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Anch. Police Dept. Empl. Assoc v Municipality of Anchorage (06/15/2001) sp-5423
Anch. Police Dept. Empl. Assoc v Municipality of Anchorage (06/15/2001) sp-5423
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
ANCHORAGE POLICE DEPARTMENT )
EMPLOYEES ASSOCIATION, and ) Supreme Court Nos.
INTERNATIONAL ASSOCIATION ) S-8137/8138/8208
OF FIRE FIGHTERS, LOCAL 1264, )
) Superior Court Nos.
Appellants and ) 3AN-96-4880 CI and
Cross-Appellees, ) 3AN-96-5063 CI
) (Consolidated)
v. )
)
MUNICIPALITY OF ANCHORAGE, ) O P I N I O N
)
Appellee and ) [No. 5423 - June 15, 2001]
Cross-Appellant. )
)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: William B. Aitchison, Aitchison
& Vick, Portland, Oregon, for Appellant/Cross-Appellee Anchorage
Police Department Employees Association. Charles A. Dunnagan and
Mike L. Dishman, Jermain, Dunnagan & Owens, P.C., Anchorage, for
Appellant/Cross-Appellee International Association of Fire
Fighters, Local 1264. James D. Gilmore and Amy R. M‚nard, Gilmore
& Doherty, Anchorage, for Appellee/Cross-Appellant Municipality of
Anchorage.
Before: Matthews, Chief Justice, Eastaugh, and
Bryner, Justices. [Compton and Fabe, Justices, not participating.]
PER CURIAM.
MATTHEWS, Chief Justice, dissenting.
I. INTRODUCTION
The superior court found constitutionally valid a policy
adopted by the Municipality of Anchorage (Municipality) that
subjects police and fire department employees in safety-sensitive
positions to suspicionless substance abuse testing in certain
situations -- upon job application, promotion, demotion, or
transfer, and after a traffic accident -- and at random. The
Anchorage Police Department Employees Association (Police
Employees) and the International Association of Fire Fighters,
Local 1264 (Fire Fighters) appeal. We affirm all but one aspect of
the superior court's ruling, concluding that the Municipality's at
random testing provision violates the Alaska Constitution's
prohibition against unreasonable searches and seizures.
II. FACTS AND PROCEEDINGS [Fn. 1]
In September 1994 the Municipality adopted Policy No. 40-
24 ("the policy"). The policy provides for substance abuse
testing, by urinalysis, [Fn. 2] of certain municipal employees (1)
upon employment application, promotion, demotion, or transfer; (2)
following a vehicular accident; (3) on reasonable suspicion; and
(4) at random. All employees are subject to post-accident testing.
Only employees in "public safety positions"are subject to random
testing and to promotion/demotion/transfer testing. A public
safety position is defined as "a position in the Police or Fire
Department having a substantially significant degree of
responsibility for the safety of the public where the unsafe
performance of an incumbent could result in death or injury to self
or others."
Police Employees and Fire Fighters notified the
Municipality that they believed that suspicionless testing is
unconstitutional. In June 1996 they filed actions for declaratory
judgment and injunctive relief, arguing that testing without
reasonable suspicion (and without a warrant) violates their
members' state and federal constitutional rights to privacy and
against unreasonable searches and seizures. [Fn. 3]
On consolidated motions for summary judgment, the
superior court determined that the Municipality's policy is
constitutional. The superior court declined to award attorney's
fees to the Municipality, finding that Police Employees and Fire
Fighters were public interest litigants. Police Employees and Fire
Fighters appeal the substance of the superior court's decision; the
Municipality cross-appeals the denial of attorney's fees and costs.
III. STANDARDS OF REVIEW
We review a grant of summary judgment de novo, [Fn. 4]
drawing all reasonable factual inferences in favor of the non-
moving party [Fn. 5] and affirming the trial court's ruling when
there are no genuine issues of material fact and the moving party
is entitled to judgment as a matter of law. [Fn. 6] On questions
of law, we are not bound by the lower court's decision and will
adopt the rule of law that is "most persuasive in light of
precedent, reason, and policy."[Fn. 7] We review a decision
regarding attorney's fees/public-interest-litigant status for abuse
of discretion. [Fn. 8]
IV. DISCUSSION
A. Suspicionless Substance Abuse Testing
Police Employees and Fire Fighters mount their challenge
to the Municipality's suspicionless testing policy along four
constitutional fronts. [Fn. 9] They contend that the policy
violates the right to privacy and the prohibition against
unreasonable searches and seizures; they press each of these
theories under the Alaska and United States Constitutions. The
superior court's thorough and thoughtful decision on summary
judgment addressed each of these claims but placed primary emphasis
on the alleged violations of Alaska's constitutional right to
privacy. [Fn. 10] For the reasons explained below, however, we
prefer to resolve the parties' arguments using the analytical
framework that governs unlawful searches and seizures; and although
we find substantial guidance in cases interpreting the United
States Constitution, we limit our decision to the requirements of
the Alaska Constitution's search and seizure clause.
Article I, section 14, of the Alaska Constitution
prohibits unreasonable searches and seizures: "The right of the
people to be secure in their persons, houses and other property,
papers, and effects, against unreasonable searches and seizures,
shall not be violated." Article I, section 22, defines Alaska's
right to privacy: "The right of the people to privacy is
recognized and shall not be infringed. The legislature shall
implement this section."
We have held that both of these provisions afford broader
protection than their federal counterparts. Alaska's guaranty of
privacy is broader than the protection found in the federal
constitution, which contains no express privacy provision:
Since the citizens of Alaska, with their
strong emphasis on individual liberty, enacted an amendment to the
Alaska Constitution expressly providing for a right to privacy not
found in the United States Constitution, it can only be concluded
that the right is broader in scope than that of the Federal
Constitution.[ [Fn. 11]]
And Alaska's search and seizure clause is stronger than the federal
protection because article I, section 14 is textually broader than
the Fourth Amendment, [Fn. 12] and the clause draws added strength
from Alaska's express guarantee of privacy. [Fn. 13] Because the
Alaska Constitution provides broader protection to Police Employees
and Fire Fighters under both constitutional theories that they
argue in this appeal, we need only determine whether the
Municipality's policy violates the Alaska Constitution's
requirements. Thus, we base our ultimate ruling exclusively on the
Alaska Constitution.
Moreover, while the parties raise legitimate
constitutional concerns under both the privacy and search and
seizure clauses of the Alaska Constitution, we think it best to
focus our decision on article I, section 14 -- the search and
seizure provision. In prior opinions, this court has emphasized
that the primary purpose of both Alaska provisions -- section 14's
search and seizure protection and section 22's privacy guaranty --
is to protect "personal privacy and dignity against unwarranted
intrusion by the State, or other governmental officials."[Fn. 14]
Accordingly, in cases involving allegedly invalid searches, we have
recognized that the standard for determining compliance with
Alaska's search and seizure clause is "inexorably entwined"with
the standard of privacy established in article I, section 22. [Fn.
15]
The Municipality policy at issue here requires Police
Employees and Fire Fighters members to submit to urinalysis for
purposes of disclosing potential substance abuse. The United
States Supreme Court has held that urine testing conducted under
analogous circumstances qualifies as a "search"for constitutional
purposes:
Because it is clear that the collection and
testing of urine intrudes upon expectations of privacy that society
has long recognized as reasonable, the Federal Courts of Appeals
have concluded unanimously, and we agree, that these intrusions
must be deemed searches under the Fourth Amendment.[ [Fn. 16]]
Because the policy at issue here unquestionably requires
employees to submit to "searches,"and because Alaska's search and
seizure clause incorporates the requirements of Alaska's privacy
clause, we can resolve all of the constitutional issues raised in
this case by applying the analytical framework governing Alaska's
search and seizure provision, article I, section 14. If the
disputed policy passes muster under this analysis, it will
necessarily also satisfy the requirements of article I, section 22,
as well as the corresponding, but more lenient, demands of the
United States Constitution.
The United States Supreme Court has decided four cases
addressing the validity, under the Fourth Amendment, of
suspicionless substance abuse testing requirements analogous to
those challenged here.
In Skinner v. Railway Labor Executives' Ass'n, [Fn. 17]
the Court upheld Federal Railroad Administration (FRA) regulations
that required railroads to administer breath and urine tests to all
employees involved in accidents and that authorized railroads to
test employees upon reasonable suspicion and after violations of
safety rules. [Fn. 18] The Court held that the testing regulations
were constitutional, noting that the railroad industry is
pervasively regulated, [Fn. 19] that the challenged regulations
were designed to deter drug and alcohol use, [Fn. 20] that
requiring individualized suspicion would unduly interfere with the
railroad's ability to obtain information concerning accident
causes, [Fn. 21] and that the regulations contained adequate
safeguards to prevent abuses of discretion by supervisors. [Fn. 22]
Thus, the Court ruled that the compelling governmental interest in
protecting public safety outweighed railroad employees' privacy
concerns. [Fn. 23]
In National Treasury Employees Union v. Von Raab, a case
decided the same day as Skinner, the Court considered regulations
that subjected United States Customs Service employees to
suspicionless testing upon promotion to (or application for)
positions directly involving the interdiction of illegal drugs or
positions that required carrying a firearm. Unlike the railroad
employees in Skinner, the Customs Service employees in Von Raab had
no history of drug and alcohol abuse problems. The Court
nonetheless found the regulations to be constitutionally
reasonable, noting that Customs Service employees were in the
unique position of having easy access to contraband, becoming the
targets of bribes, and maintaining national security. The Court
thus upheld the testing requirement as justified by "special
needs":
The Government's compelling interests in
preventing the promotion of drug users to positions where they
might endanger the integrity of our Nation's borders or the life of
the citizenry outweigh the privacy interests of those who seek
promotion to these positions, who enjoy a diminished expectation of
privacy by virtue of the special, and obvious, physical and ethical
demands of those positions.[]
In Vernonia School District 47J v. Acton, the Court
upheld a school district policy that required random drug tests of
all students wishing to participate in interscholastic athletic
activities. In reaching its decision, the Court emphasized that
the state has "custodial and tutelary"power over public
schoolchildren. Further, the Court noted, student athletes have a
lesser expectation of privacy because often they are required to
"suit up"before practices and events in public locker rooms,
undergo a physical exam, carry adequate health insurance, and
maintain a minimum grade point average. Relying on evidence
indicating that these students encountered particularly high
physical risks from drug use, the Vernonia Court concluded that the
governmental interest in deterring drug use among student athletes
was compelling, whereas the intrusion on their privacy was minimal.
The Court thus approved the testing requirement, but cautioned
"against the assumption that suspicionless drug testing will
readily pass constitutional muster in other contexts."
More recently, in Chandler v. Miller, the Court held that
a Georgia statute requiring candidates for state office to certify
that they had tested negative for illegal drugs violated the Fourth
Amendment. The Court reasoned that the requirement "does not fit
within the closely guarded category of constitutionally permissible
suspicionless searches." Reviewing its past decisions on
suspicionless drug testing, the Court noted that the Georgia law
did not deal with a pervasively regulated industry or with a group
that had a demonstrated substance abuse problem, as in Skinner;
that elective office holders in Georgia were not intimately
involved in drug interdiction, as in Von Raab; and that they had
little in common with student athletes entrusted to the
government's care, as in Vernonia. Finding no special need for
suspicionless drug testing, the Court found Georgia's symbolic
interest in fighting illegal drugs insufficient to permit deviation
from the Fourth Amendment's usual requirements of a warrant
supported by probable cause.
