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Anchorage Police Dept. Employees Association v. Municipality of Anchorage6/15/2001
ployee is taking need be provided only after a positive test result, and a positive test result based on a permissible medication will not be reported to the Municipality.
Considering the employees' diminished expectation of privacy arising from their employment in a highly regulated, safety-essential field of work, the fairly slight privacy interest in the act of urination required for the testing, and the limited testing done on urine samples, the court finds that the intrusion on Plaintiffs' privacy interests is minimal.
c. Does the Municipality have a proper governmental interest in imposing suspicionless substance abuse testing on Fire and Police Department employees?
The Municipality's stated goals in implementing the substance abuse testing are "deterring drug usage, sale, and/or possession by Municipal employees in the workplace" in order to "ensure a safe, healthful, and productive work environment." Policy No. 40-22 at 1. Plaintiffs assert that the Municipality does not have a proper governmental interest because the Municipality has offered no specific evidence that there is a problem with substance abuse among employees in either the Fire Department or Police Department.
No evidence has been provided of any specific problem with substance abuse by any employee of the Anchorage Police Department and minimal evidence has been provided concerning the Fire Department.
In similar cases, courts have taken judicial notice of the problems of substance abuse in society and have not required a showing of specific drug and alcohol use among the employees to be tested. For example, in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 674 (1989), the Supreme Court took notice that "drug abuse is one of the most serious problems confronting our society today. There is little reason to believe that American workplaces are immune from this pervasive social problem." The Court found that " he mere circumstance that all but a few of the employees tested are entirely innocent of wrongdoing does not impugn the program's validity." Id. at 676. The Court concluded that a specific showing of a drug problem in the particular employee group was not necessary: "It is sufficient that the Government have a compelling interest in preventing an otherwise pervasive societal problem from spreading to the particular context." Id. at 676. See also English v. Talladega County Board of Education, 938 F. Supp. 775 (N.D. Ala. 1996) (holding that drug testing can be justified in absence of any evidence of drug use in the workforce if drug use is totally incompatible with the nature of the position); American Federation of Government Employees, AFL-CIO v. Cavazos, 721 F. Supp. 1361, 1372 (D.D.C. 1989) (determining that court could not strike down drug testing program simply for lack of evidence that government agency had experienced a drug problem in the past). In Doe v. City and County of Honolulu, 816 P.2d 306, 311 (Hawaii App. 1991), the Hawaii Court of Appeals found that the trial court had not erred in taking judicial notice "of the fact that use and abuse of illegal drugs is a serious problem in society and that HFD's fire fighters, as members of society, are not immune from this pervasive social problem."
Plaintiffs rely on Guiney v. Police Commissioner of Boston, 582 N.E.2d 523 (Mass. 1991), in which a closely-divided Massachusetts Supreme Court held that the intrusion of government-mandated drug testing could not be justified absent specific proof of a drug problem in the group of employees being tested.
In the case before us . . . the commissioner has made no demonstration, on the record or otherwise, that facts exist that warrant ra
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