Osterman v. Paulk, 73-1429-CIV-CA.

CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
Citation387 F. Supp. 669
Docket NumberNo. 73-1429-CIV-CA.,73-1429-CIV-CA.
PartiesGeri OSTERMAN, Plaintiff, v. Robert L. PAULK et al., Defendants.
Decision Date04 September 1974

Steven Wisotsky, of Legal Services of Greater Miami, Inc., Miami, Fla., for plaintiff.

Alan H. Rothstein, City Atty. of the City of Miami, and S. R. Sterbenz, Asst. City Atty., Miami, Fla., for defendants.

ORDER ON PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ATKINS, District Judge.

The plaintiff's motion for summary judgment posits the question of whether the City of Miami can constitutionally disqualify1 or reject a person for employment as a Clerk II because she "failed"2 a polygraph examination regarding "any current use, within the last 6 months, of marijuana." In plaintiff's response to a question asked by the polygraph examiner she denied any such use of marijuana.

In opposition to the motion, the City urges the standards for employment as a police officer. The polygraph examination of applicants for such duties is designed, the City's Chief of Police asserts in an affidavit, to verify the accuracy of statements made by the applicant concerning his own qualifications in areas directly related to his fitness and ability to perform in a position of trust. While such inquiry may well be related to the high duty of law enforcement, as so ably articulated by Chief Garmire, the Court views such standards as inapplicable to the job here involved.

In the field of public employment the government must act "in a manner which is neither arbitrary nor unreasonable." The principle was made clear by the Fifth Circuit Court of Appeals in Thompson v. Gallagher, 489 F. 2d 443 (5th Cir. 1973):

Just as a public employee does not give up his First Amendment right when he begins receiving a pay check from the government, neither does he give up his right to due process of law. The Fourteenth Amendment stands for the proposition that the government must act, when it acts, in a manner which is neither arbitrary nor unreasonable. 489 F.2d at 447.

See also, Schware v. Board of Bar Examiners, 353 U.S. 232, 238-239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957); Slochower v. Board of Education, 350 U.S. 551, 555, 76 S.Ct. 637, 100 L.Ed. 692 (1956); Wieman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952).

In Lindquist v. City of Coral Gables, 323 F.Supp. 1161, 1163 (S.D.Fla.1971), it was held that it "is well settled that a State may not arbitrarily refuse an individual the opportunity to . . . work in public service."

In furtherance of the above principal there must be a rational nexus between any off-duty or prior conduct, or requirements, and the duties of the job in question. Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Ed.2d 853 (1973); Castro v. Beecher, 459 F.2d 725, 733 (1st Cir. 1972), Thompson v. Gallagher, supra. In Lindquist, supra, a fireman was discharged because his sideburns exceeded the length allowed by departmental regulations. The District Court held that the regulation was constitutionally impermissible because the City had failed to show any relationship between the plaintiff's sideburns and the performance of his job.

The Florida Legislature has recognized that prior unlawful conduct is not a bar to public employment unless it is job-related. Florida Statutes, § 112.011, provides:

A person shall not be disqualified from employment by the state or any of its agencies or political subdivisions . . . solely because of a prior conviction of a felony . . . (except that an applicant may be excluded) "if the felony for which he is convicted directly relates to the position of employment sought . . . ."

The anomaly of the City's position is shown when it is recognized that a prior conviction for an unrelated felony could not bar the plaintiff's employment while a single use of marijuana within the previous six months (if established) renders her ineligible.

Even if the City had demonstrated that plaintiff did use marijuana at any time within the six months preceding her application for employment, it is difficult to determine that a single use could possibly bear upon the applicant's fitness for employment as a Clerk II. If she were seeking appointment as a police officer some relationship could be seen. The National Commission on Marijuana and Drug Abuse (1972) reported:

The classification of any drug effect as either beneficial or harmful often greatly depends on the values the classifier places on the expected effects. This is especially relevant with respect to the psychoactive drugs such as tranquilizers, stimulants, coffee, cigarettes, alcohol, marihuana and other licit or illicit drugs. For all of these drugs, the weights of benefit and harm are difficult to determine when viewed merely in terms of their stated effects. Id. at 60.

On the subject of whether marijuana was intrinsically "dangerous" or "harmful," the National Commission said:

Looking only at the effects on the individual, there is little proven danger of physical or psychological harm from the experimental or intermittent use of the natural preparations of cannabis, including the resinous mixtures commonly used in this country. Id. at 80-81.

The pamphlet on drug abuse, issued by the Executive Office of the President (1972) states:

As ordinarily used in the United States marijuana does not lead to physical dependence; therefore it cannot be considered addicting. Furthermore, it is not a narcotic . . . . Id. at 23.
There is nothing in marijuana itself that produces a need to use other drugs . . . . Id. at 24.

I have been referred to no respectable authority which suggests that a single use of marijuana during the six months preceding an application for employment renders the applicant unfit to perform duties as a Clerk. Without such a rational relationship the conclusion is inescapable that the Civil Service Board's standards with respect to any use of marijuana during the subject period is irrational as to this plaintiff and the job for which she applied, and is therefore unconstitutional as a denial of due process of law.

Defendants also urge that plaintiff has failed to exhaust her administrative remedies provided by the Civil Service Board. Such procedural requirement has no application where the action for vindication of federal constitutional rights is against a state agency. Monroe v. Pape, 365 U.S. 167, 181, 81 S.Ct. 473, 5 L.Ed.2d 492...

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