                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2001

Kerns v. Chalfont-New Britain
Precedential or Non-Precedential:

Docket 00-1391




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Recommended Citation
"Kerns v. Chalfont-New Britain" (2001). 2001 Decisions. Paper 181.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/181


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Filed 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 Appeals 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 state
regulated Sewage Authority to subject its superintendent to
urinalysis drug testing. Gregory Kerns, the plaintiff, sought
employment in 1997 as the superintendent of a waste-
water treatment facility operated and maintained by the
Chalfont-New Britain Township Joint Sewage Authority
("the Authority"). During his interview, the Authority
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 requested and
the Authority granted another opportunity for testing and
this time he passed. About 60 days later, the Authority
asked Kerns to undergo another urinanalysis. He expressed
no objection, provided a urine sample, and tested positive
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 searches
when it required him to submit to and pass a drug test as
a condition of employment. The District Court granted
summary judgment in favor of the Authority, holding that
Kerns' legitimate expectations of privacy were lessened by
the "disastrous consequences" that can occur when
mistakes are made in the operation of a sewage treatment

                                2
plant. 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 et seq. In
May 1997, Kerns applied to the Authority for the position of
plant superintendent. The plant superintendent supervises
approximately 15 employees and reports to the Executive
Director, who in turn reports to the Authority's Board of
Directors.

Wastewater treatment plants in Pennsylvania are highly
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 century-
long interest in the cleanliness of its streams, waters and
lakes. At the turn of the twentieth century, Pennsylvania
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 which
included prohibitions against industrial, as well as human
waste. 1937 P.L. 1987, 35 P.S. S 691.1 et seq. It declared as
state policy that 1) clean streams were "absolutely
essential" if Pennsylvania were to attract new industries
and tourists; 2) that clean unpolluted waters was
absolutely essential for the State's out of door recreational
facilities in the decades ahead; 3) that the objective of the
Act was not only to prevent further pollution of the waters
of the Commonwealth but to reclaim every stream that 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

                                3
regulatory statute and, as subsequently amended, bars any
person or municipality from discharging or permitting the
discharge, directly or indirectly, into waters of the
Commonwealth any sewage except as provided by the Act.
Failure of a municipality to comply may result in the facility
being declared a nuisance subject to severe civil penalties,
and its officials subject to contempt.

In 1965, the state enacted the Pennsylvania Sewage
Facilities Act. As amended in 1974, the Act empowered 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 and
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 Department"to
effectively administer this Act, to inspect regular reports,
books and records of local agencies, to revoke or suspend
the certification of sewage enforcement officers for cause,
and to require at the Department's discretion a certified
sewage enforcement officer whose performance has been
evaluated." 35 P.S. S 750.10.

With the State's strict laws pertaining to the operation of
sewage treatment plants hovering over it, the Board, at the
recommendation of its Personnel Committee, established an
unwritten policy and practice that all new hires must
submit to and pass a drug screening urinalysis as a
condition of employment.1 When Kerns interviewed for the
position of plant superintendent, he was informed that he
would have to pass a drug test to obtain the job. Kerns
agreed to submit to such a test.

A medical examiner performed the urinalysis on Kerns
approximately two weeks after he began his employment.
Kerns tested positive for marijuana use. When he found 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 Directors
_________________________________________________________________

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

                               4
agreed 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 results
were negative and the Authority allowed Kerns to continue
his probationary employment.2 At that point, Kerns claims,
he believed that he had successfully completed his pre-
employment drug testing and that he would not be
subjected to further tests. (App. at 217-218). On the 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 future.
(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 surprised,
but did not object. Several days later, Kerns received a
phone call from the laboratory that his urine sample had
tested positive for marijuana. Kerns then informed Schmidt
of the positive result. Later that day, at a meeting between
Schmidt, Kerns and Cordell, Kerns pleaded for his job.3
Kerns was told to go home and await further instructions.
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 drug
testing severely impinged upon his legitimate privacy
expectations, and that in the absence of a compelling need
_________________________________________________________________

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

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

                                5
for the Authority's drug policy, the policy is constitutionally
impermissible.

II.

It is settled law that the collection and analysis of a urine
sample to test for drug use constitutes a search that is
subject to the constraints of the Constitution's Fourth
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 and
voluntary consent of the person searched is constitutional.
See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1972).
In its alternative ground for granting summary judgment
for the defendants, the District Court held, without much
discussion, that Kerns consented to drug testing. (Op. at 4).
We begin our analysis with this ground because if there
was a valid basis for it, we need not evaluate the
constitutionality of the Authority's drug testing policy.

Whether a person consented to a search is a question of
fact to be determined from the totality of the circumstances.
See Schneckloth, 412 U.S. at 226. We review for clear error
the District Court's factual finding that Kerns consented to
the tests. When Kerns first interviewed for his position at
the Authority, he was informed that he would have to take
a drug test as a condition of employment. In response,
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 his car.
See id. at 220.

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

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

                               6
for the test himself. Unfortunately, the test results were
positive. Kerns insisted that the test was inaccurate 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 June 27,
1999, Kerns reported to a different medical examiner for his
second drug test. This time Kerns passed, and was allowed
to continue his probationary employment.

The circumstances surrounding the first two tests
demonstrate Kerns' voluntary consent. Kerns was told
during the interview that he would be required to pass a
drug test as a condition of employment. He stated that 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 without
objection. The second test was administered at Kerns' own
request. Under these circumstances, we agree with the
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 second
drug test, he was approached by John Schmidt, the
executive director, who instructed him to produce another
urine sample for analysis. Kerns, who believed that his
drug testing obligations had been completed, was
surprised, but submitted to the test without objection. It is
the law of this circuit that "silent submission" to a drug test
"on pain of dismissal from employment" does not constitute
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 test as a
condition of his employment. The conflicting results of
Kerns' first two tests were inconclusive. Therefore, it was
reasonable for the Authority to view Kerns' drug testing
obligation as incomplete and to require that he successfully
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.

                               7
The 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

                               8
