AGO 08-01.

• Case Date: August 01, 2008
• Court: Hawaii

Hawaii Attorney General Opinions 2008. AGO 08-01. August 1, 200808-01The Honorable Donna R. IkedaChairperson, Board of EducationState of HawaiiP.O. Box 2360Honolulu, Hawaii 96804Dear Chairperson Ikeda:RE: Random Drug Testing of TeachersWe received your letter dated July 11, 2008, seeking legal advice regarding the following: 1. Cite the legal authority and analysis that overrules the u.s. Court of Appeals for the Ninth Circuit's holding in Lanier v. City of Woodburn prohibiting state actors from drug testing employees without reasonable suspicion, except when state employees are performing safety-sensitive functions. 2. Since the Hawaii State Constitution provides greater privacy protections than the u.S. Constitution, provide the relevant law and analysis that supports the constitutionality of randomly drug testing all Hawaii state employees. 3. Is suspicionless random drug testing violative of the U.S. Constitution's privacy protection? 4. Is suspicionless random drug testing violative of the Fourth Amendment of the U.S. Constitution? 5. Is suspicionless random drug testing violative of Article I, Section 6 of the Hawaii State Constitution? 6. If suspicionless random drug testing is violative of the above-stated u.S. Constitutional provisions (Questions 3 and 4) and/or the Hawaii State Constitutional provision (Question 5), would such a violation by a state official render the state official personally liable under 42 U.S.C. § 1983? 7. If a state official is found liable under 42 U.S.C. § 1983, would the State of Hawaii cover any monetary or other liability? 8. May an individual's privacy and Fourth Amendment protections be waived by any collective bargaining agreement where such waiver was agreed to by the union but not specifically consented to by the individual member? Although your questions are phrased broadly in terms of the legality of random drug testing for public employees, we will respond in terms of the more specific issue of random drug testing for public school teachers. We do so because it is that particular context involving school teachers that is at issue here, and because analysis of random drug testing is very much situation-dependent, and turns upon precisely whom is being tested. Because questions 1 through 5 and 8, all deal specifically with the question of the constitutionality of random drug testing, we will address them together in one main section. SHORT ANSWERS: In specific answer to your questions 3, 4, and 5, we believe that in this case, implementation of bargained for suspicionless random drug testing of public school teachers is constitutional and would not violate the federal or state constitutional provisions you cite, if adequate and appropriate procedural protections are put in place. We note that the teacher's union agreed to such random drug testing in the collective bargaining agreement. Because of the importance of the collective bargaining process, and considering the fact that the agreement was both bargained and ratified by a vote of the full membership, the drug testing ought to be upheld as not violative of either the United States Constitution or the Hawaii Constitution, without regard to other factors.(fn1) Even if the collective bargaining agreement did not ipso facto validate the testing, consideration of all relevant factors also supports our opinion that bargained for suspicionless random drug testing of public school teachers is constitutional. In addition, Hawaii state courts have independent strong grounds to uphold such testing against state constitutional challenges given the state constitutional significance of the collective bargaining process. We note that to our knowledge, no United States Supreme Court, united States Court of Appeals for the Ninth Circuit, or Hawaii appellate court ruling has struck down such testing of teachers, and the United States Court of Appeals for the Sixth Circuit has explicitly upheld suspicionless drug testing of public school teachers. As to question 6, we believe that if adequate and appropriate procedural protections are in place, but a court nevertheless finds the random drug testing to violate the United States Constitution, or the Hawaii Constitution, the doctrines of qualified immunity (both federal and state) will shield state officials from personal liability. As to question 7, the decision of whether to pay a judgment entered against a state official or employee is a decision that rests with the Legislature. Based upon past history and practice, we believe that the State Legislature would appropriate money to cover any judgment against any state officials found personally liable for putting into effect a program of random drug testing for public school teachers. As noted, however, we believe that with adequate procedural protections with regard to the testing, there would be no such liability.(fn2) DISCUSSION: A. The constitutionality of random drug testing of public school teachers. Because the collective bargaining agreement (CBA) signed by the Board of Education and the Hawaii State Teachers Association (HSTA) provides for random drug testing of Bargaining Unit 5 employees, and the teachers ratified that agreement, there is significant caselaw to support the conclusion that that fact alone removes any constitutional problem with random drug testing of public school teachers.

1. The effect of the collective bargaining agreement in which the parties agree to random drug testing of Bargaining Unit 5 employees.

Under the "Memorandum of Understanding Between State of Hawaii, Board of Education and Hawaii State Teachers Association (Drug and Alcohol Testing)" (MOU), which is Appendix II to the collective bargaining agreement (which was approved by the teachers as a whole), the parties agreed as follows:

This Memorandum of Understanding is entered into this 1st day of July 2007, by and between the State of Hawaii, Board of Education and the Hawaii State Teachers Association.

The Federal Drug-Free Workplace Act of 1988, and the Drug Free Schools and Communities Act Amendments of 1989, require that the Department of Education maintains a drug free and alcohol-free school environment. In addition, teachers should be aware that the unlawful manufacture, distribution, dispensation, possession or use of illicit substances is prohibited on school premises or as part of any school activity.

The Association and the Board of Education agree that the most conducive environment for learning is in a place free from the hazards of the use of controlled substances and alcohol.

Therefore, the Association and the Board of Education shall establish a reasonable suspicion and random Drug and Alcohol Testing (DAT) procedures applicable to all Bargaining Unit 5 employees that are intended to keep the workplace free from the hazards of the use of alcohol and controlled substances.

In addition, the Association and the Board of Education agree to negotiate reasonable suspicion and random Drug and Alcohol Testing procedures which shall comply with the U.S. Department of Transportation Rules on Drug and Alcohol Testing and/or State Department of Health Rules on Substance Abuse Testing, and implement such a plan no later than June 30, 2008. This Memorandum of Understanding shall expire on June 30, 2009. (Emphasis added).

Because the HSTA has agreed to the establishment of "random Drug and Alcohol Testing," there is a strong argument that individual teachers within Bargaining Unit 5 are constitutionally deemed to have agreed to random drug testing, and that therefore any constitutional search and seizure or privacy concerns are no longer valid, at least as applied to a random drug testing program that fits within the language of the MOU.(fn3) The leading cases on this point come from the United States Court of Appeals for the Third Circuit. In Bolden v. Southeastern Pennsylvania Transportation Authority, 953 F.2d 807 (3d Cir. 1991) (en bane), cert. denied, 504 U.S. 943 (1992), the United States Court of Appeals ruled (in an opinion by then JUdge Alito) as follows:

[W]e believe that a union such as Bolden's may validly consent to terms and conditions of employment, such as submission to drug testing, that implicate employees' Fourth Amendment rights.

The authority of Bolden's union to make binding contractual commitments regarding terms and conditions of employment is well established. Under the Pennsylvania Public Employee Relations Act, . a union is the exclusive collective bargaining representative for all of the employees in the unit,(fn4) and therefore the union, in entering into a collective bargaining agreement, may agree to terms and conditions of employment that are contractually binding on all of the employees.

The Supreme Court has recognized, most notably in Abood v. Detroit Board of Education, 431 U.S. 209, and its progeny, that a union's authority as exclusive bargaining agent necessarily entails some restrictions on constitutional rights that individual employees would otherwise enjoy. . . .

The Court has permitted such interference with First Amendment interests when necessary or reasonable "for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues." On the other hand, the Court has not permitted such interference for other purposes, such as support for political candidates or ideological causes. We see no

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