- Last week, the Cordova District Court sentenced Dale R. Pruitt for his role in the grounding of the F/V Nordic Viking near Point Gravina. Pruitt pled guilty to criminal charges of operating a boat in a negligent or reckless manner and oil pollution, both Class A misdemeanors.
- The Nordic Viking ran aground near Point Gravina on July 21, 2007. The grounding occurred at approximately 10:30 p.m. It was still light at the time, the waters were calm and visibility was good. Pruitt was at the helm.
- The simple explanation for the accident is that the Nordic Viking ran onto a rock outcropping directly in front of a large island. The impact ruptured a front fuel tank, which released approximately 3500 gallons of diesel to the water. Some of this diesel washed onto the shore of the island next to the accident site. The diesel that remained in the water caused sheen that was visible for several days and disrupted salmon fishing for many boats.
- Fishing boats in the vicinity of the Nordic Viking responded to the scene to evacuate the Nordic Viking crew. It was apparent to these responders that Pruitt was intoxicated. Pruitt refused to provide a saliva sample for alcohol testing until asked to do so by his employer the morning after the grounding.
- The Nordic Viking was a total loss. The sheen caused by the Nordic Viking diesel persisted for several days and disrupted the local salmon fishery. Only a small fraction of the diesel was recovered.
Magistrate Kay Adams adopted the parties’ sentencing recommendations. On the operating a boat in a negligent or reckless manner charge, Adams imposed a one-year suspended imposition of sentence on the condition that Pruitt obey all laws and regulations and enroll in and successfully complete a state-approved alcohol treatment program. On the oil pollution charge, Adams imposed a conviction of record with 15 days of jail time, 75 additional days of suspended jail time, 40 hours of community work service and four years of probation on the condition that Pruitt obey all laws and regulations, including all environmental laws and regulations. Nordic Viking LLC owns and operates the F/V Nordic Viking. During the summer of 2007, the Nordic Viking was used to tender salmon from fishing boats in Prince William Sound to the salmon processing facility in Cordova operated by Bear and Wolf LLC. Earlier this year, Nordic Viking LLC reached an agreement with the state to resolve its potential liability for the incident. The company paid a $17,500 fine to the state’s oil spill response fund and implemented drug and alcohol testing for a period of a year on other fishing boats operated by its members. The company also engaged in a supplemental environmental project that contributed $10,000 to the marine debris cleanup program operated by the Gulf of Alaska Keeper. That program collects washed up fishing gear from beaches in Prince William Sound and the Gulf of Alaska. Under Alaska law, it is to operate a boat in a negligent or reckless manner so as to endanger the life or property of another. It is also illegal to discharge any petroleum product to waters of the state. Both of these regulations can be prosecuted as crimes that carry a maximum penalty of a $10,000 fine and a year in jail for individuals and a $200,000 fine for corporations, companies or partnerships. The U. S. Coast Guard and the Environmental Crimes Unit of the Alaska Department of Environmental Conservation investigated the incident. The Alaska Department of Law prosecuted the charges. Source: CORDOVAN TIMES Supreme Court Cases Board of Education v. Earls Vernonia School District v. Acton Eastern Associated Coal Corp. v. Mine Workers Chandler v. Miller Nat. Treas. Employee Union v. Von Raab Whitman v. Dept. of Transportation Ferguson v. City of Charleston Ratheon Co. v. Hernandez Skinner v. Railway Labor Executive's Association Board of Education v. Earls Facts of the Case The Student Activities Drug TestingPolicy adopted by the Tecumseh, Oklahoma School District (SchoolDistrict) requires all middle and high school students to consent tourinalysis testing for drugs in order to participate in anyextracurricular activity. Two Tecumseh High School students and theirparents brought suit, alleging that the policy violates the FourthAmendment. The District Court granted the School District summaryjudgment. In reversing, the Court of Appeals held that the policyviolated the Fourth Amendment. The appellate court concluded thatbefore imposing a suspicionless drug-testing program a school mustdemonstrate some identifiable drug abuse problem among a sufficientnumber of those tested, such that testing that group will actuallyredress its drug problem, which the School District had failed