Kansas Attorney General Opinion 2016-016

October 19, 2016
ATTORNEY GENERAL OPINION NO. 2016-16
Dale E. Pike, County Attorney
Lane County Attorney’s Office
235 East Pearl
P.O. Box 818
Dighton, Kansas 67839
Re: 	Constitution of the United States—Amendment 4; Searches and
Seizures—Special 	Needs 	Exception—Random 	Drug 	Testing 	of
County Elected Officials
Constitution of the State of Kansas—Bill of Rights—Search and
Seizure—Special Needs Exception: Random Drug Testing of County
Elected Officials
Counties 	and 	County 	Officers―County 	Clerk—County 	Clerk;
Deputies and Assistants; Budget; Limitation on Personnel Policies and
Practices
Counties and County Officers―County Treasurer—County Treasurer;
Deputy Treasurers; Budget; Limitation of Personnel Action
Counties 	and 	County 	Officers―Sheriff—Sheriff; 	Deputies 	and
Undersheriffs; Budget; Limitation of Personnel Action
Counties 	and 	County 	Officers―Register 	of 	Deeds—Register 	of
Deeds; Deputy Registers of Deed; Budget; Limitation of Personnel
Action
Synopsis: 	In the absence of a requisite showing that a county has a special need
to conduct random drug testing of all county employees, a county's
personnel policy and procedure requiring random drug testing would

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violate the Fourth Amendment to the United States Constitution and
§ 15 of the Bill of Rights of the Constitution of the State of Kansas.
A board of county commissioners does not have legal authority to
subject a county clerk, county treasurer, county sheriff or county
register of deeds to personnel policies and procedures requiring
random drug testing. Cited herein: K.S.A. 2016 Supp. 19-101a; K.S.A.
19-302; 19-503; 19-805; 19-1202; Kan. Const., Bill of Rights, § 15;
U.S. Const., Amend. 4.
* 	* 	*
Dear Mr. Pike:
On behalf of the Lane County Commissioners, you ask for an Attorney General
opinion regarding whether a board of county commissioners is “prohibited from
requiring elected officials to undergo random drug testing the same as other County
employees[.]” In response to your question and as discussed below, we conclude
a governmental employer must make a preliminary showing of a special need in
order to conduct a search in compliance with the Fourth Amendment to the United
States Constitution and § 15 of the Bill of Rights of the Kansas Constitution. Further,
we conclude that a board of county commissioners (BOCC) lacks authority to
subject a county clerk, county treasurer, county sheriff or county register of deeds
to random drug testing pursuant to county personnel policies because they are
coequal agents of the county body politic and not subordinate to the BOCC.
Search of County Employees
You did not provide us with a copy of the county’s personnel policy regarding
random drug testing. 	Thus, we take this opportunity to review the preliminary
requirements for a governmental entity to conduct this type of search of its
employees.
The authority for governmental entities to conduct searches is subject to the
constraints of the Fourth Amendment to the United States Constitution and § 15 of
the Bill of Rights of the Kansas Constitution. The Fourth Amendment to the United
States Constitution provides that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures,
shall not be violated . . . .”1 Although the verbiage of § 15 of the Bill of Rights of the
Constitution of Kansas is not identical to that in the Fourth Amendment, it is well-
settled that the scope of the protections afforded by § 15 is identical to that of the
Fourth Amendment. 2
1 U.S. Const., Amend. IV.
2 See State v. Sprague, 303 Kan. 418, 434 (2015).

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The United States Supreme Court has held that the collection and subsequent drug
testing of biological samples imposed by law and enforced by government officials
are searches within the meaning of the Fourth Amendment, and therefore must
satisfy its reasonableness requirement.3 Therefore, a search pursuant to a random
drug testing policy of a county must be reviewed for “reasonableness.”
To be reasonable under the Fourth Amendment, a search ordinarily must be based
on individualized suspicion of wrongdoing and must be conducted pursuant to a
warrant issued by a neutral magistrate upon probable cause. 4 However, the United
States Supreme Court has recognized that exceptions to this general rule are
sometimes warranted when special needs, beyond the normal need for law
enforcement,5 make the warrant and probable-cause requirement impracticable. 6
“When such ‘special needs’—concerns other than crime detection—are alleged in
justification of a Fourth Amendment intrusion, courts must undertake a context-
specific inquiry, examining closely the competing private and public interests
advanced by the parties.”7
Thus, in order for a search pursuant to a random drug testing policy to be consistent
with the Fourth Amendment, a government employer must make a preliminary
showing that drug tests of employees are justified by a “special need,” i.e., the
employee performs safety- or security-sensitive duties. 8 If the preliminary showing
of special need is made, a government employer must still demonstrate that an
important interest advanced by drug tests outweighs the employee privacy interests
and would be jeopardized if employees could be tested only upon suspicion of actual
drug usage. 9 In Chandler v. Miller, 10 the Court made it clear that much more than a
desire to show a symbolic commitment to the struggle against drug abuse is
required to justify a random drug testing program.11 A government employer’s ability
to make those showings will depend on the facts.
Put simply, if the government shows a special need, courts then must determine
whether the privacy interests implicated by the search are minimal and whether an
important governmental interest furthered by the search would be placed in jeopardy
3 See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 617 (1989), and National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 678-79 (1989).
4 See Chandler v. Miller, 520 U.S. 305, 314 (1997); Skinner, 489 U.S. at 619.
5 Skinner, 489 U.S. at 619.
6 Von Raab, 489 U.S. at 665.
7 Chandler, 520 U.S. at 314 (internal citation omitted).
8 Id.
9 Skinner, 489 U.S. at 624.
10 520 U.S. 305 (1997).
11 Chandler, 520 U.S. at 321-2. 	The United States Supreme Court was asked to decide the
constitutionality of a Georgia statute requiring candidates for state office to pass a drug test. The
Court found that candidates for public office are not “safety sensitive” and cannot constitutionally be
subjected to drug testing.

