Judges: DANIEL E. LUNGREN, Attorney General
Filed Date: 12/23/1997
Status: Precedential
Modified Date: 7/5/2016
DANIEL E. LUNGREN Attorney General ANTHONY Da VIGO Deputy Attorney General
THE HONORABLE THOMAS W. SNEDDON, JR., DISTRICT ATTORNEY, COUNTY OF SANTA BARBARA, has requested an opinion on the following questions:
1. May a district attorney order a deputy district attorney to submit to an individual suspicion-based drug test in the absence of a preestablished policy respecting such testing?
2. Would the establishment by a district attorney of a policy respecting individual suspicion-based drug testing of deputy district attorneys be the subject of mandatory collective bargaining negotiations?
2. The establishment by a district attorney of a policy respecting individual suspicion-based drug testing of deputy district attorneys would not be the subject of mandatory collective bargaining negotiations.
The initial inquiry presented is whether a district attorney may require a deputy district attorney to submit to a test for the presence of a controlled or illegal substance based on a reasonable suspicion that the deputy is using such a substance, where no policy respecting the imposition of such a requirement had been established or promulgated. We conclude that the district attorney may require the test in the described circumstances without violating either the federal or state Constitutions.
The
Section
"`The right of privacy is the right to be left alone. It is a fundamental and compelling interest. It protects our homes, our families, our thoughts, our emotions, our expressions, our personalities, our freedom of communion, and our freedom to associate with the people we choose. . . .
"`The right of privacy is an important American heritage and essential to the fundamental rights guaranteed by the
First ,Third ,Fourth ,Fifth andNinth Amendments to the U.S. Constitution. This right should be abridged only when there is a compelling public need. . . .'"
We are asked to assume for purposes of this opinion that the district attorney's individualized suspicion is reasonable under applicable constitutional standards (cf. O'Connor v. Ortega (1987)
With these assumptions in mind, we examine recent federal and state cases involving drug testing of public employees and others. In Skinner
v. Railway Labor Executives' Assn., supra,
". . . Ordinarily, an employee consents to significant restrictions in his freedom of movement where necessary for his employment, and few are free to come and go as they please during working hours. See, e.g., INS v. Delgado 466 U.S., at 218. Any additional interference with a railroad employee's freedom of movement that occurs in the time it takes to procure a blood, breath, or urine sample for testing cannot, by itself, be said to infringe significant privacy interests.
"Our decision in Schmerber v. California [(1966)
384 U.S. 757 ] indicates that the same is true of the blood tests required by the FRA regulations. In that case, we held that a State could direct that a blood sample be withdrawn from a motorist suspected of driving while intoxicated, despite his refusal to consent to the intrusion. . . . Schmerber thus confirmed `society's judgment that blood tests do not constitute an unduly extensive imposition on an individual's privacy and bodily integrity.'" (Id., at pp. 624-625.)
While for purposes of this opinion we may assume that a sufficient suspicion respecting a particular individual does exist, the Skinner court, in reference to the countervailing significance of the "important" governmental interest in testing even without a showing of "individualized suspicion," stated:
". . . In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here." (Id., at p. 624.)
With respect to the government's interest, the court further noted:
"The Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, `likewise presents "special needs" beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.'" (Id., at p. 620.)
In the companion case of Treasury Employees v. Von Raab (1989)
More recently, in Vernonia School Dist. 47J v. Acton, supra,
". . . In both Skinner and Von Raab, we characterized the government interest motivating the search as `compelling.' It is a mistake, however, to think that the phrase `compelling state interest' in the
Fourth Amendment context, describes a fixed, minimum quantum of governmental concern, so that one can dispose of a case by answering in isolation the question: Is there a compelling state interest here? Rather, the phrase describes an interest which appears important enough to justify the particular search at hand, in light of other factors which show the search to be relatively intrusive upon a genuine expectation of privacy. Whether that relatively high degree of governmental concern is necessary in this case or not, we think it is met." (Id., at pp. 2394-2395.)