todemonstrate. Question Is the Student Activities DrugTesting Policy, which requires all students who participate incompetitive extracurricular activities to submit to drug testing,consistent with the Fourth Amendment? Conclusion Yes. In a 5-4 opinion delivered byJustice Clarence Thomas, the Court held that, because the policyreasonably serves the School District's important interest in detectingand preventing drug use among its students, it is constitutional. TheCourt reasoned that the Board of Education's general regulation ofextracurricular activities diminished the expectation of privacy amongstudents and that the Board's method of obtaining urine samples andmaintaining test results was minimally intrusive on the students'limited privacy interest. "Within the limits of the Fourth Amendment,local school boards must assess the desirability of drug testingschoolchildren. In upholding the constitutionality of the Policy, weexpress no opinion as to its wisdom. Rather, we hold only thatTecumseh's Policy is a reasonable means of furthering the SchoolDistrict's important interest in preventing and deterring drug useamong its schoolchildren," wrote Justice Thomas. Vernonia School District v. Acton Facts of the Case An official investigation led to the discovery that high school athletes in the Vernonia School District participated in illicit drug use. School officials were concerned that drug use increases the risk of sports-related injury. Consequently, the Vernonia School District of Oregon adopted the Student Athlete Drug Policy which authorizes random urinalysis drug testing of its student athletes. James Acton, a student, was denied participation in his school's football program when he and his parents refused to consent to the testing. Question Does random drug testing of high school athletes violate the reasonable search and seizure clause of the Fourth Amendment? Conclusion No. The reasonableness of a search is judged by "balancing theintrusion on the individual's Fourth Amendment interests against thepromotion of legitimate governmental interests." In the case of highschool athletes who are under State supervision during school hours,they are subject to greater control than over free adults. The privacyinterests compromised by urine samples are negligible since theconditions of collection are similar to public restrooms, and theresults are viewed only by limited authorities. Furthermore, thegovernmental concern over the safety of minors under their supervisionoverrides the minimal, if any, intrusion in student-athletes' privacy. Eastern Associated Coal Corp. v. Mine Workers Facts of the Case Eastern Associated Coal Corp. and theUnited Mine Workers of America are parties to a collective-bargainingagreement with arbitration provisions. Under the agreement, in orderfor Eastern to discharge an employee, it must prove it has "just cause," or the arbitrator will order the employee reinstated. Thearbitrator's decision is final. With this framework in place, JamesSmith worked for Eastern as a truck driver subject to Department ofTransportation (DOT) regulations requiring random drug testing ofworkers engaged in "safety-sensitive" tasks. After Smith tested positive for marijuana use twice, Eastern sought to discharge him. Eachtime the union went to arbitration. The arbitrator concluded that Smith's positive drug test did not amount to "just cause" for dischargeand reinstated him conditionally. After the second occurrence, Eastern filed suit to vacate the arbitrator's award. The District Court ordered the award's enforcement, holding that Smith's conditional reinstatement did not violate the strong regulation-based public policy against druguse by workers who perform safety-sensitive functions. The Court ofAppeals affirmed. Question Do public policy considerations require federal courts to refuse to enforce arbitrator's awards, which reinstate employees fired for testing positive for marijuana? Conclusion No. In a opinion delivered by JusticeStephen G. Breyer, the Court held that under Eastern and the United Mine Workers of America collective bargaining agreement, the arbitration award, which required Smith's reinstatement, was not contrary to explicit, well defined, dominant public policy. The public-policy exception to enforcing an arbitrator's award is narrow; thus, the public policy must be "explicit, well-defined, and dominant,"explained Justice Breyer, and must be ascertained "by reference to positive law and not from general considerations of supposed public interests." Justice Antonin Scalia, joined by Justice Clarence Thomas,concurred in the judgment. Chandler v. Miller Facts of the Case Under a Georgia statute, allcandidates for elected state office must pass a urinalysis