This suit was initially brought by plaintiffs Phyllis Romaguera Kim Bonano and Tammy Gremillon who on the date it was filed were all employees of the Clerk of Court 24th Judicial District Court Parish of Jefferson State of Louisiana. They filed a complaint for declaratory and injunctive relief challenging the constitutionality of the plan of the Clerk of Court to institute drug testing procedures and the constitutionality of Louisiana Revised Statute 49:1001. The plaintiffs requested the issuance of a Temporary Restraining Order and a Preliminary Injunction. The plaintiffs also requested that a class action be certified.

Court issued a temporary restraining order on December 10 1991 enjoining and restraining the defendants from implementing the drug testing program until a preliminary injunction hearing could be held. Court held a hearing relative to the issuance of a Preliminary Injunction which Court intended to consolidate for hearing with the trial on the merits of plaintiffs' complaint and entered a permanent injunction. The issue of certification of a class action was not reached at the time of the preliminary injunction hearing.

The Clerk appealed the decision on several bases. The Fifth Circuit reversed Court's decision finding that despite an earlier order consolidating the preliminary injunction hearing with the hearing on the permanent injunction Court stated at the hearing that the proceeding was limited only to the preliminary injunction because the parties did not agree to stipulate that the hearing on the preliminary injunction was consolidated with trial on the permanent injunction. The appellate court also determined that the defendant Gegenheimer was prejudiced because he did not have a fair opportunity to prepare for a trial on the merits. The Fifth Circuit vacated the injunction and remanded for trial on the permanent injunction.

Trial was held on the permanent injunction. At the time of the second trial Phyllis Romaguera was the only remaining plaintiff employed by the Clerk of Court for the 24th Judicial District Court Parish of Jefferson. The plaintiff abandoned her request for class certification. Court dismissed Kim Bonano and Tammy Gremillon from the suit as plaintiffs and Governor Edward Edwards from the suit as a defendant. The only remaining defendant is Jon Gegenheimer Clerk of Court 24th Judicial District Court Ex Officio Recorder of Mortgages and Conveyances Parish of Jefferson State of Louisiana.

During the permanent injunction hearing the parties agreed that any permanent injunction to be entered in this action could apply only to Ms. Romaguera but suggested that Court could issue a declaratory judgment indicating Court's decision as to the constitutionality of the drug testing procedure on all other employees whom the Clerk seeks to test. Received into evidence at the permanent injunction hearing were the exhibits and stipulations entered at the first trial as well as the transcript of the preliminary injunction hearing. Additional evidence was received at the permanent injunction hearing.

I.

The parties entered the following stipulations at the commencement of the first hearing:

1) Jon Gegenheimer is the duly elected Clerk of Court for the Parish of Jefferson State of Louisiana.

2) Pursuant to the Laws and Constitution of the State of Louisiana the Clerk of Court has responsibility to hire fire and generally supervise the Deputy Clerks of Court within his judicial district.

3) As part of his duties as Clerk of Court Jon Gegenheimer has sought and seeks to implement a Drug Testing Policy within his office.

4) The provisions and parameters of the Drug Testing Policy are set forth in . . . documents identified as Statement of Policy on Drug Abuse (dated December 13 1991) Acknowledgment of Receipt of Policy Consent and Authorization Clerk of Court Parish of Jefferson Drug Testing Policies and Procedures. . . .

5) The persons who have been determined by Clerk of Court to fall within the categories of either 'Security Sensitive' or 'Safety Sensitive' and hence subject to random drug testing [are] set forth in the Drug Testing Policies and Procedures. . . .

6) The reasons that the said employees have been determined to be either 'Security Sensitive' or 'Safety Sensitive' are set forth in memoranda promulgated by In House Counsel for the Clerk of Court.

7) The Clerk of Court seeks to implement the above described testing procedures including random testing of the above described personnel in what he contends to be in compliance with the provisions of LSA-R.S. 49:1015.

8) The total number of personnel determined by the Clerk's Office to be either 'Security Sensitive' or 'Safety Sensitive' is as of the time of this [first] hearing two hundred eighty-eight (288). The total number of employees of the Clerk's Office is approximately three hundred twenty (320) [at the time of the first hearing].

11) The plaintiffs in this action are all current employees of the Clerk of Court's Office for the 24th Judicial District Court and would be covered by the random testing policies sought to be implemented by the Clerk.

Plaintiff in globo Exhibit No. 1 Joint Stipulation.

These stipulations are still applicable in most respects except that the only remaining plaintiff employed by the Clerk is Ms. Romaguera the current versions of the drug testing policy were introduced as Defendants Exhibits 1 2 and 3 and the categories of and number of employees targeted for testing have been reduced to between 118 and 137 employees out of a total of 288.

The Clerk's Office contracted with a laboratory to perform drug screens on urine samples testing for amphetamines opiates cannabinoid (marijuana) cocaine (benzoylecgonine) and phencyclidine (PCP). The types of drug testing which the Clerk intends to implement and which he did implement in the applicable circumstances after the conclusion of the preliminary injunction hearing include the following:

A. Pre-employment. No applicant will be hired who has not passed a drug test.

B. Post-Accident. As soon as possible but not later than twelve hours after any accident that causes any substantial injury or damage to persons or property or any near accident that could have caused such injury or damage drug and alcohol tests will be required of all employees whose performance cannot be completely discounted as a contributing factor of the accident.

C. Random. During each twelve-month period commencing December 1 1991 approximately once every two months a sufficient number of employees will be randomly selected for drug tests to that at the end of the twelve months drug tests will have been given at a rate equal to 100 percent of all employees occupying safety-sensitive or security-sensitive positions; the selection since it will be random could result in a particular employee being tested anywhere from six times to not at all during any twelve-month period.

