The issue in this case is whether the defendants public officials of the city of Cambridge are entitled to qualified immunity from suit on claims against them under G. L. c. 12 SEC.(s) 11H & 11I and G. L. c. 214 SEC. 1B. The case arises out of a policy adopted by the city of subjecting fire fighter probationary recruits to urinalysis at random times during their training. On cross motions for summary judgment a Court in the Superior Court ruled that the defendant Robert W. Healy city manager of Cambridge is immune from a suit for damages but that the defendant Thomas V. Scott chief of the Cambridge fire department has no such immunity. Both Duarte and Scott have appealed. *fn2 We decide that both defendants are immune.

We summarize the Court's findings. On April 26 1985 the plaintiff Frederick Duarte graduated from the basic fire fighter training program of Cambridge. On April 29 1985 Duarte and the other members of his class reported for duty to engine company no. 3 on Cambridge Street in East Cambridge. When they arrived they were informed that they would be required to provide urine samples immediately. The class of thirty fire fighters was split in groups of six. Each group was taken to a lavatory which had two toilet stalls with doors two shower stalls with curtains and two urinals without doors. Each fire fighter was given a sealed plastic container and was instructed to provide a urine sample. None of the fire fighters was permitted to leave the view of the officials who monitored the test.

The fire fighters were directed to sign statements listing any medication they were taking. Duarte listed only "Vitamins and Medication." Laboratory testing indicated however that Duarte's urine sample contained traces or by-products of cocaine. The testing also revealed other traces or by-products of cocaine in samples of two other fire fighters and traces or by-products of marihuana in samples from six fire fighters. The three fire fighters with cocaine traces were terminated and the other six fire fighters were suspended with probationary conditions.

Duarte was informed on May 9 1985 that his employment would be terminated because his urine sample had been tested and found to be positive for cocaine. A second test was conducted on the same sample which confirmed the first test. The Court found that the procedures used to collect and to test the sample were procedures upon which a reasonable person could rely for accurate results.

The Court also found that the defendant Healy approved the policy of urine testing and that Healy had decided that termination of employment was the appropriate disciplinary action to be taken against those firemen found to have traces or by-products of cocaine in their system. Finally the Court found that the defendant Scott implemented these policies.

Duarte's original complaint was based on various Federal and State grounds for declaratory and injunctive relief and money damages against the defendants. A Court of the Superior Court in Middlesex County denied all of the claims except those under the Fourth and Fourteenth Amendments to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights. The Court granted declaratory relief under those provisions decided that injunctive relief was not appropriate and permitted Duarte to amend his complaint to elaborate on his grounds for seeking damages.

Duarte then filed an amended complaint seeking damages on two counts. He renewed his constitutional claims under the Massachusetts Civil Rights Act G. L. c. 12 SEC.(s) 11H & 11I (1986 ed.) and he asserted a claim under the Massachusetts Privacy Act G. L. c. 214 SEC. 1B (1986 ed.). Duarte made no claim under 42 U.S.C SEC. 1983 (1982). All parties moved again for summary judgment. Another Court granted summary judgment in favor of the defendant Healy on the ground of immunity but held that the defendant Scott had no such immunity and granted summary judgment against him on both claims setting the case against Scott for hearing on damages.

1. Immunity. We assume for purposes of this discussion that the Court was correct in concluding that the urinalysis tests conducted in this case violated Duarte's rights under both the Privacy Act and the Civil Rights Act. We proceed directly to the question whether the defendants are nevertheless immune from suit not just from liability. See Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield 401 Mass. 26 31 513 N.E.2d 1277 (1987) cert. denied sub nom. Forastiere v. Breault 485 U.S.906 99 L. Ed. 2d 237 108 S. Ct.1078 (1988).

