a "reasonable" invasion of a fire fighter's privacy cannot be informed by the standards applied in Shoemaker.
Traditionally, the Plainfield Fire Department has not invoked intrusive regulatory authority in supervising its fire fighters' persons and effects. Plaintiffs in this case had no notice or warning that they would be subject to intrusive personal searches by Fire Department officials or other City officials. Nothing in the initial employment agreement nor any civil service requirements permits the conclusion that these fire fighters voluntarily forfeited their privacy interest in the same way as jockeys. Plaintiffs were not afforded an opportunity to make an informed employment decision based on the knowledge that they might be required to submit to intrusive government intervention on the job. Given these facts, the plaintiffs do not qualify as "voluntary participants in a highly regulated industry". The circumscribed ruling in Shoemaker cannot be applied to the instant search.
The reasonableness of a search is arrived at by balancing the interests of the state in conducting the search against the individual's privacy interest. That the Plainfield fire fighters retain a greater privacy interest on the job than do race horse jockeys is evident from the fact that racing is a closely regulated industry and fire fighting is not. What remains then is to compare the state's interest in the two cases.
The Third Circuit's determination in Shoemaker was largely influenced by concerns specific to the horse racing industry. For instance, the Court afforded great deference to the state's interest in "assuring the public of the integrity of the persons engaged in the horse racing industry" because the state had a direct financial stake in the revenue generated by public wagering on horses and because the court recognized the industry's unique vulnerability to "untoward influences". Id., at 1141. Drug testing was the only "effective" means the state could employ in its effort to dispel long standing public suspicion of criminal influences permeating the organized gambling associated with horse racing.
In Shoemaker, the court placed great emphasis upon the public's "perception" of the industry's integrity because, "public confidence forms the foundation for the success of an industry based on wagering". Id., at 1142. Although there may exist ways to detect drug use among jockeys, other than subjecting them to mandatory urinalysis, what was at stake in Shoemaker was the appearance of propriety. The state's interest was to demonstrate to the public that drug abuse was not interfering with racing. Mandatory, mass urinalysis provided such a demonstration.
Clearly, no one can deny that the public has an interest in the integrity of its fire fighting forces. Yet, the ability of fire fighters to perform their jobs is not dependent upon the public's "perception" of this integrity in the same way as the racing industry's. In other words, fire fighters can still continue to serve the public effectively, even in the face of unpopular public "perception". For the municipality of Plainfield then, it is not the demonstration of propriety that is essential but rather the determination of job-related capability. Such determination does not require mandatory, mass urinalysis, but can be safely accommodated by an individualized suspicion standard.
The Plainfield Fire Department has a long record of satisfactory service in protecting the safety of its citizenry. The citizens of Plainfield have not voiced any concern regarding their performance or their efforts. The public is well aware of the careful screening tests and exhaustive training undergone by all fire fighters. The civil service test and, the physical capacity requirements, all attest to the meticulous and conscientious manner in which fire fighters are selected. It is this process that establishes and ensures public confidence in its fire fighters.
The City of Plainfield is not seeking to combat public perception of "untoward influence" undermining its fire force. On the contrary, these fire fighters daily prove their ability and their commitment on the job. Therefore, the state's interest in this case does not require the use of departmentwide urinalysis. Having determined that both the fire fighter's privacy rights in this case are greater than those of the jockeys, and that the state's interest is less than that of the Racing Commission, this court finds that the search in question does not fall within the Shoemaker exception.
Perhaps the most critical distinction between these two searches though, is the very careful procedural protections built into the Shoemaker testing system and the complete absence of procedural safeguards in defendants' urinalysis program. The jockeys in Shoemaker were assured that the results of their tests would be published only to a very few Commissioners. Specific agreement was obtained to keep such information confidential from enforcement agents.
