On appeal from Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication May 21, 1996.
Before Judges Michels, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by VILLANUEVA, J.A.D. (retired and temporarily assigned on recall).
Plaintiff New Jersey Transit PBA Local 304 (PBA or plaintiff) appeals from a summary judgment of the Law Division entered in favor of defendant New Jersey Transit Corporation upholding the constitutionality of the random drug and alcohol testing of its policemen who carry firearms for security purposes and denying its application for an order to show cause to obtain a temporary and permanent restraining order. We affirm.
Plaintiff seeks a reversal of the judgment and a declaration that the random, unannounced testing components of the New Jersey Transit's Drug and Alcohol-Free Workplace Policy regarding its police officers who carry firearms for security purposes is a violation of article I, paragraph 7 of the New Jersey Constitution. Plaintiff also asserts that the trial court failed to properly apply the balancing test traditionally utilized to determine whether such policy violates the New Jersey Constitution.
Defendant New Jersey Transit Corporation (Transit) is a state agency responsible for operating and improving public transportation in New Jersey. N.J.S.A. 27:25-2a, -2b. To further these objectives the New Jersey Legislature empowered Transit to comply with federal rules and regulations, and apply and qualify for, accept and expend financial assistance available under federal law to assure the support and continuance of public transportation. See N.J.S.A. 27:25-5(g). Indeed, the Legislature intended that Transit comply with federal law upon which funding is conditioned so as to be eligible to receive federal funding. See In re NJ Transit Bus Operations, Inc., 125 N.J. 41, 48-49, 592 A.2d 547 (1991).
Plaintiff is the recognized majority representative for all police officers under the rank of captain employed by Transit. Plaintiff represents approximately one hundred and twenty-five police officers, only six of whom, as of April 1995, were assigned to ride on designated Transit trains.
Transit's police department has police and security responsibilities over all Transit locations and services. N.J.S.A. 27:25-15.1a. The officers have general authority within those locations and services to exercise police powers and duties, as provided by law for police officers and law enforcement officers, in all criminal and traffic matters at all times throughout the State of New Jersey. Ibid. They are required to comply with all policies established by the Attorney General, including rules and regulations, directives, advisory opinions, and other guidelines. Ibid. Transit's executive director is authorized to appoint and employ the officers and is required, through Transit's chief of police and in accordance with procedures established by the State Police, to investigate and determine the character, competency, integrity and fitness of all applicants. Ibid. Transit police officers must satisfy the training requirements established by the Police Training Commission. N.J.S.A. 27:25-15.1c. Transit's officers are authorized to carry firearms, N.J.S.A. 2C:39-5, N.J.S.A. 2C:39-6a(7)(a) and N.J.S.A. 27:25-15.1d, provided they satisfactorily complete a firearms training course, N.J.S.A. 27:25-15.1d. They are also authorized to use deadly force. N.J.S.A. 2C:3-7.
In October 1986 the Attorney General of New Jersey (Attorney General) issued guidelines regarding the urine testing of police officers. Attorney General of New Jersey, Law Enforcement Drug Screening Guidelines 2 (Oct. 22, 1986). Based upon the recommendations of the New Jersey Criminal Advisory Council, the Attorney General concluded that "the establishment of uniform statewide drug testing guidelines is absolutely necessary in order to maintain a drug-free law enforcement community and at the same time safeguard the rights of individual police officers." In setting forth specific guidelines, the Attorney General "strongly urged" that (1) law enforcement applicants who will be authorized to carry a firearm be required to submit to urinalysis prior to appointment; and (2) all officers should be subjected to unannounced drug testing by urinalysis during mandatory basic training. Ibid. Additionally, and most pertinent for purposes of this appeal, the guidelines state:
Permanently appointed law enforcement officers should be required to undergo further mandatory drug screening whenever there is individualized reasonable suspicion to believe that the officer is unlawfully using drugs. Officers should be tested under these circumstances only with the approval of the county prosecutor or chief executive officer of the department or his designee.
[Ibid. (emphasis added).]
Thus, in adopting these guidelines, the Attorney General did not specifically authorize the use of random drug testing, but rather required the existence of "individualized reasonable suspicion" of drug use before the testing of a law enforcement employee could be conducted. In revised guidelines which became effective August 1, 1990, the Attorney General addressed the procedural aspects of the drug-testing policy. However, the Attorney General did not change the requirement that there be reasonable suspicion before a drug test could be administered, stating that testing would be conducted based only on facts that provided a reasonable objective suspicion that the officer is illegally using drugs.