And most recently, in Ferguson v. City of Charleston, the
Court ruled unconstitutional a hospital's suspicionless drug-
testing policy. Under the policy at issue in Ferguson, a public
hospital in Charleston, with assistance from South Carolina law
enforcement authorities, devised a policy of subjecting pregnant
patients to suspicionless urine testing for cocaine if they met
certain profile criteria. A central requirement of the policy was
that hospital personnel would notify the police of patients who
tested positive; those patients were arrested and threatened with
prosecution unless they submitted to substance abuse education or
treatment. In concluding that this policy violated the
requirements of the Fourth Amendment, the Court emphasized that a
special need that justifies testing in the absence of probable
cause and a warrant must be "one divorced from the State's general
interest in law enforcement"-- that is, a special need could not
be found to exist when the "direct and primary purpose"of testing
patients was "the specific purpose of incriminating those
patients."
In considering the validity of suspicionless testing in
the foregoing cases, the Supreme Court applied a "special needs"
test that Justice Scalia aptly summarized in Vernonia:
As the text of the Fourth Amendment
indicates, the ultimate measure of the constitutionality of a
governmental search is "reasonableness." At least in a case such
as this, where there was no clear practice, either approving or
disapproving the type of search at issue, at the time the
constitutional provision was enacted, whether a particular search
meets the reasonableness standard "'is judged by balancing its
intrusion on the individual's Fourth Amendment interests against
its promotion of legitimate governmental interests.'" Where a
search is undertaken by law enforcement officials to discover
evidence of criminal wrongdoing, this Court has said that
reasonableness generally requires the obtaining of a judicial
warrant. Warrants cannot be issued, of course, without the showing
of probable cause required by the Warrant Clause. But a warrant is
not required to establish the reasonableness of all government
searches; and when a warrant is not required (and the Warrant
Clause therefore not applicable), probable cause is not invariably
required either. A search unsupported by probable cause can be
constitutional, we have said, "when special needs, beyond the
normal need for law enforcement, make the warrant and probable-
cause requirement impracticable."[]
As this passage from Vernonia recognizes, the "special
needs"test establishes a balance between the "individual's Fourth
Amendment interests"and "legitimate governmental interests." In
applying this balance, the Vernonia Court divided its consideration
of the individual's Fourth Amendment interests into two components:
(1) the nature of the privacy interest at issue -- or the scope of
the individual's reasonable expectation of privacy; and (2) the
character of the disputed intrusion. Considering the first
component, reasonable expectation of privacy, the Vernonia Court
focused on the factual context of the search at issue, as well as
its legal context, that is, the legal relationship between the
state and the individuals to be searched. Considering the second
component, degree of intrusion, the Court recognized that urine
testing implicated these privacy interests: the privacy of the
tested individual's excretory function and the privacy of the
information revealed by the testing process. Reviewing these
primary factors, the Vernonia Court concluded that student athletes
would reasonably expect a significant degree of intrusion upon
their privacy rights and that the degree of intrusion involved in
the disputed urine tests was "not significant."
The Vernonia Court then turned to the government's
interest in testing student athletes, closely examining "the nature
and immediacy of the governmental concern at issue." Finding the
nature of the state's interest "compelling"and the need for
protection immediate, the Court drew the balance in favor of
suspicionless testing: "Taking into account all the factors we
have considered above -- the decreased expectation of privacy, the
relative unobtrusiveness of the search, and the severity of the
need met by the search -- we conclude Vernonia's Policy is
reasonable and hence constitutional."
In reaching this conclusion, the Court expressly rejected
the notion that a testing regime based on reasonable suspicion
might be a viable, less intrusive alternative. Among the Court's
reasons for finding reasonable suspicion testing impracticable, the
foremost was its fear that a suspicion-based regime might actually
prove more intrusive: "[P]arents who are willing to accept random
drug testing for athletes are not willing to accept accusatory drug
testing for all students, which transforms the process into a badge
of shame." Hence, the Court concluded, "[i]n many respects, . . .
testing based on 'suspicion' would not be better, but worse."
In the present case, the superior court adopted the
Supreme Court's "special needs"analysis as a guide for its own
application of the Alaska Constitution's protection against
unreasonable searches and seizures. Rejecting the argument that a
warrantless search must be deemed per se unreasonable under
article I, section 14, the court saw "the remaining question"to be
"whether the search occasioned by suspicionless drug and alcohol
testing is unreasonable."
Because it found no relevant definition of "reasonable"
under Alaska law, the superior court proceeded to apply a case-by-
case balancing analysis modeled on the "special needs"test
articulated in Skinner, Von Raab, and Vernonia. The court noted --
correctly, we think -- that "[t]his analysis is similar to the one
applied to the right to privacy issues." Incorporating its earlier
privacy analysis, the superior court upheld the Municipality's
suspicionless testing policy as constitutionally reasonable under
article I, section 14, and the Fourth Amendment.
In challenging the superior court's reasonableness
determination, Fire Fighters and Police Employees rely heavily on
the traditional presumption that a search conducted without a
warrant supported by probable cause is per se unreasonable. In
particular, Police Employees insists that the Municipality's policy
is invalid because it "does not fall within any of the standard
exceptions to the warrant requirement for a search and seizure."
Yet our case law expressly recognizes that neither the
warrant requirement nor the requirement of probable cause
invariably governs searches occurring in the context of a heavily
regulated activity. And as the superior court properly recognized
here, "special needs"findings are especially appropriate when
employment occurs "in a highly regulated, safety-essential field of
work." Workers employed in such fields necessarily expect reduced
privacy in their job-related activities and implicitly agree to a
diminished level of privacy when they accept employment.
Fire Fighters nevertheless question whether firefighting
is a heavily regulated activity, insisting that "Fire Fighters are
not pervasively regulated for safety." (Emphasis added.) But in
our view, the superior court was not clearly erroneous in finding
that covered members of both Police Employees and Fire Fighters are
subject to extensive safety regulations. And in any event, whether
firefighters are pervasively regulated "for safety"is beside the
point. For as the Sixth Circuit recently concluded in rejecting an
argument similar to the Fire Fighters' argument here, "this view is
simply not supported by the relevant authority. . . . [The] cases
demonstrate that the entire focus of the regulations need not be on
the employees themselves, or relate to safety per se, in order for
the industry to be considered heavily regulated." More pertinent,
in our view, is that members of Police Employees and Fire Fighters
undeniably hold safety-sensitive positions in extensively regulated
fields of activity where they "discharge duties fraught with risks
of injury to others that even a momentary lapse of attention can
have disastrous consequences." We believe that workers in such
positions would reasonably expect that their conditions of
employment would subject them to exceptionally close scrutiny.
Police Employees and Fire Fighters further allege that,
even if the policy's provisions for suspicionless testing are not
per se invalid, the superior court applied an improper privacy
analysis in concluding that the policy meets article I,
section 14's requirement of reasonableness. Insisting "that its
members have a reasonable expectation of privacy in the collection
and testing of their urine,"Police Employees contends that the
Municipality lacks a sufficiently compelling interest to override
this privacy interest and that suspicionless urinalysis fails to
provide a "close and substantial"means of meeting the
Municipality's interest. Fire Fighters echoes these arguments,
emphasizing its view that there can be no compelling need for
suspicionless testing without proof of an existing substance abuse
problem:
The central objection which the Fire
Fighters have to this policy is not one premised upon the
intrusiveness of twenty-first century technology or medical
science. It is not being subjected to the indignity of compelled
urination. It is an objection which has its genesis in the two
hundred year old Fourth Amendment: They do not, as individuals or
as a group, have a drug problem. There is no "compelling need"
which justifies divergence from the Fourth Amendment's main rule
that searches must be made pursuant to individualized suspicion.
We find that these arguments are unpersuasive. In
Messerli v. State we explained that the right to privacy is not
absolute, but is subject to balancing against conflicting rights
and interests. We concluded that, where a fundamental right is
involved, the state must show a compelling state interest
justifying its abridgement. More recently we reiterated the
Messerli test in the following way:
(1) does the party seeking to come within the
protection of the right to [privacy] have a legitimate expectation
that the materials or information will not be disclosed?
(2) is disclosure nonetheless required to
serve a compelling state interest?
(3) if so, will the necessary disclosure
occur in that manner which is least intrusive with respect to the
right to [privacy]?[]
This test eschews absolute measures of privacy; it
prescribes the same kind of flexibility that the Supreme Court
described in Vernonia:
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.[]
The touchstone of a compelling state interest, then, is simply that
"[the] right [to privacy] must yield when it interferes in a
serious manner with the health, safety, rights and privileges of
others or with the public welfare."
We therefore decline to hold that a history of substance
abuse problems is invariably necessary to establish a "special
need"for suspicionless testing in situations involving heavily
regulated, safety-sensitive job duties.[]
Applying the flexible Messerli standard to the case at
hand, moreover, we hold that the superior court did not err, for
the most part, in concluding that a "special need"for testing
existed here. The superior court found that the Municipality's
interest in ensuring public safety is sufficiently compelling to
outweigh the relatively modest -- though admittedly not
insignificant -- intrusion on privacy that occurs under the
disputed Municipality policy when Police Employees and Fire
Fighters members are subjected to suspicionless urine testing upon
application for employment, upon promotion, demotion or transfer,
or after a vehicular accident. We agree with these findings. We
further agree with the superior court's finding that the
Municipality's policy reflects a close and substantial means-to-end
fit in these situations. In such cases, then -- cases when
suspicionless testing occurs upon application for employment, upon
promotion, demotion or transfer, and after vehicular accidents --
we conclude that the balance of individual versus governmental
interests tips decidedly in the Municipality's favor.
In our view, however, the balance shifts in the case of
an indefinite requirement of random testing. The policy's
provision for ongoing random urinalysis testing alters the "special
needs"balance between individual privacy interests and competing
governmental interests in at least three significant ways.
First, random testing places increased demands on
employees' reasonable expectations of privacy. Because the
policy's provision for random testing could subject employees to
"unannounced"probing throughout the course of their employment,
the tests are peculiarly capable of being viewed as "unexpected
intrusions on privacy." For example, it might seem manifestly
unreasonable for any person applying for a safety-sensitive
position in a heavily regulated field of activity not to anticipate
-- and implicitly agree to -- a probing inquiry into the
applicant's capacity to perform job-related duties; the same would
hold true for any employee who might be promoted, demoted,
transferred, or become involved in a job-related accident. But a
job applicant or employee who anticipated such inquiries might
nevertheless expect not to be subjected to a continuous and
unrelenting government scrutiny that exposes the employee to
unannounced testing at virtually any time. Such expectations
cannot be so readily dismissed as patently unreasonable.
Second, random testing is more intrusive: it subjects
employees to a greater degree of subjective intrusion. An
unannounced test's added element of "fear and surprise,"and its
"unsettling show of authority,"make random testing qualitatively
more intrusive than testing that is triggered by predictable, job-
related occurrences such as promotion, demotion, and transfer.
