argued that drug tests should only be ordered if a worker is suspected of a substance abuse problem or for employees in high-risk jobs. Previous Supreme Court decisions upheld drug testing in those jobs, Ungaro noted, or in cases involving school children.

Ungaro rejected Scott’s lawyers’ arguments and data showing that about 1 percent of workers at certain agencies who underwent the drug screens tested positive. And she was not persuaded by the governor’s arguments that private sector drug testing shows widespread drug use among workers. She also did not agree that prospective or current state workers could seek employment elsewhere if they object to the tests. New hires, but not current state workers switching jobs, could be required to take the tests, Ungaro ruled.

“All of the upheld drug-testing policies were tailored to address a specific, serious problem. In contrast, the rationale for the Governor’s policy consists of broad prognostications concerning taxpayer savings, improved public service, and reductions in health and safety risks that result from a drug-free workplace,” Ungaro wrote.

Lawyers for the union and the ACLU, who had expected Ungaro to rule as she did, nevertheless applauded the decision.

“With her order today, Judge Ungaro has protected the privacy and personal dignity of tens of thousands of Florida’s best and brightest – our state workforce,” said Alma Gonzalez, Special Counsel of AFSCME Council 79, which brought the suit. “There never was any evidence that state employees used drugs more than any other group so this was a case of using hard working state employees to score political points.”

Scott’s lawyers argued that the drug tests were necessary to combat drug abuse and ensure a more efficient workforce.

But individual rights to privacy trumped the government’s interest in those issues, Ungaro found.

“The fundamental flaw of the EO is that it infringes privacy interests in pursuit of a public interest which, in contrast to the concrete and carefully defined concerns in Skinner, Nat’l Treasury, and Vernonia, is insubstantial and largely speculative,” Ungaro wrote, referring to cases in which the Supreme Court upheld the tests.

And she also did not agree with Scott’s arguments that the drug tests were a part of Florida’s “transparent” government.

“The Governor’s reasoning is hardly transparent and frankly obscure. He offers no plausible rationale explaining why the fact that a state employee’s work product and financial status are publically accessible leads to the conclusion that the employee’s expectation of privacy in his or her bodily functions and fluids is then diminished. And in any event, no court has relied upon a policy of transparent government, embodied in laws such as those cited by the Governor, as sufficient to overcome a public employee’s reasonable expectation of privacy in the contents of his or her urine. This Court sees no reason to be the first,” she wrote.

The new law, a priority of Scott’s which goes into effect on July 1, allows Scott’s agency heads to order the drug tests for up to 10 percent of their workers four times a year. Lawmakers did not include any additional funding for the urine tests, which run from $5 to $40, in the measure (HB 1205) in the state’s $70 billion budget, prompting some critics to question which services agencies will cut to absorb the costs. Workers can be fired if the drug screen is confirmed positive.

UPDATE: Gov. Scott will hold off on state worker drug tests

Tuesday, March 20th, 2012 by Dara Kam

Hours after Gov. Rick Scott said agencies under his control would begin drug-testing state workers, his administration issued a memo “clarifying” that the tests won’t begin until a legal battle is resolved.

Jesse Panuccio, Scott’s acting general counsel, sent a memo to agency heads Tuesday evening saying Scott’s June 10 decision to require drug testing only of Department of Corrections employees would remain in place until a lawsuit filed last year by the ACLU and state workers union is resolved.

“Because the legal case remains unresolved, the practical and logistical issues involved with implementing drug testing across all agencies remain the same,” Panuccio’s memo said.

Earlier Tuesday, when reporters asked Scott about the new law, which he signed Monday and which goes into effect on July 1, and whether he would require agency heads to begin ordering the state’s 100,000-plus employees to submit to random drug tests, he said, “Absolutely.”

Asked if Panuccio’s memo meant Scott was backing off what he said earlier, one of his spokesmen, Lane Wright, said, “In a nutshell, we’re not changing anything right now. We know that the litigation is pending. So we’re not jumping in and changing course right away. But the law provides that discretion so it allows that to happen but that’s not what we’re deciding to do at this point.”

Scott, however, appears to be drug testing employees in his inner circle. Secretary of State Ken Detzner told reporters on Tuesday that he submitted to the urinalysis after being appointed by Scott three weeks ago. His test, Detzner said, was clean.

Scott said he implemented the drug screens of executive office workers after he took office.

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