November 18, 2002
Re: Drug testing of board
Dear Sir,
You have advised me that the Board of Mayor and Aldermen wants to institute a policy requiring
board members to submit to drug testing. I can find no authority for a municipality to enact such
a policy.
It is my understanding that your city currently conducts random drug screening of municipal
employees. I assume this policy has been enacted under the Drug Free Workplace Act T.C.A. '
50-9-101, et. seq., which authorizes random drug screening for general employees. A policy
enacted under that statute may result in decreased workers’ compensation insurance premiums, if
the policy is purchased from a private carrier. There is no requirement in Tennessee that
municipalities adopt any drug testing policy.
Unless your city has adopted a policy under the Drug Free Workplace Act, random drug
screening of general employees, who are not employed in safety sensitive positions, may be in
violation of the Fourth Amendment. The U.S. Supreme Court has ruled that the government can
impose a drug test on a nonsafety-sensitive employee only if it has: (1) a reasonable suspicion of
drug use; and (2) the drug use occurs while on-duty. Chandler v. Miller, 520 U.S. 305, 117 S. Ct.
1295 (1997). Since the Tennessee Drug Free Workplace Act was passed in 1996, there has been
no indication that a policy enacted by a municipality under the Act may be unconstitutional.
Drug screening of elected officials is a very different matter, and there is no legislation under
which a municipality may enact a policy requiring such testing. The Drug Free Workplace Act
only applies to employees. Absent specific enabling legislation, random drug screening is an
unreasonable search under the Fourth Amendment of the U.S. Constitution. I therefore believe it
would violate the constitutional rights of your board members to require drug testing.
Even if all members are in favor of requiring drug testing of board members, there are problems
with instituting such a policy. Any board member who changes their mind, or who is elected
subsequently, cannot legally be required to follow through with the testing requirement. There is
also the problem of confidentiality of medical information which would apply to a drug test
result.
What would the city do if a drug test of an elected official is positive? There is no caselaw which
suggests that a positive drug test could be the basis for an ouster suit. If adopted as a city policy,
the city will be required to enforce and defend the policy. In my opinion, absent statutory
authority the city will lose any legal challenge brought against such a policy.
I hope this information is helpful. Please feel free to contact me if you have any questions or
need more assistance with this matter.
Thank you for consulting with MTAS.
Sincerely,
Melissa A. Ashburn
Legal Consultant