Moreover, an ongoing requirement of random testing is more
intrusive because its reach is broader than that of a requirement
that attaches upon application, promotion, or transfer. In
distinguishing the facts of its prior "special needs"cases from
those involved in the hospital testing situation at issue in
Ferguson v. City of Charleston, the Supreme Court commented that
"[t]he use of an adverse test result to disqualify one from
eligibility for a particular benefit, such as a promotion or an
opportunity to participate in an extracurricular activity, involves
a less serious intrusion on privacy than the unauthorized
dissemination of such results to third parties." Of course, the
Court made this comment in passing, and the testing regime
challenged in Ferguson bears no similarity to the policy at issue
here. But the Court's reference to the reduced intrusiveness of
tests designed to determine eligibilty for "a particular benefit"
nonetheless evinces its recognition that suspicionless testing
requirements become progressively more intrusive as they place
increasingly valuable rights in jeopardy.
Third, a requirement of random testing impacts the
balance between individual and governmental interests by reducing
the immediacy of the government's need for the disclosed
information. Unlike suspicionless testing occasioned by
application, promotion, demotion, transfer, or vehicular accident,
the policy's random test provision has no logical nexus to any job-
related occurrence. Particularly in the absence of a documented
history of substance abuse, then, the Municipality can claim no
immediate, job-contextual need to know the results of a randomly
drawn urinalysis; it can only claim a more attenuated,
institutional interest in checking.
Considering these subtle yet significant attributes of
random testing, we conclude that the Municipality has failed to
meet its burden of establishing a special need for its random
testing provision. In so concluding, we note that the United
States Supreme Court has never approved an open ended random-
testing regime like the one at issue here. Indeed, Von Raab spoke
favorably of a suspicionless testing regime that applied only upon
transfer or promotion precisely because it lacked a random,
unannounced component:
Indeed, these procedures significantly
minimize the program's intrusion on privacy interests. Only
employees who have been tentatively accepted for promotion or
transfer to one of the three categories of covered positions are
tested, and applicants know at the outset that a drug test is a
requirement of those positions. Employees are also notified in
advance of the scheduled sample collection, thus reducing to a
minimum any "unsettling show of authority."[]
And notably, at least one federal circuit court has expressly
relied on the absence of a random testing component as a basis for
approving a suspicionless testing policy.
It is thus uncertain whether the policy's random testing
provision would pass muster under the Fourth Amendment. But we
need not speculate on this issue. Because we address the policy's
validity under the more protective requirements of the Alaska
Constitution, we conclude on the present record -- which reveals no
documented history of substance abuse problems among Police
Employees or Fire Fighters members and fails to establish that the
policy's goals will not be adequately addressed by its remaining
suspicionless testing provisions -- that the random testing
provision is unreasonable and therefore violates article I,
section 14 of the Alaska Constitution.
B. Public Interest Litigant Status
On cross-appeal, the Municipality argues that the trial
court abused its discretion by finding that Police Employees and
Fire Fighters were public interest litigants and by failing to
award attorney's fees to the Municipality on this basis. We reject
this argument.
We restated the criteria for determining whether a party
is a public interest litigant in Valley Hospital Ass'n v. Mat-Su
Coalition for Choice:
(1) the case effectuates a strong public
policy,
(2) numerous people will benefit from the
litigation,
(3) only a private party could be expected to
bring the action, and
(4) the party would not have sufficient
economic incentive to bring the lawsuit even if the action involved
only narrow issues lacking general importance.[]
The Police Employees and the Fire Fighters satisfy each criterion.
The trial court did not clearly err when it determined
that this litigation was brought to effectuate a strong public
policy regarding the privacy interests of Alaskan citizens and the
constitutional limitations on search and seizure. When litigants
seek to effect strong policies like those affecting privacy
interests, they benefit all Alaskans, satisfying the second
criterion -- that numerous people benefit from the litigation. The
Municipality does not contest that only a private party could be
expected to bring this action, thus satisfying the third criterion.
Finally, the Municipality's speculation that economic incentives
motivated the Fire Fighters and Police Employees to bring this
action is without merit. While the Municipality raises the
possibility that individual Police Employees and Fire Fighters
could lose their jobs due to drug use detected under the
Municipality's policy, the Fire Fighters and Police Employees, as
employee groups, have no economic interest in the litigation.
Moreover, the two groups asserted that their interests in pursuing
constitutional limitations on suspicionless drug testing
significantly outweigh individual economic interests in departments
with no history of pervasive drug abuse. The trial court so held,
and we agree.
We therefore conclude that the superior court did not
abuse its discretion in finding Police Employees and Fire Fighters
to be public interest litigants.
V. CONCLUSION
Except as to the random testing provision, we AFFIRM the
superior court's ruling upholding the validity of the disputed
Municipality policy. We also AFFIRM the trial court's conclusion
that Police Employees and Fire Fighters are public interest
litigants. As to the random testing policy, we REVERSE for the
reasons stated in this opinion.
MATTHEWS, Chief Justice, dissenting.
I agree with Judge Hunt's thorough and carefully reasoned
opinion which upholds the right of the Municipality of Anchorage to
randomly test police and firefighters for drug use. I have but
little to add to her opinion.
Cases supporting suspicionless random drug testing of
public employees whose work affects the public safety include the
following: Hatley v. Department of Navy, 164 F.3d 602 (Fed. Cir.
1998) (firefighters); Aubrey v. School Board of Lafayette Parish,
148 F.3d 559 (5th Cir. 1998) (school custodians); Bluestein v.
Skinner, 908 F.2d 451 (9th Cir. 1990) (airline industry personnel);
Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989) (correctional
officers in regular contact with inmates); Thomson v. Marsh, 884
F.2d 113 (4th Cir. 1989) (chemical weapons plant workers); National
Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C. Cir.
1989) (Army's civilian aviation personnel, police, and guards);
Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989) (police officers
carrying firearms or engaged in drug interdiction efforts);
Policemen's Benevolent Ass'n of New Jersey, Local 318 v. Washington
Township, 850 F.2d 133 (3rd Cir. 1988) (police officers); Rushton
v. Nebraska Public Power District, 844 F.2d 562 (8th Cir. 1988)
(nuclear power plant engineers); Smith v. Fresno Irrigation
District, 84 Cal. Rptr. 2d 775 (Cal. App. 1999) (construction and
maintenance workers); McCloskey v. Honolulu Police Department, 799
P.2d 953 (Haw. 1990) (police officers); Doe v. City and County of
Honolulu, 816 P.2d 306 (Haw. App. 1991) (firefighters); New Jersey
Transit PBA Local 304 v. New Jersey Transit Corp., 701 A.2d 1243
(N.J. 1997) (transit police officers); Caruso v. Ward, 530 N.E.2d
850 (N.Y. 1988) (police officers in elite anti-narcotics unit);
Boesche v. Raleigh-Durham Airport Authority, 432 S.E.2d 137 (N.C.
App. 1993) (airport authority maintenance mechanics). By contrast,
only one case decided since the United States Supreme Court's
decision in National Treasury Employees Union v. Von Raab, 489 U.S.
656 (1989), Guiney v. Police Commissioner of Boston, 582 N.E.2d 523
(Mass. 1991), supports the conclusion reached in today's opinion
that the privacy interests of police or firefighters preclude
random testing. [Fn. 1]
Both Guiney and today's opinion call for a showing that
there is a "documented history of substance abuse problems among
Police Employees and Fire Fighters members"as a precondition for
random tests. [Fn. 2] Other courts have recognized, however, that
"police departments have not been immune from the drug use that has
affected other workplaces."[Fn. 3] The absence of a documented
drug problem within the police and fire departments should not
logically negate the validity of the Municipality's testing
program. [Fn. 4]
The majority appears to believe that public safety will
not suffer if the Municipality's random drug testing program is
dispensed with. [Fn. 5] I would defer to the Municipality's public
safety administrators on this point, for they are the experts on
the realities of law enforcement work, the difficulties of
identifying drug usage by law enforcement personnel, and the
hazards created by drug-impaired public safety employees.
Concerning these points, it has been recognized that identifying
drug abuse among employees who operate largely outside the
immediate supervision of their superiors presents significant
difficulties for municipalities. [Fn. 6] As a result, numerous
jurisdictions have found random testing necessary based on the
ineffectiveness of alternative methods of detecting drug use by
police and fire personnel. [Fn. 7] The difficulty of recognizing
narcotics usage among public safety employees without random
testing will, I fear, ensure that random testing will only be
justified to the court's satisfaction after one or more drug-
related accidents. In my opinion, the risk to public safety
inherent in this approach outweighs the modest privacy interests
prejudiced by on-the-job drug testing. Accordingly, I dissent.
FOOTNOTES
Footnote 1:
The background facts are uncontroverted; we distill our
factual summary from the superior court's opinion.
Footnote 2:
The policy also provides for testing, under certain
circumstances, by breath or saliva. Because these provisions are
not directly at issue here, we need not expressly address them.
Footnote 3:
Thereafter, in October 1996, the Municipality implemented the
policy on a limited basis. Fire Fighters members were subjected to
all but the random testing provisions and Police Employees members
were subjected to testing on reasonable suspicion.
Footnote 4:
See Nielson v. Benton, 903 P.2d 1049, 1052 (Alaska 1995).
Footnote 5:
See Wright v. State, 824 P.2d 718, 720 (Alaska 1992).
Footnote 6:
See Voight v. Snowden, 923 P.2d 778, 781 (Alaska 1996).
Footnote 7:
Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
Footnote 8:
See Eyak Traditional Elders Council v. Sherstone, Inc., 904
[Fn. 24]P.2d 420, 423 (Alaska 1995).
Footnote 9:
The parties do not dispute the portions of the policy that
allow testing based upon reasonable suspicion.
Footnote 10:
We attach Judge Hunt's decision to this opinion as Appendix A
and adopt the decision's comprehensive factual findings for
purposes of our opinion.
Footnote 11:
Ravin v. State, 537 P.2d 494, 514-15 (Alaska 1975) (Boochever,
J., and Connor, J., concurring); see also Messerli v. State, 626
P.2d 81, 83 (Alaska 1980).
Footnote 12:
See Ellison v. State, 383 P.2d 716, 718 (Alaska 1963).
Footnote 13:
See State v. Jones, 706 P.2d 317, 324 (Alaska 1985); Schultz
v. State, 593 P.2d 640, 642 (Alaska 1979); State v. Daniel, 589
P.2d 408, 416-18 (Alaska 1979); State v. Glass, 583 P.2d 872, 879
(Alaska 1978), modified on other grounds, City of Juneau v. Quinto,
684 P.2d 127, 129 (Alaska 1984); Zehrung v. State, 569 P.2d 189,
199 (Alaska 1977); Woods & Rohde, Inc. v. State, Dep't of Labor,
565 P.2d 138, 150-51 (Alaska 1977).
Footnote 14:
Schultz, 593 P.2d at 642 (quoting Weltz v. State, 431 P.2d
502, 506 (Alaska 1967)) (internal quotation marks omitted).
Footnote 15:
Woods & Rohde, 565 P.2d at 151.
Footnote 16:
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617
(1989).
Footnote 17:
489 U.S. at 602.
Footnote 18:
See id. at 609-11.
Footnote 19:
See id. at 627.
Footnote 20:
See id. at 630. The Court noted that "[b]y ensuring that
employees in safety-sensitive positions know they will be tested
upon the occurrence of a triggering event, the timing of which no
employee can predict with certainty, the regulations significantly
increase the deterrent effect of the administrative penalties
associated with the prohibited conduct." Id.
Footnote 21:
See id. at 631.