D. Reasonable suspicion. When two supervisors (including department heads) agree that there is a reason to suspect that an employee may be using a prohibited drug or may have used alcohol in violation of the policy statement the employee shall be tested for drug/and or alcohol use. These decisions must be based upon a reasonable belief that the employee has exhibited one or more specific contemporaneous physical behavioral or performance indicators of probable drug use.

E. Return-to-duty. Any employee who has taken an unpaid leave of absence to enter rehabilitation for drug use or alcohol abuse may not return to duty until he or she has passed a drug test and has been cleared for work by a Clerk's Office Medical Review Officer; such employee shall also be subject to unannounced follow-up testing for up to sixty (60) months after return to duty.

Drug Testing Policies and Procedures pp. 1-2 Exhibit D-1.

The Drug Testing Procedure further specifies the consequences of drug test violations:

Any employee who fails a drug test; that is any employee whose drug test is reported as a confirmed positive by the [Medical Review Officer] shall be subject to disciplinary action up to and including discharge. Any employee refusing to consent to testing or to submit a saliva urine or blood sample for testing when requested by management in accordance with these Policies and Procedures shall be subject to immediate discharge for violation of Clerk's Office policy. Attempted or actual substitution or adulteration of samples shall be equivalent to refusal to submit to testing and shall be grounds for immediate discharge as a violation of Clerk's Office policy. However if in the sole discretion of the Clerk's Office it is decided that sufficient doubt exists respecting the source of adulteration or the fact of substitution of the sample the Clerk's Office may offer the employee an opportunity without advance notice to provide a new sample in front of a witness of the same gender. If the re-test is negative then the employee may be allowed to return to work but will be subject for 60 months thereafter to frequent testing with witnessed specimen collection without advance notice.

Drug Testing Policies and Procedures pp. 5-6 Exhibit D-2.

The policy and procedures statement provides that the Clerk's Office will maintain procedures to provide for the confidentiality of the results of drug and alcohol tests of its employees and applicants but also provides that the "release of test results to any other person or agency shall be done only in compliance with applicable law or regulations." Id. p. 6. Thus the results could be subject to subpoena in criminal or civil matters.

All individuals subject to drug testing would be required to sign a document entitled "Acknowledgment of Receipt of Policy Consent and Authorization acknowledging that the use of illicit or excessive use of legal (over-the-counter or prescription) drugs could subject them to discipline, including discharge, and authorizing the Clerk's Office to require them to furnish urine samples for drug testing purposes and saliva samples for alcohol testing purposes. The acknowledgment form states that the employee understands that their refusal to submit to testing will" result in immediate discharge and further grants permission that the results be disclosed to the Clerk's Office and its physicians and Counsels for whatever lawful use the Clerk's Office deems appropriate. It also requires the employees to agree that their expectations of privacy are lessened but that they reserve all constitutional and statutory rights. Exhibit D-3.

The Clerk stated that the reasons he seeks to adopt this drug testing program is for the protection and preservation of public safety and security and to ensure a drug-free workplace. At the preliminary injunction hearing the Clerk stated that his primary reason for instituting a drug testing program was so that his office would set an example as a drug-free workplace. The policy itself states that "drug tests are administered to promote safety and security by deterring and detecting drug use not for law enforcement purposes." At the permanent injunction trial Gegenheimer cited three instances of employees who had drug abuse problems; the first was an employee who was convicted of distribution of heroin the second was an employee who was under the influence and acted in an erratic manner during working hours and a third employee who was dismissed for abusing prescription drugs and for being under the influence of these drugs during working hours. Other instances of employee drug problems known to the Clerk at the first trial included three additional instances where the performance of official duties have been compromised by the use of substances. These include an employee who told him that she was entering drug rehabilitation another employee reported being addicted to prescription medication and a third employee removed autopsy pictures introduced into evidence at a trial from Courthouse and transported them to a barroom where she drank alcohol and displayed the photographs while under the influence of alcohol. There was no testimony that the first two of these employees breached the confidentiality of or caused any financial detriment to the Clerk's Office.

Ms. Marcella Ziifle a 21 year employee of the Clerk of Court's office who is In House Counsel testified at the first hearing that during her tenure as a Clerk's office employee she has heard two reports of drug use. She assisted the Clerk in drafting the initial drug testing policy and procedure intentionally defining the areas as broadly as possible so as to include as many employees as legally could be. Ms. Ziifle testified that several employees object to testing some but not all of the employees. She said that she had heard some rumors of drug use and that there was a suggestion in the suggestion box that employees should be prevented from using drugs.

The two major classifications of individuals who shall be subject to random testing include those who hold "safety-sensitive" positions and those who hold "security-sensitive" positions. A memorandum issued by Counsel to the Clerk's Office describes the persons who have been classified as holding safety-sensitive or security-sensitive positions. At the time of the preliminary injunction hearing these persons included all personnel in criminal issuing and criminal records all minute clerks both civil and criminal all personnel in the Warehouse Evidence or Old Records Building all personnel in the First or Second Parish Courts who handle criminal records including traffic violations all juvenile court personnel all supervisors including department heads and docket clerks all personnel involved in the accounting department all computer personnel who have the access to change monetary data all counter personnel who handle cash and any couriers who transport cash regardless of amount and mortgage and conveyance certificate clerks. Employees who occupied the described positions numbered 288 out of 320 total employees.

