By Travis Perry │ Kansas Watchdog
OSAWATOMIE, Kan. — Is your state lawmaker doped-up on the job? Even if he fails a drug test, you may never know.
That was the situation described to Kansas legislative leaders Wednesday after discussing provisions in a bill passed earlier this year that permits drug testing of welfare recipients and elected officials in the Kansas House and Senate.
While S.B. 149 (read a summary here) clearly outlines punitive measures for drug users receiving government cash assistance, the same can’t be said for their legislative counterparts. The law states that both can be subjected to testing if there is “reasonable suspicion” of drug use, but while welfare recipients can be barred from receiving payments and compelled to undergo substance abuse and job skills programs, there’s little direction as to what should happen if a lawmaker tests positive for narcotics.
Jeff Russell, director of Legislative Administrative Services, has been charged with implementing drug testing measures for state officials in the House and Senate. He told Kansas Watchdog that not only does the law not detail any ramifications, but it wouldn’t explicitly make such tests public record, either. Russell said, until directed otherwise, he is treating the results as private medical records.
“I’m assuming from the get-go that the results are confidential,” he said.
“That may or may not be the case as we proceed down the road,” Russell added. “I’m always going to err on the side of (privacy).”
Moving forward, Russell is looking to the Kansas Department of Administration to help craft policies pertaining to legislative drug testing, but he said the very nature of an elected official could complicate matters.
“Most of this (existing policy) is written to address an employee, and its been established in various times that legislators are not state employees,” Russell said. “They have no boss other than their constituents.”
But the Internal Revenue Service disagrees. According to the IRS, at least for taxing purposes, “any individual who serves as a public official is an employee of the government for whom he or she serves.”
Overland Park Republican Rep. Stephanie Clayton was outraged after hearing that drug-using state lawmakers could receive special treatment.
“Drugs are against the law, and we shouldn’t be doing them while we’re legislators,” Clayton said. “The only reason why I voted in favor of that (bill) was because it would hold me to the same standard (as welfare recipients). I don’t want to do to other people what I wouldn’t hold to myself.”
Clayton argued that similar punitive measures, such as suspending a lawmaker’s pay, should have been baked-in from the start.
“The fact that it wasn’t put in with us in the first place seems to indicate to me someone wanted to look like we were being equal, but we’re not,” she added.
Senate Minority Leader Anthony Hensley, D-Topeka, in late February did submit an amendment that would have implemented such penalties – as well as require lawmakers to undergo substance abuse treatment – but it was defeated, 21-17, by the Senate Committee of the Whole. Hensley later successfully submitted a watered-down version of the amendment providing for legislative drug testing.
Russell reiterated that it’s still early in the policy-shaping process. In addition to outlining any punitive actions for lawmakers, he’s also trying to determine what qualifies as “reasonable suspicion.” He mused whether simple mischief or anonymous calls could meet the threshold for proof.
“You see how this could go south really quick,” he said.
Russell said the Kansas Department of Administration defines reasonable suspicion as “judgment supported by specific, contemporaneous, particular facts or plausible inferences that is made regarding the employees behavior, appearance or speech supported by evidence found or reported that indicates drug use by the employee.”
Any policies would need to be approved by the Legislative Coordinating Council.
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