Footnote 22:
See id. at 622 n.6.
Footnote 23:
See id. at 633.
Footnote 24:
489 U.S. 656 (1989).
FOOTNOTES (Dissent)
Footnote 1:
See New Jersey Transit, 701 A.2d at 1254-55 (noting that
"[p]ost Skinner/Von Raab cases that have considered challenges to
random drug testing programs under the Fourth Amendment and
parallel state constitutional provisions have generally upheld
[such] testing,"and relegating the Guiney case to "but see"
status).
Footnote 2:
Slip Op. at 28; see Guiney, 582 N.E.2d at 525 (noting that
record offered nothing to show existence of a drug problem in
Boston Police Department).
Footnote 3:
New Jersey Transit, 701 A.2d at 1259 (citing Joseph F.
Dietrich & Janette Smith, The Nonmedical Use of Drugs Including
Alcohol Among Police Personnel: A Critical Literature Review, 14 J.
Police Science & Admin. 300, 300-03 (1986)).
Footnote 4:
See, e.g., Von Raab, 489 U.S. at 674 ("Where . . . the
possible harm against which the government seeks to guard is
substantial, the need to prevent its occurrence furnishes an ample
justification for reasonable searches calculated to advance the
Government's goal."); Harmon v. Thornburgh, 878 F.2d 484, 487 (D.C.
Cir. 1989); City and County of Honolulu, 816 P.2d at 313 (citing
Harmon).
Footnote 5:
See Slip Op. at 26, 28-29.
Footnote 6:
See Von Raab, 469 U.S. at 674 ("Detecting drug impairment on
the part of [such] employees can be a difficult task, especially
where, as here, it is not feasible to subject employees and their
work product to the kind of day-to-day scrutiny that is the norm in
more traditional office environments.").
Footnote 7:
See, e.g., McCloskey, 799 P.2d at 958-59 (noting impossibility
of detecting drug use by police officers through observation and
individualized investigations); City and County of Honolulu, 816
P.2d at 315 (noting ineffectiveness of detecting drug use by fire
fighters through observation, psychomotor tests, and cognitive
tests); Caruso, 530 N.E.2d at 855 (citing statistics concerning
ineffectiveness of drug testing predicated upon reasonable
suspicion).
APPENDIX A*
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
ANCHORAGE POLICE DEPARTMENT )
EMPLOYEES ASSOCIATION and )
ROB HEUN, )
)
Plaintiffs, )
)
vs. )
)
MUNICIPALITY OF ANCHORAGE, )
)
Defendant. )
) Case No. 3AN-96-4880 CI
) Case No. 3AN-96-5063 CI
INTERNATIONAL ASSOCIATION OF ) (Consolidated)
FIRE FIGHTERS, LOCAL 1264, and )
JOSEPH ALBRECHT, )
)
Plaintiffs, )
)
vs. )
)
MUNICIPALITY OF ANCHORAGE, )
)
Defendant. )
)
DECISION AND ORDER: CROSS-MOTIONS FOR SUMMARY JUDGMENT
These consolidated cases were brought by the Anchorage
Police Department Employees Association (APDEA) and its president,
Rob Heun, (Case No. 3AN-96-4880 CI) and the International
Association of Fire Fighters, Local 1264, (IAFF) and its president,
Joseph Albrecht, (Case No. 3AN-96-5063 CI). Plaintiffs challenge
the constitutionality of the substance abuse testing policy adopted
by the Municipality of Anchorage (Municipality) and seek to
permanently enjoin implementation of those portions of the policy
which permit testing in the absence of reasonable suspicion. APDEA
is the bargaining unit for non-supervisory members of the Anchorage
Police Department. IAFF is the exclusive bargaining unit for non-
supervisory members of the Anchorage Fire Department.
Both APDEA and IAFF filed motions for summary judgment on
grounds that provisions of the substance abuse testing policy which
permit testing in the absence of reasonable suspicion violate
employees' right to privacy under the Alaska State Constitution,
Article I, Section 22, and employees' right to be free from
unreasonable search and seizure under the Alaska State
Constitution, Article I, Section 14. APDEA and IAFF also ask the
court to declare the provisions to be in violation of the United
States Constitution. [Fn. 1] The Municipality filed cross-motions
for summary judgment on grounds that the policy does not violate
the privacy or the search and seizure provisions of either the
state or federal constitutions.
I. BACKGROUND
A. Municipal Policy No. 40-24
In September 1994, the Municipality adopted Policy No.
40-24 (hereinafter "the policy"), [Fn. 2] which establishes
mandatory substance abuse testing procedures for many municipal
employees. Municipality Exhibits D & E. [Fn. 3] The policy
provides for testing upon application, promotion, transfer, or
demotion, following a vehicular accident, upon reasonable
suspicion, and pursuant to a random selection procedure. The
policy was amended in October 1995 as a result of negotiations with
municipal unions. [Fn. 4]
The policy was not immediately implemented in either the
Fire or Police Departments. However, on April 12, 1996, the
Municipality sent a notice to all covered employees advising that
as of May 15, 1996, they would be subject to testing upon
promotion. Municipality Exhibit G, 4-12-96 letter from Thomas
Tierney. APDEA and IAFF advised the Municipality that they
believed suspicionless substance abuse testing was a violation of
employees' constitutional rights and subsequently filed these
actions. In October 1996, the Municipality actually began testing
by implementing only the reasonable suspicion provisions for the
Police Department and implementing all but the random testing
provision for the Fire Department. Municipality Exhibit O,
10/24/96 letter to AFD Chief Nolan from Thomas Tierney and 10-29-96
letter to APD Chief O'Leary from Tierney.
B. Challenged Testing Provisions
At issue in these cases are the portions of the policy
which provide for testing (1) upon promotion, transfer, or
demotion, (2) post-accident, [Fn. 5] and (3) randomly.
1. Testing upon promotion, transfer, or demotion
Policy language appears to require substance abuse
testing as the final step in the selection process for public
safety positions even for employees transferred, promoted or
demoted from another public safety position. [Fn. 6] Policy
sec.sec.
7.a.(1) & 7.c.(1)-(2). According to the Municipality, promotion or
demotion triggers testing for employees moving from a public safety
position; however, transfer testing is triggered only when an
employee changes from one position within a job classification
which is not subject to testing to another position in the same job
classification which is subject to testing. Affidavit of Charles
Shelton at para. 3.
2. Post-Accident Testing
The policy also requires testing when an employee is
involved in a motor vehicle accident while performing job duties if
the accident results in a moving violation, serious injury, or
property damage. Policy sec.sec. 7.a.(3), 7.c.(4). [Fn. 7]
3. Random testing
The policy also calls for periodic, unannounced, random
testing of employees in public safety positions. Policy sec.sec.
5.v,
7.a.(2), 7.c.(6). [Fn. 8] A designated independent percentage of
the public safety employees are chosen for alcohol and drug testing
on an irregular basis. The employees are chosen randomly and are
not given advance notice. No discretion is vested in any
supervisor.
C. Employees Required to Undergo Testing
Although all employees are subject to post-accident
testing, only employees in "public safety positions"are subject to
random testing and to promotion/transfer/demotion testing. The
policy defines a "public safety position"as "a position in the
Police or Fire Department having a substantially significant degree
of responsibility for the safety of the public where the unsafe
performance of an incumbent could result in death or injury to self
or others."[Fn. 9] Policy sec. 5(t). An overwhelming majority of
the members of APDEA and IAFF hold jobs which are classified as
"public safety positions."[Fn. 10] Police Department "public
safety position"job classifications were made at a meeting on
March 15, 1996, attended by members of the APD, including then-
Deputy Police Chief Duane Udland, and members of the Municipal
Employees Relation Department, including Employment Manager Charles
Shelton. Fire Department "public safety position"job
classifications were also made in the spring of 1996 by Fire Chief
James Nolan and members of the Municipal Employee Relations
Department. Following are the general job classifications and
duties designated as "public safety positions."
POLICE DEPARTMENT:
Police Sergeant; Senior Police Detective;
Patrol Officer/Warrant Officer: Sworn officers whose duties
include responding to emergencies, performing rescue operations,
arresting and transporting suspects. Officers carry firearms, may
use force and may operate vehicles at excessive speeds.
Community Service Officer: Positions assist
officers at emergency scenes with traffic control. May also be
assigned to evidence room where dangerous weapons and drugs are
kept.
Police Records Supervisors; Senior Police
Clerk; Police Clerk; Communications Clerk III; Communications Clerk
I/II: Police clerk positions may respond to emergency (911) calls.
Communication clerk positions may dispatch and route police units.
Identification Specialist; Identification
Technician; Assistant Identification Specialist; Property and
Evidence Specialist; Property and Evidence Technician: Positions
involved in the collection, preservation, and storage of weapons,
drugs, and blood/tissue evidence.
The positions of Crime Prevention Specialist, Data System Specialty
Clerk, Speciality Clerk, and Police Messenger are not designated as
public safety positions.
FIRE DEPARTMENT:
Fire Fighter/EMT; Fire Fighter/Paramedic:
Positions respond to fire and medical emergencies, combat fire,
administer medical care, and perform rescue operations.
Fire Apparatus Engineers: Position responds
to fire and medical emergencies, operate emergency vehicles,
operate support apparatus (i.e. pumps, hoses, ladders), and perform
maintenance on emergency equipment.
Fire Captain; Senior Fire Captain; Paramedic
Supervisor; Fire Battalion Chief: Positions conduct and supervise
responses to emergency operations and may be required to perform
fire fighter and paramedic functions in emergencies.
Fire Investigators; Fire Inspectors:
Positions conduct criminal investigations,
inspect complex fire response systems and building construction for
code violations.
Fire Training Specialist: Position
responsible for all areas of emergency training and serve as
supplemental safety officers during major emergencies.
Fire Dispatcher; Fire Lead Dispatcher:
Positions receive and route emergency (911) calls.
Fire Mechanics; Fire Lead Mechanics:
Positions inspect and repair all response apparatus, respond to
major emergencies to service and maintain the equipment during
response operations.
The positions of Fire Office Assistant, Fire Senior Office
Assistan[t], and Fire Office Associate are not classified public
safety positions.
Plaintiffs have not challenged the designation of these
jobs as "public safety positions." Therefore, the court will
assume as a factual matter that each of the designated "public
safety positions"entails a "substantially significant degree of
responsibility for the safety of the public where the unsafe
performance of an incumbent could result in death or injury to self
or others." Policy sec. 5(t).
D. Testing Procedures
The policy sets out testing procedures at length and
incorporates current federal Department of Transportation
regulations. Policy sec. 6. Employees report to a collection site
to
provide a urine sample. The collection site personnel checks an
employee's photo identification, and any personal belongings (outer
garments, contents of pockets, purses, briefcases, etc.) that the
employee wants to take into the testing restroom. The employee is
asked to provide a urine sample in a private restroom. The
employee is not observed while providing the sample. The
collection site personnel then verifies the urine specimen's
integrity by checking for sufficient volume, temperature, and the
absence of unusual color or sediment. In the presence of the
employee, the collection site personnel then pours part of the
urine sample into a second container which is preserved for later
testing if requested by the employee to verify initial results.
The employee then seals and labels the urine specimens in the
presence of the collection site personnel.
