[IVY]

Marshall woman embroiled in drug testing controversy
Wednesday, May 4, 2005
By Chris Post/Senior Staff Writer

A Marshall woman is at the center of a lawsuit challenging a state department's drug screening policy.
Dorn Schuffman, director of the Missouri Department of Mental Health, announced in an April 6 memo that the department would begin random drug testing in May. The department currently employs about 9,600 people, including the staff of the Marshall Habilitation Center.

In the memo, Schuffman states the testing is not intended to catch employees, but to ensure the department "provides the best care possible" to the people it serves and employees with drug problems were encouraged to seek treatment.

However, Schuffman also wrote, "It is the policy of this department to discipline -- up to and including dismissal -- employees who violate this drug-free-workplace policy."

In response, Amy A. Proctor, an employee of the Marshall Habilitation Center for 22 years, filed a federal suit Monday claiming the new testing policy violates employees' rights under the fourth and 14th amendments of the U.S. Constitution. Proctor is seeking a preliminary and permanent injunction to stop the testing.

Proctor is represented by Columbia attorney Dan Viets, who is associated with the Missouri chapter of the National Organization for the Reform of Marijuana Laws (NORML). In addition to general information about marijuana laws, the organization's Web site contains numerous articles including "Drug Testing Tips: Dealing With Urinalysis on Short Notice" and "Your Analysis is Faulty (How to lie with drug statistics)."

Viets said one problem with the mental health department's policy is the broad way in which it is to be applied to all employees. In addition to employees like Proctor who provide direct care to patients, department employees such as janitors would also be affected. "They don't provide care to anybody," said Viets of janitors.

Similar policies have been upheld if the agency requesting the test could show a special need that outweighs employees' rights to privacy. Viets said if the Department of Mental Health's policy meets this standard then every government agency would be able to claim a special need. "The exception swallows the rule," he said.

In the filing, Proctor also said she was questioned six months earlier about her position on drug testing and whether she would pass such a test. As a result, Proctor now "fears she may be specially targeted for a suspicionless drug test," the filing states.

The sixth-month time frame would have placed the questioning near the time when Proctor appeared in Saline County Associate Circuit Court for a misdemeanor drug charge. The Missouri State Highway Patrol issued her a ticket for misdemeanor possession of less than 35 grams of marijuana in September 2004. The charge was later amended to class A misdemeanor possession of drug paraphernalia with intent to use, to which Proctor pleaded guilty on Oct. 28, 2004, and was fined $300.

Viets said Proctor's arrest was "too remote in time" to be relevant to the current case. In addition, he said, the current challenge is to the larger issue that Proctor or any employee could be randomly tested without suspicion of wrongdoing.

Contact Chris Post at

marshallhealth@socket.net

http://www.marshallnews.com/story/1095941.html