Jones v. Graham County Bd. of Educ.
| Decision Date | 02 June 2009 |
| Docket Number | No. COA08-477.,COA08-477. |
| Citation | 677 S.E.2d 171 |
| Parties | Susan JONES, and the North Carolina Association of Educators, Plaintiffs, v. The GRAHAM COUNTY BOARD OF EDUCATION, Defendant. |
| Court | North Carolina Court of Appeals |
Tin, Fulton, Walker & Owen, by S. Luke Largess, Charlotte, for Plaintiffs-Appellants.
Roberts & Stevens, P.A., by K. Dean Shatley, II, and Christopher Z. Campbell, Asheville, for Defendant-Appellee.
"The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."1
The Graham County Board of Education enacted a policy mandating the random, suspicionless drug and alcohol testing of all Board employees. Plaintiffs brought suit contending that the policy violates the North Carolina Constitution's guarantees against unreasonable searches and seizures. The trial court granted summary judgment in favor of the Board of Education. We reverse.
In 2006, the Graham County Board of Education employed approximately 250 teachers, staff, and administrators to serve approximately 1,300 students in three public schools—a high school, a middle school, and an elementary school. All Board employees were subject to the Board's "Alcohol/Drug-Free Workplace Policy" which required all job applicants to pass "an alcohol or drug test" as a condition of employment; required all employees to submit to "an alcohol or other drug test" upon a supervisor's "reasonable cause" to believe that the employee was using alcohol or illegal drugs, or abusing prescription drugs, in the workplace; and required "[a]ny employee placed on the approved list to drive school system vehicles" to submit to "random drug tests." Additionally, the policy mandated the suspension of any employee who, in a supervisor's opinion, was impaired by alcohol or drugs in the workplace.
The Board of Education enacted a new testing policy on 5 December 2006. Significantly, the new policy required all employees to submit to "drug or alcohol testing" upon the policy's implementation and required all employees to submit to random, suspicionless testing thereafter. On 20 April 2007, Plaintiffs Susan Jones—a teacher at the County's high school—and The North Carolina Association of Educators—a statewide association of public school teachers, support personnel, and administrators to which approximately fifty Board of Education employees belonged—filed a complaint seeking to have the new policy declared violative of the North Carolina Constitution.
The Board of Education subsequently revised the new testing policy, answered the complaint, and filed a motion for judgment on the pleadings. The Board attached a copy of the new policy, as revised ("the policy"), to the answer. The policy states that
[a]ll positions of employment within the Graham County School system, including but not limited to administrative, classified, non-classified, part time, full time, temporary, and permanent, shall be designated as safety sensitive positions due to the fact that these positions require work where an inattention to duty or error in judgment will have the potential for significant risk or harm to those entrusted to their care, and the possibility or probability of contact with students and the influence employees have could cause irreparable damage to the health and well being of the students.
The policy specifically defines the classes of employees subject to the policy as follows:
1) athletic coaches[;]
2) bookkeepers[;]
3) cafeteria personnel[;] 4) centralized administrative support personnel[;]
5) centralized support personnel[;]
6) custodians[;]
7) directors and supervisors[;]
8) extracurricular advisors[;]
9) maintenance personnel[;]
10) other instructional personnel[;]
11) principals and assistant principals[;]
12) school-based administrative support personnel[;]
13) student support personnel[;]
14) superintendents[;]
15) teachers[;]
16) teacher assistants[;]
17) transportation personnel excluding bus drivers who are covered separately[; and]
18) substitute teachers[.]
Under the policy, the Board of Education may perform "drug or alcohol testing" in the following instances:
a. Of any employee who manifests "reasonable suspicion" behavior....
b. Of any employee who is involved in an accident that results or could result in the filing of a Workers' Compensation claim.
c. On a random basis of any employee.
d. Of any employee who is subject to drug or alcohol testing pursuant to federal or state rules, regulations or laws.
The policy defines "[d]rug testing" as "the scientific analysis of urine, blood, breath, saliva, hair, tissue, and other specimens of the human body for the purpose of detecting a drug or alcohol."
