PURPOSE:

The purpose of this report is to request City Council consideration of a voluntary drug and alcohol testing policy for City Council Members.

BACKGROUND:

At the November 15, 2005 City Council meeting, the Council, responding to public comment, asked staff to agendize an opportunity for the Council to consider the issue of drug  testing of Council Members.  As part of the Council�s consideration, it was noted that in May of 1997, the Council had previously discussed the issue of mandatory drug testing of Council Members.  It was concluded by the City Attorney�s Office that based on several United States Supreme Court cases mandatory drug testing of elected officials was not permissible.

Following the presentation of that 1997 report, the Council voted 3-2 directing staff �to prepare an Administrative Procedure for voluntary drug and alcohol testing of elected officials, on a random basis, and that such policy include a process for reporting the results to the public.�  Subsequently in July of 1997, a draft voluntary random drug and alcohol testing program was presented.  However, the City Council voted 3-2 against the implementation of such a program.

After reviewing the previous information on this matter, the Council, at the November 15, 2005 Council meeting, directed staff to return with a drug and alcohol testing policy for City Council Members.  They further asked for information regarding whether or not any such policy could be made applicable to the other Elected Officials (City Clerk and City Treasurer) as well as the Appointed Officials (City Manager and City Attorney).

In a separate memorandum (attached to this report at Exhibit A) the City Attorney�s Office has advised that while the Council cannot legally require suspicionless mandatory drug and alcohol testing of City Council Members, Elected Officials and Appointed Officials, they can establish a drug and alcohol testing process for Council Members to voluntarily participate in.  It would be a violation of the law, however for the Council to require Appointed or other Elected Officials to submit to this process.     

ANALYSIS:

Prior to discussing the draft policy that has been written for the Council Members, it is worth noting that the City already has a drug and alcohol testing program for prospective or existing employees. The City�s process in short provides for three components: 1) A pre-employment drug screening program which is intended to screen out illegal substance abusers as well as those who might be under the influence of alcohol; 2) A reasonable suspicion policy which allows the City to test any employee who is believed to be under the influence of either alcohol or a controlled substance; and, 3) Participation in a federally mandated Department of Transportation (DOT) random drug and alcohol testing program for all City employees required to possess a Class A or B driver�s license.

While the City�s drug and alcohol testing policy has been effective, it legally cannot be applied to the Council Members.  Thus, staff has prepared a draft drug and alcohol testing policy for Council Members (attached as Exhibit B) consistent with the legal guidelines outlined by the United States Supreme Court and the California Supreme Court and set forth in greater detail in the City Attorney�s memorandum.  As required by law, this draft, which has been prepared for the purposes of discussion only, is designed to provide the Council Members with the opportunity to participate in a purely voluntary and random testing process.  In preparation of this draft, staff has developed a series of questions for the Council to consider, discuss and provide direction on.  The following is a summary of the highlights of the draft policy.

Definition of Council Member:

For the purposes of this policy, the term City Council Member will include those members who are either elected or appointed to fill a vacancy on the Council.

Definition of Controlled Substance:

For the purposes of this policy, the following illegal drugs as defined in the California Health and Safety Code will be tested for: marijuana, cocaine, opiates, amphetamines and phencyclidine (PCP).

Testing Procedure:

The names of two Council Members will be selected randomly for testing by the City�s Department of Transportation (DOT) computer program on any Tuesday when the Council is scheduled to meet.  This selection would occur once every two months. Council Members who are selected but were tested in the prior two months shall be passed over and another name selected.  By offering the testing every two months, this would ensure that all Council Members would be tested at least once each year.  The testing could also be done more or less frequently.    

Notification

The selected Council Members will be notified by 11:00 A.M. on the day of testing that their name has been selected.  They will be told of their selection and asked if they will volunteer for the testing protocol.  If they volunteer, they shall have until two hours prior to the commencement of the Council meeting to report to the designated testing clinic and submit the required urine and breath samples.

Testing Process

The testing process shall follow the DOT protocols.