In Breault supra we discussed the two forms of immunity that might apply to public employees under the Civil Rights Act. The first was common law immunity as variously expressed in our cases and the second was a qualified immunity patterned after Federal qualified immunity under 42 U.S.C. SEC. 1983. Id. at 35 38. We noted that "the Massachusetts Civil Rights Act by its terms admits of no immunities." Id. at 35 quoting Chicopee Lions Club v. District Counsel for the Hampden Dist. 396 Mass. 244 252 485 N.E.2d 673 (1985). We also noted that there was no "'tradition' of immunity for non-juridical officers so firmly 'rooted in history' that we should not presume the Legislature to have abandoned it without comment." Breault supra at 37 quoting Chicopee Lions Club supra. However we had no occasion to decide whether the Legislature intended to adopt the Federal system of immunity for discretionary functions under Sec. 1983 because we decided that the actions of the defendants in Breault were ministerial. The case before us presents an occasion to address the issue of qualified immunity under our State Civil Rights Act. We conclude it to be consistent with the intent of the Legislature in enacting the Civil Rights Act to adopt thereunder the standard of immunity for public officials developed under SEC. 1983.

In Batchelder v. Allied Stores Corp. 393 Mass. 819 822-823 473 N.E.2d 1128 (1985) we concluded that "the Legislature intended to provide a remedy under G. L. c. 12 SEC. 11I coextensive with 42 U.S.C. SEC. 1983 . . . except that the Federal statute requires State action whereas its State counterpart does not." By the time the Legislature enacted the Civil Rights Act St. 1979 c. 801 the Supreme Court already had interpreted Sec. 1983 to provide qualified immunity for discretionary functions. Wood v. Strickland 420 U.S.308 43 L. Ed. 2d 214 95 S. Ct.992 (1975). We presume that the Legislature was aware of this case law when it chose to pattern the Massachusetts Civil Rights Act after Sec. 1983. Packaging Indus. Group v. Cheney 380 Mass. 609 611 405 N.E.2d 106 (1980). Furthermore the Supreme Court already had established the basic two-part test for determining to what discretionary functions the doctrine of qualified immunity applies. That test involved an objective element a presumptive knowledge of and respect for basic unquestioned constitutional rights and a subjective element whether the official actually knew that the law forbade the conduct. Wood v. Strickland supra at 321-322. Subsequent Supreme Court cases have elaborated on this standard but none has changed its basic test. See e.g. Anderson v. Creighton 483 U.S.635 97 L. Ed. 2d 523 107 S. Ct.3034 (1987); Harlow v. Fitzgerald 457 U.S.800 818 73 L. Ed. 2d 396 102 S. Ct.2727 (1982). We have had no occasion to consider whether it is appropriate under the Civil Rights Act to adopt all of the current Supreme Court precedent under Sec. 1983. However for purposes of this case we can say that public officials are not liable under the Civil Rights Act for their discretionary acts unless they have violated a right under Federal or State constitutional or statutory law that was clearly established at the time. See Anderson supra at 3038-3039. Thus with regard to the plaintiff's claim under the State Civil Rights Act we must consider whether the relevant law was clearly established when Duarte was subjected to urinalysis in April 1985.

2. Immunity under G. L. c. 12 Sec.(s) 11H & 11I. "Under Harlow v. Fitzgerald 457 U.S.800 818 73 L. Ed. 2d 396 102 S. Ct.2727 (1982) the doctrine of qualified immunity applies only to 'discretionary functions.'" Dobos v. Driscoll 404 Mass. 634 646 537 N.E.2d 558 (1989). In light of our prior decisions (see preceding discussion) we apply the same principle to alleged violations of the State Civil Rights Act. Thus we must decide whether the acts of these defendants were discretionary and if so whether they retain the protection offered them by the doctrine of qualified immunity. Even defendants who violate constitutional rights enjoy a qualified immunity that protects them . . . unless it is further demonstrated that their conduct was unreasonable under the applicable standard. Davis v. Scherer 468 U.S.183 190 82 L. Ed. 2d 139 104 S. Ct.3012 (1984).

We conclude that the acts of the defendants herein were discretionary under our State Civil Rights Act. The United States Supreme Court has stated that under SEC. 1983 [a] law that fails to specify the precise action that the official must take in each instance creates only discretionary authority. Id. at 196-197 n.14. We hold that the same is true under our Civil Rights Act. *fn3 At the time the defendants formulated their drug testing policy no Federal or State constitutional statutory or regulatory provision specified or precluded the precise actions that the defendants Healy and Scott took. Furthermore the drug testing policy by urinalysis was one in which both defendants had a substantial measure of discretion in development and implementation. See Thorne v. El Segundo 802 F.2d 1131 1138 n.7 (9th Cir.1986) (plaintiff who took position that city manager was only person with discretionary authority over hiring misconceived notion of ministerial duty).