At the time of the trial on the permanent injunction the Clerk had- modified the list so that it included between 118 and 137 of 280 employees. Those targeted for drug testing include: all civil and criminal minute clerks with the exception of those for First and Second Parish Courts all supervisors all evidence room personnel In House Counsel the Clerk any person driving a vehicle Office Information Systems (OIS) [computer] personnel all Juvenile Court employees all docket clerks all new suits counter clerks and mortgage and conveyance clerks. Of this group Court previously held that random drug testing of evidence room custodians warehouse workers the couriers (who drive vehicles) and Clerk because of the safety or security sensitive nature of their positions was constitutionally permissible.

Not targeted for random testing at the time of the permanent injunction hearing were the docket clerk personnel in the civil section such as microfilm room and record room employees archives employees criminal file clerks those working in the Eastbank Satellite office and Parish Court employees. Any doubt in the Clerk's mind as to whether it would be appropriate constitutionally to drug test an employee resulted the Clerk deleted the employee's position from the list.

The Clerk stated that in his opinion any employee working in a courthouse occupies a safety or security sensitive position and that the public must be assured that all public employees will maintain the integrity of the public records system. He cited as examples that all employees were security sensitive the fact that a federal district Court was convicted of taking bribes from a drug dealer *fn1 and that a state Court from a neighboring parish was convicted of possession of illicit substances and of being under the influence of such substances while on the bench.

There are eight employees two couriers two custodians of evidence and four warehouse workers who drive vehicles who were determined to be safety sensitive. The remaining employees were determined to be security sensitive. The decision to include these employees in the Clerk of Court's office was based upon various considerations which he explained. The entire courthouse is an security and safety sensitive area as there are security personnel present and security equipment in use to protect all employees as well as the public. Metal detectors are used at the main entrance to Courthouse in order to prevent guns and other weapons from being smuggled into the building *fn2 and passes are issued to employees and lawyers to allow them to enter without walking through the detectors. Employees can enter through alternate entrances without walking through the metal detector but any person including the Clerk can be stopped and searched.

The Clerk as well as various employees of the Clerk testified respecting why the positions that were selected for random testing are safety and/or security sensitive. Mortgage and conveyance office personnel were selected because they are economically security sensitive. The public relies on the accuracy of the records and the employees must have a clear head and not be susceptible to bribery. Cancellation and recordation clerks enter and cancel mortgages on property valuing in the millions. While insurance is purchased to protect the Clerk from liability in the event of an error the premiums are derived from the fees received by the Clerk.

Criminal minute clerks were subject to testing because they have custody of criminal evidence which could be destroyed stolen misplaced or switched affecting the integrity of criminal trials. Civil minute clerks were selected because of their proximity to criminal minute clerks who have custody of evidence in criminal cases and because documents could be improperly prepared by a clerk under the influence errors could be made in property seizure cases and all employees must be clear minded and conscious of what they are doing. Both civil and criminal minute clerks have access to jurors and could taint a jury if they made improper remarks.

When questioned further regarding the possibility of drugs being stolen Gegenheimer testified that any drugs admitted into evidence are kept in a Warehouse with only two other employees besides himself having a key and knowledge of its location. It was also noted that a lock could be put on a desk or cabinet where evidence is stored with limited access to the evidence and that two persons always accompany the jury during their meals. There was no testimony adduced at trial not even a single instance related of evidence being stolen lost or misplaced as a result of drugs or drug affected personnel. *fn3 Nor was there any evidence that any records were destroyed erroneous notices attachments or documents being sent mortgages canceled or other such mistakes being made by any Clerk's office employee under the influence of drugs or by reason of bribery. The Clerk stated that while the civil and criminal allotment system has never to his knowledge been tainted he was approached personally by someone to alter a Court allotment.

Juvenile Court employees were included because juvenile records are not public records but are confidential. All juvenile court employees have access to these confidential records which could be tampered with or made public. If impaired by drug usage the minute clerks could erroneously issue attachments and cause innocent persons to be arrested. A Court could order a recall of an attachment and a drug influenced person could fail to recall it again causing an innocent person to be arrested. The supervisor of the Juvenile Court section of the Clerk's Office admitted that none of these events have ever occurred and that the possibility that they would occur is extremely remote.

The director of the office information systems (computer or OIS) department testified that there are several personnel in his department who have access to the computer system and are capable of tampering with the system causing it to crash and destroy important records which would be almost impossible to duplicate. He stated that an inattentive employee or one bent on causing problems could cause significant damage to the computer with a single glass of water. Every part of the office uses the computer system. Examples of tampering include disqualifying potential jurors from the system manually altering the allotment of civil and criminal cases embezzling funds and then covering up the tracks of such embezzlement causing erroneous notices and attachments to be issued altering criminal records so that criminals could be released erroneously or inappropriate bonds set etc.

The named plaintiff in this suit is Phyllis Romaguera a civil minute clerk. A civil minute clerk's duties include swearing in witnesses in and taking down Court's minutes in civil cases. She is assigned to a particular Court and shares an office with the Court's criminal minute clerk in the Court's chambers. She has no access to the vault or to narcotics. She walks down to the Clerk's office several times per day where she is under the scrutiny of her supervisor and her docket clerk as well as the many other employees of the Clerk's office. The only portion of the testing policy which the plaintiffs seek to enjoin is random drug testing.

The Clerk called a number of witnesses to justify his classification of employees as safety and security sensitive and to support his arguments that government employees hold positions of public trust and are basically role models for the public at large. Harry Connick Sr. the District Counsel for the Parish of Orleans State of Louisiana testified that he subjects all of his employees to random drug tests. At the time of the trial two of his employees were dismissed for refusing to submit to drug testing. Of course the assistant district Counsels the police and lay investigators and the computer and clerical personnel who work in the District Counsel's Office work in the criminal justice system many have direct access to drugs and guns introduced as weapons and drug dealers and other criminal defendants who are being prosecuted for various crimes.