In Hill v. National Collegiate Athletic Assn., supra,
"Even within the context of government information-gathering, the limited references in the ballot arguments [Ballot Pamp., Proposed Stats. and Amends. to Cal. Const. with arguments to voters, Gen. Elect. (Nov. 7, 1972) pp. 26-28] to `compelling' necessity . . . are not consistent. . . . [A] rebuttal to the argument against the Privacy Initiative . . . stated in part: `The right to privacy will not destroy welfare nor undermine any important government program. It is limited by "compelling public necessity" and the public's need to know. [The Privacy Initiative] will not prevent the government from collecting any information it legitimately needs. It will only prevent misuse of this information for unauthorized purposes and preclude the collection of extraneous or frivolous information.' (Ballot Argument, supra, at p. 28, italics added.)
"The references to a public `need to know' and to information `legitimately need[ed]' by government serve to limit and narrow the prior reference to `compelling public interest.' A mere `legitimate need' for information may be less than overwhelming. Similarly, a type of information may not be `extraneous' or `frivolous' in pursuit of a government task, but the government's claim of entitlement may not be `compelling.' For example, if a perceived `need' merely represents greater efficiency or effectiveness in the performance of some public function, but its fulfillment is by no means indispensable to government existence or operation, it might not be regarded as `compelling.' And yet, as the ballot arguments reveal, the framers of the Privacy Initiative preferred, at least in responding to the arguments of their opponents, a more flexible and pragmatic approach to the privacy right than the isolated term `compelling public interest' appears to demand." (Id., at pp. 21-22.)
Thus, where the elements of an invasion of privacy are established, i.e., (1) a legally protected privacy interest, (2) a reasonable expectation of privacy, and (3) a serious invasion (id., at 39-40), the violation may be justified because it substantially furthers one or more countervailing legitimate interests (id., at pp. 29, 38, 40).1
The most recent California Supreme Court case of interest, Loder v.City of Glendale (1997)
We now proceed, in accordance with the criteria set forth above, to balance the intrusion in question3 upon the employee's reasonable expectation of privacy against the employer's legitimate interests.
A. Reasonable expectation of privacy
Does a deputy district attorney have a reasonable expectation of privacy against a reasonable suspicion-based drug test in the absence of a preestablished policy respecting such testing? Even when a legally cognizable privacy interest is present, other circumstances may affect a person's reasonable expectation of privacy. (Hill v. National CollegiateAthletic Assn., supra,
Another circumstance the presence of which would diminish a reasonable expectation of privacy is advance notice. (Hill v. National CollegiateAthletic Assn., supra,
Nevertheless, the absence of such a policy does not create an expectation of privacy where it would not otherwise exist. (O'Connor v.Ortega, supra,
Finally, as the apparent danger to the public arising from the use of drugs by a public employee increases, the less reasonable will be the employee's subjective expectation of privacy. In the case of a deputy district attorney, this danger lies not only in the impairment of his prosecutorial duties resulting from the use of drugs, but also in the possible risk of the deputy's complicity with drug dealers in the distribution of illegal drugs throughout the community.
B. Countervailing government interests
In a divided opinion, the court in Harmon v. Thornburgh (D.C. Cir. 1989)
"The analogy may not be precise, but the federal government's efforts to contain and beat back the drug scourge that affects our society depend importantly on convincing all Americans that drug use is as much a danger to them and to our country as is an external enemy. Obviously, millions of Americans are not yet persuaded. That appears to explain why the Supreme Court [in Treasury Employees v. Von Raab] — notwithstanding the lack of evidence that a substantial number of Customs Service personnel use drugs — approved the drug-testing program. If even one Customs agent were discovered to be a drug user, the ensuing publicity, both within the agency and without, would likely have a far more corrosive impact on the government's effort to fight drug use than would the conduct of that one agent.
"Federal prosecutors and their support staff engaged in drug prosecution are no less committed to the war against drugs than are the Customs Service personnel. They are, in this sense, drug warriors. The down-side risk of having even one of them discovered as an apostate, as a traitor who consorts with and aids the government's and society's mortal enemy, is, as with the soldier in wartime, disproportionately large. For that reason, I think that all those employees in the Justice Department whose responsibilities are related to drug prosecution may be tested under the Attorney General's program." (Harmon v. Thornburgh, supra,
878 F.2d at 497 ; fn. omitted.)
We are in accord with the view that a district attorney's office, as part of the criminal justice system for the preservation of the public safety, presents "`special needs' beyond normal law enforcement. . . ." (Cf. Skinner v. Railway Labor Executives' Assn., supra,
It is therefore concluded that a district attorney may order a deputy district attorney to submit to an individual suspicion-based drug test in the absence of a preestablished policy respecting such testing.
