CHALLENGES TO LOUISIANA DRUG-TESTING PROPOSAL LIKELY

Benefits shouldn't be tied to requirement, critics say

BATON ROUGE, La. - Four hundred Louisiana elected officials will be tested
for drugs next year as part of a law that will eventually reach all 4,000
officials in the state.

But laws requiring the testing of anyone who gets an economic benefit from
the state are sure to be challenged in court.

Joe Cook, head of the American Civil Liberties Union office in Louisiana,
said he believes the laws are unconstitutional and that the ACLU is
prepared to respond.

"We were just waiting for the rules and regulations [governing the law] to
be approved," Mr. Cook said Wednesday, minutes after a legislative panel
gave the final OK to the rules.

The ACLU will look at the rules, talk with some legislators opposed to the
law "and take the appropriate action," Mr. Cook said.

The Legislature, at Gov. Mike Foster's urging, passed laws in 1997 that
were primarily aimed at drug testing of appointed and elected officials,
employees, and welfare recipients.

During the process, the Legislature added language demanding testing of
anyone who gets an economic benefit from state government. That would
include private attorneys, contractors, vendors and others who do business
with government, as well as students who get financial aid.

On Wednesday, a House-Senate committee approved the rules governing the law
that deals with elected officials.

Officials will be randomly tested, 10 percent of the total each year, and
the results will be kept private. Anyone testing positive must get counseling.

Those who test positive repeatedly are in danger of having their names made
public.

Although the procedure is kept from the public eye, members of the
legislative committee complained that someone might leak information that a
legislator is being tested.

"Just let an opponent get that information in an election year," said Rep.
Willie Hunter, D-Monroe.

The rules say legislators chosen to be tested would get the word via
federal express. If they are not available to accept the letter, a subpoena
will be issued. But, the subpoena, too, is kept secret from the public.

"You just let one employee at the ethics board tell a friend, who will then
tell a friend and see what happens," said Rep. Yvonne Dorsey, D-Baton
Rouge, echoing Mr. Hunter.

The committee finally approved the rules, 17-3.

The program will begin in January.

Welfare recipients are already being screened for possible testing.

Various state agencies are drafting their own rules for employees.

As for people with state contracts, that program could be a year away, said
Cheney Joseph, attorney for the governor. The state must first decide just
who is covered under the law.

A very broad interpretation of the law could mean anyone using a state
highway, Mr. Joseph acknowledged. But the law will not be interpreted that
broadly, he predicted.

Mr. Cook said he is not so sure. "It could be the four million people in
this state from newborn babies [in state hospitals] to the elderly on life
support in nursing homes."

At first glance, the law appears to be patently unconstitutional, added Mr.
Cook, noting that the U.S. Supreme Court has already stricken a Georgia law
demanding that candidates for office be tested.

"It is an invasion of privacy," he said.

Private industry tests employees with no problems, but court decisions have
restricted some use of testing in government, whose employees have a right
to privacy not enjoyed by the person in the private work place.

The U.S. Supreme Court has said so, many times. However, there are some
exceptions that allow for testing of those involved in safety situations or
who have security jobs.

And there are ways the state laws dealing with employees can work but not
by using random sampling.

Random sampling goes against the privacy aspect of the constitution when it
comes to government, Mr. Joseph, chief lawyer for the governor, has said
earlier.

Checked-by: Mike Gogulski