Van de Kamp Says Drug-Test Plan Is Probably Illegal

Atty. Gen. John K. Van de Kamp said Monday that Gov. George Deukmejian’s plan to test state workers manning sensitive positions for drug use probably violates the Constitution.

“A drug-testing program triggered by anything less than a reasonable suspicion that particular individuals are using drugs would probably conflict with California’s strict constitutional guarantees of individual privacy,” the attorney general said in a statement.

Van de Kamp said a random drug-testing program would probably violate both state and federal guarantees against unreasonable search and seizure and “would raise serious questions of equal protection under the law in the attempt to define which employees are in ‘sensitive’ positions and which are not.”

Deukmejian spokeswoman Donna Lipper said she could not comment on Van de Kamp’s opinion because the governor has not yet seen it. The attorney general’s opinion is not binding on the governor.

Privacy Rights

Van de Kamp’s opinion is in line with several lower-court rulings that have held that random testing violates employees’ privacy rights. A common thread in the lower-court decisions has been that a government employee cannot be forced to submit to testing without some suspicion that the employee is using drugs or alcohol.

A number of these decisions are on appeal, and the issue of drug testing is expected to reach the U.S. Supreme Court before the decade is over.

Last September, Deukmejian issued an executive order asking the Department of Personnel Administration to develop policies “designed to achieve a drug-free state workplace.”

The order said the policies should include “a program to test for the use of illegal drugs by employees in ‘sensitive’ positions.” He did not specify what those positions are but said that they would be “based on the degree of risk created by the unauthorized use of drugs, with due consideration to the nature of the agency’s mission, the employee’s duties and the danger to the public health and safety that could result from the drug-related impairment of the employee.”

Legal Issues

Van de Kamp sent the governor and the department a 162-page report Monday analyzing the legal issues involved.

The attorney general said he thought that “a testing program predicated on reasonable suspicion of drug use based on objective indicators among specific workers is more likely to be consistent with the federal and state constitutions.”

The California Constitution, unlike the federal document, says citizens enjoy an inalienable right to privacy.

“Although the public would undoubtedly benefit from a drug-free state work force, I do not believe the courts would hold this benefit to clearly outweigh the harm to be done by abridging the rights of hundreds of thousands of state employees,” Van de Kamp said.