Knight Township Trustee Releases Legal Opinion on Drug Testing

In an exclusive statement to CCO Knight Township Trustee clarifies her position on a forced drug testing policy on her clients. Knight Township Trustee Kathryn Martin said, “The perception has been that I am opposed to drug testing applicants. The reality is that I am not opposed to this action, however my responsibility is to follow Indiana code. Upon learning of Black Township’s initiative, I contacted the Knight Township attorney to inquire about adopting this practice”. Attached is the Knight Township attorney’s response to her inquiry with the Knight Township Legal Council.

This was posted without opinion, editing or bias.

Dear Madam Trustee,
At your request, I have conducted legal research on the following legal issue, to wit:
Issue: Whether a Township Trustee may compel applicants for township assistance under LC.§12-20-6, et. seq. to submit to a suspicion less (Le. no “probable cause”) drug test as a condition to receiving township assistance.
Township Assistance -Statutory Scheme
Applications for township assistance are governed by I.C.§12-20-1 et. seq. The purpose of the statute is, “to provide necessary and prompt relief to the citizens and residents of Indiana.” See, I.C.§12-20-1-1. As Trustee, you are, “responsible for the oversight and care of all poor individuals in the township as long as the individuals remain in the trustee’s charge.” See, LC.§12-20-5-2. Indiana courts have interpreted the statute to broadly include all “poor” persons as eligible for township assistance. See, Center Tp. of Marion Co. v. Coe 572 N.E.2d 1350, 1357 (Ind.Ct.App. 1991).

The statute has a specific scheme for the administration of township assistance. Persons seeking township assistance must submit a written application on a form prescribed by the State Board of Accounts. See, I,C.§12-20-6-1(b) As Trustee, you are obligated to process all applications for township relief according to uniform written standards without regard to race, creed, nationality or gender. See, LC.§12-20-5.5-1. The statute requires that the standards include the following:

Kathryn Martin January 29,2013

(1 }Criteria for determining township assistance eligibility
(1) Minimum requirements of township trustee accessibility
(2) Other information as needed, including the following
(A) Township office locations, hours, and days of availability
(B) Initial eligibility criteria
(C) Continuing eligibility criteria
(D) Workfare requirements
(E) Essential and nonessential assets
(F) Available resources (G}lncome exemptions
(H) Application process
(I) Countable income
(J) Countable assets
(K) Wasted resources

I.C.§12-20-5.5-5. The statute also requires the inclusion of specific standards for the provision of basic necessities (I,C.§12-20-5.5-5) and income (I,C.§12-20-5.5-6.) Finally, prior to issuance of any township assistance, the applicant must sign a consent form prescribed by the State Board of Accounts which contains specific information including but not limited to, “a medical condition if relevant to work or workfare requirements. [citation omitted]” I,C.§12-20-7-1.
Compulsory, Suspicionless Drug Testing

I am inclined to question the legality of compulsory suspicion less (Le. no “probable cause”) drug testing in the absence of a specific statutory provision authorizing such testing under the Indiana Code. My research confirmed that there is no provision in the Indiana Code expressly authorizing a township to compel a suspicion less drug test on applicants for township assistance. This is significant in that Indiana’s Township Assistance Statute, as above indicated, contains broad provisions as to the persons eligible for assistance and specific provisions as to standards that must be adopted by a township. See,~, I.C.§36-1-3-6 (“If there is a constitutional or statutory provision requiring a specific manner for exercising a power, the unit wanting to exercise the power must do so in that manner.”)

It is true that a unit of government generally may exercise any power not expressly denied by statute. See, I,C.§36-1-3-5. However, when drug testing has occurred in other contexts, it has been expressly authorized by statute. For example, as concerns federal public assistance, Congress has enacted a specific statute

Kathryn Martin
January 29,2013
authorizing federal assistance to be conditioned on drug testing; no comparable provision exists under Indiana law.See, fhQ.:., 21 U.S.C. §862b (“Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing Welfare recipients for use of controlled substances nor from sanctioning Welfare recipients who test positive for use of controlled substances.”) When drug testing has been required under Indiana law, the legislature has made express provision for those allowed to conduct such testing. See, fhQ.:., I.C.§12-17.2-4-3.5 (conditioning continued licensure of child care centers on drug testing of all caregivers at child care center.); see, I.C.§4.13.18.5 (requiring contractors soliciting bids for public work contract to have a program of drug testing of its employees.); see, I.C.§22-4-15-2 (declaring as ineligible an individual who refuses, without cause, to submit to a drug test required by prospective employer.); see, I.C.§22-10-15-4 (operator of mine may compel drug testing of mine employee to determine illegal use of drugs.) In fact, in 2012, the Indiana legislature debated passage of House Bill No. 1007 which would have required applicants for Temporary Assistance for Needy Families (UTANF”) benefits to submit to compulsory drug testing; House Bill No. 1007 (attached) was not passed into law.

Further, one Indiana court has previously held that individuals with substance or alcohol abuse problems cannot be rendered ineligible for township assistance:
Given the broad encompassing nature of statute’s designations

(e.g. “any poor person”), only those groups that are speCifically excluded by the statues appear to be unentitled to relief … The Trustee cannot refuse to provide statutorv benefits to eligible individuals unless the statues excludes them. As the statue does not exclude individuals with substance or alcohol abuse problems from being eligible for assistance, the Trustee must come forth with the statutory benefits for these individuals. [emphasis added]

Center Tp. of Marion Co. v. Coe, 572 N.E.2d 1350, 1357 (1991). Subsequentto Coe, supra, the Indiana legislature did amend the Township Assistance Statute to provide that a trustee does not have to provide temporary housing assistance to a person under the influence of drugs or alcohol. See, I.C.§12-20-17-2. However, this provision is limited to temporary housing assistance, and not other forms township assistance.

At a minimum, the absence of any express statutory authority to compel applicants to submit to suspicion less drug tests creates an unsettled legal question as to a trustee’s statutory authority to compel such drug testing. Further, even to the extent the absence of express statutory authority to compel such drug tests is not an