The City of Plainfield is in an entirely different posture. Governmental agents, once they possess incriminatory information concerning drug use, may not have the authority to withhold such information from prosecuting agents, even if that is their desire. More specifically, in the instant case, Plainfield charged the plaintiffs with "acts of criminal misconduct" in their formal written complaints. The potential for criminal prosecution that exists vis a vis the Plainfield fire fighters poses a greater intrusion than that faced by the Shoemaker jockeys. ". . . Government investigations of employee misconduct always carry the potential to become criminal investigations". Allen v. Marietta, supra, at 491. In balancing the government's interest in conducting the search against the intrusiveness and potential harms plaintiffs may suffer, it is clear that Plainfield defendants must meet a much higher burden of reasonableness to justify subjecting plaintiffs to potential criminal charges. For these reasons, Shoemaker is not controlling on the present facts.
A balancing of the state's interest against the significant invasion of privacy occasioned by the urine testing requires a determination that defendants' conduct was unreasonable and violative of the Fourth Amendment.
Due Process Claims
As civil servants employed by the Plainfield Fire Department, plaintiffs are endowed with constitutionally protected property interests in their tenure pursuant to the New Jersey statutory scheme governing municipal fire fighters. See N.J.S.A. §§ 40A:14-7 et seq. Specifically, N.J.S.A. § 40A:14-19 confers upon plaintiffs, as fire department employees, a reasonable expectation of continued employment unless and until "just cause" is established for their termination. N.J.S.A. § 40A-14-19 provides in pertinent part as follows:
Except as otherwise provided by law no permanent member or officer of the paid or part-paid fire department or force shall be . . . suspended, removed, fined or reduced in rank . . . except for just cause as herein above provided and then only upon a written complaint, setting forth the charge or charges as against such member or officer so charged, with notice of a hearing . . . which shall be not less than 10 nor more than 30 days from the date of service of the complaint. A failure to substantially comply with said provisions as to the service of the complaint shall require a dismissal of the complaint.
This statutory scheme bestows a property interest upon plaintiffs which cannot be abrogated by their government employer without due process. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985); Johnson v. United States, 202 U.S. App. D.C. 187, 628 F.2d 187, 194 (D.C. Cir. 1980); Jones v. McKenzie, 628 F. Supp. 1500, 1504 (D.D.C. 1986).
Furthermore, plaintiffs have constitutionally recognized liberty and property interests in their individual reputations, and in the honor and integrity of their good names. Such protected reputational interests derive directly from plaintiffs' employment status as fire fighters and cannot be arbitrarily or capriciously infringed by government officials either. See, e.g., Paul v. Davis, 424 U.S. 693, 708-09, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Jones v. McKeinzie, 628 F. Supp. at 1505.
It is beyond argument that discharge on charges of drug abuse could severely affect these interests. The deprivation of plaintiffs' liberty and property interests trigger constitutional requirements of procedural due process. Defendants' actions impermissibly violated these protected liberty and property interests without due process of law.
The unannounced mass urinalysis testing that took place on May 26, 1986 and subsequently, was completely lacking in procedural safeguards. Such testing was unilaterally imposed by defendants as a condition of employment without prior notice to plaintiffs and without opportunity for plaintiffs to voice objection or seek the advice of counsel. There were no standards promulgated to govern such department-wide drug raids, nor any provisions made to protect the confidentiality interests of the fire fighters whose personal physiological information unexpectedly came into the hands of government authorities. Defendants precipitously exercised their unbridled discretion exhibiting a total lack of concern for the constitutional rights of their employees.
By compelling plaintiffs to participate in the urine testing under the threat of immediate discharge, defendants effectively coerced a waiver of any rights, including the right against self-incrimination, plaintiffs may have had under the collective bargaining agreement to challenge such unilateral actions. Defendants' conduct was in flagrant violation of the due process rights that inure to plaintiffs under both the New Jersey statutory regulations and the Fourteenth Amendment of the United States Constitution.
Defendants' actions are cause for particular concern given numerous reports challenging the reliability and accuracy of the urinalysis tests themselves. The procedural dangers inherent in relying on the results of such tests are well documented in both legal and medical literature. See e.g. Jones v. McKenzie, 628 F. Supp. at 1505-06 and authorities cited therein; see also M. K. Divoll and D.J. Greenblatt, The Admissibility of Positive EMIT Results as Scientific Evidence: Counting Facts, Not Heads, 5 Journal of Clinical Psychopharmacology 114-116 (1985). In light of these concerns, defendants' refusal to afford plaintiff a full opportunity to evaluate and review their personal test results or to have their own specimens re-tested by a technician of their choice offends traditional notions of fundamental fairness and due process.