In 1991 Congress, in the interest of mass transportation safety, passed the Omnibus Transportation Employee Testing Act (Act) requiring the Secretary of Transportation to issue rules which mandate that mass transit operators receiving federal funds under section 3, 9 or 18 of the Urban Mass Transportation Act of 1964 *fn1 conduct pre-employment, reasonable suspicion, random and post-accident testing for alcohol and drug use in employees responsible for safety-sensitive functions. 49 U.S.C.A. § 5331(b). Failure to test, Congress directed, shall result in ineligibility for federal funding. 49 U.S.C.A. § 5331(g). *fn2
On February 15, 1994, the Federal Transit Administration (FTA), among other United States Department of Transportation subagencies, issued final rules implementing the statute. See 49 C.F.R. pts. 653 and 654. Among other mandates, the rules require recipients of federal funds, by January 1, 1995, to implement a program of random alcohol and drug testing of employees who perform the following safety-sensitive functions:
(1) Operating a revenue service vehicle, including when not in revenue service;
(2) Operating a nonrevenue service vehicle, when required to be operated by a holder of a Commercial Driver's License;
(3) Controlling dispatch or movement of a revenue service vehicle;
(4) Maintaining a revenue service vehicle or equipment used in revenue service . . .; or
(5) Carrying a firearm for security purposes.
[49 C.F.R. §§ 653.7, 653.13(a), 653.47, 654.7, 654.15(a) and 654.35.]
Pursuant to the federal rules, the random testing must be unannounced, and each time employees are selected for testing, every employee must have an equal chance of being selected. 49 C.F.R. § 653.47(a), (c); 49 C.F.R. § 654.35(f), (g). During the course of each year, at least 50% of the covered employees must be randomly tested for drugs. 49 C.F.R. § 653.47(b)(2). Initially, at least 25% of the covered employees must be randomly tested for alcohol, with the minimum rate subject to adjustment based upon industry results. 49 C.F.R. § 654.35(a) to (d). Procedures for the collection and chain of custody of urine specimens and the identification of the donor are described in 49 C.F.R. part 40.
Significantly, the rules expressly preempt, with the exception of state criminal laws, any state or local law, rule, regulation or order to the extent that compliance with both the state or local requirement and any requirement of the rules is not possible, or where compliance with the state or local requirement is an obstacle to the accomplishment and execution of any part of the rules. 49 C.F.R. §§ 653.9, 654.9. The pertinent subsection of the statute provides:
A State or local government may not prescribe, issue or continue in effect a law, regulation, standard or order that is inconsistent with regulations prescribed under [the statute, except] a State criminal law that imposes sanctions for reckless conduct leading to loss of life, injury or damage to property.
[ 49 U.S.C.A. § 5331(f)(1).]
Under the terms of the Act, grantees are required to certify their compliance to FTA initially by January 1, 1995, and annually thereafter. 49 C.F.R. §§ 653.83(a), 654.83(a). The Act provides that the failure of a recipient of federal financial assistance for mass transportation to comply with the federal provisions by enacting the required drug-testing policies will result in the recipient's forfeiture of its right to receive federal funds. 49 C.F.R. §§ 653.81(a), 654.81(a). In fiscal year 1995, approximately $324 million of Transit's $1.2 billion total capital and operating budget came from the FTA.
Faced with the prospect of losing federal funding, on December 19, 1994, Transit published a document setting forth a corporate-wide policy entitled "Drug And Alcohol-Free Workplace -- Core Policy" (Core Policy) that became effective on January 1, 1995, and which provides, in part, as follows:
This document outlines NJ TRANSIT's policy to achieve a drug and alcohol-free workplace. The purpose of this policy is to ensure that NJ TRANSIT operates in the safest and most efficient manner possible and to promote the safety and welfare of our employees and customers by creating a drug and alcohol-free workplace and ensuring that our employees are free from the effects of drugs and alcohol.
Section VII of this document is entitled "Drug and Alcohol Test" and provides the following:
A. As Part Of Voluntary Periodic Medical Examinations (Physicals)
Management Physicals - A management physical is a voluntary periodic physical available to non-agreement employees who meet certain qualifying criteria. All employees who qualify for this examination will be required to sign a form reflecting their consent to drug and alcohol tests.
This section only applies to employees NOT covered by Addenda I or II.
1. An employee is required to submit to an alcohol and/or drug test when a supervisor has reasonable suspicion, based on specific contemporaneous, articulable observations concerning the appearance, behavior, speech or body odors of the employee, to believe that the employee has engaged in any of the behaviors prohibited by this policy concerning the use of alcohol and/or drugs.
Transit's document entitled "Drug and Alcohol-Free Workplace Policy -- Addendum I" similarly became effective on January 1, 1995. *fn3 The articulated purpose of Addendum I is as follows:
This document outlines those requirements of NJ TRANSIT's Drug and Alcohol-Free Workplace Policy which are applicable only to NJ TRANSIT employees who perform safety-sensitive functions as defined herein. As such, this document supplements and is to be read and applied with ...