As we noted above the defendants are not liable for their discretionary acts unless their actions violated Duarte's rights that were "clearly established" under the relevant law. In this case Duarte must show that it was clearly established that a drug testing policy such as the one here at issue violated the constitutional rights of the persons being tested. We can discern no such clearly established law.

As to Duarte's claim under art. 14 of the Massachusetts Declaration of Rights we have decided only recently with any specificity what standards apply to urinalysis. Bally v. Northeastern Univ. 403 Mass. 713 532 N.E.2d 49 (1989). Horsemen's Benevolent & Protective Ass'n v. State Racing Comm'n 403 Mass. 692 532 N.E.2d 644 (1989). *fn4 Certainly in April 1985 the law of this State was not clearly established that the urinalysis policy adopted and implemented by the defendants herein violated art. 14.

As to Duarte's claim under the Fourth and Fourteenth Amendments to the Federal Constitution the law also was not clearly established that a urinalysis policy such as that here at issue would violate Duarte's rights. Prior to April 1985 there was relatively little case law on the subject and some of the cases upheld such drug testing. See e.g. Division 241 Amalgamated Transit Union (AFL-CIO) v. Suscy 538 F.2d 1264 1267 (7th Cir.) cert. denied 429 U.S.1029 50 L. Ed. 2d 632 97 S. Ct.653 (1976); Allen v. Marietta 601 F. Supp.482 488-492 (N.D. Ga. 1985). Furthermore from shortly after that time until the present courts have continued to disagree and some courts have upheld urinalysis in circumstances similar to those here at issue. Compare those cases holding similar testing unconstitutional cited in Horsemen's supra at 699 with Turner v. Fraternal Order of Police 500 A.2d 1005 1009-1011 (D.C.1985) (Nebeker J. concurring) (stating that urine collection is similar to voice and handwriting exemplars which are not within an individual's expectation of privacy) and Jones v. McKenzie 266 U.S. App. D.C.85 833 F.2d 335 (D.C. Cir.1987) (drug testing of school bus attendants without individualized suspicion is constitutional). Last the decisions of the United States Supreme Court which give guidance were not decided until 1989. See Skinner v. Railway Labor Executives' Ass'n 489 U.S.602 (1989) (103 L. Ed. 2d 639 109 S. Ct.1402 [1989]); National Treasury Employees Union v. Von Raab 489 U.S.656 (1989) (c103 L. Ed. 2d 685 c109 S. Ct.1384 [1989]).

3. Discretionary functions at common law. We next consider whether the defendants are immune at common law for their violation of Duarte's rights under the Privacy Act. The Court below decided that the defendant Healy's actions were discretionary under Gildea v. Ellershaw 363 Mass. 800 820 298 N.E.2d 847 (1973). We agree.

The Court found that it was Healy who decided to adopt the policies of urinalysis and of termination for fire fighters who tested positive for cocaine based on information about urinalysis and consideration of the effects of cocaine. These policy determinations in 1985 were acts of discretion. See Irwin v. Ware 392 Mass. 745 467 N.E.2d 1292 (1984). The Court found that Healy and Scott acted in good faith. Healy is immune from any claim arising from a violation of Duarte's rights under the Privacy Act. *fn5

We disagree with the Court below however that the defendant Scott is not immune. The Court stated that Scott is not protected by the immunity afforded discretionary functions because he merely was carrying out a policy that already had been established by the defendant Healy. As we noted in Patrazza v. Commonwealth 398 Mass. 464 468-469 497 N.E.2d 271 (1986):

"'[T]he "discretionary function or duty" . . . includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.' United States v. Varig Airlines [467 U.S.797 811 81 L. Ed. 2d 660 104 S. Ct.2755 (1984)] quoting Dalehite v. United States [346 U.S.15 35-36 97 L. Ed. 1427 73 S. Ct.956 (1953)]." (Emphasis added.)