Attorney General says drug testing 100 percent of GovGuam workers is unconstitutional, but cites exc
Guam Attorney General Elizabeth Barrett-Anderson
A request from a Guam lawmaker to clear up questions about across the board drug testing of government employees led to some confusion as Attorney General Elizabeth Barrett-Anderson's office issued two news releases on her opinion.
Senator Telena Nelson, Chair of the Committee on Public Safety, asked for the opinion last month: "Before we introduced any legislation regarding drug testing, we requested a legal opinion so that any legislation introduced upholds the Constitution and complies with federal laws," Senator Nelson wrote.
In a Tuesday morning news release, AG Barrett-Anderson stated that random drug testing of 100 percent of all government of Guam employees is a violation of the Fourth Amendment of the United States Constitution.
“In order to pass constitutional muster, the government employer has the burden of demonstrating a ‘special need’ to conduct suspicionless searches beyond crime detection,” Barrett-Anderson said.
"Random drug testing based on a general need to deter drug use by government employees, or broad stroke legislation to institute random drug testing of all government of Guam, is not constitutional," according to the release.
But an earlier version of the release added more detail to Barrett-Anderson's opinion and cited important exceptions to the ban on drug testing without suspicion.
"In certain circumstances, however, employees may be drug tested at any time. Government employees who hold Test Designated Positions- such as police, police guards, drug counselors, and aviation workers- are not protected under the Fourth Amendment. This is based on a decision by the Supreme Court of California who [sic] found that positions involving the interdictions of drugs, the carrying of firearms, and the handling of highly sensitive information were such important government interests it justified suspicionless drug testing as [sic] the workplace."