A proposed random drug testing program for Tybee Island's elected and appointed officials blew into City Council chambers in April as one of the spring's first political storms. But just before Memorial Day weekend, council members decided the drug testing idea was ridiculous and killed it off. The underlying fairness issue--that politicians should practice the sobriety so many of them preach--entitled the idea to the few weeks of study that it got. But the likelihood that drug testing would be misused as an election-year war club means the proposal probably lived as long as it deserved to.
In any case, the proposed program got spiked May 22 at the sleepy tail end of a three-hour meeting, after City Attorney Edward M. "Bubba" Hughes reported, among other complications, that the results of public officials' drug tests--unlike the confidential random testing required of some city employees--would have to be made public under open records laws. Hughes also noted that the testing characteristics of some "lawful medicines" mimic those of some illegal drugs.
Drug testing of public officials would have to be voluntary and penalty-free--the U.S.Supreme Court settled that question in 1997. But random selection would still have been used to determine which officials were asked to supply urine samples, and when.
Councilwoman Wanda Doyle said, "I have some big concerns" about being summoned from her day job to go to submit a sample at City Hall.
After a few minutes of discussion, Councilman Eddie Crone seemed to speak for most council members: "If we're going to go through this mess, we need to just drop it." Council ultimately did just that, when a motion to have Hughes continue researching the testing proposal died for lack of a second.
By that point, the idea's only supporter was Councilman Dick Smith, who reminded council members that they had all promised, at a candidate's forum last fall, to submit to drug testing. "You sat here--you said you would do it," Smith said.
"I'll plan to pee in a cup for you," Mayor Jason Buelterman said.
Sarcasm aside, council members' decision to drop the drug testing idea implied their belief that failure to pee into a cup was not something voters would punish them for when they all come up for reelection in 2009.
They're probably right. Yet the fairness issue that motivated the testing idea, while arguably political in itself, was not ridiculous in itself. Shouldn't politicians be willing to submit to the same random testing required of some city employees, and of all applicants for city positions? Indeed, Madison County commissioners decided to undergo such testing in mid-May, according to the Athens Banner-Herald, after ruling that 10 percent of county employees must undergo quarterly random testing (this ruling followed the discovery that only one employee had been tested in the previous three years).
Besides the Tybee candidates' promises at the fall forum, support of "random drug testing for elected officials" was one of 20 points on a position sheet that most council candidates signed before the elections last fall.
Hughes, interviewed the week before the May 22 meeting, echoed Smith's positions on the fairness issue: "In general, employees resent the fact that employees are subject to testing but elected officials are not."
City employees' testing hurdles; LUI?
People on Tybee's regular payroll face an array of random and non-random testing provisions, Hughes explained in the interview. As with most municipalities, candidates for city jobs have to pass pre-employment drug testing just to be hired. After that, the city has random testing provisions that involve "certain job duties." One big reason is to avoid physical injuries if a job is potentially dangerous. "Security sensitive" positions could also be included in random testing, Hughes said, such as with some positions in the police department. "You would want to know if someone who had custody of drugs might be using them," he said, though, as far as he knows, "that hasn't been a problem" for Tybee Island.
In addition, Hughes said, "you are potentially subjected to random testing if you regularly operate a city vehicle," or to "post-accident testing" if there's a vehicle accident that may have been the employee's fault. There is also "reasonable suspicion testing" if an employee acts as if he or she might be under the influence of a mind-altering drug.
That raises another issue--also legitimate in itself--about drug testing public officials. Wouldn't random drug testing guard against anyone pulling an LUI--that is, legislating under the influence?
"Decisions involving large sums of money are best made with a clear head," Hughes pointed out. "Whether it's large sum of money or a decision involving the future of the island."
Councilman Charlie Brewer, during the May 22 discussion, suggested one rationale for drug testing officials would be if a council member showed up impaired and began "talking in tongues." Could a colleague then have that person subjected to testing? No, Hughes said, because the testing would be neither random nor voluntary in that case.
Perhaps the strongest argument against drug-testing officials: that it could have trivialized future City Council races, as candidates publicly dared each other to fill up that jar.
At least one council member, Paul Wolff, considered the proposed policy to be political from the start. At an April meeting, he was quoted by the Savannah Morning News as saying the proposal "might be targeting those who might look like hippie dope-smoking people." Contacted afterward, he confirmed that he meant himself. "They're playing on public perceptions rather than issues." In this case, the perception is that, because he has long hair, he must be a drug user. "I don't do illegal drugs. I wouldn't do anything to impair my capacity to serve the citizens of Tybee. I think it's all a political maneuver."
