Should Florida public officials be drug tested? One lawmaker thinks so

TALLAHASSEE — A proposal in the state House could require all Florida elected officials — from a city councilman to a congressman — to be drug tested.

HB 1435, or the Drug-Free Public Officers Act, sponsored by Rep. Dane Eagle, R-Cape Coral, requires public officers to be drug tested within 60 days of taking office or being re-elected. A public officer is defined in the bill as an individual holding federal, state or local office.

If that test comes back positive, the person would be referred to a treatment program. Those who refuse to take the drug test must resign.

Eagle’s proposal comes three months after then- U.S. Rep. Trey Radel, R-Fort Myers, pleaded guilty to a possession of cocaine charge. Radel received a year of probation and no jail time. He resigned in January after repeated calls for him to step down.

Radel’s drug charges prompted Eagle to file the bill. He said in the weeks following the news, he was approached by constituents about whether he would back drug testing of public officials.

“I ran for class president at Bishop Verot High School and I was drug tested. I worked at Walgreens on Colonial Boulevard (in Fort Myers) and I was drug tested. I worked in the governor’s office and I was drug tested. So I was surprised, now that I represent 160,000 people in the Florida House of Representatives, that I’m not,” he said.

“It’s something I’ve always supported, and unfortunately when our congressman was (charged) with cocaine possession, there was an air of distrust among constituents and elected officials,” Eagle said. “A lot of people were calling for drug testing, so it was something I visited and explored.”

While the proposal may sound like a simple idea, legal experts said Eagle’s proposal is fraught with potential legal problems.

“The Supreme Court has held the Constitution’s age, citizenship and residency requirements for the Senate and House are exclusive and the state cannot alter or add to them,” said Franita Tolson, a professor at Florida State University College of Law who specializes in election and constitutional law. “By making drug testing a requirement for holding federal office then the bill arguably violates the Constitution because it tries to supplement the qualifications required for federal office.”

States have tried to tack on qualifications, such as term limits or additional residency requirements, for federal officeholders in the past, but Tolson said they have been struck down since the Constitution specifically lays out the qualifications.

The notion that states can’t add qualifications to those seeking federal office may not be the only hurdle Eagle’s proposal would have to overcome.

Tim Tracey, an associate professor at Ave Maria School of Law, said a public records exemption further complicates the proposal.

In addition to the Drug-Free Public Officers Act, Eagle has proposed HB 1437, a public records exemption related to the drug testing bill. That proposal would exempt the results of the drug tests from the state’s Government in the Sunshine Law.

“The purpose isn’t to ruin anyone,” Eagle said.

But shielding the results from the public is tricky, Tracey said. Georgia passed a similar law in 1990 that requires candidates for certain state offices be drug tested. That law also had an exemption, but Tracey said the exemption — along with the law — eventually was struck down by the Supreme Court.

“The one thing that is odd is everything remains private especially since it sounds like it is being couched with ‘as elected officials we should be setting an example,’” Tracey said.

The proposal could also face challenges because it may violate the Fourth Amendment, which prohibits unreasonable searches. Tracey said the proposal could be viewed as the state trying to search people without a reasonable suspicion.

Both Tolson and Tracey reviewed the initial draft of Eagle’s law at the request of the Naples Daily News.

Eagle isn’t deterred by the naysayers.

“I’m very hopeful. I’m obviously passionate about it. I support it wholeheartedly,” he said. “Sometimes things take more than one year, but I’m always going to fight to try and get it done on the first try.”

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