Yesterday,  it was a privilege to present arguments to Judge Ursula Ungaro of the federal district court in the Southern District of Florida about the unconstitutionality of Executive Order 11-58, an order by the Governor requiring mandatory suspicionless drug testing of all employees in and applicants to state agencies under his supervision.

I pointed out that under a long line of Supreme Court cases, suspicionless urinalysis by the government of its employees violates the Fourth Amendment, unless the employee’s job is safety-sensitive.  Safety-sensitive jobs include, for example, railroad workers involved in major accidents and customs officers who carry guns or interdict drugs.  They do not include government accountants, long-range planners at the Department of Juvenile Justice, and candidates vying to become Governor.

Because the notion that suspicionless drug testing of government employees must be limited to safety-sensitive jobs is so clear in the law, I don’t know of any other governmental entity that has even tried to institute a drug testing policy as broad as the Governor’s.  And certainly no court has ever upheld this type of blanket drug testing policy targeting all employees and applicants.

I also pointed out that under the Drug-Free Workplace Act the Governor has had the power for over twenty years to drug test those reasonably suspected of drug use and those in safety-sensitive positions.  There is no reason to think that this type of testing could not address the Governor’s concerns, particularly given that, prior to the Governor’s executive order, over 99% of applicants and employees tested were drug-free.

We look forward to Judge Ungaro’s ruling on this important constitutional issue.

Date

Thursday, February 23, 2012 - 6:03pm

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School Prayer clears first House committee along party lines

Senator Gary Siplin’s (D-Orlando) SB 98, having passed the full Senate, was brought over to the House and referenced to only two committees, a rare parliamentary move usually reserved for leadership priorities. At Monday’s hearing of the House Education Committee, Democrats raised concerns that the vagueness of the bill authorizing school districts to adopt policies allowing for an “inspirational” message to be given by K-12 students at school events may have unintended consequences. Since school personnel cannot review the message but are involved in disciplining students if the message turns out to be anything other than inspirational as they define it, the bill raises constitutional issues. Nevertheless, the bill passed the committee along party lines and has one committee stop left before reaching the House floor.

Prison Privatization dies on Senate floor

SB 2038 authorizing the Department of Corrections to privatize 28 public prisons throughout the State hit a major roadblock this week when it failed to garner enough support on final passage. With several Republicans joining Democrats, the measure failed on a 19 to 21 vote of the full Senate. The measure has a similar companion in the House that has yet to be heard but with two weeks left in session, advocates are warned not to let up until the final bell is rung on sine die*.

Anti-shackling measure clears third House committee

Representative Betty Reed’s (D-Tampa) bill to end the cruel and inhumane practice of shackling pregnant inmates during labor, delivery, and post-partum recovery cleared its third committee in the House unanimously despite concerns raised by the Department of Corrections. The bill has one final committee stop in the House before heading to the floor. It already has passed the full Senate unanimously.

Drug testing bill stalls in House committee

A bill by Representative Jimmie Smith (R-Lecanto) that would require state employees to submit to random, suspicionless drug tests on a rotating basis every three months hit a snag when it failed to garner enough votes to pass the House Appropriations committee this week. The ACLU of Florida led the opposition asking members to consider waiting until the constitutionality of Governor Scott’s 2011 Executive Order mandating state agencies’ drug testing of their employees is decided in order to avoid subjecting the state to more costly litigation. Several Republican members expressed similar concerns and in a close vote, initially killed the bill. However, a motion to reconsider revived the bill and then temporarily postponed it. In these cases, a bill is often dead for the current session, but nothing is certain until sine die*.

Anti-choice measures temporarily postponed

SB 234 (Sen. Mike Fasano, R-New Port Richey) is a bill that would revise the definition of “viable fetus” to “unborn child,” defined as “the unborn offspring of a human being at any stage of gestation from fertilization until birth” in cases of vehicular homicide and other crimes. Several members of the Senate Criminal Justice Committee, including Sen. Mike Bennett (R-Bradenton) raised concerns that the change in definition may actually affect cases relating to abortion and could limit a woman’s right to choose. Amidst these concerns, the committee temporarily postponed the bill. SB 290 (Sen. Anitere Flores, R-Miami) would require abortion clinics to be wholly owned and operated by a doctor or group of doctors and would require abortion care providers to comply with a host of intrusive and burdensome regulations not imposed on other health care providers. It also would impose a 24 hour waiting period before a woman can get an abortion. This bill was also temporarily postponed by the Senate Health Regulation Committee.

Florida DREAM Act dies in first committee

The ACLU-FL teamed up with members of the Florida Immigrant Coalition to support a measure to allow undocumented students who have attended high school in Florida for at least three years to attend Florida colleges and universities at resident tuition rates. The measure garnered support from both Democrats and one Republican on the Senate Judiciary Committee, but four Republican votes in opposition were enough to defeat the measure for the 2012 session.
*Sine die: The last day of the Florida legislative session, this year March 9. Latin for: without day, meaning the session adjourns without a future day for reconvening, at least for the rest of this year.
Media Roundup:

Coming up:

  • SB 98, the school prayer measure, has one last committee stop in the House. Contact members of the House Education Committee and ask them to vote “no” on SB 98. Find committee contact info here: http://myfloridahouse.gov/Sections/Committees/committeesdetail.aspx?SessionId=70&CommitteeId=2591
  • Sen. Flores’ anti-choice bill may be heard in Senate Health Regulation committee next week. Please contact Committee Chair Rene Garcia (R-Hialeah) and the Senate Health Regulation members and ask them to “Stop encroaching on a woman’s right to choose. Vote “no” on SB 290.” Find committee contact info here: http://www.flsenate.gov/Committees/Show/HR/
  • The Senators who opposed prison privatization need to hear that they have support for their tough vote. Please contact the Senators listed below and thank them for rejecting measures that only feed our state’s addiction to mass incarceration. Find Senate contact info here: http://www.flsenate.gov/Senators/
    • N Rich-34
    • N Ring-32
    • N Gibson-1
    • N Sachs-30
    • N Braynon-33
    • N Jones-13
    • N Siplin-19
    • N Bullard-39
    • N Joyner-18
    • N Smith-29
    • N Dean-3
    • N Latvala-16
    • N Sobel-31
    • N Storms-10
    • N Diaz de la Portilla-36
    • N Margolis-35
    • N Dockery-15
    • N Montford-6
    • N Evers-2
    • N Fasano-11
    • N Oelrich-14

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Friday, February 17, 2012 - 9:00pm

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