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Piss Off!

The cuffs of Thomas Baron's green shirt are buttoned, but he seems to be mentally rolling up his sleeves. His eyes flash indignation, his speech quickens, he leans forward. Baron is ready to do legal battle with Big Brother.

Actually, the defendant named in the lawsuit Baron is expected to file this week is the City of Hollywood. To Baron the municipality's insistence that he submit a sample of his urine for drug-testing before joining the city's staff was an ominous invasion of privacy.

"I've never had to give any part of my body to get any kind of job before," insists Baron. The 43-year-old Hollywood resident studies herbs, vitamins, and alternative healing and claims he has no reason to fear the results of a drug test because he's never been in trouble due to drugs or the law.

Baron is determined to halt the escalation of perceived government trespasses. "Maybe ten years from now they'll make you put on a helmet, 'Let's just do a mind scan and see if you're telling the truth or not, if you have impure thoughts. Are you a good Democrat or a Republican? Did you ever lie to your mother?'"

In late March 1997, Baron had been working in the City of Hollywood's Treasury Division for three months under a temp contract with Interim Accounting Professionals. He applied to work directly for the city as a temporary accountant and his supervisors approved the hire. But one last act remained. Baron says that, without any advance notice, he was instructed to report to Memorial Regional Hospital in Hollywood and tender a urine sample for drug-screening. He refused to "pee in a Dixie cup," as he puts it, so the city rescinded its offer.

To Baron it was a matter of principle. To the City of Hollywood, which has made drug-testing a condition of employment, it was a matter of policy. And to the Broward County Chapter of the American Civil Liberties Union, it was a matter of constitutional law.

The Fourth Amendment protects "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." Since the Supreme Court has repeatedly interpreted a drug test as a search, decisions about the legality of governmental drug-testing (the actions of private employers are not covered by the Fourth Amendment) have generally hinged upon whether or not it was "reasonable," based on concern for public safety or suspicion that drug use was affecting an individual's work performance.

But Ephraim Hess, of the ACLU's Broward County Chapter and cooperating counsel in Baron's case, says his client's circumstances were unusual in that he was screened as an applicant and his new employers had already observed him at work. "He wasn't even a stranger applying for a non-safety-sensitive position. He was somebody they knew was doing a great job."

Baron says his supervisor, Treasury Manager Doreen Lam, called him "Magic Man" for his ability to balance the city's incoming cash against its bank deposits and his expertise at Microsoft Excel spreadsheets. "Over the past three months, Mr. Baron has played a major role in creating a database... including a monitoring system, and in restructuring Treasury's major bank reconciliation," notes Carlos Garcia, director of financial services, in an interoffice memorandum requesting Baron be added to the city's payroll.

Although initially skeptical about Baron's pastel apparel and outgoing demeanor, clients were often taken aback by his accounting talents, says his supervisor at Interim. Baron is an aspiring actor who now finds himself in the role of a hero in a courtroom drama. Those who know him say he is likely to pepper his Orwellian prophecies with offbeat one-liners in an attempt to win over the courtroom spectators.

Baron and his local ACLU counsel are seeking a judgment declaring the City of Hollywood's drug policy unconstitutional, an injunction against drug-testing of applicants, and limited compensatory damages.

Hollywood has been drug-testing all its employees for more than a decade, says public relations officer Arlene Allen. She maintains that no job candidate has ever objected to or refused drug-testing by the city, although applicants have tested positive and then not been hired.

No one at City Hall seems to know exactly when or why the policy was initiated. "It's sort of universally accepted as, 'These are the hiring practices and standards, and everybody follows them,'" she says. "Our surrounding municipalities are all doing it, so everyone's moving in one direction. There's no reason not to conform."

"People are beginning to be like lemmings," Baron says. "People are not thinking for themselves, getting mad."

Widespread drug-testing in the workplace has its contemporary roots in the federal Anti-Drug Abuse Act of 1988 and an executive order signed by President Reagan that established the concept of a "drug-free workplace." Many states began to raise arms in the "War on Drugs," and in 1990 the Florida State Legislature adopted the Drug-Free Workplace Act, establishing voluntary parameters and encouraging municipalities to comply by offering a 5 percent credit on their workers' compensation insurance premiums.

Allen explains the City of Hollywood's blanket drug-testing at the door as a preemptive strike against all would-be employees whose predilections might waste tax dollars and jeopardize the "public trust." Yet the city is willing to spend an estimated $8000 per year to screen potential employees for consumption of marijuana, amphetamines, opiates, phencyclidine (PCP), and cocaine.

The costs of drug-testing may cancel out the state's insurance breaks, says Robert Fleigelman, chief operating officer of the Occupational Medical Centers of America, who cites as clients the cities of Hollywood, Hallandale, Dania Beach, Davie, Pembroke Pines, and Cooper City. He estimates that his burgeoning Broward company conducts 60 to 80 drug tests a day at $35 to $45 apiece. This may seem steep, but Fleigelman wagers that it hardly compares to the toll that not weeding out drug users would take on productivity, safety, and the cost of health coverage.

Employee drug-testing may be far from a return to the finger-pointing of Salem or the fulfillment of eerie 1984 predictions. Perhaps more telling symptoms of the current climate are widening cracks in Fourth Amendment protections that expose the drug paranoia behind some court decisions. Michael Masinter, a professor of employment discrimination and civil rights litigation at Nova Southeastern University's Shepard Broad Law Center, says although he hopes ACLU will win Baron's case, he can't muster up much optimism. "There's a general sense that, where drugs are involved, the Fourth Amendment doesn't apply."

Yet Hess draws encouragement from Chandler v. Miller, a 1997 Supreme Court decision in favor of Libertarian Party nominees who fought a Georgia statute requiring candidates for state office to be drug-tested. The mainly symbolic, image-conscious interests of the state were not weighty enough to override constitutional constraints on unreasonable searches by government.

In delivering the court's opinion in Chandler v. Miller, Justice Ruth Bader Ginsburg quoted the "path-marking dissenting opinion" of Olmstead v. United States (1928), in which Justice Louis Brandeis argued against the use of evidence obtained through an unlawful government wiretap in a criminal proceeding. "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.... The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding."

Contact Margery Gordon at her e-mail address:
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Margery Gordon

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