The sample is sent to the testing lab, where lab
personnel verify that the ID on the bottle and chain of custody
form match, that there is sufficient volume, and that the tamper
proof seal is intact. An initial test is performed. If it yields
a positive result, a second test is done via Gas Chromatography-
Mass Spectroscopy. If this second test also yields a positive
result, a "positive test"is reported to the Medical Review
Officer. Otherwise, a "negative test"is reported.
The Medical Review Officer reviews the test results and
researches reasons for a confirmed positive test. This includes
checking with the employee to determine if there is a legitimate
medical explanation for the result such as a prescribed medication.
If the Medical Review Officer determines that the positive test
result does not have a legitimate medical explanation, the positive
result is reported to the designated Employee Relations
Representative.
Failure to show up for testing and failure to provide a
sample are also reported to the Employee Relations Department.
II. DISCUSSION
The parties agree that the state constitution provides
greater individual protection than the federal constitution, so if
the policy passes muster under Article I, Sections 14 and 21 of the
Alaska Constitution, it is also constitutional under the comparable
provisions of the United States Constitution. Therefore, the court
will focus its attention on the constitutionality of the challenged
portions of the policy under the state constitution.
A. Summary Judgment Standards
Summary judgment shall be rendered "if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact and that any party is entitled to judgment
as a matter of law." Alaska Civil Rule 56(c); see also Whaley v.
State, 438 P.2d 718, 719-720 (Alaska 1968). A genuine issue of
fact "exists where reasonable jurors could disagree on the
resolution of a factual issue." McGee Steel Co. v. State ex rel.
McDonald Indus. of Alaska, Inc., 723 P.2d 611, 614 (Alaska 1986).
The court must view all facts in the light most favorable to the
non-moving party. See Clabaugh v. Bottcher, 545 P.2d 172, 175 n.5
(Alaska 1976); Braun v. Alaska Commercial Fishing and Agriculture
Bank, 816 P.2d 140, 142 n.2 (Alaska 1991). The party opposing
summary judgment must set forth specific facts demonstrating that
a material issue of fact exists. Civil Rule 56(e); Howarth v.
First Nat'l Bank of Anchorage, 540 P.2d 486, 489-90 (Alaska 1975),
aff'd on rehearing, 551 P.2d 934 (Alaska 1976). If, in deciding a
motion for summary judgment, the court must decide questions of
law, the court will adopt the rule of law which is most persuasive
in light of precedent, reason, and policy. Ford v. Municipality of
Anchorage, 813 P.2d 654, 655 (Alaska 1991); Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979).
The parties agree that the issues raised are
appropriately resolved by summary judgment because the details of
the Municipality's substance abuse testing policy are uncontested
(although its implications are not), and the question for the court
is a legal one. See, e.g., American Federation of Government
Employees v. Skinner, 885 F.2d 884, 894-95 (D.C. Cir. 1989)
(finding summary judgment procedure proper for reviewing
constitutionality of drug testing program).
B. Does the Testing Policy Violate Employees' Constitutional
Right to Privacy Under Article I, Section 22, of the Alaska
Constitution?
1. Scope of the Right to Privacy
An individual's right to privacy is specifically
protected by Article I, Section 22 of the Alaska State Constitution
which provides in part:
The right of the people to privacy is
recognized and shall not be infringed.
The right to privacy under the Alaska Constitution is broader and
more encompassing than the right to privacy protected under the
United States Constitution. Messerli v. State, 626 P.2d 81, 83
(Alaska 1980); Woods & Rohde v. State, Dept. of Labor, 565 P.2d
138, 148-49 (Alaska 1977); Ravin v. State, 537 P.2d 494, 514-15
(Alaska 1975). Although the right to privacy under the United
States Constitution is only an inferred right emanating from other
enumerated rights, Alaska's constitution explicitly lists privacy
as one of the basic rights granted to all Alaskan citizens. Falcon
v. Alaska Public Offices Commission, 570 P.2d 469, 476 (Alaska
1977). The Alaska Supreme Court has interpreted the right to
privacy as extending to the communication of "private matters,""a
person's more intimate concerns,""the type of personal information
which, if disclosed even to a friend, could cause embarrassment or
anxiety." Doe v. Alaska Superior Court, 721 P.2d 617, 629 (Alaska
1986) (quoting several prior Alaska cases).
A right to privacy will be recognized where an individual
has an actual or subjective expectation of privacy and the
expectation is one that society is prepared to recognize as
reasonable. Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990).
However, the right to privacy is not absolute. Messerli v. State,
626 P.2d 81, 83 (Alaska 1980). "When a matter does affect the
public, directly or indirectly, it loses its wholly private
character, and can be made to yield when an appropriate public need
is demonstrated." Ravin v. State, 537 P.2d 494, 504 (Alaska 1975),
quoted in Doe v. Alaska Superior Court, 721 P.2d 617, 630 (Alaska
1986). Thus, the right to privacy "must yield when it interferes
in a serious manner with the health, safety, rights and privileges
of others or with the public welfare." Ravin v. State, 537 P.2d
494, 504 (Alaska 1975).
2. Ravin Balancing Test
The Alaska Supreme Court has articulated the following
test for determining whether a challenged state action violates an
individual's right to privacy. First, the court must determine the
nature of the plaintiff's rights, if any, infringed upon by the
state's action. Second, the court must resolve the question of
whether the infringement is justified by determining (1) whether
there is a proper governmental interest in imposing the restriction
and (2) whether the means chosen bear a close and substantial
relationship to the governmental interest. [Fn. 11] Ravin v.
State, 537 P.2d 494, 498 (Alaska 1975). Thus, in order to
determine whether Plaintiffs have a valid privacy interest that
outweighs the Municipality's interest in suspicionless substance
abuse testing, the court must answer the following questions:
a. Do employees have a subjective or actual expectation
of privacy in the act of urination or in the information that can
be disclosed by urinalysis which expectation society is prepared to
recognize as reasonable?
b. If so, what is the nature and extent of Police and
Fire Department employees' privacy and interest?
c. Does the Municipality have a proper governmental
interest in imposing suspicionless substance abuse testing on
employees?
d. If so, does suspicionless substance abuse testing
bear a close and substantial relationship to the Municipality's
proper governmental interest?
3. Applying the Ravin test
a. Do employees have a subjective or actual
expectation of privacy in the act of urination or in the
information that can be disclosed by urinalysis which society is
prepared to recognize as reasonable?
As evidence of a subjective or actual expectation of
privacy on the part of Fire and Police Department employees,
Plaintiffs offer the affidavit of APDEA president, Rob Heun:
Members of the APDEA, including myself, view
the act of urination as a private and intimate matter which should
not be compelled or witnessed by the Municipality. In addition,
members of the APDEA believe that the analysis of their urine or
their blood could reveal to the Municipality private matters,
including but not limited to the employee's genetic makeup and
predisposition to certain types of diseases, whether the employee
is suffering from an illness which has no impact on the employee's
performance as a Municipal employee, whether the employee is taking
medication (such as birth control pills) which has no impact on job
performance, what foods the employee has consumed, and other
matters which could be disclosed through urine or blood testing
which the employee wishes not to be shared with other individuals.
Affidavit of Rob Heun at 10-11, para. XXIV. The Municipality does
not
offer any evidence that members of APDEA and IAFF do not hold this
subjective expectation.
Society is prepared to recognize this expectation as
reasonable. As the United States Supreme Court stated: "The
collection and testing of urine intrudes upon expectations of
privacy that society has long recognized as reasonable." Skinner
v. Railway Labor Executives Association, 489 U.S. 602, 617 (1989).
In reaching this conclusion, the Supreme Court quoted the Fifth
Circuit:
There are few activities in our society more
personal or private than the passing of urine. Most people
describe it by euphemisms if they talk about it at all. It is a
function traditionally performed without public observation; indeed
its performance in public is generally prohibited by law as well as
social custom.
Id. (quoting National Treasury Employees Union v. Von Raab, 816
F.2d 170, 175 (1987)).
The Alaska Supreme Court has also found that the privacy
amendment to the Alaska Constitution "shields the ingestion of
food, beverages or other substances." Gray v. State, 525 P.2d 524,
528 (Alaska 1974), quoted in Ravin, 537 P.2d at 502.
b. What is the nature and extent of Fire and Police
Department employees' privacy interest?
Privacy interests deserve varying levels of protection,
depending on the precise nature and the extent of the interest.
Falcon v. Alaska Public Offices Commission, 570 P.2d 469, 476
(Alaska 1977). "Expectations of privacy are not all of the same
intensity . . . . Both subjectively and in society's judgment as
to what is reasonable, distinctions may be made in the varying
degrees of privacy retained in different places and objects."
State v. Myers, 601 P.2d 239, 242 (Alaska 1979). [Fn. 12]
The Alaska Supreme Court has observed that "society often
tolerates intrusions into an individual's privacy under
circumstances similar to those in urinalysis." Luedtke v. Nabors
Alaska Drilling, Inc., 768 P.2d 1123, 1135 (Alaska 1989). [Fn. 13]
It concluded that an analysis of the extent of the privacy invasion
occasioned by urinalysis should focus on the reason for conducting
urinalysis rather than on the conduct of the test. Id. at 1135.
The court further quoted with approval from Judge Patrick
Higgenbotham's analysis in his concurrence in National Treasury
Employees Union v. Von Raab, 808 F.2d 1057 (5th Cir. 1987). Judge
Higgenbotham observed that the act of urination required by the
testing program involves a lack of privacy similar to that
experienced by persons using public toilet facilities and that the
information disclosed by urinalysis was not all that different from
the background checks and release of medical records required for
many government jobs. Id. at 1134-35.
Likewise, the Alaska Supreme Court has recognized that an
individual may have reduced or no expectation of privacy when
involved in an extensively regulated industry. Woods & Rohde, Inc.
v. State, Dept. of Labor, 565 P.2d 138, 150 (1977) (discussing and
interpreting prior holding in Nathanson v. State, 554 P.2d 456
(Alaska 1976)). The United States Supreme Court has specifically
held that "the privacy expectations of covered employees are
diminished by reason of their participation in an industry that is
regulated pervasively to ensure safety, a goal dependent, in
substantial part, on the health and fitness of covered employees."
Skinner v. Railway Labor Executives Association, 489 U.S. 602, 627
(1989). Where employees' successful performance of duties is
uniquely dependent on the employees' judgment and dexterity,
employees "cannot reasonably expect to keep"from their employer
"personal information that bears directly on their fitness."
National Treasury Employees Union v. Von Raab, 489 U.S. 656, 672
(1989).
The parties do not dispute that employees of both the
Police and Fire Departments have a variety of tests,
investigations, and regulations as conditions of employment.
(i) The Police Department
Police Department employees undergo intense scrutiny
during the application process. An applicant for a sworn position
with the Police Department initially fills out an extensive
personal history questionnaire which inquires into the applicant's
education, military experience, law enforcement experience, driving
history, financial history, criminal history, and alcohol and drug
use. Municipality Exhibit I, APD Background Investigator's Manual,
Standard Procedures, at 6-7. An applicant who has illegally used
or sold controlled substances will usually be eliminated from
consideration as will an applicant who has been convicted of
driving while intoxicated in the previous five years. Id. at 13-
14. If an applicant is not eliminated from consideration, an
extensive background check is conducted. Previous employers,
friends, roommates, spouse, and former spouses are asked about the
applicant's character and reputation, criminal history, negative or
adverse habits, and any other information that might bear on the
applicant's suitability. Id. at 17-23. A credit check is also
performed. Id. at 24. If still under consideration, the applicant
undergoes a psychological exam, a polygraph exam, a physical
agility test, a medical exam, and drug screening before a final
offer of employment is made. Id. at 25.
