j_ls_2017a_2017-11-15t09:07:36z3 Hearing Summary

Date: 11/15/2017

Location:

09:37 AM -- Rules of the Colorado Racing Commission, Department of Revenue, concerning human drug testing of occupational licensees



170180KRK.pdfAG Memo & Handouts.pdf



09:37 AM -- Kip Kolkmeier, Staff Attorney, Office of Legislative Legal Services, testified before the Committee. Mr. Kolkmeier said this is a rule that applies a human drug testing program for occupational licensees under the jurisdiction of the commission. The Office saw three issues with the rule: 1) there is no authority within the statute to conduct human drug testing; 2) the issue of a mandatory drug test raises a constitutional issue, which is a policy issue; and 3) the Committee has looked at the issue previously when there was an absence of authority for human drug testing in a state agency statute, and the Committee said it needed to explicitly be in the statute. The General Assembly (GA) has authorized some human drug testing by statute, but generally it has been in the context of individuals in the corrections system, voluntary testing of an individual to get a state benefit, or testing based on probable cause. An employer can require an employee to take a drug test but that is a private request by a private employer. The rule involves government action, and in that circumstance it must meet the US Constitutional requirements of the Fourth Amendment and the Colorado Constitutional requirements under section 7 of Article 2. The rule raises the issue of who should make the determination that there are special needs that override the restrictions against warrantless search. In 1991, the Public Utilities Commission (PUC) published a rule that required human drug testing of natural gas pipeline workers because of the physical danger of an explosion of a natural gas pipeline and because of a federal statute that required the drug testing. The Office suggested that there still needed to be a statutory provision that authorizes human drug testing. The PUC requested legislation. The statutory language was amended to require human drug testing, and a rule followed.



Senator Cooke asked if the horse racing facility could say that, in order to race there, people would be required to agree to random drug screenings. Mr. Kolkmeier said an employer can require an employee to take a drug test as a condition of employment.



Senator Gardner asked if the Office and the Committee raised this issue at all in 1999 or did it just get by everybody. Mr. Kolkmeier said he was not able to find a review of this rule by the Office and the Office did not object to it at that time. Senator Gardner said the commission wanted a rule that included the detection of masking agents so it amended the rule. If the rule isn't extended, is the prior rule restored or does the rule disappear? Mr. Kolkmeier said the Committee reviews the rule that the agency submits to the Office. The department submitted the whole rule as amended, and therefore if the Committee chooses not to extend it, the rule would not be extended and the program would cease to exist.



Representative Willett questioned whether, in reviewing a rule, the Office staff would question the constitutionality of the authorizing statute. Mr. Kolkmeier said that the role of the Office is to determine whether there is statutory authority in the first place. If the GA passed a statutory provision that allowed human drug testing and then a rule was promulgated that was within that authority, that would not be an issue brought to the Committee.



Representative Wist asked whether constitutional concerns independent of statutory scope are an appropriate reason for the Committee to strike down a proposed rule.



10:05 AM -- Sharon Eubanks, Director, Office of Legislative Legal Services, testified before the Committee. Ms. Eubanks said that a statute is presumed to be constitutional unless struck down by a court. The language in the State Administrative Procedure Act talks about how no rule should be issued except within the power delegated to the agency and as authorized by law. The Office interprets this to mean both statutory and constitutional law. In general, if there is just a constitutional issue, the Office may not bring it to the Committee, but in this case, the constitutional issue arises with the issue of lack of statutory authority.



10:07 AM -- Dan Hartman, Director of Colorado Division of Racing Events, testified before the Committee. Mr. Hartman said this rule has been in place since 1999 and was put in place for the welfare of those participating in the racing industry. The commission found impairment of the licensees working around these animals could bring harm or death to themselves or other participants or animals. The racing commission requested that the Committee extend the rule.



Senator Holbert and Mr. Hartman discussed whether the commission would have time to adopt new rules before the next racing season if the statute was amended during the 2018 legislative session.



Senator Gardner and Mr. Hartman discussed the commission's basis for claiming statutory authority. Senator Gardner expressed his opinion that there should be legislation giving the commission authority for the drug testing.



Representative Foote and Mr. Hartman discussed the level of national regulation by industry associations. Mr. Hartman explained that it was difficult to have continuity across race tracks nationwide. Based on a question from Representative Foote, Mr. Hartman explained that some Colorado race tracks impose their own requirements beyond state law or regulation.



Representative Wist and Mr. Hartman discussed whether less onerous options are available and the types of drug testing required under the rule.



Senator Guzman asked what happens if the Committee extends the rule and legislation passes next session. Ms. Eubanks said that if the Committee feels that an agency does not have the statutory authority for the rule the process is for the Committee not to extend the rule so that it is included in the Rule Review Bill. Then, if a bill is enacted to give statutory authority, the provision in the Rule Review Bill would be removed via amendment so the rule is no longer set to expire. If the Committee chooses to extend the rule and pursue a statutory change, that's also within the purview of the Committee.



10:41 AM -- Eric Meyer, Deputy Attorney General, testified before the Committee. Mr. Meyer asserted that the commission has broad authority for the rule and it is not ambiguous. An agency should consider the legislative purpose of the law when rule making and that is why the issues are left to agency expertise to solve problems. The rule is also constitutional under the special needs exception, which would be safety and protection of the participants.



Representative Weissman and Mr. Meyer discussed the constitutionality of drug testing in this situation regardless of whether there is statutory authority for the rule.



Mr. Meyer compared the racing rule to rules adopted under the statute authorizing rule making by the boxing commission. Representative Foote recognized that the boxing statute is different than the racing statute. Representative Foote and Mr. Meyer discussed the legislative declaration for the racing statute and the tests for determining whether there is a special need for testing that overcomes Fourth Amendment concerns.



Representative Willett asked Mr. Meyer to distinguish the 1991 PUC rule issue discussed by Mr. Kolkmeier. Mr. Meyer explained that safety precautions that were mentioned there are not the same as the critical safety needs that exist in the racing context.



Representative Wist asked whether the commission treats licensees and participants differently and whether there is legislative authority for the commission to issue regulations that would effect participants versus licensees. Mr. Hartman explained that there are registrants and licensees, and they all are licensed under the statute. The difference between the two is that they have a different background check done on their license.



Senator Holbert suggested asking whether the chairs of the judiciary committees would be interested in working on a bill to clarify the language. He supported the drug testing as it exists now, but stated that the special needs determination should be made by the GA.



Representative Weissman agreed with Senator Holbert, and supported not extending the rule and running a bill to establish the authority by statute.



Senator Gardner agreed saying that the question of who makes the decision of special needs is important to separation of powers.