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Why the government can't require drug testing for benefits

1/3/2014

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On Tuesday, December 31, a federal judge in Florida struck down that state's law requiring drug testing of all welfare recipients.  The law had only been in effect for less than four months when the judge issued an injunction preventing the law from being enforced, while she decided the merits of the case.  Gov. Rick Scott has already announced that he will appeal the ruling.

This ruling highlights the debate over the issue of government drug testing for recipients of welfare and other benefits.  Why can't the welfare recipient be required to pass a drug test to get a check from public funds, while a working person can be required to pass a drug test to get a paycheck?  The answer lies in the Constitution.

The Fourth Amendment to the United States Constitution states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Basically, this means that any time the government wants to search your person, house, papers, or effects, it has to provide specific evidence to show that the search will provide evidence of illegal activity.  And Judge Scriven apparently felt that being poor and seeking government assistance does not constitute good evidence.

But if being poor isn't sufficient evidence to require a drug test, then how does having a job count as sufficient evidence?  Simply put, it doesn't.  The Constitution does not regulate the conduct of private entities (with an exception that just doesn't apply here).  So, a private company can require drug tests of its employees, and the Fourth Amendment won't stop it.  It will stop the government, though -- the government is not allowed to randomly drug test its employees unless they are in a sensitive position or do something to raise the suspicion that they are under the influence.  It may seem unfair that poor people can collect money from the government without jumping through the hoops that middle-class workers must, but it is constitutional.

By Chris Wencker

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What's the difference between an IGA, an MOU, and a contract?

5/1/2013

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Intergovernmental agreements (IGAs) and memoranda of understanding (MOUs) are both contracts.  Basically, a contract is an agreement between two or more people or entities to do something.  While there are special names for various kinds of contracts (such as licenses and bailments), they all have this same basic feature in common.  While IGAs and MOUs commonly appear in a government setting, they really are not particularly different from any other contract.

An IGA is simply a contract between two or more governmental entities who have some sort of common authority.  A typical example of an IGA in my practice is a mutual aid agreement between two fire districts.  This requires each party to the IGA to provide help to one of the fire districts when it encounters an emergency that is too big for it to handle alone.  Because all of the parties are fire districts, and thus authorized to respond to emergencies, they are allowed to enter into an agreement for a joint emergency response.  The only meaningful difference between an IGA and any other contract is that it must be between government agencies that have some power in common.  In Arizona, IGAs are governed by Arizona Revised Statutes section 11-952.

MOUs are commonly considered to be less formal than a "full" contract, but in practice they are just as enforceable as any other contract, and will be held to the same legal standards.  MOUs are commonly encountered between a government agency and a private, non-profit organization such as a workers' union.  They usually have few terms, and may not be expected to have any legal enforcement mechanism -- often, they are intended to be little more than an expression of common goals, without any specific action required.  Despite this intention, many MOUs run more than ten pages and contain such elaborate terms that even seasoned attorneys can become confused.  For this reason, I (and other government attorneys I know) prefer to avoid the term "MOU," because it can give the parties the expectation that the agreement isn't really a contract, when it actually is.

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    Chris Wencker has been advising and representing local and small government entities for as long as he has been an attorney.  He has represented cities, towns, fire districts, and occasionally other special taxing districts.  Chris has a firm understanding of the extent and limits of government power.

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