Legislature(1993 - 1994)
03/01/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 2 - DRUG TESTING FOR SCHOOL BUS DRIVERS CHAIRMAN PORTER announced that HB 2 was the next item of business before the committee. Number 332 REP. GAIL PHILLIPS, PRIME SPONSOR of HB 2, stated that the bill would require drug and alcohol testing for school bus drivers. She said that she had introduced HB 2 at the request of her constituents and as a result of incidents on the Kenai Peninsula, to help ensure the safe transportation of children to and from school. She noted that she had originally sponsored the bill in 1992, but that bill died in the House Finance Committee. REP. PHILLIPS said HB 2 would require a school district or a Regional Educational Attendance Area (REAA) to establish a drug and alcohol testing program, including random testing, if the district or REAA provided transportation for students. She commented that this type of testing was already provided for under current law, in the event of an accident or when reasonable cause existed. She added that HB 2 required that the Department of Education promulgate regulations for implementing the program and creating a hearing process before discipline was imposed. She said HB 2 would go into effect 90 days after it is signed into law by the governor. REP. PHILLIPS called the members' attention to a memorandum from TERRY CRAMER, of the LEGAL SERVICES DIVISION of the LEGISLATIVE AFFAIRS AGENCY. In her memorandum, Ms. Cramer acknowledged that a school bus driver could challenge the testing without probable cause. Ms. Cramer's concern pertained to the random testing aspect of HB 2. Ms. Cramer's memorandum pointed out that there was precedence in that some courts had already ruled that random tests were acceptable without probable cause, in cases where employees' expectations of privacy were lessened because of the type of employment and where the public interest was sufficiently great. REP. PHILLIPS noted that some states already had laws similar to HB 2 on the books. She concluded by saying that, in her opinion, there was no greater public interest than the safety of children. She added that Alaska already required the testing of commercial transporters: pilots, train engineers, etc. Number 376 REP. JAMES asked what the fiscal note would be paying for. Number 379 REP. PHILLIPS replied that the figures on the fiscal note reflected the cost of conducting the drug and alcohol testing. Number 383 REP. JAMES commented that her husband was a school bus driver and a tour bus driver. She noted that the tour bus company already did drug testing, and said that if the state took over drug testing, the tour company would benefit by not having to pay for testing any longer. She said she did not understand why the bus companies could not pay for the testing. Number 389 REP. PHILLIPS responded that under federal law, the commercial bus companies were required to provide drug testing. She added that there was no law that said the state had to provide drug testing for school bus drivers. Number 393 REP. JAMES stated that she supported the testing of school bus drivers. However, she did not support the state picking up the tab for the testing. Number 401 REP. PHILLIPS commented that the state could not demand that the private companies pay for and administer drug testing for school bus drivers because there was currently no state law requiring that testing. REP. JAMES asked if the law could be written so that the private companies would have to pay for the testing. Number 405 REP. PHILLIPS said that would result in a state-mandated program, without compensation from the state. Number 411 CHAIRMAN PORTER noted that not all school bus drivers were employed by private companies. In Anchorage, half or more of the school bus drivers were employed by the Anchorage School District. Number 418 REP. PHILLIPS stated that she imagined that was the case in every smaller community off of the main road system. CHAIRMAN PORTER commented that public budgets would be impacted if the state chose not to pay for the drug testing. Number 428 REP. KOTT said HB 2 did not include a good definition of "random testing." He stated that his understanding of random testing was that the entire population of school bus drivers would not be tested at the same time. Number 440 CHAIRMAN PORTER said that his understanding was that the randomness referred to all of the employees of a particular school district being tested on a particular, random day. Number 449 REP. JAMES stated that she did not see how an entire district the size of Anchorage could be tested all on the same day, but she added that she did support random testing. Number 457 REP. KOTT said that under HB 2, if a district was tested once in January, the likelihood of tests being repeated during that calendar year was slim. He spoke about random testing by the military, where not everyone was tested at once, but everyone knew that it could happen at any time. REP. PHILLIPS commented that the fiscal note could be increased to provide for the type of program that Rep. Kott had mentioned. Number 472 CHAIRMAN PORTER said that the fiscal note would not necessarily have to be increased, but could possibly be decreased. He noted that the whole idea was to make drivers think that it was likely that they would be tested. Number 480 REP. PHILLIPS read from