City of East Point v. Smith

• Decision Date: 10 March 1988
• Docket Number: No. 44913,44913
• Citation: 365 S.E.2d 432,258 Ga. 111
• Parties: , 47 Empl. Prac. Dec. P 38,201, 3 IER Cases 157 CITY OF EAST POINT et al. v. SMITH.
• Court: Georgia Supreme Court

Page 432

365 S.E.2d 432

258 Ga. 111, 47 Empl. Prac. Dec. P 38,201,

3 IER Cases 157

CITY OF EAST POINT et al. v. SMITH.

No. 44913.

Supreme Court of Georgia.

March 10, 1988.

Reconsideration Denied March 30, 1988.

James A. Eidson, James W. Kytle, Eidson & Llewellyn, East Point, for City of East Point et al.

Scott Walters, Jr., East Point, for Horace H. Smith.

Frank L. Derriekson, amicus curiae.

BELL, Justice.

We granted certiorari in this case to consider the Court of Appeals' holding that the City of East Point could not require the appellee, a captain in the East Point Fire Department, to submit to urinalysis testing for the purpose of detecting marijuana use, where the city lacked reasonable suspicion that Smith was using marijuana. Smith v. City of East Point, 183 Ga.App. 659, 359 S.E.2d 692 (1987). We reverse.

"In early 1985, the Police Department of the City of East Point received reports that some of its officers were smoking marijuana in public. The chief of police was unable to find the offending officers through conventional investigative means. Accordingly, it was determined that urinalysis would be employed to ascertain the offending officers. In order to conduct the urinalysis 'in a nonselective manner,' the chief of police and the city manager decided to give the tests to all employees of the city having police power.

"Appellant Smith was a captain in the city's fire department. He was employed by the city as a fireman for 21 years. Smith was assigned the duties of fire inspector and, in that capacity, he was given police power. Thus, Smith was required to submit to urinalysis." Smith, supra, 183 Ga.App. at 659-660, 359 S.E.2d 692.

Smith, in the presence of the assistant police chief, submitted a urine sample. The city had hired a private lab to perform the urinalysis. The lab used three separate tests to analyze the urine: an enzyme immunoassay, a radio immunoassay, and a gas chromatograph mass spectrometer (hereinafter GC/MS). ¹ The first two tests are not as accurate as the GC/MS test. If an employee's test was positive or close to positive under the first two tests, then the GC/MS test was performed. A Dr. McHan, the director of the private lab engaged by the city, testified that the possibility of error using these three tests was conservatively one in 100,000. He said that after the testing the lab maintained custody and control of the results of Smith's tests.

Smith tested negative under the enzyme immunoassay and radio immunoassay tests. However, because the results were highly suggestive of marijuana use, the lab ran the GC/MS test. Smith tested positive for marijuana use under it, and he was subsequently discharged from employment.

The Court of Appeals, however, held that Smith's discharge was improper, because the city could not require him to submit to urinalysis without a reasonable, individualized suspicion that he was using marijuana. It is undisputed that the city had no such suspicion of Smith.

1. The sole question for determination is whether the search and seizure ² of Smith's urine was reasonable within the meaning of Art. I, Sec. I, Par. XIII of the 1983 Georgia Constitution. ³ In determining this question we look to fourth amendment cases for guidance.

"The basic purpose of the fourth amendment ... is 'to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials,' Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967) ... 'The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.' Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979)." McDonell v. Hunter, 809 F.2d 1302, 1305-1306 (8th Cir.1987). "The determination of fourth-amendment reasonableness requires consideration of the totality of circumstances in a particular case, weighing all of the factors suggesting constitutional violation against all of those indicating validity." National Treasury Employees Union v. Von Raab, 816 F.2d 170, 177 (5th Cir.1987), cert. granted 485 U.S. 903, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988).

2. In analyzing the reasonableness of the urinalysis, we first examine the invasion of the employee's personal rights. It is clear that the employees have a legitimate expectation of privacy in the wealth of personal information which examination of their urine can disclose. See Van Raab, supra, 816 F.2d at 175; Capua v. City of Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.1986). However, although the privacy invasion is significant enough to implicate the search and seizure provisions of our state constitution and of the fourth amendment, it "is not as intrusive as an invasion of bodily integrity or of the home, nor do employees suffer the indignity of either strip or body cavity searches." Von Raab, supra, 816 F.2d at 177; McDonell, supra, 809 F.2d at 1308.

3. We next turn to the justification for the urinalysis. To begin, we note that East Point had reports of police officers using marijuana in public, and that, significantly, when East Point learned of this problem, it turned first to conventional investigative means to try to solve the problem. Only when that failed did the city turn to urinalysis.

Moreover, it is clear that the use of marijuana by employees with police powers can seriously undermine the City of East Point's substantial interest in enforcing drug and other laws. An employee's use of marijuana, especially when seen in public, undermines public confidence in the integrity of those employees, and "casts substantial doubt upon [their] ability to carry out [their] duties honestly and vigorously." Von Raab, supra, 816 F.2d at 178. Most importantly, employees who have the authority to carry weapons endanger their fellow employees and the public when their performance is impaired by use of marijuana or other controlled substances.

We conclude that the reports of marijuana use, ⁴ the interest the city had in preventing that use, and the fact that the city first attempted to solve the problem by conventional means, demonstrate that the city had a compelling need for the use of urinalysis.

4. We also find that several aspects of East Point's urinalysis program militate toward the conclusion that the testing was constitutionally reasonable.

a. First, the city's program did not vest discretion in any city officials concerning who would be tested: all employees with police powers were required to be tested. If city officials were vested with such discretion, there would be the danger that they could harass certain employees by repeatedly pinpointing them for testing. East Point's program, however, does not suffer from such arbitrariness. See Von Raab, supra, 816 F.2d at 177; McDonell, supra, 809 F.2d at 1308.

b. In addition, we note that the record indicates that the lab tested solely for use of marijuana. Urine testing may disclose not only information concerning the use of illicit drugs, but...