On its face, N.J.S.A. § 40A:14-19 explicitly mandates that no suspension shall occur until an opportunity has been provided for the presentation of charges, hearing, opportunity for defense and an adjudication of guilt or innocence. This statute has been interpreted by the New Jersey courts to permit pre-hearing suspension where the suspension is clearly "procedural" -- a temporary measure pending further investigation and a due process hearing -- but impermissible where pre-hearing suspension is invoked as a punitive measure prior to the adjudication of guilt. See D'Ippolito v. Maguire, 33 N.J. Super. 477, 111 A.2d 78 (App. Div. 1955). In the instant action, defendants conducted and terminated their investigation with the urinalysis testing conducted in late May and early June. The terminations without pay that followed for those who tested positive were unquestionably punitive in nature. Defendants gave no indication that they would conduct second tests to corroborate their initial findings, nor was mention made of a hearing procedure in the written complaints served upon the plaintiffs. Absent a sufficient procedural framework, defendants' delay in issuing the written complaints setting forth the charges against those terminated is unjustifiable.
Having held that defendants' search violated plaintiffs Fourth and Fourteenth Amendment rights, this court finds that plaintiffs' termination was without just cause and therefore violative of due process. Apart from the constitutional adjudication, defendants complaint is hereby dismissed pursuant to N.J.S.A. § 40A:14-19.
This matter was originally opened to the court on a motion for preliminary injunction pursuant to Rule 65(a) of the Federal Rules of Civil Procedure.
By consent the parties have agreed to submit the matter for a final determination on the record, conceding that no factual issues exist which would require additional hearings. In accordance with Federal Rule 65(a)(2), the court will consider this to be an application for permanent injunction.
This court finds that plaintiffs have met their burden of demonstrating that defendant City of Plainfield and its agents violated their constitutional rights by instituting compulsory, departmentwide, urine testing absent individualized reasonable, suspicion.
The invasion of Fourth Amendment privacy rights and Fourteenth Amendment substantive and due process rights as a result of defendants' conduct warrants the issuance of injunctive relief.
Absent injunctive relief, plaintiffs face the threat of immediate termination from their jobs without pay and without an opportunity for a due process hearing. Any opportunity for other employment has been jeopardized by the adverse publicity generated by this action, which has left each Plainfield fire fighter vulnerable to the suspicion of being a "drug abuser". Such harm cannot be adequately remedied at law.
Further, this court finds that requiring individualized, reasonable suspicion will not unduly burden the defendants' ability to insure its citizens a safe, unimpaired fire fighting force.
Title 42 Section 1983 of the United States Code, creates a federal statutory cause of action against any person "who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws [of the United States]." Defendants' by their actions have violated Title 42 Section 1983, depriving plaintiffs Plainfield Fire Fighters and Plaintiff Monica Tompkins, a Police Department employee, of the constitutional rights and privileges secured to them. See e.g. McKinley v. City of Eloy, 705 F.2d 1110, 1116 (9th Cir. 1983) (cities and their officials and agents may be held liable under Section 1983 for causing violations of the constitutional or civil rights of other city employees).
The threat posed by the widespread use of drugs is real and the need to combat it manifest. But it is important not to permit fear and panic to overcome our fundamental principles and protections. A combination of interdiction, education, treatment and supply eradication will serve to reduce the scourge of drugs, but even a reduction in the use of drugs is not worth a reduction in our most cherished constitutional rights.
The public interest in eliminating drugs in the work place is substantial, but to invade the privacy of the innocent in order to discover the guilty establishes a dangerous precedent; one which our Constitution mandates be rejected.
For the foregoing reasons final judgment shall be entered in favor of the plaintiffs and an appropriate injunction shall issue against the defendant forthwith.
Counsel for the plaintiffs should submit an appropriate form of order in accordance with this opinion.