the Department of Education's position paper, which said that as a minimum, all drivers should be tested prior to employment and annually. The latter test would be considered random. All drivers in a given district would be tested on the same, unannounced day. Districts would be selected randomly, with each district selected at some time during each year. Additional testing would be done after an accident and when reasonable cause existed. Number 489 CHAIRMAN PORTER noted that Rep. Phillips' comments were exactly why Rep. Kott's observation was correct. He said that if the Anchorage School District was tested once during a year, there would be no more likelihood that the drivers within that district would be tested again during that year. He said the committee could ask the Department of Education to come up with a real, random testing program. Number 500 REP. JAMES indicated her wholehearted support of drug testing for school bus drivers. However, she noted her belief that having the state conduct the testing program was not terribly efficient or cost-effective. She said it made sense to require the employers, whether they were a municipality or a private company, to do the random testing. Number 523 REP. GREEN mentioned that his prior employer had used random drug testing whereby an employee, once tested, had no idea when her or his next test would occur. He added that his employer had some problems with the drug testing program and the right to privacy. He said he would like to hear some testimony on how drug testing would mesh with an individual's right to privacy. Number 538 REP. PHILLIPS commented that five other states had already passed laws similar to HB 2, and if right to privacy issues were involved, the other states' laws would have been challenged already; which they had not. Number 542 REP. KOTT asked if those five other states had right to privacy provisions in their constitutions. Number 547 GAYLE HORETSKI, COMMITTEE COUNSEL TO THE HOUSE JUDICIARY COMMITTEE, said she had not done any independent research on the issue before the committee. She called members' attention to a memorandum from Terry Cramer of the Legal Services Division in their packets. In her memorandum, Ms. Cramer discussed three cases, one of which was a recent Ninth Circuit Court of Appeals case. She noted that in that particular case, the court had approved a pre-employment, post-accident, and biannual drug testing program for drivers operating certain motor vehicles. In that ruling, the court had considered the seriousness of the harm in the event that the driver was impaired. That court balanced the rights of the drivers with the public policy right that roads and passengers be safe. MS. HORETSKI spoke about another case cited in Ms. Cramer's memorandum, which was the sole Alaska case that Ms. Horetski was aware of. In that case, she said, a private company had implemented a random drug testing policy. She noted that the court had allowed that policy to stand. Ms. Horetski pointed out that the case involved a private company, so constitutional protections like the right to privacy were not at issue. Number 586 CHAIRMAN PORTER asked Ms. Horetski if it would be prudent to come up with some findings that indicated the seriousness of the problem of impaired school bus drivers. Number 590 MS. HORETSKi said she thought it would be a good idea and would strengthen the law's chances of being upheld by a court. Number 604 CHAIRMAN PORTER asked if there was a distinction between applying HB 2 to existing employees as opposed to future employees. MS. HORETSKI expressed her opinion that there was no distinction. Number 612 CHAIRMAN PORTER said that he was thinking about the expectation of privacy for employees who had taken the job not expecting drug testing, as compared to employees who took jobs knowing that they would be tested. MS. HORETSKI said that the court would likely reject that distinction. REP. GREEN said he believed that his prior employer had gotten around the right to privacy issue by requiring random drug testing for employees operating equipment that could hurt themselves or others. He commented that the same rationale would hold for school bus drivers. Number 627 REP. PHILLIPS stated that it did not matter who paid for the drug testing, as in the end, the state would end up paying for it. If a contractor was required to conduct drug testing, she said, the contractor would simply tack that cost on to the cost of the contract. REP. KOTT asked if HB 2 was in response to an existing problem. Number 640 REP. PHILLIPS noted that the issue had been brought to her attention because of several incidents on the Kenai Peninsula. She said she had been mortified to learn that the state required drug testing for state-licensed commercial bus drivers, but not for school bus drivers. Number 650 CHAIRMAN PORTER asked if it would be easier to require school bus drivers to have a commercial driver's license. REP. PHILLIPS said that the ramifications for federal funding would need to be researched. REP. PHILLIPS stated that the law required commercial, interstate drivers to be drug and alcohol tested. She added that the Alaska Trucking Association had come out in support of HB 2, because all of its drivers were required to be tested. She commented that some of these drivers probably just drove within the state, from Anchorage