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POLICEMEN'S BENEVOLENT ASSN., LOCAL 318 v. TOWNSHI

October 8, 1987

Policemen's Benevolent Association Of New Jersey, Local 318 and Edmund Giordano, Individually and as President of the Policeman's Benevolent Association of New Jersey, Local 318, Plaintiffs,
v.
Township Of Washington (Gloucester County) a municipal corporation under the laws of New Jersey, and John Robertson, Mayor, Defendants



The opinion of the court was delivered by: RODRIGUEZ

 FACTS AND PROCEDURAL HISTORY

 This case was brought before the court pursuant to 42 U.S.C. § 1983. The plaintiffs claim that the constitutional rights of Washington Township's police officers, whom plaintiffs represent, will be violated if the Township's proposed drug-testing plan for municipal employees is put into effect.

 The issues in this matter represent a juxtaposition of two vital societal concerns: The need to ensure that our public servants, in this case police officers, are free from the modern scourge of illegal drug abuse; versus the right of the individual to be protected from unreasonable searches aimed at detecting evidence of such abuse. This opinion presents the court with an opportunity to delineate the constitutional boundaries of these potentially conflicting societal interests.

 On August 4, 1986, President Ronald Reagan called upon all levels of government to develop plans to ensure drug-free workplaces in our nation. On August 5, 1986, the Mayor of Washington Township, John W. Robertson, Jr., inspired at least in part by the President's call, issued a memorandum directing that all employees of the Township would be subject to mandatory drug testing. There were no guidelines issued with respect to the proposed testing at that time.

 On September 12, 1986, the Policemen's Benevolent Association of New Jersey, Local 318 and its president, Edmund Giordano, filed suit on behalf of the police officers of Washington Township. The Township, Mayor Robertson and the Township Council were named as defendants. The plaintiffs asked the court to declare the planned drug testing unconstitutional and to enjoin the Township from undertaking such testing with respect to police officers. The plaintiffs also sought temporary restraints against the defendants while the matter was under review.

 The court initially granted temporary restraints and ordered the defendants to appear and show cause why a preliminary injunction should not be granted to the plaintiffs. The parties appeared in court on September 19, 1986. At that time, the Township indicated that no testing of police officers had taken place and that none would take place until guidelines were formulated and the court had an opportunity to review those guidelines. Based on those representations, plaintiffs' application for a preliminary injunction was denied. The temporary restraints were dissolved on October 8, 1986.

 On October 6, 1986, the defendants answered the plaintiffs' allegations and counterclaimed for attorney's fees pursuant to 42 U.S.C. § 1988.

 Pretrial discovery was conducted under the supervision of Judge Jerome B. Simandle. On February 25, 1987 the defendants submitted the "Revised Employee Drug Testing Program of the Township of Washington," (Plan) which is the plan under review here. The parties have since indicated that no genuine issue of material fact remains to be decided and that this dispute can be resolved by motion. The case is presently before us on cross-motions for summary judgment on the issue of whether certain aspects of the defendant's proposed drug testing plan should be permanently enjoined.

 The plaintiffs have stipulated that they are only challenging the constitutionality of the following aspects of the proposed plan: those aspects calling for the random testing of police officers; those aspects which might authorize the mass-testing of the entire police force; and those aspects which would permit testing as part of pretextual physical examinations which are not bona fide medical examinations given in the ordinary course of business and as a matter of the Township's policy for its police officers.

 The plaintiffs have also stipulated to dismiss the Township Council as a defendant. In return, the defendant Township Council has withdrawn the counterclaim in which it sought attorney's fees.

 THE PLAN

 The stated purpose of the proposed plan is "to establish uniform policies and procedures to govern the administration of a screening process to test and control unauthorized use of illicit drugs among all sworn and civilian personnel of the Township of Washington." Plan, section 1, pg. 1. The introductory section indicates that the policy "takes cognizance of the rights inherent in each individual of the Township under the Constitution of the United States of America and the State of New Jersey." Plan, section 2, pg. 1. Of course, it is the purpose of this opinion to determine whether or not the policy embodies a sufficient cognizance of constitutional rights.

