A hitch in state employee drug-testing lawsuit (Updated)

A spokesman for Gov. Rick Scott told the St. Petersburg Times that the state employee suing to stop the governor’s new drug testing policy may not have legal standing to bring the case.

Richard Flamm, a researcher for the Florida Fish and Wildlife Conservation Commission, is bringing the lawsuit along with the American Federation of State, County, and Municipal Employees, a union that represents thousands of government workers. But the commission is not directly controlled by the governor, so Flamm might not be subject to the policy.

Union attorney Alma Gonzalez said yesterday during a conference call with reporters that other potential plaintiffs had feared retaliation in the workplace.

“I have to think bigger than that,” Flamm said, but now AFSCME and the American Civil Liberties Union of Florida, which is helping to bring the case, may need to look for a replacement.

The drug-testing order is one of Scott’s most popular moves as governor, but neither supporters nor the people suing to stop it, know exactly what it will do.

Gonzalez said one key feature of Scott’s order is its vagueness. It calls for agencies to screen new hires, and says that random testing of current employees “should provide for the potential for any employee … to be tested at least quarterly.” It does not specify any penalties for testing positive or refusing to offer a sample.

Under Scott’s executive order, agencies under his supervision had 60 days to develop their policies, which gave them until May 21, but the Times notes there have been delays.

Gonzalez said the union is getting lots of questions from state workers about what their rights are, and what could happen if they refuse to take a test. Right now it’s just advising them to contact the union or its lawyers if they’re asked to submit a sample.

Update:

ACLU Spokesman Derek Newton said getting a replacement for Flamm is “not a legal issue.” Because the union is the lead plaintiff in the case, and it represents thousands of state workers, the plaintiffs still have standing to bring the case. The plaintiffs will still try to find a replacement so they have an individual to speak to their argument that random, suspicionless drug testing of state employees is an unreasonable search, which is banned by the Fourth Amendment.

Newton also said that the vagueness of Scott’s executive order makes it hard to tell whether the Fish and Wildlife Conservation Commission is affected or not, because the order directs all agencies “within the purview of the governor” to begin testing employees, and it’s not clear what that means. Scott has the power to appoint the commissioners, but the commission is not directly under his control.

If the commission decides it’s not subject to the order, Newton said, that’s “fantastic,” but that would not affect the ACLU’s underlying argument that Scott’s order of random suspicionless drug testing for state employees is unconstitutional and ought to be struck down by the court.