to the North Slope, for example. She said that the committee could check into the idea of requiring school bus drivers to get commercial drivers' licenses and therefore be tested for drugs and alcohol. Number 665 REP. JAMES mentioned that her husband was licensed to drive any type of a bus, or a truck and a trailer. Her husband's employer required random drug and alcohol testing, she added. Number 672 MS. HORETSKI called the members' attention to a memorandum from the Department of Education, dated February 10, 1993. She stated that the federal government required drug testing for interstate transportation. She added that drivers of buses with more than 15 passengers in Alaska were required to possess a commercial driver's license. Therefore, she said, some bus drivers would be required to have commercial driver's licenses and some would not. She noted that state requirements were the result of a federal mandate. She added that the state had no option in terms of defining commercial motor vehicles. CHAIRMAN PORTER said that if HB 2 were enacted, it would be redundant with existing state law, except for drivers operating school buses with fewer than 15 passengers. REP. PHILLIPS responded that many areas of Alaska had school bus drivers carrying fewer than 15 passengers, particularly special education buses. Number 730 REP. JAMES reiterated her support for drug testing school bus drivers. She expressed her concern regarding the state performing and paying for the testing. She said that she would like to see HB 2 define "random testing." Number 754 ROMAYNE KAREEN, from the DEPARTMENT OF EDUCATION, appeared before the committee to answer questions. Number 760 CHAIRMAN PORTER asked Ms. Kareen if the department would find it difficult to configure a drug testing program along the lines that the committee had been discussing. Number 770 MS. KAREEN said that she agreed with the concerns of the committee members. She added that the fiscal note was based on certain assumptions, but no firm plans for implementing HB 2 were in place. She noted that the department would be flexible in its thinking regarding random drug testing. Number 784 CHAIRMAN PORTER asked if the wording of HB 2 precluded the department from contracting out the drug testing program. Number 789 MS. KAREEN said the bill would not preclude the department from contracting the testing program out. Number 791 CHAIRMAN PORTER asked if it would be Ms. Kareen's intent to contract out the program. Number 792 MS. KAREEN said that was her intent, and it was taken into consideration when the fiscal note was prepared. She mentioned that the state of Delaware contracted out its drug testing program and found the contract to be effective. REP. GREEN asked Ms. Kareen if there was a "chain-of- custody" problem for drug testing samples taken in rural areas. Number 808 MS. KAREEN said the department would adopt regulations spelling out procedures for the drug testing program. She added that Rep. Green's concern had been taken into consideration in terms of the overall cost of the program. TAPE 93-25, SIDE B Number 002 CHAIRMAN PORTER noted that there needed to be reasonable controls on samples, but that the controls would not be as strict as those required for evidence in a criminal case. He said that in dismissing a driver, it would have to be shown that reasonable controls had been used on the samples. Number 027 MS. KAREEN noted that Tundra Tours, which provided transportation for students, required drug testing in the event of an accident, whether or not the driver was at fault. She added that another contractor, Mayflower, did pre-employment testing. However, she noted that one never knew who would win a contract in a particular area. She stated that there was no consistency in drug testing policies of particular companies. Number 056 REP. PHILLIPS said that the concerns raised by the committee could be incorporated into a letter of intent that would convey to the department how the legislature intended for the drug testing program to be implemented. Number 060 REP. JAMES asked Ms. Kareen if she felt that "random testing" ought to be defined in HB 2. Number 069 MS. KAREEN replied that it depended on how strongly the Legislature felt about the issue. As the administrator of the school bus program, she said that she agreed with the committee's concerns. Number 101 CHAIRMAN PORTER commented that if the department were to conduct random tests along the lines that the committee had been discussing, there would be a wide latitude in terms of volume of tests performed. He noted that the number of tests done every year would go hand-in-hand with the program's deterrent effect. Therefore, he suggested that a sufficient number of tests be done every year so that the deterrent effect would kick in. Number 121 REP. DAVIDSON asked if the testing could be done locally. Number 125 CHAIRMAN PORTER said that the testing could be done locally. Number 136 REP. DAVIDSON noted that contracting with local health care providers would result in more random sampling. He stated that people should not be under the impression that the legislature was creating a police state, but that a message should be sent that the state wanted to ensure maximum safety for school children. He added that the best discipline was always self-discipline, and the responsibility for safeguarding public