 The plan proposed by Washington Township would permit the defendant to initiate drug testing of its employees in a variety of ways. There are two "base methods" listed for the detection of illegal drug use by Township employees. The first is "testing of those individual employees where facts are sufficient to constitute reasonable suspicion . . ." of illegal drug use. The second is by way of a "universal random urinalysis procedure." Plan, section 3, pg. 2. In addition to these "base methods," the policy also states that all municipal employees will be required to have annual physical examinations which shall include a urinalysis drug test. There is a reservation of the right to require additional "regularly scheduled and announced" medical examinations of employees in certain municipal departments. Plan, section 4, pg. 3. The plaintiffs believe that this reservation would give the Township the power to schedule drug tests in addition to those conducted as part of the annual "medical examination." Finally, the policy requires all municipal job applicants to sign consent forms in which they agree to submit a urine sample for drug testing. An applicant's refusal to provide such a sample or the detection of drugs in a sample will result in the rejection of the employment application.

 Random selection of employees to be tested would be accomplished by a computer programmed by an independent contractor. The selected subject would be notified of the impending drug test "just prior to transport to the testing location." Plan, section 8, pg. 5. The employee would also be informed at that time of the specific drugs to be tested for.

 The following procedure would apparently apply to all drug testing, whether initiated by random selection or otherwise: Testing will take place in a "clean and sanitary location" equipped with washing facilities. Plan, section 10, pg. 7. The selected employee must complete a medical questionnaire which clearly describes "all drugs, both prescription and non-prescription, ingested during the past 3 days." Plan, section 8, pg. 5.

 The employee must thoroughly wash his or her hands and fingernails and "deliver the urine sample under the direction of the medical or laboratory technician." Id. The employee must submit a required minimum amount of urine in an approved container. The urination would take place in "private," unless there is a reasonable suspicion that the subject will tamper with the sample in some way. Plan, section 12, pg. 8. However, the urination will in any event take place under the "general supervision of [a] medical laboratory technician." The laboratory technician will supervise "all aspects of obtaining, marking and packaging of individual urine samples. . . ." Plan, section 10, pg. 6.

 "At all stages of the urine-sampling procedure the employee will be expected to follow each instruction of the testing supervisor." Plan, section 8, pg. 5. The employee will be assigned a number which will correspond to a number on the sampling container. This process is designed to assure anonymity. The employee must also sign documentation verifying that the number on the sample corresponds to the number they have been assigned.

 The Township is to specify which specific illegal substances it wishes to test for in each case. The testing laboratory shall be responsible for maintaining a proper chain-of-custody of each sample. Each sample would undergo two different tests. The plan tentatively indicates that the first test shall employ a thin-layer chromatography process. The second test shall employ either "enzyme immunoassay, gas liquid chromatography, [or] mass spectrometry." Plan, section 13, pg. 8. The testing laboratory would also preserve an aliquot sample of the urine which the subject employee may use to conduct a confirmatory test at the same laboratory, under the supervision of experts chosen by the employee.

 Drug testing would not be conducted for purposes of criminal prosecution. Employees testing positive for drugs would be referred to an Employee Assistance Program for "assessment, counseling, and referral for treatment or rehabilitation as appropriate." Plan, section 17, pg. 10.

 However, the Township reserves the right to dismiss or discipline anyone found to be using drugs. The only drug users who may not be disciplined or fired are those employees who come forward and volunteer to be drug tested during the sixty day period prior to the implementation of the Township's mandatory testing program. To avoid termination or other disciplinary action, such persons must also volunteer the fact that they are illegal drug users, obtain help through the Employee Assistance Program (EAP), and remain drug-free thereafter. Any employee who refuses rehabilitation and uses illegal drugs a second time will be terminated.

 The proposed plan includes an education program which would, among other things, educate employees about the extent of the drug problem facing society; the programs in effect to combat this problem; the dangers of drugs; and the signs of drug abuse which can be detected in fellow employees. Supervisory personnel will also receive training so that they will be able to determine when a reasonable suspicion exists that an employee is using drugs.

