POLICEMEN'S BENEV. ASS'N OF NJ v. Washington Tp.
| Decision Date | 08 October 1987 |
| Docket Number | Civ. A. No. 86-3525. |
| Citation | 672 F. Supp. 779 |
| Parties | POLICEMEN'S BENEVOLENT ASSOCIATION OF NEW JERSEY, LOCAL 318 and Edmund Giordano, Individually and as President of the Policeman's Benevolent Association of New Jersey, Local 318, Plaintiffs, v. TOWNSHIP OF WASHINGTON (GLOUCESTER COUNTY) a municipal corporation under the laws of New Jersey, and John Robertson, Mayor, Defendants. |
| Court | U.S. District Court — District of New Jersey |
Ralph H. Colflesh, Moorestown, N.J., for plaintiffs.
Joseph A. Alacqua, Turnersville, N.J., for defendants.
This case was brought before the court pursuant to 42 U.S.C. § 1983. The plaintiffs claim that the constitutional rights of Washington Township's police officers, whom plaintiffs represent, will be violated if the Township's proposed drug-testing plan for municipal employees is put into effect.
The issues in this matter represent a juxtaposition of two vital societal concerns: The need to ensure that our public servants, in this case police officers, are free from the modern scourge of illegal drug abuse; versus the right of the individual to be protected from unreasonable searches aimed at detecting evidence of such abuse. This opinion presents the court with an opportunity to delineate the constitutional boundaries of these potentially conflicting societal interests.
On August 4, 1986, President Ronald Reagan called upon all levels of government to develop plans to ensure drug-free workplaces in our nation. On August 5, 1986, the Mayor of Washington Township, John W. Robertson, Jr., inspired at least in part by the President's call, issued a memorandum directing that all employees of the Township would be subject to mandatory drug testing. There were no guidelines issued with respect to the proposed testing at that time.
On September 12, 1986, the Policemen's Benevolent Association of New Jersey, Local 318 and its president, Edmund Giordano, filed suit on behalf of the police officers of Washington Township. The Township, Mayor Robertson and the Township Council were named as defendants. The plaintiffs asked the court to declare the planned drug testing unconstitutional and to enjoin the Township from undertaking such testing with respect to police officers. The plaintiffs also sought temporary restraints against the defendants while the matter was under review.
The court initially granted temporary restraints and ordered the defendants to appear and show cause why a preliminary injunction should not be granted to the plaintiffs. The parties appeared in court on September 19, 1986. At that time, the Township indicated that no testing of police officers had taken place and that none would take place until guidelines were formulated and the court had an opportunity to review those guidelines. Based on those representations, plaintiffs' application for a preliminary injunction was denied. The temporary restraints were dissolved on October 8, 1986.
On October 6, 1986, the defendants answered the plaintiffs' allegations and counterclaimed for attorney's fees pursuant to 42 U.S.C. § 1988.
Pretrial discovery was conducted under the supervision of Judge Jerome B. Simandle. On February 25, 1987 the defendants submitted the "Revised Employee Drug Testing Program of the Township of Washington," (Plan) which is the plan under review here. The parties have since indicated that no genuine issue of material fact remains to be decided and that this dispute can be resolved by motion. The case is presently before us on cross-motions for summary judgment on the issue of whether certain aspects of the defendant's proposed drug testing plan should be permanently enjoined.
The plaintiffs have stipulated that they are only challenging the constitutionality of the following aspects of the proposed plan: those aspects calling for the random testing of police officers; those aspects which might authorize the mass-testing of the entire police force; and those aspects which would permit testing as part of pre-textual physical examinations which are not bona fide medical examinations given in the ordinary course of business and as a matter of the Township's policy for its police officers.
The plaintiffs have also stipulated to dismiss the Township Council as a defendant. In return, the defendant Township Council has withdrawn the counterclaim in which it sought attorney's fees.
The stated purpose of the proposed plan is "to establish uniform policies and procedures to govern the administration of a screening process to test and control unauthorized use of illicit drugs among all sworn and civilian personnel of the Township of Washington." Plan, section 1, pg. 1. The introductory section indicates that the policy "takes cognizance of the rights inherent in each individual of the Township under the Constitution of the United States of America and the State of New Jersey." Plan, section 2, pg. 1. Of course, it is the purpose of this opinion to determine whether or not the policy embodies a sufficient cognizance of constitutional rights.
The plan proposed by Washington Township would permit the defendant to initiate drug testing of its employees in a variety of ways. There are two "base methods" listed for the detection of illegal drug use by Township employees. The first is "testing of those individual employees where facts are sufficient to constitute reasonable suspicion ..." of illegal drug use. The second is by way of a "universal random urinalysis procedure." Plan, section 3, pg. 2. In addition to these "base methods," the policy also states that all municipal employees will be required to have annual physical examinations which shall include a urinalysis drug test. There is a reservation of the right to require additional "regularly scheduled and announced" medical examinations of employees in certain municipal departments. Plan, section 4, pg. 3. The plaintiffs believe that this reservation would give the Township the power to schedule drug tests in addition to those conducted as part of the annual "medical examination." Finally, the policy requires all municipal job applicants to sign consent forms in which they agree to submit a urine sample for drug testing. An applicant's refusal to provide such a sample or the detection of drugs in a sample will result in the rejection of the employment application.