Testing for Controlled Substances

At the testing facility the Council Member will be asked to fill out a form, agree to be tested, and produce photo identification.  The Council Member will then be taken to a restroom where the toilet contains blue water and the faucets in the sink will either be shut off or removed.  A container will be given to the Council Member for the collection of his/her urine.  This collection will take place in private.  When the collection is completed, the medical attendant will immediately place a tape across the top of the container to prevent tampering and the Council Member will then initial the tape.  The container�s contents will be observed for color.  A temperature strip on the side of the collection container will also be observed to note the temperature.  If either of these observations is not within the acceptable range established by medical protocol the test is deemed �Tampered� and the Council Member will be so notified.  No retesting shall be allowed at that time.  If the sample observations are within normal limits the sample will then be held until picked up in the next cycle.  A test performed late in the day may result in the sample not being picked up until the next day.

Once the certified lab receives the sample, a litmus test is performed.  If the results are negative a report of such findings will be made to the collection facility.  If the findings are positive, a confirmation test will be performed.  This highly sensitive and 99.99% accurate test is referred to as a GC-MS test or Gas Chromatography Mass Spectrometry Analysis. This test will either confirm the presence of a controlled substance and the amount present or it will refute the findings of the less sensitive and less accurate litmus test.  The test results, once reported to the collection site will then be relayed to the City Council Member.

Testing for Alcohol

Consistent with DOT regulations and City policy, the alcohol testing would be done using a breathalyzer. Only a result 0.08% or higher would be reported.  This is the level at which it is illegal to operate a motor vehicle.

Disclosure of Results/Participation:

Council Members have a right of privacy in every aspect of submission to a medical procedure and drug testing is considered to be a medical procedure.  As the Supreme Courts have determined in order to preserve this right of privacy, the drug testing process in all of its component parts must be a truly voluntary process.  In order for this to be a truly voluntary program, as required, the Council Member must voluntarily agree to the disclosure of:  1) whether he or she actually participated when his/her name was randomly selected; and, 2) what the results of the testing were.  The draft policy provides that at each stage the Council Member has the opportunity to agree or not to submit to the test and to the release of the information relating to this process.

CONCLUSION:

In developing this draft testing policy, staff attempted to find a sample policy that may have been contemplated or implemented in another city.  However, staff was unable to find anything as it would appear that no other city in the State has council members participating in a voluntary drug and alcohol testing program. 

As was previously stated, this draft voluntary drug and alcohol testing policy of Council Members is presented to the Council for the purposes of discussion.  The following are questions/alternatives to be considered by the Council:

Issue #1:         Do Council Members want to expand the list of drugs tested to a 10 panel survey?  This would include testing for an additional 5 categories of drugs, these include:  Barbiturates, Benzodiazepine, Methadone, Propoxphene, Mathaaqualone

It is important to note that should the Council choose to expand the testing, legally issued prescription medications show up as positives when a 10 panel survey is used. 

Issue #2:         Should testing occur on random days rather then on Council meeting nights?

Staff chose Tuesdays because it seemed most practical for Council Members who will be concerning themselves with City business that day.

Issue #3:         If a Council Member volunteers to disclose the results of the test, how should those results be disclosed?

Some options would include a written document, possibly the form from the testing laboratory, available for review in the City Council Office or an announcement at a Council meeting.  If the results were to be reported at a Council meeting, they would need to be properly agendized.  Further, if the results are reported at the Council meeting, who should actually report the results and at what time during the Council meeting?

Issue #4:         Should testing be done more or less frequently than every two months?

Staff selected a process of selecting two names every two months so that every Council Member would have the opportunity to be tested at least once during the year.  Because the name selection will be done randomly, there is no guarantee that the same name won�t come up every time.  That is why staff included a provision that if a member has been tested within the past two months, they will be passed and another name selected. 

Issue #5:         The current process anticipates using urinalysis for the drug test and breath analysis for the alcohol test.  Drug testing can also be done on blood and alcohol testing can be done on blood and urine.  Does the Council want to provide for the option of blood for drugs or blood or urine for alcohol testing?

RECOMMENDATION:

It is staff�s recommendation that the City Council consider the draft voluntary drug and alcohol testing policy of Council Members and provide staff with appropriate direction.

Respectfully submitted,

Judie Sarquiz

March 29, 2006 Memorandum

April 18, 2006 Memorandum

Draft Testing Policy