Even applicants for non-sworn police department positions
must undergo an extensive background investigation, a psychological
exam (requirement added in 1996), and drug screening test
(requirement since 1993). Municipality Exhibit J, Vacant Position
Announcements for Police Clerk Register and Police Dispatcher
Register; Affidavit of Duane Udland.
Once hired, all Police Department employees submit to a
biennial physical examination, including a complete urinalysis.
Municipality Exhibit K, Agreement By and Between MOA and APDEA at
16-17. APDEA contends that these are voluntary physical exams. It
relies on the language in the agreement that the employees are
"entitled"to the physical exam, and Rob Heun's affidavit which
states the employees' general understanding that the physical exams
are voluntary; some employees do not take them; and no one has been
disciplined for not taking them. However, the agreement provides
that the Municipality could require an examination: [it is]
"mandatory that all employees covered by this Agreement shall
receive a physical examination as required in this Article." Id.
at 18. The examining physician does not report any information
from the exam or tests to the Police Department unless the
physician finds something that "might affect the employee's ability
to perform his (sic) duties." Id. at 17.
The Police Department also regulates employees' lives
both on-duty and off-duty. Employees cannot report to work with
the odor of or under the influence of alcohol, may not drink on
duty unless required in the performance of official duties, and may
not consume intoxicants while in uniform. Municipality Exhibit L,
APD Regulations & Procedures Manual sec.sec. 1.02.165, .170, .175.
Off-duty, employees may not consume intoxicants "to the extent that
they become discourteous or engage publicly in conduct that
reflects adversely on the Department." Id. sec. 1.02.200.
Employees
must notify their supervisor of any prescription or non-
prescription medication that might adversely affect their ability
to perform their duties. Id. sec. 1.02.205 (as amended in 1996).
Finally, the employees are required to "maintain sufficient
physical condition to satisfy the requirements of their
assignment." Id. sec. 1.03.210.
(ii) Fire Department
Fire Department employees are subject to similar
intrusions and regulations. Pre-employment physical examinations
are required for positions requiring physical fitness.
Municipality's Exhibit Q, Vacant Position Announcements. Many of
the positions also call for a background check including criminal
history, psychological examination, and drug screening. Fire
Fighter/EMT and Fire Fighter/Paramedic employees are required to
successfully complete the Standard Physical Performance Ability
Screen Exercise ("SPASE") in order to be certified as a Fire
Fighter. They must re-take the SPASE on a periodic basis including
after returning to work following an injury or illness. Affidavit
of James Nolan at 2-3, para. 4; Municipality Exhibit R, AFD
Training
Division SPASE Requirements. An annual physical examination is
also required although the results are released to the Fire
Department anonymously only for statistical purposes. Municipality
Exhibit N, Health and Physical Fitness Program sec. 6.
Both on-duty and off-duty employee behavior is regulated
by the Fire Department as well. Employees are subject to dismissal
for diminished capacity to work due to alcohol or drugs or lack of
sleep from off-duty activities. Municipality Exhibit N, Rules &
Regulations of Conduct sec. 2.3.1. Regulations forbid intoxicating
beverages, marijuana, or controlled substances on any Department
premises. Tobacco use is strictly limited. Municipality Exhibit
N, Safety & Health Program sec. 3.1.1(44), (51). Regulations limit
facial hair and hair cuts. Safety & Health Program sec. 4. When
an
employee may wear a uniform or any insignia of the Department duty
is also strictly regulated. Rules & Regulations of Conduct
sec.sec.
3.1.1(21), (23); Municipality Exhibit N, Uniform Standards. While
on duty, employees are required to avoid all religious or political
discussions or subjects of controversy while engaged in Fire
Department business; they are forbidden from engaging in any
malicious gossip, reporting, or activity; and they are strictly
prohibited from engaging in any altercation with another employee.
Rules & Regulations of Conduct sec.sec. 3.1.1(26), (27), (28).
Employees
are subject to dismissal for engaging in behavior offensive to the
public such as insulting, yelling at, or otherwise alienating the
public, and for making gestures deemed to be obscene or
discriminatory. Rules & Regulations of Conduct sec. 2.3.6. Off-
duty,
employees are prohibited from engaging in any activity that is
inconsistent with or detrimental to their duties or service with
the Fire Department. Rules & Regulations of Conduct sec.
3.1.1(18).
The pervasive pre-employment investigations, disclosures,
and requirements along with the extension regulation of Police and
Fire Department employees, particularly concerning their physical
and mental preparedness for their demanding jobs, indicates a
diminished expectation of privacy. [Fn. 14]
The policy testing procedures themselves are designed to
minimize further intrusiveness. An employee is permitted to remain
clothed in his or her usual attire. Personal items are subject to
search only if the employee insists on taking them into the rest
room for the test. The employee is unaccompanied and unmonitored
while actually providing the urine sample. [Fn. 15] The sample is
tested only for the prohibited substances. [Fn. 16] Information on
medication the employee is taking need be provided only after a
positive test result, and a positive test result based on a
permissible medication will not be reported to the Municipality.
Considering the employees' diminished expectation of
privacy arising from their employment in a highly regulated,
safety-essential field of work, the fairly slight privacy interest
in the act of urination required for the testing, and the limited
testing done on urine samples, the court finds that the intrusion
on Plaintiffs' privacy interests is minimal.
c. Does the Municipality have a proper governmental
interest in imposing suspicionless substance abuse testing on Fire
and Police Department employees?
The Municipality's stated goals in implementing the
substance abuse testing are "deterring drug usage, sale, and/or
possession by Municipal employees in the workplace"in order to
"ensure a safe, healthful, and productive work environment."
Policy No. 40-22 at 1. Plaintiffs assert that the Municipality
does not have a proper governmental interest because the
Municipality has offered no specific evidence that there is a
problem with substance abuse among employees in either the Fire
Department or Police Department.
No evidence has been provided of any specific problem
with substance abuse by any employee of the Anchorage Police
Department and minimal evidence has been provided concerning the
Fire Department. [Fn. 17]
In similar cases, courts have taken judicial notice of
the problems of substance abuse in society and have not required a
showing of specific drug and alcohol use among the employees to be
tested. For example, in National Treasury Employees Union v. Von
Raab, 489 U.S. 656, 674 (1989), the Supreme Court took notice that
"drug abuse is one of the most serious problems confronting our
society today. There is little reason to believe that American
workplaces are immune from this pervasive social problem." The
Court found that "[t]he mere circumstance that all but a few of the
employees tested are entirely innocent of wrongdoing does not
impugn the program's validity." Id. at 676. The Court concluded
that a specific showing of a drug problem in the particular
employee group was not necessary: "It is sufficient that the
Government have a compelling interest in preventing an otherwise
pervasive societal problem from spreading to the particular
context." Id. at 676. See also English v. Talladega County Board
of Education, 938 F. Supp. 775 (N.D. Ala. 1996) (holding that drug
testing can be justified in absence of any evidence of drug use in
the workforce if drug use is totally incompatible with the nature
of the position); American Federation of Government Employees, AFL-
CIO v. Cavazos, 721 F. Supp. 1361, 1372 (D.D.C. 1989) (determining
that court could not strike down drug testing program simply for
lack of evidence that government agency had experienced a drug
problem in the past). In Doe v. City and County of Honolulu, 816
P.2d 306, 311 (Hawaii App. 1991), the Hawaii Court of Appeals found
that the trial court had not erred in taking judicial notice "of
the fact that use and abuse of illegal drugs is a serious problem
in society and that HFD's fire fighters, as members of society, are
not immune from this pervasive social problem."
Plaintiffs rely on Guiney v. Police Commissioner of
Boston, 582 N.E.2d 523 (Mass. 1991), in which a closely-divided
Massachusetts Supreme Court held that the intrusion of government-
mandated drug testing could not be justified absent specific proof
of a drug problem in the group of employees being tested.
In the case before us . . . the
commissioner has made no demonstration, on the record or otherwise,
that facts exist that warrant random drug tests of police officers.
The record offers nothing to show that there is a drug problem in
the Boston police department. Nor is there anything outside of the
record of which he could take note that would permit such a
conclusion.
. . . .
The court should not infer or assume the
existence of facts that might justify the governmental intrusion.
The reasonableness of a mandated urinalysis cannot fairly be
supported by unsubstantiated possibilities. If the government is
to meet the requirements of [Massachusetts's constitutional search
and seizure provision], it must show at least a concrete,
substantial governmental interest that will be served by imposing
random urinalysis on unconsenting citizens. In such a case, the
justification for body searches, if there ever can be one, cannot
rest on some generalized sense that there is a drug problem in this
country, in Boston, or in the Boston police department and that
random urinalyses of police officers will solve, or at least help
to solve, the problem or its consequences. We reject the view of
the majority of the Justices of the Supreme Court that such proof
is not required because "[i]t is sufficient that the Government
have a compelling interest in preventing an otherwise pervasive
societal problem from spreading to the particular context." See
National Treasury Employees Union v. Von Raab, supra 489 U.S. at
675 n.3.
The Guiney case has not been followed by other courts. It fails to
appropriately consider the legitimate goals of substance abuse
deterrence and prevention in light of the power vested in the
police department and the public's reliance on the individual
employee's physical and mental acuity in carrying out both Fire
Department and Police Department responsibilities for the public
welfare and safety.
Prior to the U.S. Supreme decisions in Skinner and Von
Raab, the Alaska Supreme Court addressed drug testing in the
context of private employment. Luedtke v. Nabors Alaska Drilling,
Inc., 768 P.2d 1123 (Alaska 1989). Although the constitutional
right to privacy was not implicated because no state action was
involved, the court applied the Ravin balancing test finding that
it is "analogous to the analysis that should be followed in cases
construing the public policy exception to the at-will employment
doctrine." Id. at 1135. The court observed that work on an oil
rig could be very dangerous and found that it was important for oil
rig workers to be drug-free on the job in order to protect the
safety of other personnel and the oil field. Id. at 1136. It then
weighed the public policy supporting the employees' privacy in off-
duty activities against the public policy supporting the protection
of the health and safety of other workers as well as the employees
in question, and determined that the health and safety concerns
were paramount. Id. at 1136. The court did not require a specific
showing of a current drug problem among oil rig workers.
The position articulated by the United States Supreme
Court in Von Raab and the approach taken by the Alaska Supreme
Court in Luedtke are persuasive on the issue of whether the
Municipality must establish specific instances of substance abuse
in the workplace before initiating a testing program. Although
evidence of specific drug or alcohol abuse problems in the Police
or Fire Department would be persuasive of the need for the testing
program, the absence of significant statistical or anecdotal
evidence of a drug or alcohol problem is not dispositive. The
court takes judicial notice that drug and alcohol abuse is a
serious problem in society. The court further observes that the
use of illegal drugs and abuse of alcohol are incompatible with
positions whose duties include "a substantially significant degree
of responsibility for the safety of the public where the unsafe
performance of an incumbent could result in death or injury to self
or others." Policy sec. 5(t). Further, the workplaces of both the
Police Department and the Fire Department are not confined to the
stations; their workplace is everywhere in the community that Fire
Department and Police Department services are needed. The court
concludes that the Municipality has a proper governmental interest,
one which is "concerned with the health [or] safety . . . of
others,"Ravin v. State, 537 P.2d 494, 504 (Alaska 1975), and that
this interest outweighs the Plaintiffs' privacy interest.
d. Does suspicionless substance abuse testing bear a
close and substantial relationship to the Municipality's proper
governmental interest?