Dr. Robert L. DuPont a psychiatrist and expert in the psychology of drug abusers and drug testing and the first Director of the National Institute on Drug Abuse (NIDA) and the principal advisor to Presidents Nixon Ford and Carter on drug abuse from 1973 to 1978 (i.e. the "Drug Czar") testified regarding addiction medicine and substance abuse. He is also a Medical Review Officer which is a specially-qualified physician who reviews laboratory-positive drug tests to establish that the procedures regarding the chain of custody have been followed and who investigates to determine whether the test result is a "false positive" by speaking to the employee and the employee's physicians so that the results can be reported as negative if there is any doubt as to the accuracy of the positive result.

Dr. Dupont stated that the Clerk's office program follows the NIDA guidelines which he termed the "gold standard" of drug testing in terms of privacy quality and reliability. *fn4 The samples are given alone in restroom not while under direct observation unless an adulterated sample is previously given. He noted that persons have less privacy in large restroom such as in stadiums where several persons must use the restroom at the same time if often in separate stalls. In Dr. Dupont's opinion the only privacy being invaded is the privacy of a person to use drugs and not be detected.

Dr. Dupont related the statistics that 71 % of all drug users are employed that 6 % of all employed persons in the United States have used an illicit drug with the last 30 days and that 12 % of all employees in the United States have used drugs in the last year. He stated that when random drug testing is used there is a 60 % to 80 % decrease in the rate of drug usage. He stated that such large decreases have been documented in the military. Probable cause or reasonable suspicion drug testing is not nearly as effective because many drugs cause invisible impairment such that the supervisors cannot tell that they employee is impaired and because supervisors are very reluctant to accuse an employee of drug usage. Further job jeopardy is a major deterrent to drug use one that occurs primarily when a random drug testing program is instituted.

The most pervasive and compelling reason offered by the Clerk for random drug testing which was corroborated by all of the Clerk's office supervisors who testified is that persons who work for the Clerk of Court hold offices of public trust and they should be held to a higher standard than members of the general public in the performance of their duties. In other words they are "role models" for the general public and ensuring that these employees are not using drugs or if they are their employment will be terminated is the goal of the random drug testing program proposed by the Clerk.

II.

The question presented here is whether the random drug testing policy and procedure proposed by the Clerk of Court of Jefferson Parish violates the Fourth Amendment of the Constitution of the United States. The Supreme Court has long held that a "compelled intrusion into the body for blood to be analyzed for alcohol content" must be deemed a Fourth Amendment Search." Skinner v. Railway Labor Executives' Association 489 U.S. 602 109 S. Ct.1402 1412 103 L. Ed. 2d 639 (1989); Schmerber v. California 384 U.S. 757 767-768 16 L. Ed. 2d 908 86 S. Ct.1826 (1966). The Skinner Court left no doubt that the testing of urine is a search under the Fourth Amendment finding "that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable." 109 S. Ct. at 1413.

Keeping in mind that the Fourth Amendment only proscribes unreasonable searches and seizures the task at hand is to determine what is reasonable which "depends on all the circumstances surrounding the search or seizure and nature of the search or seizure itself." Skinner 109 S. Ct. at 1414; United States v. Montoya de Hernandez .473 U.S. 531 537 105 S. Ct.3304 3308 87 L. Ed. 2d 381 (1985). Whether this practice is reasonable "is Courtd by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Skinner 109 S. Ct. at 1414.

Fortunately we are not without guidance in this analysis. The Supreme Court examined the drug testing plan to be implemented by the United States Customs Service in National Treasury Employees Union v. Von Raab 489 U.S. 656 109 S. Ct.1384 1388 103 L. Ed. 2d 685 (1989). The Commissioner of the Customs Service proposed a plan wherein drug testing was a mandatory condition of employment or placement for the positions that meet one of these criteria:

The first is direct involvement in drug interdiction or enforcement of related laws an activity the Commissioner deemed fraught with obvious dangers to the mission of the agency and the lives of customs agents. The second criterion is a requirement that the incumbent carry firearms as the Commissioner concluded that "public safety demands that employees who carry deadly arms and are prepared to make instant life or death decisions be drug free." The third criterion is a requirement for the incumbent to handle "classified" material which the Commissioner determined might fall into the hands of a smuggler is accessible to employees who by reason of their own illegal drug use are susceptible to bribery or blackmail. 109 S. Ct. at 1388 (citations omitted). The proposed program provides that those who qualify for a covered position must be notified that their final selection is contingent upon successful completion of drug screening. Further any employee who tests positive for drugs and offers no satisfactory explanation for the test result is subject to dismissal. Finally test results may not, however, be turned over to any other agency, including criminal prosecutors, without the employee's written consent. 109 S. Ct. at 1389.

After analyzing the program Court held that:

Suspicion less testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs or to positions which require the incumbent to carry a firearm is reasonable. The Government's compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions who enjoy a diminished expectation of privacy by virtue of the special and obvious physical and ethical demands of those positions. We do not decide whether testing those who apply for promotion to positions where they would handle "classified" information is reasonable because we find the record inadequate for this purpose.

Von Raab 109 S. Ct. at 1297-1298.

