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The following essay is an assignment from an undergraduate administrative law course. It was

written in response to a case study on state agency rulemaking found in the course text. I have

included an excerpt from the case study to provide context:

State Motor Vehicles and Transportation Agency (SMVTA) conducts a study and

concludes that most accidents involving passenger buses are caused by bus drivers who are

under the influence of alcohol or drugs. As a result, SMVTA promulgates a regulation

pursuant to a delegation of rulemaking authority from State Legislature. . . . Discuss this

case, considering all the Fourth Amendment issues you discover.

The regulation contains three major provisions: mandatory drug/alcohol testing of transportation-

sector employees who are passenger bus drivers; mandatory drug/alcohol testing of

transportation-sector employees who are non-bus drivers; and mandatory HIV/AIDS testing of

transportation-sector employees who are passenger bus drivers (Hall, 2009, p. 195). The first of

the three provisions is within the state agency's delegated rulemaking authority and does not

violate Fourth Amendment protections of privacy: The other two provisions are outside the

agency's rulemaking authority and they violate Fourth Amendment protections of privacy. As a

state agency authorized by state-legislated enabling statutes, the SMVTA's primary domain is

intrastate transportation. It is expected to exercise due diligence to ensure its regulations do not

conflict with existing state and federal laws.

Regarding mandatory drug/alcohol testing of transportation-sector employees who are passenger

bus drivers, the SMVTA is acting within its delegated rulemaking authority. It is not in violation

of Fourth Amendment privacy protections as they apply to state administrative agencies; and it is

intervening in a matter directly related to public transportation safety. Per the text of the case

study, the mandatory drug and alcohol testing is conditional and event-driven. Drivers are tested

if involved in a traffic accident during working hours while operating a passenger bus. The test is

then conducted privately and in a controlled environment. If testing reveals the driver was

significantly impaired by drugs/alcohol, a hearing is scheduled to determine the fitness of the

driver to perform his or her job function (Hall, 2009, p. 195). None of these agency actions is a

violation of individuals' Fourth Amendment rights. The Hall text states that although the Fourth

Amendment “speaks only of ‘dwellings,’ it has been interpreted as extending protection to other

structures as well, including businesses” (2009, p. 170). Fourth Amendment rights extend to

some aspects of an individual operating a private motor vehicle during non-working hours. The

“businesses” interpretation clearly does not extend to the operation of an employer's vehicle to

transport members of the public during working hours.

Regarding mandatory drug/alcohol testing of transportation-sector employees who are non-bus

drivers, the SMVTA is acting outside its delegated rulemaking authority. The SMVTA mandate

that transportation employers operating within the state drug test employees if the employer has

“reasonable suspicion” of on-the-job impairment (Hall, 2009, p. 195) violates Fourth

Amendment protections of individual privacies. The Fourth Amendment of the United States

Constitution applies differently to administrative contexts than to criminal contexts (Hall, 2009,

p. 169). The agency’s authority extends only to administrative issues directly related to transit.

This provision misassigns "reasonable suspicion" in a criminal context to an administrative

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context. The state legislature, via enabling statutes, did not create the SMTVA as a criminal

justice agency. Matters of criminal justice are outside agency jurisdiction.

Regarding mandatory HIV/AIDS testing of transportation-sector employees who are passenger

bus drivers, the SMVTA is acting outside its delegated rulemaking authority. Although this

provision could be liberally interpreted as involving matters of public health and safety, it has

nothing to do with the agency being prevented from “effectively monitoring compliance with the

law” (Hall, 2009, p. 169). A "Fourth Amendment" search has been conducted when an agency

official has inspected an area within which the owner, possessor, or occupant has "a reasonable

expectation of privacy” (Hall, 2009, p. 170). A mandatory HIV/AIDS test enforced upon

employees is a violation of an individual's reasonable expectation of privacy. The legal

requirements of probable cause, warrant, and reasonableness are not satisfied. The provision

requires employers and outside medical testing firms used by the employers to act as

instrumentalities of the state government. The provision does not limit agency or employer

discretion in the matter “by specifying which employees [can] be tested and under what

circumstances” (Hall, 2009, p. 173).

If the regulation is adjudicated, court interpretations of its validity will be based on two sets of

factors. First, the court will weigh the SMVTA’s interest in public transportation safety against

employee privacy interests in light of Fourth Amendment protections and legal precedents.

Second, the court will determine if the regulation was promulgated according to statutory

procedure. The procedural emphasis will include an examination of justifications for the

regulation. The basis for the regulation was an agency study on passenger bus drivers and their

drug/alcohol use. There is a high probability the courts will rule against the regulation since there

is inadequate justification for employment policies therein. That is, some provisions of the

regulation are unsupported. They go beyond the conclusions of the study they are based on. An

obvious solution is to amend the regulation.