Wolff, an avid student of climate change and of sustainable "green" development, is the only council member perceived as strongly pro-environment who won re-election last fall; two others, Kathryn Williams and Mallory Pearce, were unseated, and Shirley Sessions chose not to seek reelection. Since January, Wolff said, he has found himself politically isolated on real estate development issues surrounding an island he considers ecologically stressed and "just about built out.
"I do feel kind of lonely up there, but I'm doing my best to represent the people," said Wolff, who has differed with other council members on such issues as the lot density of new condominiums (so far, though, he and they agree on keeping a 35-foot building height limit--assuring the beachfront won't sprout high-rise hotels anytime soon).
The 20-point paper, which Wolff says he didn't even see until January, failed to specify whether random drug testing of officials was to be voluntary or not. When he said yes at the fall forum when asked if he would agree to be drug-tested, he said, "that was before I knew that mandatory drug testing for elected officials was unconstitutional."
The Court has spoken
The U.S. Supreme Court, deciding that point in the Georgia case Chandler vs. Miller that it heard in 1997, voided a state law requiring that candidates for state office pass a drug test. The court even suggested that political reasons--though it chose the word "symbolic" instead--were not enough to justify the law's use of "suspicionless searches" and violation of the Fourth Amendment's protections against "unreasonable" search and seizure: "Georgia asserts no evidence of a drug problem among the state's elected officials[;] those officials typically do not perform high-risk, safety-sensitive tasks, and the required [drug-free] certification immediately aids no [drug] interdiction," reads an excerpt from the court's opinion, as quoted on the Website of the American Civil Liberties Union, which had filed a "friend of the court" brief opposing the Georgia law. "The need revealed is symbolic, not 'special.' The Fourth Amendment shields society from state action that diminishes personal privacy for a symbol's sake."
Hughes also hadn't figured out how to put alcohol into the equation. Several council members had previously urged including it in the random testing, but the attorney didn't relish the prospect of a Breathalyzer being passed around City Hall: "There's nothing random about everyone queueing up before a council meeting." And if testing occurred, would the legal DUI limit of .10 percent blood alcohol content have applied? Or would a council member registering even a trace of alcohol from a drink or two at dinner have to be sent home?
Weirder yet, could public officials get in trouble over what they ate for dinner? "I heard that biting into a poppy seed roll tests positive for opiates," said David Postle, a member of the planning commission and one of the appointed board and commission members who could have faced random voluntary testing under the proposal. "I've got mixed feelings" about that idea, Postle said a few days before the May 22 meeting. "I've got nothing to hide [and] . . . I do not have a problem with candidates for elective office, or for appointive office, agreeing to tests." On the "mixed" side: "What you do in the privacy of your own home is your own business."
THE 20-POINT PLEDGE
Random drug testing was Point 11 of the list that most Tybee City Council candidates signed last fall under the heading: "20 Reasons to Vote for These Candidates." The complete list follows:
"1. I support and will uphold Tybee's Master Plan.
"2. I pledge to inform and seek approval from our taxpayers on major issues and expenditures.
"3. I am opposed to spending tax dollars on the proposed skateboard park without a feasibility study and will not support expansion of, or any additional tax dollars toward, the park if built.
"4. I am opposed to using the green space in our parks for the construction of a skateboard park.
"5. I am opposed to the current location of the dog park.
"6. I pledge to be an open and transparent council person with no personal agenda and to treat all persons coming before council with dignity.
"7. I support beach renourishment and will work to get more local, state and federal dollar support.
"8. I will work toward and support legislation to reduce property taxes, including a school tax exemption for citizens at age 65.
"9. I support the state and federal shore protection acts for Tybee.
"10. I am opposed to CAT (Chatham Area Transit) bus service to Tybee Island.
"11. I support random drug testing for elected officials.
"12. I support a noise ordinance for Tybee Island.
"13. I support a property owner's right of access to their property unless so restricted on their deed.
"14. I will uphold the 35-foot limitation on the height of buildings on Tybee.
"15. I support the enforcement of Tybee's building codes but oppose Tybee's government dictating the design and size of your house.
"16. I support the current land development codes of Tybee Island.
"17. I support the right of the voters to choose a two- or four-year term for elected officials.
"18. I support Tybee's business community and will work toward solutions that will benefit and enable our business community to remain viable.
"19. I pledge to protect and improve our infrastructure--roads, drainage, water supply.
"20. I support balance between the protection of our environment and individual property owners' rights."