 Employees will be notified sixty days in advance that the drug testing program is about to go into effect. During that period employees are encouraged to voluntarily come forward if they are using illegal drugs. All job applicants would be informed that drug testing is a condition of employment.

 The proposed plan has a severability clause which states that "if any of its provisions shall be held unconstitutional or otherwise invalid by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the remaining provisions." Plan, section 16, pg. 10.

 OPPOSING ARGUMENTS

 The plaintiffs argue that taking urine samples for drug testing purposes constitutes a search and seizure under the Fourth Amendment. They cite a list of cases which agree with that assertion. Since a variety of private medical facts about a person can be detected in their urine, the plaintiffs assert that an individual has a reasonable expectation of privacy with respect to its discharge and the detection of the private information therein.

 The plaintiffs argue that the Fourth Amendment requires Washington Township to obtain a warrant based on full probable cause in order to institute a urinalysis drug search of its police officers. However, the plaintiffs admit that the warrant requirement of the Fourth Amendment is not "inviolate." Plaintiffs' brief at 7. Therefore, they argue in the alternative that at least a reasonable suspicion of illegal drug use by an officer must exist before the officer may be ordered to submit to a urinalysis.

 The plaintiffs believe that the reasonable suspicion standard is justified by a balancing of the interests at stake here. They rely on the fact that Washington Township has not identified an existing drug problem among its police officers. The plaintiffs do not dispute the Township's need to ensure that police officers do not use illegal drugs. However, they argue that mandatory urine testing in the absence of even a reasonable suspicion is an excessively intrusive means to achieve that end. While they concede that a police officer's expectation of privacy may be diminished somewhat, they insist that it is not so diminished as to permit the types of tests, absent reasonable suspicion, which the Township is seeking to conduct here.

 The plaintiffs especially oppose the Township's attempt to drug test police officers on a random basis. They argue that randomness provides no standard at all to measure when a given search is reasonable. They argue that random testing has the same ultimate effect as the mass testing of all police officers. They observe that courts have disallowed the mass testing of municipal employees under circumstances similar to those presented here.

 Even though the proposed tests are not aimed at gathering evidence for criminal prosecution, the plaintiffs point out that an officer's career will hang in the balance pending the test outcome and that the result could be incorrectly reported for a variety of reasons.

 The plaintiffs contend that the medical examinations called for in the drug testing policy are not bona fide medical examinations but are a mere subterfuge to conduct urinalysis drug tests under another label. They believe that the medical examination provisions are a "distractor" intended to permit the Township to urine test at its discretion. Plaintiffs' brief at 21. They point out that no medical guidelines, other than a drug-urine test, are established as a requirement of fitness for duty by police officers.

 The defendants respond by arguing that the intrusion engendered by a mandatory urinalysis is minimal. They believe that a police officer has no reasonable expectation of privacy in opposition to the proposed tests, since a police officer enjoys limited privacy rights on the job and because there can be no reasonable expectation of privacy in the fact that an individual is using illegal drugs.

 The defendants believe that random testing of police officers is the most efficient and effective way to ensure a drug-free police force. They concede that prior attempts to mass test municipal employees have been struck down as unreasonable by the courts. However, the defendants believe that their proposed drug testing plan has recognized and overcome the fatal defects which were present in those programs.

 For example, the defendants believe that their program is reasonable because it would permit most officers to urinate in private, because it is governed by a detailed set of written guidelines, and because the information obtained would be utilized for disciplinary but not for criminal purposes.

 The defendants do not claim that a drug problem among the Township's police officers has been documented. They assert that their program is fully justified as a preventive effort and rely on statistics which indicate that a serious drug problem exists in society as a whole. These statistics, they maintain, create a reasonable concern by Township officials that employees are using or may in the future use illegal drugs.

 To support their effort, the defendants rely on previous cases which have upheld the mandatory urine testing of jockeys, nuclear plant employees, flight service specialists and certain prison guards. Finally, the defendants maintain that mandatory urine testing has ...


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