THE CAPITAL, TALLAHASSEE - After racking up more than $650,000 in legal fees, Florida Gov. Rick Scott is refusing to back down from his drug-testing crusade, most recently objecting to an attempt to close a drawn-out legal battle over requiring state workers to submit to urinalysis.
Scott, who campaigned on the issue of drug-testing welfare recipients in his first run for governor in 2010, has lost nearly every courtroom attempt to require drug screenings for state workers and applicants for the welfare program Temporary Assistance for Needy Families, or TANF. The governor asked the U.S. Supreme Court to weigh in on his employee drug-testing policy, but the court turned him down in April.
The 11th U.S. Circuit Court of Appeals ruled last year that Scott could not constitutionally justify drug testing for all types of state employees without a reason, though it said testing could occur for some workers such as those in "safety-sensitive" positions.
A federal judge in Miami forced Scott and the American Civil Liberties Union of Florida, which represents a state workers' union, to hash out which jobs should be taken off the table. U.S. District Judge Ursula Ungaro appointed a special master to oversee negotiations between Scott and the ACLU. The talks dragged on for months, and special master Louis Brown's tab is more than $100,000 so far, with the state paying $70,000 and the ACLU responsible for the rest.
Now, the ACLU wants to amend its lawsuit by limiting the legal challenge to the job classes on which the governor has already relented. In its request, the ACLU argued that the workers are entitled to a final decision guaranteeing that they are not subject to suspicion-less drug testing.
"At this point, the governor cannot escape the conclusions of law in the prior appeal --- namely that '[s]urrendering to drug testing in order to remain eligible for a government benefit such as employment … is not the type of consent that automatically renders a search reasonable as a matter of law … and that the governor's 'generic' interests in a 'safe and efficient workplace' do not constitute a special need because they would otherwise eviscerate the Fourth Amendment's individualized suspicion requirement," ACLU lawyer Shalini Goel Agarwal wrote in the amended complaint filed late last month.
But, in a response filed late Monday, Scott's lawyer argued strenuously against cutting short the lawsuit, accusing the ACLU of trying to turn a partial victory into a total win by getting a ruling only on the types of jobs in which the governor has already agreed he can't justify drug testing without a reason.
"Its request to obtain a one-sided final judgment on a subset of positions is an attempt to side-step the orders of both this court and the Eleventh Circuit, and to deny the governor the opportunity to obtain a judgment as to the positions the union has agreed he may constitutionally drug test pursuant to (Scott's executive order), as well as those positions he intends to establish are legally subject to testing. This strategy raises legitimate questions about the union's motives," attorney Thomas Bishop wrote.
The state has paid Bishop nearly $180,000 since he started working on the case earlier this year. Taxpayers could also be on the hook for at least $180,000 in legal fees incurred by the ACLU.
Thus far, the state has also racked up $307,883.62 in legal fees and costs in the welfare-applicants testing case, according to the Department of Children and Families. That does not include potentially hefty charges for legal fees from the ACLU. A federal appeals court earlier this month ruled that mandatory, suspicion-less drug testing of TANF applicants is unconstitutional, but Scott has not yet said whether he will appeal.
In the state-worker case, Scott this summer agreed that people in more than 700 types of jobs --- more than half of about 13,000 employees represented by the American Federation of State, County and Municipal Employees including accountants, economists and translators --- should not be required to undergo the drug screens without reason. Last month, Scott and the ACLU added another 203 job classes to the list.
But, while Scott has agreed not to test those classes of jobs, he has not conceded that forcing state employees to undergo urinalysis is unconstitutional despite court rulings that initiated the compromises.
The courts have ruled that flat-out drug testing of all state workers violates Fourth Amendment protections against unreasonable searches and seizures by the government. But some workers, such as those who carry weapons, can be forced to submit to random urine tests if the state can show a "special interest" for doing so.
It has taken a year for Scott to come up with a list of workers who meet the criteria, Agarwal said.
"As we said in our motion, what plaintiff has been seeking for the three-and-a-half years is to vindicate the principle that mandatory, across-the-board testing of employees and job applicants is unconstitutional. So our motion to amend the complaint seeks to bring a close to this three-and-a-half-year long saga to establish that principle," Agarwal told The News Service of Florida on Wednesday. "We've come to this point because it's taken that long to get him to admit who it is that he can't test."