drug testwithin 30 days prior to their qualifying for nomination or election.Miller, on behalf of several state office nominees from the LibertarianParty, challenged the statute's constitutionality, naming Georgia'sgovernor and two other regulatory officials as defendants. On appealfrom an adverse District Court ruling, the Eleventh Circuit affirmedand the Supreme Court granted certiorari. Question Did Georgia's drug testing statute violate the Fourth Amendment's guarantee against illegal search and seizures? Conclusion Yes. In an 8-to-1 opinion, the Courtnoted that while the Fourth Amendment generally prohibits officialsfrom conducting search and seizures without individualized suspicion,there does exist a narrowly defined category of permissiblesuspicionless searches and seizures. The Court held, however, thatGeorgia's statute did not fall in this exceptional category, since itfailed to show why its desire to avoid drug users in its high politicaloffices should outweigh candidates' privacy interests. In addition toGeorgia's failure to provide evidence of a drug problem among its stateofficials, the Court concluded that even if such a problem did exist,the affected officials would most likely not perform the kind ofhigh-risk, safety sensitive tasks, which might justify the statute'sproposed incursion on their individual privacy rights. Nat. Treas. Employee Union v. Von Raab Facts of the Case In 1986, the United States CustomsService implemented a drug testing program for certain employees whoeither carry firearms, are involved in intercepting drugs as they enterthe country, or are in high level positions involving classifiedinformation. Question Did the regulations violate the Fourth Amendment? Conclusion No. The Court held that the"substantial interests" of the government in stifling the drug tradejustified "departure from the ordinary warrant and probable causerequirements" associated with searches. The fact that customs personnelare the country's "first line of defense" against drug smugglers andthey are exposed to a sometimes aggressive criminal element, placesthem in a unique and important position in which they have a"diminished expectation of privacy." Whitman v. Dept. of Transportation Facts of the Case In 1986, the United States CustomsService implemented a drug testing program for certain employees whoeither carry firearms, are involved in intercepting drugs as they enterthe country, or are in high level positions involving classifiedinformation. Question Did the regulations violate the Fourth Amendment? Conclusion No. The Court held that the"substantial interests" of the government in stifling the drug tradejustified "departure from the ordinary warrant and probable causerequirements" associated with searches. The fact that customs personnelare the country's "first line of defense" against drug smugglers andthey are exposed to a sometimes aggressive criminal element, placesthem in a unique and important position in which they have a"diminished expectation of privacy." Ferguson v. City of Charleston Facts of the Case In 1986, the United States CustomsService implemented a drug testing program for certain employees whoeither carry firearms, are involved in intercepting drugs as they enterthe country, or are in high level positions involving classifiedinformation. Question Did the regulations violate the Fourth Amendment? Conclusion No. The Court held that the"substantial interests" of the government in stifling the drug tradejustified "departure from the ordinary warrant and probable causerequirements" associated with searches. The fact that customs personnelare the country's "first line of defense" against drug smugglers andthey are exposed to a sometimes aggressive criminal element, placesthem in a unique and important position in which they have a"diminished expectation of privacy." Ratheon Co. v. Hernandez Facts of the Case In 1991, Joel Hernandez testedpositive for cocaine use in a drug test administered by his employer.As a result of the incident, he was forced to resign. In 1994, hereapplied for a job from the company. His application was rejected.Hernandez claimed that the company was discriminating against himbecause of his drug and alcohol addiction (though at the time hereapplied he had been sober for two years) in violation of theAmericans with Disabilities Act of 1990. The district court sided withthe company, dismissing the case before it ever went to trial. A NinthCircuit Court of Appeals panel unanimously reversed, however, holdingthat Raytheon's decision not to rehire Hernandez because of an incidentrelated to his past addiction could constitute discrimination under theact. Question Does the Americans with DisabilitiesAct permit