In reaching the conclusion that the employees who carry firearms in the course and scope of their employment or who are directly involved in drug interdiction have diminished privacy expectations regarding the governmental intrusion of a urine test Court noted "unlike most private citizens or government employees in general employees who carry firearms and who are involved in drug interdiction should expect inquiry into their fitness as the successful performance of job duties depends uniquely on their judgment and dexterity." 109 S. Ct. at 1394 (emphasis added). Court found unpersuasive the argument that the testing program was not instituted because of a perception of wide-spread drug usage since the evidence indicated that there was no such perception and further that the program thus far has not uncovered any significant number of drug users. In rejecting such an argument Court noted that "detecting drug impairment on the part of employees can be a difficult task especially where as here it is not feasible to subject employees and their work-product to the kind of day-to-day scrutiny that is the norm in more traditional office environments." (emphasis added)

The Von Raab Court declined to assess the reasonableness of the testing program relative to employees who are required to handle classified material agreeing that "the Government has a compelling interest in protecting truly sensitive information from those who 'under compulsion of circumstances or for other reasons . . . might compromise [such] information.'" Von Raab 109 S. Ct. at 1396 quoting Department of the Navy v. Egan 484 U.S. 518 527 108 S. Ct.818 824 98 L. Ed. 2d 918 (1989) (emphasis added). Mandatory drug testing of employees who seek promotions to positions in which job duties required that they handle sensitive information would be permissible especially if the positions covered under this category require background investigations, medical examinations, or other intrusions that may be expected to diminish their expectations of privacy in respect of a urinalysis test. 109 S. Ct. at 1397. Court found that there was a genuine issue as to whether the Customs Service defined the category of persons who handle sensitive information more broadly then necessary since those slated to be tested included accountants accounting technicians animal caretakers Counsels (all) baggage clerks co-op students (all) electric equipment repairers mail clerks/assistants and messengers. In remanding this issue for decision the lower courts were instructed to consider when assessing the reasonableness of random drug testing of these employees "pertinent information bearing upon the employees' privacy expectations as well as the supervision to which these employees are already subject." 109 S. Ct. at 1397.

The Supreme Court in Skinner v. Railway Labor Executives' Association 489 U.S. 602 109 S. Ct. 1402 103 L. Ed. 2d 639 (1989) found that mandatory blood and urine testing by the Federal Railroad Administration (FRA) of railroad employees after a major train accident an impact accident or any train accident involving a fatality to any railroad employee was comported with the protections of the Fourth Amendment. The Skinner Court held that testing the blood and urine of railroad employees engaged in safety-sensitive occupations is reasonable and necessary because of the inherent hazards associated with the job. It noted that:

In light of the limited discretion exercised by the railroad employers under the regulations the surpassing safety interests served by toxicological tests in this context and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees we believe that it is reasonable to conduct such tests in the absence of a warrant or reasonable suspicion that any particular employee may be impaired.

489 U.S. at 634 109 S. Ct. at 1422. The testing procedure proposed was not a random one but one which would be invoked after a safety-related incident occurred.

The most recent Supreme Court decision on the issue of the constitutionality of random suspicion less urinalysis testing concerned the drug testing of public school students who participate in interscholastic athletics. In Veronia School District 47J v. Acton __ U.S. __ 115 S. Ct.2386 (1995) the Supreme Court held that after "taking into account all of the factors we have considered above--the decreased expectation of privacy the relative un obtrusiveness of the search and the severity of the need met by the search--we conclude Veronia's Policy is reasonable and hence constitutional." 115 S. Ct. at 2396. In so doing Court issued a warning:

We caution against the assumption that suspicion less drug testing will readily pass constitutional muster in other contexts. The most significant element in this case is the first we discussed: that the Policy was undertaken in furtherance of the government's responsibilities under a public school system as guardian and tutor of children entrusted to its care. Just as when the government conducts a search in its capacity as employer (a warrantless search of an absent employee's desk to obtain an urgently needed file for example) the relevant question is whether that intrusion upon privacy is one that a reasonable employer might engage in see O'Connor v. Ortega 480 U.S. 709 107 S. Ct.1492 94 L. Ed. 2d 714 (1987); so also when the government acts as guardian and tutor the relevant question is whether the search is one that a reasonable guardian and tutor might undertake. Given the findings of need made by the District Court we conclude in the present case it is.

115 S. Ct. at 2396-2397.

In Veronia School District the Supreme Court noted that there was substantial evidence introduced at the trial that the school system was in crisis because of drug use by the students. Numerous instances of problems with students were cited with many caused by the athletes. Students who did not wish to be drug tested could decline to play interscholastic sports. Court also found important the fact that the privacy expectations of student athletes were lessened because of the usual practice of communal undressing and showering. In the present case the record does not support a finding that the Clerk's Office is in any state of crisis because of drug use; the few instances relayed do not suggest that the Clerk of Court's Office is anything but a professionally managed office with employees who are competent dedicated to their jobs and honest. An inference that drugs have played any part in diminishing its efficiency or integrity is most decidedly not supported by the record.

It is important to note that in O'Connor v. Ortega the Supreme Court recognized that "individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer." Court also observed that:

The operational realities of the workplace however may make some employees' expectations of privacy unreasonable when an intrusion is by a supervisor rather than a law enforcement official. Public employees' expectations of privacy in their offices desks and file cabinets like similar expectations of employees in the private sector may be reduced by virtue of actual office practices and procedures or by legitimate regulation. . . . The employee's expectation of privacy must be assessed in the context of the employment relation. . 'Constitutional protection against unreasonable searches by the government does not disappear merely because the government has the right to make reasonable intrusions in its capacity as employer' [107 S. Ct. at 1504] but some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable. [citation omitted]. Given the great variety of work environments in the public sector the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.

107 S. Ct. at 1498. The O'Connor Court concluded that "public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory work-related purposes as well as for investigations of work-related misconduct should be Courtd by the standard of reasonableness under all the circumstances." Id. at 1502.