Having found that the Municipality's interest in
deterring alcohol and drug usage, sale, and possession in the
workplace in order to ensure a safe, healthful, and productive
workplace outweighs Fire and Police Department employees' privacy
interest, the court must next consider whether the means chosen by
the Municipality bear "a close and substantial relationship"to
that interest. Plaintiffs contend that the means, suspicionless
drug and alcohol testing, do not bear a sufficiently close and
substantial relationship. They argue first, that urinalysis is not
the least restrictive means of achieving the Municipality's goals
and second, that urinalysis is an unproved method of combatting
drug and alcohol abuse.
Plaintiffs suggest that screening for substance abuse
could be done at least as well and probably more effectively one of
two ways. (1) It would be better if supervisors were trained to
recognize signs of substance abuse, and to test only upon
reasonable suspicion. (2) Standard sobriety tests (such as the HGN
used by police) could be used to establish reasonable suspicion for
testing.
The Municipality responds that neither of these methods
would necessarily be less intrusive noting that the greater the
discretion vested in a supervisor, the greater the potential for
selective and discriminatory use of the testing procedures. The
Municipality also argues that these alternatives would primarily
aid in detecting drug or alcohol use, but would not be a signifi-
cant aid to the Municipality's other goal of deterring substance
abuse.
Courts have not required that the method chosen be the
least restrictive one. For example, in Harrison v. State, 687 P.2d
332 (Alaska App. 1984), the Alaska Supreme Court upheld a local
option law permitting communities to prohibit the importation of
alcohol into the community. In challenging the law as violative of
the right to privacy, Harrison pointed to evidence suggesting that
moderate consumption of alcohol may be medically beneficial and
contended that moderate users would be improperly punished by the
law. The supreme court found that, whatever the medical benefits
might be, the harmful effects of alcohol were undisputed, and that
increased access to alcohol would undoubtedly increase the number
of alcohol abusers. The court then upheld the local option law
finding that it bore a close and substantial relationship to the
legitimate legislative goal of protecting the public health and
welfare by curbing the level of alcohol abuse in the state. The
Court did not accept the argument that the prohibition against
alcohol in certain communities spread too broadly, encompassing
people who were not problem drinkers. [Fn. 18]
In Skinner, the United States Supreme Court rejected the
argument that the government's actions have to be the least
restrictive:
Respondents offer a list of "less drastic and
equally effective means"of addressing the Government's concerns,
including reliance on the private proscriptions already in force,
and training supervisory personnel "to effectively detect employees
who are impaired by drug or alcohol use without resort to such
intrusive procedures as blood and urine tests." We have repeatedly
stated, however, that "[t]he reasonableness of any particular
government activity does not necessarily or invariably turn on the
existence of alternative "less intrusive means." It is obvious
that "[t]he logic of such elaborate less-restrictive-alternatives
could raise insuperable barriers to the exercise of virtually all
search-and-seizure powers,"because judges engaged in post hoc
evaluations of government conduct "'can almost always imagine some
alternative means by which the objectives of the [Government] might
have been accomplished.'"
489 U.S. 602, 629 n.9 (1989). See Vernonia School District v.
Acton, __ U.S. __, 115 S. Ct. 2386, 2396 (1995) ("We have
repeatedly refused to declare that only the "least intrusive"
search practicable can be reasonable under the Fourth Amendment.").
In the instance case, the court concludes that the method chosen
need not be the least restrictive in order to have a close and
substantial relationship to the government goals.
The Plaintiffs' second contention is that urinalysis is
an unproved method of combatting drug abuse. None of the cases
cited by the parties have struck down a program on this basis.
IAFF offers the affidavit of Dr. Kurt Dubrowski, a board-certified
clinical and forensic toxicologist who, among other qualifications,
has served for the last thirty years as State Director of Tests for
Alcohol and Drug Influence in Oklahoma. In his affidavit, Dr.
Dubrowski points to studies which he contends establish "that
random drug testing seldom, if ever, reveals illicit drug use in
work populations which have been subject to [mandated drug
testing]." Dubrowski Affidavit at 7. He specifically refers to
data reported in the November 20, 1996, issue of Drug Detection
Report: The Newsletter on Drug Testing in the Workplace, in which
motor carrier industry employers who tested their employees
pursuant to the Omnibus Transportation Employee Testing Act of 1991
reported very small positive rates on drug tests. Dubrowski
Affidavit at 7-8.
In contrast, the Municipality offers the affidavit of
Peter Bensinger, former Administrator of the Drug Enforcement
Agency, who runs a private company providing consultation and
services related to promoting a drug-free workplace and employee
health and safety. Bensinger reaches a different conclusion from
the data showing low "positive"rate for employees tested in the
transportation industry. He concludes that the low positive rate
results from the deterrent effect of the random drug testing
program. Bensinger Affidavit 12/27/96 at 11, para. 24. He also
points
to the 1995 Department of Defense survey of Health Related
Behaviors Among Military Personnel in which the Department of
Defense reported a dramatic drop in the use of illicit drugs by
member of the armed forces since the institution of a mandatory
drug testing program. Bensinger Affidavits: 8/26/96 at 5-6, para.
10
and Exhibits 1 & 2; 12/27/96 at 11, para. 23; 1/27/97 at 5-6, para.
12-13.
Having concluded that the requirement of a "close and
substantial relationship"is not synonymous with a requirement that
the means employed be the least restrictive, this court need not
determine as a factual matter that the Municipality has chosen the
very best means of preventing substance abuse in the workplace.
The Municipality has offered sufficient evidence to establish a
close and substantial relationship between its proper governmental
interest in deterring alcohol and drug usage, sale, and possession
in the Fire Department and Police Department in order to ensure a
safe, healthful, and productive workplace and the Municipality's
means of suspicionless drug and alcohol testing.
C. Does the Testing Policy Violate Employees' Constitutional
Right to be Free from Unreasonable Search and Seizure Under Article
I, Section 14, of the Alaska Constitution?
Article I, Section 14, of the Alaska Constitution
provides:
The right of the people to be secure in their
persons, houses and other property, papers, and effects, against
unreasonable searches and seizures, shall not be violated. No
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.
The protection against unreasonable search and seizure under the
Alaska Constitution is broader than the protection of the Fourth
Amendment of the U.S. Constitution. See, e.g., Woods & Rohde, Inc.
v. State, Dept. of Labor, 565 P.2d 138 (Alaska 1977). Plaintiffs
contend that suspicionless drug and alcohol tests violate both the
Alaska and U.S. Constitutions because the tests are not pursuant to
a warrant issued upon probable cause; and even if a warrant is not
required, such testing constitutes an unreasonable search. The
preliminary question is whether drug and alcohol testing
constitutes a search. If it is, should suspicionless drug and
alcohol testing be an exception to the warrant requirement, and if
so, is such a search unreasonable?
1. Do the procedures for collecting urine samples and the
urinalysis constitute a search?
The United States Supreme Court has concluded that the
collection and testing of urine intrudes upon expectations of
privacy that society has long recognized as reasonable, and
therefore, must be deemed searches under the Fourth Amendment.
Skinner v. Railway Labor Executives Association, 489 U.S. at 617.
This conclusion is equally applicable to the search provision of
Article I, Section 14 of the Alaska Constitution.
2. Should suspicionless substance abuse testing be an
exception to the warrant requirement?
Plaintiffs contend that a warrant issued upon a deter-
mination of probable cause by a judicial officer is necessary
before suspicionless drug testing can be done because such testing
does not fall within a recognized exception to the warrant
requirement. Usually, "a warrantless search will be considered perse
unreasonable unless it falls within a previously recognized
exception to the warrant requirement." State v. Myers, 601 P.2d
239, 241 (Alaska 1979). However, the court can, if required by the
unique facts of a case, look, "albeit with great caution, beyond
the four corners of previously recognized exceptions to the
principles that gave rise to them." Id. at 242.
Plaintiffs rely on Woods & Rohde, Inc. v. State, Dept. of
Labor, 565 P.2d 138 (Alaska 1977), in which the court struck down
warrantless OSHA searches as violative of the warrant requirement
of Article I, Section 14. However, the decision was based on
factors not present in this case. In that case, the court observed
that OSHA violations can result in significant fines and
imprisonment and for this reason, found that the rights extended to
a citizen in a criminal prosecution should also be extended to the
owner of a business premise subject to an OSHA search. Id. at 151.
It also found that without judicial review, far too much discretion
was lodged with the official in the field. Id. It concluded that
the burden of obtaining a warrant was not likely to frustrate the
purpose of the OSHA inspections. Id. The court also noted that
the OSHA regulations extended to all employers thereby reaching
many commercial undertakings with no history of intensive
regulation. Id. at 152.
The Municipality relies on the U.S. Supreme Court
decisions in Von Raab, 489 U.S. 656 (1989) and Skinner, 489 U.S.
602 (1989). In Von Raab, the Court explains that "neither a
warrant, nor probable cause, nor, indeed any measure of
individualized suspicion, is an indispensable component of
reasonableness in every circumstance." 489 U.S. at 665. The Court
held that "where a Fourth Amendment intrusion serves special
governmental needs, beyond the normal need for law enforcement, it
is necessary to balance the individual's privacy expectations
against the Government's interest to determine whether it is
impractical to require a warrant or some level of individualized
suspicion in the particular context." Id. at 665-66. It found the
drug-testing program was not designed to serve the ordinary needs
of law enforcement: "Test results may not be used in a criminal
prosecution of the employee without the employee's consent." Id.
at 666. The Court further found that the purposes of the program
were to deter drug use and prevent the promotion of drug users to
sensitive positions and that these purposes qualified as "special
governmental needs, beyond the normal need for law enforcement."
Id. at 665-66.
In Skinner, the Court observed that requiring a warrant
in the post-accident context would delay testing which would result
in the destruction of evidence, and thereby frustrate the purposes
of the search. The Court explained:
An essential purpose of a warrant
requirement is to protect privacy interests by
assuring citizens subject to a search or seizure that such
intrusions are not the random or arbitrary acts of government
agents. A warrant assures the citizen that the intrusion is
authorized by law, and that is narrowly limited in objectives and
scope. A warrant also provides the detached scrutiny of a neutral
magistrate, and thus ensures an objective determination whether an
intrusion is justified in any given case. In the present context,
however, a warrant would do little to further these aims. Both the
circumstances justifying toxicological testing and the permissible
limits of such intrusions are defined narrowly and specifically in
the regulations that authorize them, and doubtless are well known
to covered employees. Indeed, in light of the standardized nature
of the tests and the minimal discretion vested in those charged
with administering the program, there are virtually no facts for a
neutral magistrate to evaluate.
489 U.S. at 621-22.
The reasoning of the U.S. Supreme Court is persuasive.
The Municipality's drug and alcohol testing policy spells out in
great detail the procedures to be followed and vests almost no
discretion in an individual. Moreover, the test results may not be
used in a criminal prosecution and there is no sanction such as a
fine or imprisonment. These circumstances readily distinguish the
drug-testing case from the OSHA inspections in Woods & Rohde, Inc.,
565 P.2d 138 (Alaska 1977).
3. Is suspicionless substance abuse testing an unreasonable
search and seizure?