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by a requirement of individualized suspicion of illegal drug use. 12 If, however, the
government fails to show a requisite special need, there is no need for a court to
balance public and private interests because the Fourth Amendment bars such
searches as unreasonable. 13
In the absence of a requisite showing that a county has a special need to conduct
random drug testing of all county employees, a county's personnel policy and
procedure requiring random drug testing would violate the Fourth Amendment to the
United States Constitution and § 15 of the Bill of Rights of the Constitution of the
State of Kansas.
Search of County Elected Officials
Assuming that the above constitutional requirements are met, we now turn to your
question regarding the inclusion of elected officials in the county’s personnel policy
for drug testing. As we did in Attorney General Opinion No. 2013-3, we review the
relationship between a BOCC and county elected officials. Under the Kansas home
rule statute for counties, 14 a BOCC in each county has the authority to “transact all
county business and perform all powers of local legislation and administration it
deems appropriate,” subject to certain enumerated restrictions. 15 	The applicable
exceptions that address your question are found in K.S.A. 2016 Supp. 19-101a(a)(6)
and (14) which provide:
(6) Counties shall be subject to all acts of the legislature concerning
elections, election commissioners and officers and their duties as such
officers and the election of county officers.
….
(14) Counties may not exempt from or effect changes in K.S.A. 19-
302, 19-502b, 19-503, 19-805 or 19-1202, and amendments thereto.
Kansas statutes uniformly create several elected offices within each county,
including the offices of county clerk, county treasurer, sheriff, and register of deeds.
Although different statutes apply to the various officials, each of these statutes
provides:
Any personnel action taken by [the elected official] shall be subject to
the following: 	(1) Personnel policies and procedures established by
the board of county commissioners for all county employees other
than elected officials; (2) any pay plan established by the board of
12 Id.
13 Id.
14 K.S.A. 2016 Supp. 19-101a(a).
15 Id.

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county commissioners for all county employees other than elected
officials; (3) any applicable collective bargaining agreements or civil
service system; and (4) the budget for the financing of the operation
of 	the 	[official’s] 	office 	as 	approved 	by 	the 	board 	of 	county
commissioners. 16
This statutory language requires the county clerk, county treasurer, sheriff, and
register of deeds to abide by the county’s personnel policy when taking personnel
action. 17 This language clearly refers to actions taken by the elected official with
respect to his or her personnel and specifically excludes elected county officials
from the county’s personnel policies and procedures.
Additionally, case law supports the proposition that the BOCC and county elected
officials are coequal agents of the county body politic and not subordinate to one
another. For example, the Kansas Supreme Court in Bd. of Cty. Comm'rs of Cty. of
Lincoln v. Nielander 18 adopted the following characterization of the relationship
between a sheriff and the BOCC:
The sheriff is an independently elected officer whose office,
duties, and authorities are established and delegated by the
legislature. The sheriff is not a subordinate of the board of county
commissioners and neither are the undersheriff or the sheriff's
deputies and assistants. Rather, the sheriff is a state officer whose
duties, powers, and obligations derive directly from the legislature
and are coextensive with the county board. 19
In Blume v. Meneley, 20 a case decided shortly after Nielander, the United States
Federal District Court of Kansas decided that the sheriff’s position, as well as other
elected positions in county government, were not subordinate to one another, but
are 	equal 	positions, 	each 	empowered 	with 	the 	task 	of 	running 	one 	of 	the
departments of county government.21
We recognize, therefore, that personnel action taken by a county elected official is
subject to BOCC personnel policies and procedures, but this does not give a BOCC
the ability to supersede a county elected official’s statutory duties. 22 We also
recognize that a BOCC is prohibited by these same statutes and case law from
including a county elected official within the purview of established personnel
policies and procedures.
16 K.S.A. 19-302(c); K.S.A. 19-503(c); K.S.A. 19-805(d); K.S.A. 19-1202(c) (emphasis added).
17 Emphasis added.
18 275 Kan. 257 (2003).
19 Id at 262.
20 283 F.Supp.2d 1171 (2003).
21 Id at 1174-75.
22 Nielander, 275 Kan. at 267.

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Thus, we conclude that, because county elected officials are excluded from the
personnel policies and procedures established by a BOCC for all county employees,
and it is well-settled that a BOCC and county elected officials are coequal agents of
the county body politic and not subordinate to one another, a BOCC does not have
legal authority to subject a county clerk, county treasurer, county sheriff or county
register of deeds to personnel policies and procedures requiring random drug
testing.
Even assuming, arguendo, a county’s random drug testing policy is constitutional
and could be imposed on a county elected official, if a county’s policy for failure of
the random drug testing results in a sanction of termination of any “other County
employee,” the same sanction cannot be imposed upon a duly elected official. The
only methods available to involuntarily remove an elected official before the end of
the term are recall 23 and ouster.24
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
23 K.S.A. 25-4301 et seq.
24 K.S.A. 60-1201 et seq.