June 26, 2009
Pursuant to Elections Code Section 9005, we have
reviewed the proposed statutory initiative related to drug and alcohol
testing for Members of the California Legislature (A.G. File No.
09‑0014).
Proposal
Drug and Alcohol Testing Every Two Years
for All Legislators. This measure would amend state law to
require that the 120 Members of the California Legislature be tested for
illegal drug use and habitual alcohol use on the first Monday in
December every two years (the first day of the Legislature’s two-year
regular sessions). Testing would be performed according to procedures
established by the U.S. Department of Transportation for testing of
federal employees. Staff of the California Highway Patrol (CHP) would
administer this testing program.
Legislative Service Would Be Suspended if a
Member Tests Positive. The measure states that if a Member of
the Legislature tests positive for illegal drug use or the habitual use
of alcohol (or if he or she refuses to be tested), his or her
legislative service would be effectively suspended. The suspension would
continue until the legislator has completed a substance abuse treatment
program identified by CHP and, subsequently, tests negative for illegal
drug use and the habitual use of alcohol. The individual Senator or
Assembly Member would be required to pay for the costs of the treatment
program. The Senator or Assembly Member would not be entitled to collect
a salary or payments for travel or living expenses during the
suspension. (The measure, however, does not specify whether the
legislator would be able to collect these salary and expense payments
retroactively after the suspension ends.)
Legislative Service Would End if a Member
Tests Positive Twice. If, after completion of the substance
abuse treatment program described above, the Senator or Assembly Member
again tests positive for illegal drug use or the habitual use of alcohol
(or if he or she again refuses to be tested), his or her service as a
legislator would end. The measure provides that this person would never
again be able to serve in the same office.
Exception for Approved Medical Marijuana
Users. The measure exempts from its penalties Senators or
Assembly Members who test positive for marijuana use and who are using
marijuana that is approved by a licensed physician.
Fiscal Effect
Possible Minor Net Increase in State Costs.
The testing required under the measure would result in thousands of
dollars of additional state costs every two years, as well as any
follow-up tests. (The measure does not specify whether these costs would
be paid from the Legislature’s budget—which is limited under the
Constitution—or that of CHP, which would administer the testing
program.)
Offsets to These Cost Increases Possible,
but Uncertain. These costs could be offset depending in part on
whether its provisions are interpreted to allow Members to collect back
pay and expense payments after any period of suspension for alcohol use
or drug abuse. If legislators are required to permanently forfeit any
salary and expense payments during a suspension period, this could
generate savings that may more than offset the costs described above in
some years. In a year when a legislator tests positive twice, state and
local costs could increase for a special election to elect a replacement
Senator or Assembly Member.
Summary of Fiscal Effect
The measure would have the following fiscal
effect:
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