Lee, Moylan tussle anew over drug testing

Senator Regine Biscoe-Lee, a Democrat, is chairperson of the Committee on Federal and Foreign Affairs. She says she hopes the next Congressman addresses Guam's relationship with the military, environmental issues and the island's political status. (PNC file photo)

Senator Regine Biscoe Lee, the chair of the legislative rules committee, has sent a second letter to Sen. James Moylan, the sponsor of Resolution No. 16-35 (COR), reiterating why Moylan’s proposal remains unconstitutional despite it not calling for “random” drug tests.

Resolution 16, sponsored by Sen. James Moylan, seeks to establish a mandatory drug testing and zero-tolerance drug policy for the Legislature and exempts the employees from the provisions of “Safe Harbor.”

In her first letter, sent to Moylan after the Republican senator complained about lack of action on his resolution, Lee said Moylan’s resolution may violate the right afforded to all U.S. citizens against unreasonable searches and seizures.

Responding to the first letter, Moylan said Resolution 16-35 was introduced in January, when the current legislature was coming together and it is intended to be a drug testing requirement as an “onboarding” process, as is conducted throughout the government of Guam and with many private entities throughout the island.

“It is not intended to be a ‘random’ test as the good Senator indicated in her response and one that may be deemed unconstitutional by the previous Attorney General. The Guam Legislature currently does not have such a policy, as the other branches of the government do,” Moylan stated.

He added: “We also recognize that there have been some changes in Guam’s statutes since the resolution was initially drafted, and we are open for any modifications. However, the measure needs to be provided its fair opportunity of a public hearing, before we can make the policy more efficient and modernized. We hope that after our response, the Senator would be open to the idea. I am certain she, just many in our community would agree, the Guam Legislature needs to be a ‘drug-free’ workplace.”

Responding to this in her second letter to Moylan, senator Lee said the relevant case law cited in her previous letter are well-established, with existing legal limits that speak directly to the goal of testing all legislative employees through an “onboarding” drug testing policy.

“I encourage you to read through the documents yourself, but two standards required in order for government drug testing to be legal are the need to: (1) articulate a specific and special need to test; and (2) establish that the search (in these cases, drug testing) must be a reasonable condition of employment,” Lee wrote.

Lee also warned about the potential fiscal consequences of enacting “a clearly illegal legislative employment requirement.” She wrote that successful lawsuits based upon the aforementioned legal arguments and case law have resulted in damages awarded to workers.

“While it would be impossible to accurately estimate how much litigation against this branch would cost, the budget of the legislature certainly cannot afford to pay the price of misinformed, though well-intentioned policies like Resolution 16-35,” Lee stated.

She also reminded Moylan that all legislative workers are unclassified and serve at the pleasure of their appointing authority.

Finally, Lee wrote: “If you will forgive a blunt comparison: The Committee on Rules is treating Resolution No. 16-35 (COR) as if it proposed passing a religion test as a condition of employment in the Legislature. Both ideas blatantly infringe upon constitutional rights. Neither should see the light of day.”