Marijuana Policy Project

The Kanawha County Commission may join forces with the county school system in a legal fray and begin drug testing more, if not most, of its employees.

Its president, Kent Carper, wants the commission to expand its random drug-testing policy to include employees who handle money and records or deal with the public.  This could include accountants, clerical workers and housing inspectors.

The commission already randomly tests "safety sensitive" county employees who operate vehicles and equipment or have firearms. Those categories include about 170 of its 417 employees.

Carper hopes the commission will join with the school board — a separate entity that is not controlled by the commission — to fight what may be a long and costly legal battle over the school system's new policy to randomly drug test teachers.

Carper said the outcome of a lawsuit filed by one teachers union would affect the county commission's current policy, the expanded policy he hopes to put in place, and drug testing policies around the state.

"To believe that the final result of this lawsuit will not affect and set the road map, the rules of the road, for drug testing public employees, you'd have to be naive," he said.

County commissioner Dave Hardy said that while he supports the Kanawha County school board's endeavor to implement what he calls a well-thought out testing policy, he doesn't want the commission to "jump on the bandwagon and make a rash decision" that could cost the county hundreds of thousands of dollars in legal fees.

Hardy said he is willing to consider filing a friend of the court brief in support of the school board. But he noted that it took the commission more than six months to arrive at its current drug testing policy and that it did so only after receiving legal advice.

The West Virginia chapter of the American Federation of Teachers filed a lawsuit Wednesday in Kanawha Circuit Court against the county school board and Superintendent Ron Duerring.

The suit alleges that the school system policy to randomly drug test teachers is an unconstitutional invasion of privacy.

AFT-WV also asked for a preliminary injunction to halt the policy while the courts consider the case. Both the school system and the union expect the injunction to be granted by the court, meaning the board could not begin testing teachers in January, as it had planned. The delay would likely last for years until a series of appeals from either side is exhausted.

The court is being asked to consider whether or not teachers have jobs that are "safety sensitive."

Generally, law allows for people with such positions — including police, nuclear power plant engineers and mass transportation employees, like school bus drivers — to be randomly drug tested. But teachers organizations and civil rights groups argue that teachers do not hold safety sensitive positions and cannot be randomly tested.

The county government already tests drivers, electricians and law enforcement officers because it considers them safety sensitive.

Now, Carper wants to see the commission expand the definition of safety sensitive to include employees who come into the contact with the public and handle public records and money. This could include inspectors who go to people's homes and clerical workers and secretaries who deal with important documents or money.

If his plan is approved, he suggested it would be "like a camel through the needle" to find any of the 400 county employees who are not considered safety sensitive.

"There is a reason to have drug-testing policies with public employees, sadly. I know that because of the experience we've had," Carper said.

He said the lawsuit against the school system's policy to test many of its close to 4,000 employees would be large enough in scope to impact a hodgepodge of policies around the state, including one that tests all employees at the Metro 911 Center, whose board he is president of.

The commission is expected to consider Carper's proposal and may vote on it or ask the county's attorney to examine options at the Dec. 4 commission meeting.

AFT-WV's request for a preliminary injunction to prevent the start of teacher testing will likely be heard in the coming weeks.

The union's lawsuit also alleges, besides privacy issues, that the school system failed to bid out the contract to conduct the $40,000 worth of random drug testing.

County school system attorney Jim Withrow said the county will continue to use the same company it used for other drug tests, including tests of county school bus drivers and suspicion-based tests of employees.  He said he doesn't think that part of the suit, which takes up just a handful of paragraphs in a 14-page suit, is significant.