employers to refuse to rehire job applicants because ofprior workplace rule infractions related to drug or alcohol addiction? Conclusion Yes. The Court unanimously held thatan employer may refuse to rehire an employee who was terminated inconnection with drug or alcohol-related incidents as long as therefusal is based on a policy of not rehiring employees who previouslyviolated workplace rules rather than on the worker's addiction. Thatis, an employer may refuse to hire someone who was terminated forcoming to work under the influence, but may not refuse to hire someonewhose previous addiction did not result in any workplace ruleinfractions. Justices David Souter and Stephen Breyer took no part inthis case. Skinner v. Railway Labor Executive's Association Facts of the Case Recognizing the dangers of drug andalcohol abuse by railroad employees, the Federal RailroadAdministration (FRA) implemented regulations requiring mandatory bloodand urine tests of employees involved in certain train accidents. OtherFRA rules allowed railroads to administer breath and urine tests toemployees who violate certain safety rules. Question Did the regulations violate the Fourth Amendment? Conclusion No. The Court held that thegovernment's interest in assuring safety on the nation's railroadsconstituted a "special need" which justified a departure from standardwarrant and probable-cause requirements in searches. Preventingaccidents, the goal of most railroad regulations including the one inthis case, argued Justice Kennedy, was such a significant concern thatit warranted reduced "expectations of privacy" for railroad employees. Random Student Drug Testing Random drug testing of students participating inextracurricular activities does not violate the Constitution, the Supreme Court on June 27, 2002. Writing for the majority, Justice ClarenceThomas said the random testing policy "reasonably serves the schooldistrict's important interest in detecting and preventing drug useamong its students," and is therefore constitutional. The Fourth Amendment bans"unreasonable searches and seizures." In the case of schoolchildren,Thomas said, it is "reasonable" to balance privacy needs against thecompelling government interest in stopping drug abuse. Thomas conceded that non-athletes have a greater expectation of privacythan student athletes. But he said that fact was not essential inVernonia, and was not the controlling factor in the Oklahoma case. The testing does not have to be preceded by a finding that drugs are aproblem at a particular school or among a particular group of students.The decision came out of a case that challenged such a drug testingpolicy at an Oklahoma school. Its provisions will apply nationwide andare expected to encourage school districts across the country to conduct similar programs. A Supreme Court majority ruled in the 1995 Vernonia vs. Acton case thatstudent athletes could be randomly drug tested. In Vernonia, the majority said athletes had already given up their expectation of privacy by participating in sports and changing in locker rooms. Workplace Drug Testing The United States Supreme Court has held that drug testing is not harmful t both which job applicants or employees, when they are conducted in the employment environment . If there are concernsthat an applicant will tamper with the sample, the employer may be allowed to have one other person of the same sex as the applicant present when the a urine sample is given. Associated Federal Drug Testing Laws - The Drug-Free Workplace Act of 1988 calls for any employer who receives federal grants or contracts ($100,000) must be drug-free, or it risks losing the federal funding. Specific federal agencies or departments may also have drug-testing policies in place, such as Department of Transportation regulations for truck drivers, and similar regulations for rail, mass transit, marine, airlines, nuclear power plants, coast guard, and oil & gas pipelines. State Issues Each state may have its own body of laws governing workplace drug testing or monitoring. For example, Alaska has no mandatory drug-testing laws,but does have voluntary drug-testing laws for employers follow if they choose to conduct drug testing of job applicants or employees. It is generally subcribed that employers have the legal right to test job applicants for drugs rovided that the applicants know that the testing is part of the interview process for all employees, though in some cases testing cannot be conducted until the applicant has been offered a position. Testing employees for drugs and/or alcohol is also generally beleived to be a legal right of employers, if not an obligation per federal requirements that all employers must provide a safe workplace. | 