safety had to rest with the individual. He said he did not want to undermine privacy rights through drug testing of school bus drivers, but wanted to ensure the safety of children. He urged the committee to not get carried away. Number 185 REP. JAMES reiterated her concerns about the cost of implementing the program. She said that regulations should be written so that as much of the burden as possible rested on the shoulders of the employer, saving the state money. Number 199 REP. DAVIDSON commented that "you get what you pay for." He said, oftentimes, government tries to do things in the cheapest manner possible. He asked Ms. Kareen if there were cheaper, less reliable testing methods and more expensive, more reliable testing methods. Number 209 MS. KAREEN said that it depended on what sort of monitoring was done by the state. She expressed her opinion that adequate money should be provided to the department to do a good job. Number 225 REP. DAVIDSON emphasized his belief that testing should be done on the local level as much as possible. Number 231 CHAIRMAN PORTER commented that collection could often be done locally, but analysis likely could not. He said the most effective and least expensive form of analysis was done by large companies. He added that in nearly every community in the state, there were people capable of gathering samples; however, few communities had analysis facilities. He noted that there were two levels of testing recognized by the federal system, but the higher level and more expensive test would probably not be required for the state's purposes. He stated that he thought the department's fiscal note was a bit high due to the assumption of a return requirement for positive tests. Number 258 REP. JAMES noted her concern that most entities that employed school bus drivers also employed nurses, who could collect samples. Number 270 CHAIRMAN PORTER responded that the nurse, as a fellow employee of those being tested, could not be trusted to ensure the integrity of samples. Number 287 REP. DAVIDSON commented that there needed to be a fail-safe system for ensuring the integrity of samples. He noted that there was nothing worse than to be falsely accused or thought to be guilty of something that one was not guilty of. He said that he could envision a person who had never taken drugs or drunk alcohol being the victim of a mix-up in sampling. Number 316 CHAIRMAN PORTER stated that the department would probably want to contract with companies that were experienced in providing drug testing services. He noted that experienced companies had procedures for guarding against the kind of situation that Rep. Davidson had described. Number 341 MS. KAREEN stated that several states already drug test their school bus drivers, and Alaska could look to those other states when developing its program. Number 345 REP. DAVIDSON asked Ms. Kareen what problems she had heard of that other states had experienced. Number 350 MS. KAREEN said she had not extensively researched the subject. She stated that she knew that Delaware contracted with a large company to do all of its drug testing for school bus drivers. She added that she thought the testing was done district by district, or private contractor, by private contractor. MS. KAREEN commented that in Arizona, there was a hearing process when a school bus driver tested positive, before the driver's license was taken away. Number 370 REP. DAVIDSON noted that the more the legislature talked about things, the more they realized there was to talk about. He said it was important to gather information and to ensure that laws were not being made too quickly. He said that he would like to know about the experiences of other states that had implemented drug testing programs for school bus drivers. Number 389 REP. PHILLIPS said that the legislature need not look to other states when it could look within Alaska, at the drug testing system employed by the Alaska Marine Highway System. Number 397 REP. DAVIDSON asked Ms. Kareen if she had spoken with officials from the Alaska Marine Highway System. Number 399 MS. KAREEN replied that she had not. Number 402 CHAIRMAN PORTER said that HB 2 was an enabling statute, and he did not set out specific procedures for the drug testing program. He said that it was up to the committee if they wanted to set out procedures. Number 421 REP. JAMES asked if other school employees were currently drug tested. Number 423 MS. KAREEN said that she was not familiar with any programs for drug testing other school employees. Number 429 REP. JAMES expressed her opinion that all school employees should be tested. Number 433 CHAIRMAN PORTER noted that it was easy to articulate the need to drug test school bus drivers, but it would be less clear as to how a "high" janitor would endanger children. He commented that court cases looked at the infringement of privacy versus the public's interest. Number 453 FRANK DILLON of the ALASKA TRUCKING ASSOCIATION said that under current federal law, any driver who operated a vehicle with a gross vehicle weight rating of 26,000 pounds or more and was involved in the handling of interstate freight was required to undergo drug testing. He further defined interstate freight to include freight picked up from the Port of Anchorage and delivered within the Anchorage area. He added that the program had been in