Lawmakers inclusion in proposed drug testing bill questioned

Sen. Magalei: Is it unconstitutional?
fili@samoanews.com

The inclusion of lawmakers in a Senate bill requiring all ASG employees, including elected officials, to undergo drug testing prompted questions from Sen. Magalei Logovii who wanted a clear explanation on why senators and faipule are required to take such a test.

“Senators were selected by traditional leaders of their respective counties, and faipule are elected by their constituents,” said Magalei during yesterday’s Senate Public Safety/ Homeland Security Committee hearing on the bill, adding that lawmakers didn’t seek a job in government it was by the choices made by their constituents.

According to the measure, drug testing for government employees, includes “elected officials”, who are elected to office for either ASG or any political office in the territory. The bill also outlines certain criteria for individuals subject to drug testing.

During the hearing, Magalei asked for clarification, if drug testing of elected officials includes senators and faipule, to which Attorney General Talauega Eleasalo V. Ale responded that based on the bill, the “short answer is, yes.”

Magalei asked whether the bill is constitutional or unconstitutional, by taking away a person’s right, being required to take a drug test.

Talauega pointed out that many states have drug testing laws when it comes to government employees, because of the belief that a job in government is “not a right” but a “privilege”.

And the privilege to work in government comes with certain requirements, he said, adding that this is probably the belief of the senators who sponsored the bill, as well as the Senate legal counsel, who looked into the language of the proposed law and drafted the bill.

He revealed that the Senate bill is similar to language of a draft proposal the Administration was working on, dealing with drug testing of government employees, with the goal — of both the Senate bill and the administration’s draft proposal — to protect the ASG workforce and the general public.

Magalei asked, “What happens if I refuse to be tested?” and Talauega said a provision in the bill calls for action against the person who refuses to take the drug test. And if the person refuses the test, then the “privilege” to work in government is taken away, the AG added.

Magalei quickly pointed out that it was the “privilege” given to him by his Tualauta county to serve as senator. “So if I refuse, you then take away my job as senator?” he asked again.

Talauega referred the question to Sen. Paepae Iosefa Faiai who, along with Sen. Nuanuaolefeagaiga Saoluaga T. Nua, sponsored the bill.

Magalei said he wanted to get more clarification on the matter so that if the bill is enacted into law, it does not end up being challenged in court.

“By refusing to take the drug test, my ‘privilege’ of serving as a senator for my county is taken away?” he asked again.

Paepae said if the measure is approved and enacted into law that does not mean everyone will go through drug testing. The bill outlines specific reasons for requiring a drug test, which includes those applying to work in government.

He said he underwent drug tests many times, over the years, while working for the government and again, later, when he retired and worked in the airline industry. He pointed out that the American Samoa TeleCommunications Authority, American Samoa Power Authority, and the Dial-A-Ride program, administered by the Department of Public Works, all carry out drug testing on their employees.

Paepae said the bill protects the rights of an employee and there are reasons cited in the bill for requiring a person to take a drug test. (See Samoa News Aug. 22nd edition for details.)

Magalei kept reiterating his question and the need for clarification as to why lawmakers would be required to take a drug test. He said lawmakers didn’t go looking for a job in government and now they will be subjected to drug testing under the bill.

He agrees with the argument that the government has the right to test employees and the government has the right to hire its workforce. But while he supports the bill, Magalei said it should be very clear on this particular issue.

Talauega said lawmakers are not included in the language of the Administration’s draft for drug testing of employees, adding that he believes the governor wanted this matter to be left up to the Fono — whether senators and faipule are included.

The AG speculated as to why lawmakers were included in the Senate bill, saying that perhaps the bill’s sponsors didn’t want to introduce a measure, which originates from the “Tama o le Atunu’u - Fathers of the Territory” that impacts all the ASG workforce, but exempts lawmakers.

“I support the bill,” said Magalei, adding that this is the only issue that he has questions on.

At least four other senators who spoke during the hearing supported the inclusion of lawmakers in the bill. Sen. Tuiagamoa Tavai, who supports the bill, suggested that lawmakers — before they take the oath of office — get drug tested.

However, he encourages continued discussions and debate on the bill before making a final decision. This was supported by other senators, including Fa’amausili, who said there will be more hearings on this particular bill.

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