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Public Employee Constitutional Rights Sample Articles:SEATTLE'S PRE-EMPLOYMENT DRUG TESTING PROGRAM ENJOINED POLICE DEPARTMENT GIVEN LATITUDE IN FREE SPEECH CASE DUE
PROCESS VIOLATION COSTLY FOR CITY The American Civil Liberties Union (ACLU) challenged the
constitutionality of a City of Seattle policy that required a preemployment
urinalysis drug test for about half the vacancies filled by the City.
Division I of the Court of Appeals held that to be valid under Article I,
Section 7 of the Washington State Constitution as a "a warrantless
search without particularized grounds for suspicion," the employer must
show the testing program "is narrowly drawn to achieve a compelling
governmental interest."
The court had no difficulty concluding that the employer's drug testing program was a warrantless search and an invasion of a job applicants' right to privacy. The question was whether there were sufficiently compelling reasons for the policy that would justify the intrusion. The court held that public safety constitutes a compelling governmental interest for drug testing and that preemployment testing could be required for applicants for police and firefighter positions. The court based its ruling on the Washington Constitution and not the Fourth Amendment to the U.S. Constitution in large part because cases under the federal constitution have held that there is an implied consent factor in similar cases: Job applicants can choose not to be tested, although by doing so, their applications will not be considered. Washington Supreme Court decisions have rejected this theory in cases applying Article I, Section 7 of the Washington Constitution. For example, court decisions have held that a school district has no right to search students' bags as a condition for going on a field trip, that police cannot erect random roadblock sobriety checkpoints, and Seattle cannot conduct pat-down searches as a condition for admission to Coliseum rock concerts. Employer Must Show Safety Sensitivity of Each Position In adopting its program, Seattle's City Council limited the testing to positions involving: 1) public safety responsibilities; 2) handling dangerous substances; 3) hazardous physical activities; 4) routine operation of motor vehicles, heavy equipment, or power tools; and 5) routine performance of other safety-sensitive activities. It also adopted a 600-page legislative record that found that most illicit drug users are employed and are in all kinds of jobs, that workplace drug use causes substantial monetary loss because of lost productivity, absenteeism, turnover, health care costs, and increased accidents and injuries. The City Council was concerned about becoming a "last resort employer" because of the widespread preemployment testing in the private and public sectors. It noted statistics showing that preemployment testing programs reduce the number of new employees with drug problems. On appeal, the employer told the court that its program was "narrowly restricted to outside applicants for vacancies in safety-sensitive positions." However, the court was skeptical "since half the city's jobs are deemed to fall in this 'safety sensitive' category." For example, the city claimed that safety-sensitive jobs included the use of electricity, life guarding and operating motor vehicles and heavy equipment. The problem for the court was that the city did not explain what safety-sensitive duties were performed by accountants, ushers, librarians, administrative assistants and public relations specialists subject to the testing. Economic Considerations Not Compelling The court rejected any suggestion that this latter group of jobs implicates public safety because of the higher level as worker's compensation claims among drug users. According to the court, this interest relates to cost and efficiency, not safety, and "important as these concerns are, they are not ordinarily considered compelling in the constitutional sense." Thus, the court could not conclude which jobs "directly and genuinely implicate the safety of the public" and which ones do not, with the exception of police officers, firefighters and positions requiring an employee to carry a firearm. The dispute was remanded to the trial court for a determination. Robinson v. Seattle, No. 45511-7-1, (Wa. App., Oct. 2, 2000)
The Ninth Circuit Court ruled that police officers' speech, although of public concern, was outweighed by the need for the police department to function effectively and serve the public. The court explained that the balance tips in favor of the employer because the close working relationships in this quasi-military organization necessitate "a wide degree of deference to the employer's judgment." Furthermore, the court found inappropriate the manner in which the officers' speech was disseminated. Racial Tension Grows Out of Genuine Complaints of Misconduct Two sergeants of the Los Angeles Police Department, both white males, did not get along with a supervisory lieutenant, a black female. The sergeants were concerned about what they saw as the supervisor's poor work performance and favoritism toward black officers. For example, the supervisor took no action against a black officer who was seen asleep in his patrol car. After another incident, which stemmed from a misunderstanding, one sergeant wrote into the daily log that the supervisor did not care about the truth. Shortly after that, he was transferred. The other sergeant received several complaints from white police officers that the lieutenant was giving black officers more favorable reports than white officers. He reported to his supervisor, a captain, that the lieutenant regularly left work early. She was eventually caught and punished, but the sergeant believed that she was disciplined less harshly than other officers. When his repeated reports to his captain about racial discrimination issues were ignored, he went over the captain's head to the chief. The sergeant was then removed from his position as complaint sergeant and transferred. Exposing Preferential Treatment and Sloppy Performance Not Worth Disrupting Workplace The sergeants sued in federal court alleging a violation of their free speech rights. Drawing on Supreme Court precedent and its own case law, the appeals court wrote that the officers' speech was protected because it "did concern matters which are relevant to the public's evaluation of its police department." Nevertheless, the court's final ruling was in favor of the employer because the employer's interest in running smoothly outweighs the officers' interests. The court explained that the officers' speech disrupted the police department. First, it "impaired discipline by superiors." Second, it "was conducive to racial and gender tension." Finally, the officers improperly made their accusations known. They interviewed officers themselves, making their beliefs known to officers subordinate to the lieutenant . They did not direct their speech at the public so that it could independently assess the functioning of the police department. The speech largely involved internal office matters stemming from the actions of one supervisor, whom one of the sergeants disliked from the beginning of their relationship. His continued unwillingness to accept his captain's treatment of his complaints bordered on insubordination which was not conducive to the smooth operation of the department. The appeals court, quoting the U.S. Supreme Court, explained why government agencies, while unable to stop the criticism of private citizens, have power over their employees' speech: Government agencies are charged by law with doing particular tasks ... When someone who is paid a salary so that she will contribute to an agency's effective operation begins to do or say things that detract from the agency's effective operation, the government must have some power to restrain the employee. Cochran v. City of Los Angeles, No. 98-56834 (9th Cir., Aug. 17, 2000) A municipal police department terminated a prison guard because of accusations that he used excessive force and mistreated women and minority prisoners. During the pre-termination hearing, the police chief and city manager denied the guard's request to view relevant documents. The parties did not dispute that he was denied procedural due process in his termination. The question before the 9th Circuit was whether the remedies he received barred his §1983 suit in federal court. He had received a state court writ of mandate reinstating him with full back pay and benefits, and filed the federal action seeking $10,000 in expenses and $1 million in punitive damages. The employer argued that his successful state action satisfied the requirement for procedural due process and precluded a subsequent §1983 action pursuant to U.S. Supreme Court case rulings holding that where post-deprivation state court remedies are available that would satisfy due process, relief under §1983 is barred so long as the due process deprivation was "random and unauthorized." The Ninth Circuit panel sided with the prison guard, finding that the city manager and police chief "were in positions with substantial discretionary powers" and "were responsible for the procedurally deficient termination hearings." Therefore, they acted in a "deliberate, considered, planned" manner that fell outside of the exception to the rule barring subsequent §1983 actions. Honey v. Distelrath, No. 98-55219 (9th Cir., November 9, 1999) |