The remaining question is whether the search occasioned
by suspicionless drug and alcohol testing is unreasonable. Alaska
law does not provide a definition of what is "reasonable." Each
case [is] to be decided on its own facts and circumstances. Davis
v. State, 525 P.2d 541, 543 (Alaska 1974). In Von Raab, 489 U.S.
656 (1989), the U.S. Supreme Court observed that the traditional
probable cause standard is "peculiarly related to criminal
investigations"and unhelpful in analyzing the reasonableness of
routine administrative functions. 489 U.S. at 668 (citations
omitted). In Skinner, 489 U.S. 602 (1989), the U.S. Supreme Court
made it clear that a showing of individualized suspicion is not a
constitutional floor below which a search will be deemed
unreasonable. It set forth the following framework:
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.
489 U.S. at 624.
Thus, in determining the reasonableness of a warrantless
search and seizure, a court must determine the nature and extent of
the privacy interest, whether there is an important governmental
interest at stake, and whether the governmental interest outweighs
the privacy interest. This analysis is similar to the one applied
to the right to privacy issues. Pursuant to that analysis, this
court has determined that suspicionless substance abuse testing
does not violate the Fire and Police Department employees' right to
privacy. Similarly, the court finds that the Municipality's
suspicionless substance abuse testing program does not violate the
Fire and Police Department employees' right to be free from
unreasonable search and seizure. Likewise, the court finds that
the Municipality's drug and alcohol testing program does not
violate Plaintiffs' Fourth Amendment or privacy rights under the
United States Constitution. [Fn. 19]
IT IS HEREBY ORDERED that Defendant's motion for summary
judgment is GRANTED; and
IT IS FURTHER ORDERED that the Plaintiffs' motions for
summary judgment are DENIED.
DATED at Anchorage, Alaska, this 14th day of March, 1997.
/s/ Karen L. Hunt
Karen L. Hunt
Superior Court Judge
FOOTNOTES (Appendix A)
Footnote *:
Minor editorial changes have been made to the superior court's
decision in compliance with the supreme court's technical
guidelines for publication.
Footnote 1:
The APDEA also raised substantive and procedural due process
claims in its complaint, but failed to address these theories in
its briefing. These arguments are not before the court in these
motions.
Footnote 2:
See Appendix to this decision for the policy in its entirety.
Footnote 3:
The policy was adopted as part of the implementation of Policy
No. 40-22 (adopted June, 1991) which attempts to address the
problem of substance abuse in the municipal workplace.
Footnote 4:
APDEA participated in these negotiations, but IAFF chose not
to take part. IAFF's claim of unfair labor practices as a result
of the implementation of the policy is not before the court on
these motions.
Footnote 5:
The IAFF does not oppose testing after a work-related accident
involving a vehicle. IAFF Memo at 4.
Footnote 6:
Section 7.a.(1) of the policy describes under what
circumstances an employee is subject to promotion/transfer/demotion
testing. (This section also governs pre-employment testing which
the parties do not challenge.)
Pre-Employment drug and alcohol testing is the
final step in the selection process for safety-sensitive and public
safety positions. Pre-employment testing may result from any of
the following employment actions:
- New Hire
- Rehire
- Promotion
- Demotion
- Transfer
- Reinstatement
- Re-employment
. . . .
Employees in safety-sensitive or public safety
positions will be required to re-test for transfer, promotion, or
demotion unless this requirement is waived by the Director because
an employee has passed a substance abuse exam within the last
thirty days.
Footnote 7:
Section 7.a.(3) requires testing under the following
circumstances:
Post Accident Testing - Unless waived by the
Employee Relations Department, post-accident testing will be
conducted when there has been a work related vehicular accident.
The procedures for post-accident tests are outlined in 7.c.(4).
Section 7.c.(4) lists the circumstances that will trigger post-
accident testing.
Post accident testing may be conducted when
there has been a work related accident occurring while an employee
is performing job duties that results in: a citation for a moving
violation; death or personal injury; damage to Municipal or private
property excluding the vehicle; or a vehicle being towed from the
scene of the accident or removed from service. In any of these
circumstances, any employee who is directly involved in the
incident shall be subject to the specific criteria set forth below,
being tested for drugs and/or alcohol. The first priority will be
treatment of any injuries and cooperation with law enforcement
personnel. Post-accident testing will be done within 8 hours of
the accident and drug testing must be completed within 32 hours
after the accident.
. . . .
NOTE: If the accident resulting in damage to
Municipal or private property was caused by a public safety
employee, operating within standard operating policy guidelines,
the requirement for post accident testing may be waived by a
Command Officer.
. . . .
Footnote 8:
The policy originally adopted by the Municipality in September
1994 included random testing for public safety employees.
Municipality's Exhibit D, Policy No. 42-24 at 3 & 22-23,
sec.sec. 5.t &
7.c.(7). This provision was not included in the amended policy
adopted in October 1995. However, if random testing is found to be
constitutionally permissible, the Municipality intends to conduct
such testing of all public safety employees. As Carol Smith, the
Affirmative Action and Compliance Manager in the Department of
Employee Relations with the Municipality, whose job includes Drug
Free Workplace Act compliance duties, explains:
The Amended Policy 40-24 presently does not
address random testing for "public safety"employees. Language
including "public safety"employees in random testing was omitted
from the amended policy because the MOA intended to implement all
other types of testing, prior to the court having the opportunity
to review the constitutionality of random testing. The omission
was intended to reflect the MOA's position that random testing
would not be conducted for APDEA employees absent a court's
decision. At no time did I state that the policy would be
implemented in any other manner than by its terms.
It remains MOA's intent, however, to include
"public safety"employees in random testing if such testing is
found to be constitutional.
Affidavit of Carol Smith at 5 para. 14, 15.
Section 5.v of the amended policy defines a random test
(italicized language is added from the original policy):
Random Test - an unannounced substance abuse
test given periodically to Transit and other employees who are
required by government regulations to be subject to random testing,
and individuals in public safety positions subject to random
testing.
Section 7.a.(2) sets out the requirement of random drug testing and
to whom the testing applies:
Random testing is only applicable to certain
Transit Department employees, employees required to have a DCL,
other employees required by government regulations to be subject to
random testing, and individuals in public safety positions.
Once each month, the Contractor will randomly
select the appropriate percentage of employees, determined by the
Employee Relations Department, employed in safety-sensitive/public
safety positions to be tested. The selection will be performed
through use of a statistically valid computer random selection
method.
Footnote 9:
The policy also discusses "safety-sensitive"positions. There
are no safety-sensitive position[s] within the Police Department.
Affidavit of Carol Smith at 4, para. 11. Nor do there appear to be
any
safety-sensitive positions within the Fire Department.
Footnote 10:
427 out of 437 APDEA members are employed in positions
designated as "public safety positions." APDEA Response at 3;
Supplemental Affidavit of Rob Heun at 2, para. 2. All but three
job
classifications for IAFF members are considered "public safety
positions." Municipality Memo re: IAFF S.J. at 7; Municipality's
Exhibit U.
Footnote 11:
In Ravin, the Court explicitly adopted the "proper
government interest"/"close and substantial relationship"test
rather than the traditional compelling state interest test for
evaluating a right to privacy. Ravin v. State, 537 P.2d 494, 498
(Alaska 1975). In Falcon v. Alaska Public Offices Commission, 570
P.2d 469, 476 (Alaska 1977), the Court observed that "[u]nder the
Alaska Constitution, the required level of justification turns on
the precise nature of the privacy interest involved,"contrasting
this standard with the standard in federal cases of a "compelling
state interest." However, in some subsequent privacy cases, the
Court has referred to a compelling state interest in weighing the
right to privacy against a state interest. See Jones v. Jennings,
788 P.2d 732 (Alaska 1990) (inquiring whether disclosure of
personnel records was required to serve a compelling state interest
as part of test adopted from Colorado case); Messerli v. State, 626
P.2d 81 (Alaska 1980) (using compelling state interest test from
Breese v. Smith, 501 P.2d 159 (Alaska 1972), for impairment of a
fundamental right under the Alaska Constitution). In practical
terms, there is probably no significant difference between these
tests. See Vernonia School Dist. v. Acton, __ U.S. __, 115 S. Ct.
2386, 2394-95 (1995) (emphasis in original):
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.
Footnote 12:
For example, the privacy interest in personnel records is
less compelling than that implicated in home or familial settings.
Jones v. Jennings, 788 P.2d 732, 738 n.14 (Alaska 1990).
Footnote 13:
Luedtke involved a private employer's drug testing
program.
Footnote 14:
Other courts have recognized a diminished expectation of
privacy under similar circumstances. See, e.g., Doe v. City and
County of Honolulu, 816 P.2d 306, 314 (Hawaii App. 1991) (fire
fighters have diminished expectation of privacy); National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 672 (1989) (Customs
employees involved in the interdiction of illegal drugs or who are
required to carry a firearm have diminished expectation of privacy
because employees cannot reasonably expect to avoid inquiry into
information that reflects directly on their fitness); Skinner v.
Railway Labor Exec. Ass'n, 489 U.S. 602, 627-28 (1989) (employees
in a heavily regulated industry have diminished expectation of
privacy where safety is dependent on health and fitness of
employees).
Footnote 15:
Compare Vernonia School District v. Acton, 115 S. Ct.
2386, 2393 (1995), in which the United States Supreme Court
considered the privacy invasion of required urinalysis of student
athletes. The Court found that "the privacy interests compromised
by the process of obtaining the urine sample are in our view
negligible,"where the students were permitted to remain fully
clothed and were not directly observed while producing a sample.
Id.
Footnote 16:
Other courts have considered it significant that the
questioned tests screen only for drugs. Vernonia School District
v. Acton, 115 S. Ct. 2386, 2393 (1995). Here Plaintiffs raise the
specter of additional testing of the urine samples to provide
information unrelated to safety-considerations. However, the
policy allows testing only for specific substances. (The policy
incorporates DOT regulations which prohibit testing for anything
other than the specified controlled substances. Policy sec.sec.
6.e.(1)
& 6.f.(1); 49 C.F.R. sec. 40.21(c).) The court will not assume
that
the Municipality intends to violate the policy. When a party
chooses to challenge a policy on its face, the court will not
assume the worst. Vernonia, 115 S. Ct. at 2394.
Footnote 17:
Fire Chief Nolan states in his affidavit that he is aware
of several instances where employee drug use has been identified or
suspected. He describes two instances where employees were subject
to discipline: one employee quit after being disciplined on several
occasions for being impaired by alcohol while on duty and one
employee was terminated after testing positive for cocaine
following discipline for suspicion of repeated marijuana use. He
describes a third employee who successfully completed a treatment
program and four other employees who were suspected of substance
abuse, but who quit prior to any official action being taken.
Affidavit of Chief Nolan at 10.
Footnote 18:
But see Jones v. Jennings, 788 P.2d 732 (Alaska 1990)
(requiring that disclosure of personnel records be done in "least
intrusive"manner, utilizing test from Colorado case).
Footnote 19:
See Von Raab (upholding transfer/promotion of employees
in public safety positions); Skinner (upholding post-accident
testing); Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989)
(upholding random testing under certain circumstances).
