Governor responds to AG’s opinion on random drug testing

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The Calvo Administration in recent months has beefed up its efforts in deterring drugs from entering the workplace through increased random drug tests.

Guam –┬áThe Attorney General is calling the government-wide random drug testing illegal, dropping a bombshell on the Government’s efforts to clean house through the implementation of legislation.

It was in 1995 when an executive order was made adopting a comprehensive Drug Free Workplace policy which includes mandatory testing as a condition of employment and random drug testing for designated positions.

In recent months the government of Guam has reignited its efforts to rid the island of the drug epidemic with increased random drug testing throughout GovGuam agencies.

According to the Attorney General Elizabeth Barret-Anderson, “While drug testing can be a deterrence for drug use, suspicion-less drug testing is a violation of the Fourth Amendment.”

So what does the governor have to say about the AG’s opinion?

“I respect the attorney general and at the same time we will continue to work within the confines of the law,” shared Governor Eddie Baza Calvo.

These random drug tests have led to the termination of several public employees. For instance, this year, the Department of Public Works conducted a random drug test on 227 employees which resulted in 11 failed drug tests.

“In all the tests that have been taken in different government agencies, there has been a specific requirement or need. And whether it was in an area dealing with health and safety such as our school kids, bus drivers or in other areas dealing with public safety–and then there is also already a process if directors feel that there is a need, particularly if contraband or illegal substances had been found in a compound then there is a process to move forward,” stated the governor.

Random drug testing without probable cause violates the fourth amendment which protects individuals from unreasonable searches conducted by the government, even when the government acts as employer.

Random drug testing of all government employees based only on a general need to deter drug use by government employees is not justifiable, the AG noted.

This means Senator Telena Nelson’s intent to introduce legislation requiring random drug testing for all GovGuam employees would be unconstitutional and any related legislation would need to comply with federal laws.

But does this mean that GovGuam has been violating the rights of every employee who has submitted to a random drug test?

Not necessarily. In limited circumstances certain employees may be drug tested at any time, such as employees who hold test designated positions. These include any positions involving the interdiction of drugs, the carrying of firearms and the handling of highly sensitive information.

As for all other employees, the AG states that the government may search its employees only when a clear direct nexus exists between the nature of the employee’s job and the nature of the feared violation.

 

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