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. e du/thir dc ir c uit_2001/181Filed August 3, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-1391

GREGORY KERNS, Appellant

v.

CHALFONT-NEW BRITAIN TOWNSHIP

JOINT SEWAGE AUTHORITY

Appeal from the United States District Court For the Eastern District of Pennsylvania

D.C. No.: 99-cv-01596 District Judge: Honorable John P. Fullam

Argued: April 3, 2001

Before: SCIRICA, ROSENN and GIBSON,* Circuit Judges.

(Filed August 3, 2001)

Randal S. White (Argued) Fox, Rothschild, O'Brien & Frankel
102 North Main Street

P.O. Box 1589 Doylestown, PA 18901-0700

Counsel for Appellant

___________________________________________________ ______________ * Judge John R. Gibson, United States Court of Appe als for the Eighth Circuit, sitting by designation.Daniel J. Divis (Argued)

Gerolamo, McNulty, Divis & Lewbart

225 South 15th Street The Lewis Tower Building,
Suite 1600 Philadelphia, PA 19102

Counsel for Appellee

OPINION OF THE COURT

ROSENN, Circuit Judge.

This appeal challenges the unwritten policy of a st ate regulated Sewage Authority to subject its superinte ndent to urinalysis drug testing. Gregory Kerns, the plainti ff, sought employment in 1997 as the superintendent of a waste water treatment facility operated and maintained by the Chalfont-New Britain Township Joint Sewage Authorit y ("the Authority"). During his interview, the Author ity informed Kerns that he would be required to undergo and pass a drug screening urinalysis as a condition of employment. He agreed and was permitted to make his own arrangements for the testing. He failed. He request ed and the Authority granted another opportunity for testi ng and this time he passed. About 60 days later, the Autho rity asked Kerns to undergo another urinanalysis. He exp ressed no objection, provided a urine sample, and tested p ositive for marijuana. Kerns, still on probationary status, was discharged.

Kerns filed an action in the United States District Court for the Eastern District of Pennsylvania under 42 U .S.C. S 1983, seeking reinstatement, declaratory judgment , and damages. He alleged that the Authority violated his Fourth Amendment right to be free from unreasonable search es when it required him to submit to and pass a drug t est as a condition of employment. The District Court grant ed summary judgment in favor of the Authority, holding that Kerns' legitimate expectations of privacy were less ened by the "disastrous consequences" that can occur when mistakes are made in the operation of a sewage trea tment

2plant. The Court also held that Kerns had consented to the

drug tests, thereby rendering them constitutionally permissible. Kerns timely appealed. We affirm.

I.

The Authority is a municipal agency authorized, organized and existing pursuant to the Pennsylvania Municipal Authorities Act of 1945, 53 P.S. S 3.91 e t seq. In May 1997, Kerns applied to the Authority for the po sition of plant superintendent. The plant superintendent supe rvises approximately 15 employees and reports to the Execu tive Director, who in turn reports to the Authority's Bo ard of
Directors.

Wastewater treatment plants in Pennsylvania are hig hly regulated and the Authority maintains that they can cause disaster to the local waterways and, consequently, to the health and safety of the local people and others downstream. We note that Pennsylvania has had a cen turylong interest in the cleanliness of its streams, wa ters and lakes. At the turn of the twentieth century, Pennsy lvania embarked upon a program of preventing the pollution of its waters. See Act of 1905, P.L. 260, entitled"An Act to preserve the purity of the waters of the state for the protection of the public health."

Consistent with this concern for unpolluted streams
, Pennsylvania enacted further legislation from time to time. In 1937, the State enacted its Clear Streams Law wh ich included prohibitions against industrial, as well a s human waste. 1937 P.L. 1987, 35 P.S. S 691.1 et seq. It d eclared as state policy that 1) clean streams were "absolutely essential" if Pennsylvania were to attract new indu stries and tourists; 2) that clean unpolluted waters was absolutely essential for the State's out of door re creational facilities in the decades ahead; 3) that the object ive of the Act was not only to prevent further pollution of th e waters of the Commonwealth but to reclaim every stream tha t is polluted to a clean and unpolluted condition; and 4 ) that achievement of the Act's objectives required "a comprehensive program of watershed management and
control." 35 P.S. S 691.4. The Clean Stream Law is a

3regulatory statute and, as subsequently amended, ba rs any

person or municipality from discharging or permitti ng the discharge, directly or indirectly, into waters of t he Commonwealth any sewage except as provided by the A ct. Failure of a municipality to comply may result in t he facility being declared a nuisance subject to severe civil p enalties, and its officials subject to contempt.

In 1965, the state enacted the Pennsylvania Sewage Facilities Act. As amended in 1974, the Act empower ed the Department of Environmental Resources, inter alia, to adopt standards for maintenance of community sewage disposal systems. See 35 P.S. S 750.3, historical a nd statutory notes. The Department also has the power to review the performance of local agencies in the administration of the Act, to order a local agency to undertake actions deemed necessary by the Departmen t"to effectively administer this Act, to inspect regular reports, books and records of local agencies, to revoke or s uspend the certification of sewage enforcement officers fo r cause, and to require at the Department's discretion a cer tified sewage enforcement officer whose performance has be en evaluated." 35 P.S. S 750.10.

With the State's strict laws pertaining to the oper ation of sewage treatment plants hovering over it, the Board , at the recommendation of its Personnel Committee, establis hed an unwritten policy and practice that all new hires mu st submit to and pass a drug screening urinalysis as a condition of employment.1 When Kerns interviewed fo r the position of plant superintendent, he was informed t hat he would have to pass a drug test to obtain the job. K erns agreed to submit to such a test.