Various courts of appeal our own Fifth Circuit not among them have grappled with the issue of employee drug testing programs using as we must Von Raab and Skinner for guidance. The Seventh Circuit in Taylor v. O'Grady 888 F.2d 1189 (7th Cir.1989) considered the constitutionality of a systematic drug testing program to be implemented by the Cook County Department of Corrections. Under the proposal all correctional officers and correctional supervisors would be compelled once annually to produce urine specimens for analysis to detect the presence of marijuana cocaine and opiates. Any officer who tested positive would be given the option of entering a substance abuse program or face possible termination at the discretion of the Cook County Police and Corrections Merit Board. If the officer opted for the drug treatment program he could be subject to mandatory testing twice each month for a period of six months.

The Taylor court held that mandatory drug testing of employees who had regular access to the inmate population reasonable opportunity to smuggle drugs into the inmate population or access to firearms was constitutionally permissible under the Fourth Amendment. 888 F.2d at 1201. Testing these officers fostered the Department's interests in maintaining an unimpaired physically fit work force and in preventing the smuggling of drugs to prisoners. Court carefully noted that these interests are not furthered by testing all officers because "egalitarianism has nothing to do with the fourth amendment analysis at issue." Id. at 1196-1197. Finding that those officers who are not in contact with prisoners to be indistinguishable from other non-prison governmental employees Court noted that "since those officers with only administrative or clerical duties or otherwise lacking contact with the jail population do not threaten claimed dangers if impaired while on duty and since the record does not show they are able to smuggle drugs to the prisoners the Department gains nothing by testing them." Id. at 1197.

Categorically rejected was the argument that the Department's interest in fostering the public's perception of the integrity of its work force is sufficient to overcome the privacy interests of its employees. Noting that in Von Raab the Supreme Court remanded a segment of the case because the classification of employees who handle sensitive information was drawn too broadly the Taylor decision flatly holds that a generalized interest in ensuring a law-abiding and drug-free work force while it may make a public statement that no drug users are employed at the Department thereby enhancing public perception of Government is not enough to outweigh the privacy interests of the affected employees.

The Federal Circuit examined the drug testing plan proposed by the Department of Justice ("DOJ") in Harmon v. Thornburgh 278 U.S. App. D.C.382 878 F.2d 484 (D.C. Cir.1989) cert. denied sub nom. Bell v. Thornburgh 493 U.S. 1056 110 S. Ct.865 107 L. Ed. 2d 949 (1990). Under the DOJ plan five categories of employees were designated as occupying sensitive positions subjecting them to random drug testing. These included (1) all present employees currently authorized to have access to top secret classified information; (2) all Counsels who conducted grand jury proceedings and all personnel necessary to assist these' Counsels; (3) all current employees serving under Presidential appointments; (4) all current employees whose job duties included the prosecution of criminal cases; and (5) all current employees whose job duties included maintaining storing or safeguarding a controlled substance. The designated employees would be required to furnish a urine sample at a test site after being notified earlier on the same day of his selection; the sample would be tested for marijuana cocaine opiates amphetamines and phencyclidine (PCP).

The DOJ argued that the governmental interests of integrity of the work force public safety and protection of sensitive information provides adequate justification for the plan to pass Fourth Amendment muster suggesting that "its interest in ensuring the integrity of the workforce would justify the random drug testing of every federal employee." 878 F.2d at 489-490. The Harmon court made short work of that argument finding that although government has a legitimate interest in ensuring that its employees are law-abiding that interest alone does not outweigh the employee's privacy interests. Id. at 490. It found that in order to justify mandatory drug testing which is a Fourth Amendment search there must be "a clear direct nexus . . . between the nature of the employee's duty and nature of the feared violation." Id.

Recognizing that Von Raab authorized the testing of employees who handle "truly sensitive information" and agreeing that whatever its meaning is it must encompass top secret national security information the Harmon court examined whether the government's interest in preserving its secrets could justify the testing of all federal prosecutors or all employees having access to grand jury proceedings which are not subject to public dissemination. The conclusion reached was that the term truly sensitive information "cannot include all information which is confidential or closed to public view" because many government employees including clerks typists and messengers may have some access to the information. Such a distinction does not distinguish these employees from government employees in general. Id. at 492.

In order to rationalize drug testing for public safety reasons Harmon held that there must be an immediate threat such that a single mistake by an employee i.e. a gun-toting agent or train engineer could have disastrous consequences. Where the chain of conduct between the slip-up and the injury is more attenuated such as a blunder by a DOJ lawyer public safety provides no justification for random drug testing.

Random drug testing of commercial motor vehicle drivers pursuant to Federal Highway Administration of the Department of Transportation regulations and of civilian employees of the Department of the Navy who hold "Top Secret with Access" security clearances was upheld by the Ninth Circuit in two separate decisions. Court in International Brotherhood of Teamsters v. Department of Transportation 932 F.2d 1292 1300 and 1304 (9th Cir.1991) held that the substantial harm of a crash and the need to protect the safety of the traveling public outweighs the' diminished privacy expectations of commercial truck drivers who work in an industry which is highly regulated and in which they have long been subject to federal regulation. Accord Bluestein v. Skinner 908 F.2d 451 456 (9th Cir.1990) cert. denied 498 U.S. 1083 111 S. Ct.954 112 L. Ed. 2d 1042 (1991). Finding that "the Navy's random drug testing of civil employees holding [Top Secret Access] clearances directly furthers a compelling interest in protecting the security of our nation by ensuring that employees who come into close proximity to information 'the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to national security' do not use illegal drugs Court in AFGE Local 1533 v. Cheney 944 F.2d 503 (9th Cir.1991) found such drug testing constitutionally permissible. Id. at 508-509. Both of these cases relied on Harmon's analysis regarding public safety and top secret national security rationales for mandatory urine testing.

