December 27, 2016 - The Shelby County Commissioners discussed personnel policy manuals with Texas Association of Counties (TAC) representatives on December 8, 2016 with one representative there to specifically discuss a county drug testing policy.
Several items of interest pertaining to county policy were discussed while the seemingly highest risk issue was the county's lack of a drug testing policy.
At this time, Shelby County remains without such a policy as discussed at the October 10, 2016 meeting.
"I brought Larry, he's our CDL expert, and I did give you all the information on the CDL, because that's federal statutes," said Diane Cecil who then directed any questions to Larry Boccaccio.
Judge Allison Harbison asked about pre-employment drug testing policies. Cecil explained TAC has provided them with a sample policy for drug testing as a guide in the event a county policy is so old it is overwhelming to consider changing.
In referencing the sample policy, Cecil explained for a regular employee the only testing which could be done is for pre-employment, reasonable suspicion and post accident. According to Cecil randomly drug testing employees is not allowed as it is a violation of the employee's fourth amendment rights and has resulted in many lawsuits.
"When you get to CDL drug testing, you must, it's a must there, you must have a policy and you must do pre-employment, random, reasonable suspicion, and post accident drug testing," said Cecil.
Cecil went on to explain the county would also have to make arrangements with a company to perform the testing. Boccaccio said he doesn't know if he is an expert in CDL and he provided a verbal resume for the commissioners. He said that he has a CDL of his own and he spent 20 years in the bus business before he joined TAC. He also was training coordinator at Capital Metro in Austin when the federal regulation for drug testing came out in the 90s.
"We were faced with either implementing the federal guidelines, regulations, or losing federal funding. We had 500 drivers and about 200 mechanics that fall under this law. I've had a CDL since the inception, I drove a bus for 10 years, I've been at TAC 17 now so I deal with this in the lower south Texas, West Texas area," said Boccaccio.
He stated there are five types of drug tests required of CDL drivers and he relisted the tests stated by Cecil as well as adding a return to duty test," You don't necessarily have to do return to duty if it's the county's policy that if you test positive, you're fired."
As Boccaccio described it, the federal regulations hold the hand of county officials as they direct them on exactly what they must do and how to put these directives into effect. Boccaccio says some counties have been confused in the past by DOT physical testing, which is optional while drug testing is not optional. Some counties he works with go above and beyond the law by including the DOT physicals as well as drug testing in their policies to ensure the safety of their drivers and the public.
Boccaccio referenced a letter from the Texas Department of Public Safety (DPS) in relation to drug testing. The letter, was written in 2008 in response to an inquiry by TAC for clarification on the law in reference to city and county employees.
"'Be advised, these employees are subject to 49 CFR Part 382' and the third paragraph goes on to state, 'Please note, the DPS is no more exempt to the controlled substances and alcohol use testing requirements than the cities and counties are. We have implemented our own US DOT drug and alcohol testing program for our own CDL drivers,'" said Boccaccio.
Roscoe McSwain, Commissioner Precinct 1, questioned the TAC representatives on the letter from 2008 and disagreed with them on the law and its application as he said an opinion from another state representative contrasted with theirs.
"I got a DOT inspection man, that works for the DPS, that goes and teaches seminars to the other troopers on what they can and cannot enforce on trucks and he tells me county employees are exempt due to new laws he is teaching those people now," said McSwain.
Boccaccio and Cecil stated the employees are exempt from the DOT physical to which McSwain responded, "That ain't what he told me."
McSwain said he wanted the inspection instructor from DPS to make a presentation to commissioners' court. Boccaccio said it would be good if he put what he has told McSwain in writing and Cecil said to get an opinion in writing from the county attorney that the county doesn't have to comply.
The weight rating of the county's dump trucks was of interest to Boccaccio who asked if the commissioners were aware what that weight was and he said anything over 26,001 pounds requires a CDL. Travis Rodgers, Commissioner Precinct 3, said the average on a tractor-trailer is 80,000 pounds.
"Bingo, class A CDL required, because that's the combination, that's the A," said Boccaccio.
McSwain reiterated that isn't what is being taught to the new troopers. And the TAC representatives said what they presented to the commissioners is the law.
Boccaccio illustrated for the commissioners an example of the egregious error on their part in not adopting a drug testing policy were a tragedy to occur. According to Boccaccio, counties and governmental entities are protected by the Texas Tort Claims act, which covers $100,000 per person, $300,000 per occurrence, and $100,000 in property damage.
"If you have a driver, let's just say that goes out and is involved in a fatal collision, and they kill a young child, and they're tested because it states in here what will be required post accident testing," said Boccaccio. "If they're tested and they pop positive, that gets the wheels in motion, that's when the attorneys' ears kind of prick up and they go, 'okay, let's see what we can get.' They turn up the rock and they go, [Shelby County's] not doing drug testing. You guys could be looking at personal liability, so that would scare me beyond anything out there."
He asked the commissioners, if they're sued for $10 million, where would the other $9.7 million be coming from. The commissioners said nothing and Judge Harbison responded, "the county."
This suggests not adopting a drug testing policy is putting the taxpayer/voter at an enormous financial risk. Boccaccio said he understands it can be a tough decision for the commissioners.
"It's really not a tough decision because the drug policy ain't going to be no different than the old policy. We ain't gonna be doing nothing no way, ain't nobody getting tested. Sheriff's Department employees on the new hires he says, y'know when they hire them," said McSwain.
Rodgers asked about the test in regards to employees using prescribed medications. Boccaccio said that is taken into account. An employee informs the tester of the circumstances and a doctor examining the test can then make an informed decision based on that knowledge.
Jimmy Lout, Commissioner Precinct 2, stated he would like for all county employees to be eligible for drug testing," a road grader will run 30 mph down a road, they can cause a bad wreck, and some of my road grader drivers don't have CDLs."
Cecil described an option for the county called a Safety Sensitive, and she suggested the commissioners meet with the county attorney and put together a safety sensitive plan, then present it to the Attorney General for an opinion on what they are able to put into effect.
Commissioner McSwain doesn't feel it's fair for CDL drivers to be the only ones having to be tested, "When everybody in the county wants to drug test just these four men that work down here that have CDLs, they're not getting nothing extra for getting singled out. It's the protection of the county, they don't make a dime more for getting humiliated by having to go over there and do that."
McSwain asked what would happen if all 16 CDL drivers employed by the county walked out and said they would not comply with the testing as he feels, like Commissioner Lout, everybody working for the county should have to be drug tested.
"This is just some BS mandate from the government, who's gonna pay for all this? What is this going to cost over time? Plus loss of work while they're doing it," said McSwain.
Cecil informed McSwain Shelby County is one of the only counties in northeast Texas not complying with the federal regulation. Boccaccio said he has decent compliance in the southeast Texas area and not all of his counties participate; however, that depends on how much liability risk those counties are willing to take onto themselves.
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