A medical examiner performed the urinalysis on Kern s approximately two weeks after he began his employme nt. Kerns tested positive for marijuana use. When he fo und out about the positive test result, Kerns insisted that it was inaccurate and denied having used marijuana. After importuning by Kerns, the Authority's Board of Dire ctors

___________________________________________________ ______________

1. This policy is separate from the Authority's wri tten policy mandating pre-employment and random drug testing for employee s holding
Commercial Drivers' Licenses.

4agreed to permit him to submit to another drug test rather

than terminate him.

On June 27, 1997, Kerns reported to another medical examiner for his second drug test. This time, the r esults were negative and the Authority allowed Kerns to co ntinue his probationary employment.2 At that point, Kerns claims, he believed that he had successfully completed his preemployment drug testing and that he would not be subjected to further tests. (App. at 217-218). On t he other hand, John Schmidt, the Executive Director, claims that he told David Cordell, the chairman of the Authority's personnel committee, to inform Kerns that he would have to undergo a random drug test some time in the futu re. (App. at 383-384). Cordell never mentioned this to Kerns. (App. at 473).

On September 2, 1997, Schmidt instructed Kerns to report for another drug test. (74A). Kerns was surp rised, but did not object. Several days later, Kerns recei ved a phone call from the laboratory that his urine sampl e had tested positive for marijuana. Kerns then informed Schmidt of the positive result. Later that day, at a meetin g between Schmidt, Kerns and Cordell, Kerns pleaded for his j ob.3 Kerns was told to go home and await further instruc tions. Later that day he received a phone call telling him not to come to work for a few days. On September 15, 1997, the Authority discharged Kerns because of his positive test
result. Kerns then commenced this action under 42 U .S.C.
S 1983.

On appeal, Kerns's primary contention is that the d rug testing severely impinged upon his legitimate priva cy expectations, and that in the absence of a compelli ng need

___________________________________________________ ______________

2. The Sewage Authority places all new hires on pro bation for the first six months of their employment, after which they ar e considered permanent employees.

3. Kerns claims that he did not admit to smoking ma rijuana, but admitted that he had recently been exposed to secon d-hand smoke at a party where others were smoking marijuana. (App. at 235). Schmidt
claims that Kerns admitted that he himself had smok ed marijuana at that party. (App. at 392).

5for the Authority's drug policy, the policy is cons titutionally

impermissible.

II.

It is settled law that the collection and analysis of a urine sample to test for drug use constitutes a search th at is subject to the constraints of the Constitution's Fo urth Amendment. See Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 617 (1989). However, it is also
settled law that a search conducted with the free a nd voluntary consent of the person searched is constit utional. See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1 972). In its alternative ground for granting summary judg ment for the defendants, the District Court held, withou t much discussion, that Kerns consented to drug testing. ( Op. at 4). We begin our analysis with this ground because if t here was a valid basis for it, we need not evaluate the constitutionality of the Authority's drug testing p olicy.

Whether a person consented to a search is a questio n of fact to be determined from the totality of the circ umstances. See Schneckloth, 412 U.S. at 226. We review for cle ar error the District Court's factual finding that Kerns con sented to the tests. When Kerns first interviewed for his pos ition at the Authority, he was informed that he would have t o take a drug test as a condition of employment. In respon se, Kerns replied, "I'm just fine. I have no problem." This statement is nearly identical to the language held to convey consent in Schneckloth, where a motorist said "sure , go ahead" when the police asked if they could search h is car.
See id. at 220.

On May 28, 1997, the Sewage Authority extended a conditional offer of employment to Kerns. This offe r was made by way of a letter from John Schmidt which sta ted "this offer is contingent upon successful completio n of the pre-employment physical and drug test as we discuss ed." (A. 519). Kerns signed this letter, indicating that he accepted the offer and the terms contained therein.

The first urinalysis took place approximately two w eeks after Kerns began his employment. Kerns voiced no objection to the test and, in fact, made all the ar rangements

6for the test himself. Unfortunately, the test resul ts were

positive. Kerns insisted that the test was inaccura te and asked the Authority for permission to take a retest

. Although the Authority would have been within its contractual rights to terminate Kerns at that point , it agreed to allow him to submit to another test. On J une 27, 1999, Kerns reported to a different medical examine r for his second drug test. This time Kerns passed, and was a llowed to continue his probationary employment.

The circumstances surrounding the first two tests demonstrate Kerns' voluntary consent. Kerns was tol d during the interview that he would be required to p ass a drug test as a condition of employment. He stated t hat he had "no problem" with taking such a test and signed a contract acknowledging that his offer of employment was contingent on it. He then submitted to the test wit hout objection. The second test was administered at Kern s' own request. Under these circumstances, we agree with t he
District Court that Kerns' consent to the searches was clear.

Consent to the third and final test is less clear. Approximately two months after Kerns passed his sec ond drug test, he was approached by John Schmidt, the executive director, who instructed him to produce a nother urine sample for analysis. Kerns, who believed that his drug testing obligations had been completed, was surprised, but submitted to the test without object ion. It is
the law of this circuit that "silent submission" to a drug test "on pain of dismissal from employment" does not con stitute consent. Bolden v. SEPTA, 953 F.2d 807, 824 (3d Cir

. 1991). However, Kerns did more than silently submit . He had signed a document in which he agreed to "successful[ly] complet[e]" a pre-employment drug t est as a condition of his employment. The conflicting result s of
Kerns' first two tests were inconclusive. Therefore , it was reasonable for the Authority to view Kerns' drug te sting obligation as incomplete and to require that he suc cessfully complete that obligation as he had contracted to do

. Accordingly, we see no error, much less clear error , in the
District Court's alternative conclusion that Kerns consented to all three drug tests.

7The judgment of the District Court will be affirmed . Each

side to bear its own costs.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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