Random testing of persons employed by the United States Customs Service who have access to the computer system's Cargo Selectivity Criteria ("CSC") module which targets certain criteria as characteristic of contraband shipments and recommends inspections of selected packages was deemed constitutional in National Treasury Employees Union v. United States Customs Service 307 U.S. App. D.C.173 27 F.3d 623 (D.C. Cir.1994). The employees affected by the random drug testing program were all persons employed in traditional office environments not in front-line drug interdiction efforts. They were included solely because of their access to the databases regarding the identification and targeting of shipments for inspections.

The D.C. Circuit noted that because of the link the information in the database had to drug smuggling the Government has an obvious and compelling interest in protecting this information from leakage and that such information would be particularly important to drug smugglers. Also noted was the scrutiny which these employees undergo prior to employment i.e. comprehensive background checks detailed information about their finances and disclosure of any history of past arrests convictions and drug use. Accorded little weight was the fact these employees were employed in an office environment and thus subjected to day-to-day supervision. Court held that random urinalysis testing of employees with access to this highly confidential database the disclosure of which would directly compromise efforts to thwart drug smuggling particularly in light of the lower privacy expectations of these employees due to their intense background checks they underwent prior to becoming employed by the Customs Service is reasonable under the Fourth Amendment i.e. the Government's compelling interest in preserving the confidentiality of that information outweighs the privacy expectations of the employees who have access to it. 27 F.2d at 629-630. *fn5

III.

The only portion of the Clerk's drug testing policy that is being challenged here is random testing. The five other types of testing pre-employment post-accident reasonable suspicion and return-to-duty are not under scrutiny here and have been implemented by the Clerk. Further random drug testing of those employees who Court found were safety or security sensitive following the preliminary injunction hearing has been instituted. A balancing of the privacy rights of the individual employees targeted for random testing against the promotion of legitimate governmental interests must be conducted. See Skinner 109 S. Ct. at 1414.

The governmental interests which the Clerk advances as justification for the proposed plan are safety and security. The safety sensitive employees include those who operate motor vehicles those who have physical custody of drugs introduced as evidence in criminal cases and access to the evidence room where drugs are stored. Under the jurisprudence public safety is a valid rationale for imposing random drug testing on employees whose impairment could have immediate and disastrous consequences. Accord International Brotherhood of Teamsters 932 F.2d at 1300. Thus the Clerk's governmental interest in ensuring the safety of the travelling public outweighs the privacy interests of those employees who operate motor vehicles in the course and scope of their employment. This Court previously upheld the Clerk's random testing of these employees and such testing was not challenged at this hearing.

Other employees who are classified as safety-sensitive include those who have physical custody of drugs and those who have access to it. Those who have physical custody of illicit drugs which are evidence in court proceedings include the Clerk who has the key to the Warehouse and two other personnel who have the key to the evidence room as well as knowledge of the location of the warehouse. The Clerk testified at the preliminary injunction hearing that only these personnel have evidence room keys. Further the location of the warehouse is confidential and is changed periodically. The interest of the Clerk in ensuring that these employees who have direct and unsupervised access to drugs are drug-free is sufficient to overcome their privacy interests since there is a clear direct nexus between the nature of the employee's duty i.e. to safeguard illegal drugs which have been admitted into evidence in criminal trials and the nature of the feared violation i.e. that the employee will divert the drugs to his or her own personal use or will come under the influence of drug dealers or traffickers who would like to see such critical evidence disappear. Random drug testing of these employees was allowed in Court's initial findings and conclusions on the matter and accordingly is not here challenged.

The category of employees defined as those who potentially have "access" to drugs is more troublesome. The job categories which fall under this heading are criminal minute clerks civil minute clerks and all personnel in criminal records and criminal issuing because "it is sometimes necessary for them to take records into Courtrooms where criminal evidence can be accessed." The only named plaintiff Ms. Romaguera falls into this category as she is a civil minute clerk.

The difficulty with the term "access" is that while the drugs might be physically present in Courtroom during the trial at no time is it left in these employee's unsupervised possession. During a trial while some Clerk's office personnel are present there are numerous other persons who are physically present in Courtroom i.e. the Court the witnesses the lawyers the litigants spectators and security personnel. Certainly there is adequate supervision of the drugs while they are physically present in Courtroom so as to the make feared harm that civil and criminal minute clerks and criminal records and criminal issuing clerks will remove the evidence from Courtroom in plain view of all other persons present improbable and remote.

A second classification of employees who shall be subject to random drug testing by the Clerk are those who are considered security-sensitive. Included in this group are personnel in criminal records and criminal issuing because they have immediate access to criminal records and the ability to alter those records civil and criminal minute clerks all Juvenile Court records which are confidential all supervisors because they have the authority to demand drug testing of the employees they supervise and because they should be subject to testing if the employees they supervise are subject all personnel in the accounting department because they have the ability to divert funds to themselves or accomplices all computer personnel and all mortgage and conveyance office personnel. Specifically excluded are civil issuing clerks file clerks mail clerks microfilm personnel employees in the archives criminal file clerks satellite office personnel and persons manning the Parish Courts except the supervisors who are included.

The rationale repeatedly offered for testing was that these employees occupy positions of public trust they must be clear minded in order to perform their work and that the public has to be assured that the Clerk's Office employees will maintain the integrity of the public record. It must be noted that the drug testing program is designed not only to detect drug usage that might affect the employees work performance but usage during the employees free time such as during the evenings over a weekend on during vacations.

