Random drug-testing policy likely would be struck down by courts

Joseph f. Quinn

Special to the Gateway

Lately, I have been reading various letters to the editor about issues swirling around one of my clients, Pierce County Fire District No. 16.

As the longtime general counsel for Key Peninsula Fire, I feel my comments might shed more light than heat on two issues raised by Commissioner Allen Yanity. I also represent about 40 fire departments statewide, so I am familiar with these two issues in a much broader context.

While it’s not made clear (perhaps intentionally so) in much of the discussion, what Commissioner Yanity is really demanding the fire department adopt is random drug testing.

In other words, the proposal is that the employer, without warning or prior notice to the employees in question, would randomly select one or more firefighters or paramedics each month, in order to be tested for controlled substances, such as marijuana or cocaine.

Based on my experience, I can tell you that random drug testing — adopted unilaterally without bargaining with the union — would probably be struck down by our courts, unless strong evidence is first presented to the legislative body prior to adoption of the policy.

Primarily based on constitutional grounds, the courts in other states that have dealt with this question have not upheld random, “suspicionless” drug testing for firefighters.

Peninsula Fire and virtually all of my other fire district clients already have in place “suspicion” drug testing. That means if supervisors detect evident signs that a firefighter is under the influence of drugs while on duty (reasonable suspicion is the concept), then they have ample power under the current policy and law to pull that person out of work and have him or her tested.

Random drug testing is only needed and permitted if there is a demonstrated problem with abuse in that particular workplace.

Of my many fire department clients, I have only one — and I believe it is the only such department in the state — that has a random drug testing policy in place.

And in that instance, it was bargained with the union collectively, as apparently the union saw that some of its members had problems and might not be safe to work alongside.

I will not mention that department here; it is my belief that they have made great strides in solving that problem, so I see no need to make comments that might seem disparaging.

It is disingenuous at best for a fire commissioner to suggest that Key Peninsula should have a policy in place that (1) under the current circumstances, would probably be struck down as unconstitutional as applied, and (2) goes way beyond present “best practices” in our state without strong evidence that this is needed to assure safety.

If the commissioner had strong evidence of a pervasive problem, surely by now he would have seen fit to produce it.

My comments about the Wellness/Fitness policy of Key Peninsula Fire would be similar to the above.

This department’s policy is not unusual or deficient by comparison to similar-sized departments. I urge voters to get the true facts, not half-truths or misleading arguments.

Joe Quinn is the attorney for the Key Peninsula Fire Department and more than 35 other fire districts and regional fire authorities statewide. He can be reached at 253-858-3226 or by e-mail at firelaw@comcast.net.