existence for about three years. MR. DILLON said that the Alaska Trucking Association ran a drug testing consortium program for its 900 members. He stated that the Alaska Trucking Association favored passage of HB 2, saying that his organization felt that it was incumbent on all commercial drivers to be as safe and as sane as possible. He said that they were looking forward to the federal government's announced move to cover all truck drivers for alcohol and drug testing within the next 18 to 24 months. Number 485 REP. GREEN asked if the Alaska Trucking Association's drug testing program was random. Number 490 MR. DILLON replied that his association's program followed federal guidelines, which required an initial biannual test along with a regular physical examination. He said that the drivers were then put into a pool, reformed every month, from which a certain number of drivers were randomly selected to receive drug tests. He said that it was conceivable under their program that a certain driver could be tested monthly. Number 506 REP. DAVIDSON asked Mr. Dillon what sort of testing worked, as far as keeping the drivers aware of their responsibilities. Number 515 MR. DILLON responded that the major element in keeping a truck driver "straight" was the fact that a positive test would result in the loss of the driver's job. Number 528 REP. DAVIDSON asked Mr. Dillon about the procedure his association used for drug testing. Number 539 MR. DILLON replied that some companies did testing at their terminal locations. However, most of the companies involved allowed a driver to route herself or himself to a collection site, which existed in 13 communities in Alaska. Personnel at these collection sites have been trained in using strict protocols when collecting samples to ensure the integrity of the samples. Number 550 REP. DAVIDSON asked Mr. Dillon if his association had had any problems with the mix-up of samples, or if any employees had protested the results of the tests. Number 551 MR. DILLON said that there was a procedure for persons who protested the results of their tests. He stated that his association used an outside testing laboratory with excellent accuracy. He said drivers had recourse if they felt that the results were inaccurate. Number 566 REP. JAMES asked Mr. Dillon who paid for the truck drivers' drug tests. MR. DILLON indicated that some companies paid for the tests, whereas other "owner-operator" truck drivers paid for their own tests. Number 582 CHAIRMAN PORTER stated that he would entertain a motion, as he felt that the committee had given the department substantial direction. Number 585 REP. PHILLIPS recommended that the department look into the Alaska Trucking Association's protocol for drug testing when writing the regulations. REP. JAMES asked how much money the state would be paying for testing that was already being conducted by private contractors. Number 601 CHAIRMAN PORTER questioned how the state could "tap" the tests that were already being done without having to repeat them. Number 606 REP. PHILLIPS said that records of tests done by private contractors could be incorporated into the state's records, and the state would therefore not need to test those private contractor drivers. She noted that this provision could be incorporated into the regulations and not the statute. Number 618 REP. PORTER commented that the committee was giving the department a great deal of latitude. REP. PHILLIPS suggested including the suggestion about private contractor testing records being accessed by the state into the letter of intent. Number 628 REP. JAMES asked Mr. Dillon if drug testing was required for drivers with commercial driver's licenses. Number 634 MR. DILLON replied that it depended on what sort of freight a truck was carrying and the vehicle's size. He said he believed that the federal government handled passenger carriers by the number of seats in the vehicle, as far as drug testing went. He said if the vehicle seated 15 passengers or more, the driver would have to undergo drug testing. Number 669 REP. JAMES asked if the Municipality of Anchorage drug tested its bus drivers. Number 671 CHAIRMAN PORTER indicated that he was not sure, but he did not believe the municipality drug tested its bus drivers. Number 677 REP. NORDLUND made a motion to move out HB 2 with individual recommendations and a Department of Education fiscal note. Number 681 REP. PHILLIPS suggested that the committee pass out an accompanying letter of intent that specified the legislature's expectations for the Department of Education's regulations. Number 687 REP. NORDLUND amended his motion so that the bill would be transmitted to the Chief Clerk's office pending the committee's approval of the letter of intent. Number 700 CHAIRMAN PORTER reported HB 2 out of the Judiciary Committee, with individual recommendations, a Department of Education fiscal note, and a letter of intent to be drafted and reviewed prior to the bill's transmittal to the Chief Clerk's office. CHAIRMAN PORTER announced that a joint Senate and House Judiciary Committee meeting would be held at 1:30 on the following Wednesday. The subject of that meeting would be confirmation hearings on certain appointees to boards and commissions. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 2:36 p.m.
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