Because the paramount reason offered for subjecting plaintiff Romaguera a civil minute clerk to random testing is that she is both safety and security sensitive as she has access to drugs Court will consider first this question of access. *fn6 The "access" discussed is purely proximity to Courtroom where documents and items including drugs during criminal trials have been admitted into evidence and access to the criminal minute clerk's desk where the drugs are stored. The record reflects that these persons have no unsupervised access to this evidence in Courtroom and the minute possibility that they could tamper or take it is not an adequate basis upon which to allow random testing. Supervision is an important criteria to evaluate in determining whether testing is reasonable. Von Raab 109 S. Ct. at 1397. Further alternative methods of safeguarding drug evidence could easily be implemented limiting the access of both civil and criminal minutes clerks to the drugs.

Plaintiff Romaguera testified during the preliminary injunction hearing that she believed the urinalysis testing to be intrusive as she does not have a lower expectation of privacy that any government employee in general. While criminal background records checks for employment applicants have been instituted by the Clerk recently Ms. Romaguera is a long-time employee who was not subjected to such a check. Those in her position and in similar positions whose drug testing is proposed due to their access to drugs do not possess any unique information that is not of public record that would be of particularly keen interest to drug smugglers or users such as that which the Customs Service computer personnel possessed in United States Customs Service 27 F.3d at 623.

Balancing the privacy interests of civil minute clerks against the rationale offered by the Clerk i.e. that the employee holds a position of public trust that the employee must be clear minded to perform his job competently and that the integrity of the public records must be maintained these reasons apply across the board to all government employees working in any government offices. *fn7 All government employees hold positions of public trust must perform their jobs competently and with a clear head to avoid mistakes and to maintain public records in an accurate and sometimes confidential manner. The cautions of Von Raab that "truly sensitive" information must be protected but that the category of employees subject to testing to preserve this information "might to too broadly drawn 109 S. Ct. at 1396, and Veronia School District, that we caution against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts 115 S. Ct. at 2396, are appropriate considerations here. As held in Harmon, truly sensitive" information does not include all information which is confidential or closed to public view as all government employees have knowledge of information which must be kept confidential. 878 F.2d at 492.

Considering the privacy interests of the plaintiff a civil minute clerk and others in similar positions balanced against the Clerk's rationale for the testing Court concludes that random drug testing of such employees is not reasonable under the Fourth Amendment. If the reasons offered were sufficient then suspicion less drug testing would be permissible for all public employees regardless of position or pre-employment scrutiny. Based upon the jurisprudence on this important subject thus far the Supreme Court has not yet sanctioned such a policy and indeed appears to be cautioning against it.

The Clerk proposes to randomly test all computer personnel (OIS) who have access to change information in the computer. Court does find compelling the arguments. offered for randomly testing such personnel given the access they have to every function of the Clerk's Office and type of destruction which could be occasioned to the Office in a very simple manner (spilling a glass of water) if the employee were subject to bribery by a drug dealer. The reasons offered for testing these employees justify their testing and override their privacy interests because they have access to the "main brains" of the modern-day office the central computer.

Further the drug testing of all supervisors who are in a position to observe any mistakes made by employees who can detect whether an employee in their employ is under the influence and who can scrutinize the work of their subordinate employees is calculated to ensure that the other employees do not have access to destroy or adulterate important information of the type kept in public records. This category includes the Clerk (who is already subject to testing due to his access to the warehouse where the drugs are stored) and In House Counsel. Court finds such testing to be reasonable in light of the circumstances and privacy interests of the employees.

It is difficult to justify the random testing of all mortgage and conveyance clerks all juvenile court employees all docket clerks and all new suits counter clerks. Detecting drug impairment and the work related consequences thereof in these employees who work in a traditional office environment and who are subject to the day-to-day scrutiny of their supervisors and fellow employees requires no different measures that of other government offices in general. While these employees are in a position to make mistakes they are supervised well and subject to quality controls. The evidence does not support a finding that drug use has resulted in impaired or dishonest functioning of the Clerk's Office. Court finds as the Supreme Court did in Von Raab that this group of employees has been drawn too broadly. Because there are quality controls in this system and because the supervisors are subject to testing the Court does not find reasonable based upon this record the random testing of these employees in order to ensure that they are clear minded and keep confidential records which by law must be kept confidential.

Underlying the Clerk's drug testing policy of all of these employees is his desire for his office to set an example as a drug-free workplace. This is admirable but as noted by Justice Scalia in his Von Raab dissent not a valid basis to uphold his proposal. His eloquent reply to such an argument is this:

What better way to show that the Government is serious about its 'war on drugs' than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use but it will show to the world that the Service is 'clean ' and--most important of all--will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism even symbolism for so worthy a cause as the abolition of unlawful drugs cannot validate an otherwise unreasonable search. . . .

109 S. Ct. at 1401.

IV.

There is only one plaintiff in this case but at the request of the plaintiff and in the interest of judicial economy Court considered the constitutionality of the random drug testing plan as to all targeted employees. Accordingly the injunction sought against random drug testing will be granted only as to one employee who is the plaintiff. All other components of the Clerk's drug testing policies and procedures were not at issue here and thus no injunction shall apply thereto. Declaratory judgment shall also issue.

Judgment shall be entered in accordance herewith.

The plaintiffs have requested Counsel's fees under 42 U.S.C. SEC. 1988. This shall be addressed at a separate hearing.

New Orleans Louisiana this 3 day of May 1996.

MARCEL LIVAUDAIS JR.

United States District Court