Random selection of employees to be tested would be accomplished by a computer programmed by an independent contractor. The selected subject would be notified of the impending drug test "just prior to transport to the testing location." Plan, section 8, pg. 5. The employee would also be informed at that time of the specific drugs to be tested for.
The following procedure would apparently apply to all drug testing, whether initiated by random selection or otherwise: Testing will take place in a "clean and sanitary location" equipped with washing facilities. Plan, section 10, pg. 7. The selected employee must complete a medical questionnaire which clearly describes "all drugs, both prescription and non-prescription, ingested during the past 3 days." Plan, section 8, pg. 5.
The employee must thoroughly wash his or her hands and fingernails and "deliver the urine sample under the direction of the medical or laboratory technician." Id. The employee must submit a required minimum amount of urine in an approved container. The urination would take place in "private," unless there is a reasonable suspicion that the subject will tamper with the sample in some way. Plan, section 12, pg. 8. However, the urination will in any event take place under the "general supervision of a medical laboratory technician." The laboratory technician will supervise "all aspects of obtaining, marking and packaging of individual urine samples...." Plan, section 10, pg. 6.
"At all stages of the urine-sampling procedure the employee will be expected to follow each instruction of the testing supervisor." Plan, section 8, pg. 5. The employee will be assigned a number which will correspond to a number on the sampling container. This process is designed to assure anonymity. The employee must also sign documentation verifying that the number on the sample corresponds to the number they have been assigned.
The Township is to specify which specific illegal substances it wishes to test for in each case. The testing laboratory shall be responsible for maintaining a proper chain-of-custody of each sample. Each sample would undergo two different tests. The plan tentatively indicates that the first test shall employ a thin-layer chromatography process. The second test shall employ either "enzyme immunoassay, gas liquid chromatography, or mass spectrometry." Plan, section 13, pg. 8. The testing laboratory would also preserve an aliquot sample of the urine which the subject employee may use to conduct a confirmatory test at the same laboratory, under the supervision of experts chosen by the employee.
Drug testing would not be conducted for purposes of criminal prosecution. Employees testing positive for drugs would be referred to an Employee Assistance Program for "assessment, counseling, and referral for treatment or rehabilitation as appropriate." Plan, section 17, pg. 10.
However, the Township reserves the right to dismiss or discipline anyone found to be using drugs. The only drug users who may not be disciplined or fired are those employees who come forward and volunteer to be drug tested during the sixty day period prior to the implementation of the Township's mandatory testing program. To avoid termination or other disciplinary action, such persons must also volunteer the fact that they are illegal drug users, obtain help through the Employee Assistance Program (EAP), and remain drug-free thereafter. Any employee who refuses rehabilitation and uses illegal drugs a second time will be terminated.
The proposed plan includes an education...
To continue reading
Request your trial
-
Horsemen's Benev. and Protective Ass'n, Inc. v. State Racing Com'n
...of Fed. Employees v. Carlucci, 680 F.Supp. 416, 431 n. 3 (D.D.C.1988) (distinguishing Shoemaker ). Policemen's Benevolent Ass'n of N.J. v. Washington Township, 672 F.Supp. 779 (D.N.J.1987) (distinguishing Shoemaker ), rev'd, 850 F.2d 133 (3d Cir.1988). Taylor v. O'Grady, 669 F.Supp. 1422, 1......
-
Lovvorn v. City of Chattanooga, Tenn.
...out in the absence of reasonable individualized suspicion. Policeman's Benevolent Ass'n of New Jersey, Local 318 v. Township of Washington, 672 F.Supp. 779, 2 IER Cases 965 (D.N.J.1987) (individualized suspicion necessary to test police officers); Feliciano v. City of Cleveland, 661 F.Supp.......
-
Schaill By Kross v. Tippecanoe Cty. School Corp.
...individualized suspicion; and holding that the plaintiffs had not freely waived their rights by consent); Local 318 v. Township of Washington, 672 F.Supp. 779 (D.N.J.1987) (holding that police employees have greater privacy expectations than persons in highly regulated industry and that man......
-
Seelig v. Koehler
...with regard to security-related employer intrusions. (See, e.g., Poole v. Stephens, 688 F.Supp. 149, 155; Policemen's Benev. Ass'n of N.J. v. Washington Tp., 672 F.Supp. 779, 793, rev'd on other gds., 850 F.2d 133, cert. den., --- U.S. ----, 109 S.Ct. 1637, 104 L.Ed.2d For example, unlike m......
-
Drug Testing in Police Agencies
...he subject tostandardless searches by his superiors. Policemen’sBenevolent Association of New Jersey, Local 318 v.Washington Township, 672 F. Supp. 779 (1987)To accommodate these competing interests, most courts have allowedpolice departments to test their officers for drugs only if the emp......