The policy states that "[t]he collection site is Graham County Schools" and that "[t]he procedures for random selection of employees and the procedures for collection shall be the procedures adopted by the Board of Education as set forth in the random procedure and the collection procedure utilized by Keystone Laboratories[,]" a testing facility located in Asheville. While the policy does not particularly prescribe the specific "specimens" an employee is required to submit, Keystone Laboratories' collection procedure only details the collection of employees' urine. Under the collection procedure, employees are required to "go into the toilet area and void into [a] container." The collection method "does not involve the direct visual observation of employees while providing a urine sample, unless extraordinary circumstances exist as stated in paragraph twelve ... of the procedure." Paragraph twelve provides, in part, as follows:
For walk-in specimens (those collected in the laboratory), consider an out of range temperature [of the specimen] as reasonable evidence of adulteration or substitution, and collect another specimen under direct observation by a same-gender laboratory employee.
An "out of range temperature" of a specimen collected "in the laboratory" is the only circumstance under which an employee may be directly observed passing urine. Neither the policy nor the collection procedure identify either the entity responsible for collecting employees' specimens or the entity responsible for transporting specimens to Keystone Laboratories.
The policy does not detail the "scientific analysis" that Keystone Laboratories will perform on submitted specimens. The policy does not indicate to whom Keystone Laboratories will submit test results. The Graham County Schools superintendent, however, is required to file all test results in a "locked file cabinet[.]" The policy provides that
[a]ny employee who is found through drug or alcohol testing to have in his or her body a detectable amount of an illegal drug or of alcohol will result in a letter of reprimand being placed in the personnel file and the employee will be offered a one-time opportunity to enter and successfully complete a rehabilitation program that has been approved by the Graham County Board of Education.
In the event of a positive test, an employee can submit "the written test result" to an "independent medical review officer" and can obtain and independently test "the remaining portion of the urine specimen that yielded the positive result." The policy also provides that
[a]n applicant or employee whose drug or alcohol test reported positive will be offered the opportunity of a meeting to offer an explanation. The purpose of the meeting will be to determine if there is any reason that a positive finding could have resulted from some cause other than drug or alcohol use. Graham County Board of Education, through its health and/or human resource officials, will judge whether an offered explanation merits further inquiry.
The policy states that test results will not be reported to law enforcement "unless otherwise required by law[.]"
At the 7 August 2007 Civil Session of Graham County Superior Court, the trial court conducted a hearing on (1) Plaintiffs' motion for summary and declaratory judgment, (2) the Board's motion for judgment on the pleadings, and (3) the Board's motion for summary judgment. The evidence before the trial court included the deposition testimony and affidavit of the school system's superintendent, the deposition testimony of two of the school system's principals, and the deposition testimony and affidavits of the individual Board members: William Jackie Adams, Mitchell E. Colvard, Ricky Kyle Davis, Pamela Carringer Moody, and Lois Ann Pressley.
Mr. Colvard, the Board's chairman, testified that he does not believe that drug testing constitutes either a search of a person or an invasion of privacy. Mr. Colvard further testified—as did every other Board member—that there was no evidence that any student had ever been injured or put at risk of being injured by an employee whose body contained "a detectable amount of an illegal drug or of alcohol[.]" It is undisputed that there was no evidence of a drug "problem" among Board employees. As to why the Board enacted the policy, Ms. Moody testified as follows:
Q. ... Okay. Explain to me, if you can, if there's been no student in the 30-plus years that you've been associated with the school system who's been impacted by—harmed in anyway [sic] by an employee using drugs or alcohol, and you've had one employee other than a bus driver failing a mandatory test, one employee identified in the last 20 years, prior to two weeks ago, as having drugs on campus, what is the problem among the school system staff that you're trying to address?
A. As I stated earlier, that this county is becoming aware more than ever of the issue of drugs in our county. I could bring you papers [sic] after paper after paper, and it is all people I know...
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