2. Need for Collective Bargaining Negotiations
The second inquiry is whether the establishment and promulgation by a district attorney of a policy respecting the imposition upon a deputy district attorney of a required test for the presence of a controlled or illegal substance based on a reasonable suspicion that the deputy is using such a substance would be subject to the "meet and confer" prerequisites of the Meyers-Milias-Brown Act (Gov. Code, §§
The Act governs the rights of employees of public agencies to organize and negotiate with their employers. (§§
Would the establishment of a policy by a district attorney respecting individualized suspicion-based drug testing of a deputy district attorney constitute a term or condition of employment falling within the "scope of representation" of section
The following cases serve to define the issues in the present context. In Fire Fighters Union v. City of Vallejo, supra,
In San Jose Peace Officers' Assn. v. City of San Jose (1978)
In Johnson-Bateman Co. (1989) 131 Lab.Rel.Ref.Manual (BNA) p. 1393, the National Labor Relations Board8 ruled that the drug testing of employees who require medical treatment for work injuries would be a mandatory subject of collective bargaining. (Id., at p. 1396.) The board determined that the testing requirement would be "germane to the working environment," in that it "substantially var[ies] both the mode of the investigation and the character of proof on which an employee's job security might depend." (Id., at p. 1397.) Further, the testing would be "outside the scope of managerial decisions lying at the core of entrepreneurial control," since it would be "a more limited decision directed toward reducing workplace accidents and attendant insurance rates" (id., at pp. 1397-1398).
Finally, in Holliday v. City of Modesto (1991)
"Because of the fundamental differences between the use of force policy reviewed in the San Jose case and the drug-test order involved here, and because of the absence of evidence showing that respondents' primary purpose was the protection of the public safety, we cannot apply San Jose in this case." (Id., at p. 539.)
Turning to the matter presented for consideration, we find that the policy in question, while it impinges indirectly upon a condition of employment, relates primarily to a matter of public safety. As noted above, the danger to the public arising from the use of drugs by a deputy district attorney arises not only from the effect of impaired capacity upon the technical aspects of performing official duties, but also from the effect that the cost and availability of drugs may have upon the willingness to remove the suppliers from the community. Investigations and prosecutions may be compromised, evidence may be concealed, and testimony may be managed or controlled. The release into the community of drug suppliers and distributors would, in our view, constitute such an extreme and unacceptable danger to the public safety as to fully justify a suspicion-based test for the use of such illicit substances by a deputy district attorney.
It is therefore concluded that the establishment by a district attorney of a policy respecting individual suspicion-based drug testing of deputy district attorneys would not be the subject of mandatory collective bargaining negotiations.
". . . The court in Hill rejected the proposition `that every assertion of a privacy interest under article I, section 1, must be overcome by a "compelling interest'" (7 Cal.4th at pp. 34-35) and explained that `[in] view of the far-reaching and multi-faceted character of the right to privacy, such a standard imports an impermissible inflexibility into the process of constitutional adjudication.' (Id. at p. 35.) In this regard, the court noted that, although some of the prior California decisions applying the state constitutional privacy provision `use "compelling interest" language[,] others appear to rely on balancing tests giving less intense scrutiny to nonprivacy interests. The particular context, i.e., the specific kind of privacy interest involved and the nature and seriousness of the invasion and any countervailing interests, remains the critical factor in the analysis. Where the case involves an obvious invasion of an interest fundamental to personal autonomy e.g., freedom from involuntary sterilization or the freedom to pursue consensual familial relationships, a "compelling interest" must be present to overcome the vital privacy interest. If, in contrast, the privacy interest is less central, or in bona fide dispute, general balancing tests are employed.' (Id. at p. 34, fn. omitted.)" (Id., at p. 890.)
Arthur W. Stigile and Ellen Balis v. William J. Clinton, ... , 110 F.3d 801 ( 1997 )
Elkins v. United States , 80 S. Ct. 1437 ( 1960 )
Schmerber v. California , 86 S. Ct. 1826 ( 1966 )
Skinner v. Railway Labor Executives' Assn. , 109 S. Ct. 1402 ( 1989 )
National Treasury Employees Union v. Von Raab , 109 S. Ct. 1384 ( 1989 )
Vernonia School District 47J v. Acton , 115 S. Ct. 2386 ( 1995 )