The Ins and Outs of Baseball

Posted on March 28, 2019 by Marty Ryan

Okay, read carefully. You got nine guys in and nine guys out.

The nine guys out try to get the nine guys in out three times.

The nine guys in send guys up to get on so that they can get in, without getting out.

Once the nine guys out get the nine guys in out three times, the nine guys out come in and the nine guys in go out to get the nine guys in, who were out, out three times.

The nine guys in, who were out, also send guys up to try to get on so that they can get in without getting out. Sometimes, one of the guys in will hit one out. If it stays in without going out, all the guys on at that time, including the guy who hit it out, get to come in without getting out.

After the nine guys out and the nine guys in go in and out nine times the guys with the most guys in after getting on without getting out are the winners.

 

 

 

Posted in General | Tagged | Comments Off on The Ins and Outs of Baseball

“Thank you, sir”

Posted on March 20, 2019 by Marty & Stephanie

Vail is a small community in west-central Iowa. It’s also a ski resort in Colorado. But I grew up in the Iowa version. One thing both communities have in common is a swimming pool. However, Vail, Colorado has ten times more residents than Vail, Iowa.

Vail, Iowa, has a population of about 430 residents, mostly Irish-Catholic, but with a few people of Protestant-English origin and a handful of folks from German descent. It has maintained a community swimming pool since sometime in the 1960s. It is not owned by the city, but rather an association of interested parents and other residents.

Prior to the establishment of the Vail Community Swimming Pool Association, and the creation of the swimming pool, children in Vail had to make their way to nearby Denison to swim in that city’s municipal pool, or take their chances swimming in Tracy’s pond about a mile out of town. We often had to share the pond with cattle. You can imagine which facility we favored. So every chance we got we tried to catch a ride to Denison.

Often, many of us boys would wait downtown to see if Tracy North was going to stop for coffee at the local café before going to the Denison Sale Barn. He may not stop for coffee, but he was a weekly regular at the Sale Barn. He did, as you might suspect, own the pond and just about 50% of all other real estate in town and west of town. Everyone knew Tracy. It was never evident that he knew anyone. But Tracy was a kind-hearted man, and was always good for a free ride.

On one particular Saturday morning, a small group of Vail boys, me included, asked Tracy for a ride to Denison. Without saying something like, “is it okay with your parents?” or a question of other concern, he would smile and say: “Sure! Get in the car!” And roughly 6 to 10 young boys would scramble in, trying to be the one that sat by the window. He always had an adult male passenger in front who rode with him to watch the sales of cattle, hay, straw, hens, and other farm implements and livestock. I can’t remember who it was on this nice sunny Saturday morning; it doesn’t make any difference, that adult got the shotgun seat.

With the back seat filled with half-naked boys clad only in swim trunks and a towel, off we sped to Denison. The small boys sat on the laps of the larger ones. This was in the day before seat belts (or, safety belts as we called ‘em back then) were required. I can’t recall who was all in Tracy’s Cadillac that morning, but I can safely say that besides me, there was at least one Malloy boy and a McCoid boy.

We were almost to Denison on Highway 30 when a few of us began telling Tracy that there was a Highway Patrolman behind us with his lights flashing. “I think he wants you to pull over on the shoulder, Tracy.” Someone would say. Tracy smiled and kept driving. After about a mile, Tracy finally pulled over.

The patrolman walked up to Tracy’s window and asked, “Sir, did you know you were speeding?” Tracy said, “No, sir.  I didn’t know that.  Thank you.” He rolled the window up as he drove off leaving the trooper standing alone along the shoulder of the road.

I’m going to bet fifty-cents that one of us kids yelled, “Holy shit!”

The trooper never chased us down. We arrived at the pool safely, and we talked about it for days (years later, too).

We never worried about how to get home. Someone’s mom would grudgingly accept a collect call and come get us. 90% of the time it was Kate Malloy. She was the nice mother who didn’t cuss us out. When my mom would yell at us Ryan boys for riding to Denison without telling her, we would suggest that maybe we should just walk out to Tracy’s pond. That swimming pool in Vail couldn’t be built fast enough.

 

 

Posted in General, Youth | Tagged , , , | Comments Off on “Thank you, sir”

Flaws in the Laws: Part II – Mourning Dove Hunting

Posted on March 13, 2019 by Marty Ryan

This is the second in the series: Flaws in the Laws.

Most of the articles in this series will focus on the Iowa Code. However, this particular flaw is noticeable in the Code and in the Administrative Rules.

The Eurasian-collared dove is similar to the mourning dove. Both doves are members of the family Columbidae: “a family of game birds comprising of doves and pigeons.” The small distinct difference appears to be the black ring around the neck of the Eurasian-collared dove, which the mourning dove lacks.

In 2011, the Iowa Legislature passed, and the governor enacted Senate File 464, “An Act allowing the establishment of an open season for hunting mourning doves.” (Emphasis supplied.) The law does not say “doves”; it does not say “Eurasian collared-doves”; it does not say “rock dove”; it does not say “turtle dove”; it specifically and unequivocally says “mourning dove”.

The Iowa Natural Resources Commission was charged with incorporating the mourning dove into a rule that defines “the season dates, bag limits, possession limits, shooting hours and areas open to hunting for” snipe, woodcock, and a few other avian species.

In the process of incorporating mourning doves into the rules, it included the Eurasian collared-dove as if the legislature had passed a law establishing the open season for mourning doves AND Eurasian collared-doves. It did not. For years we represented an organization that worked to have the Eurasian collared-dove removed from the rules because of one reason only – the NRC does not have authority to add anything beyond the statutory authority given it by the law that was enacted. “‘An agency shall have only that authority or discretion delegated to or conferred upon the agency by law and shall not expand or enlarge its authority or discretion beyond the powers delegated to or conferred upon the agency.’ Iowa Code § 17A.23(3).” Auen v. Alcoholic Beverages Div., 679 NW2d 586, 590 (Iowa 2004)(Emphasis added).

“An agency shall not implement or enforce any standard, requirement, or threshold, including any term or condition of a permit or license issued by the agency, unless that standard, requirement, or threshold is clearly required or clearly permitted by a state statute, rule adopted pursuant to this chapter, or a federal statute or regulation, or is required by a court ruling, a state or federal executive order, a state or federal directive that would result in the gain or loss of specific funding, or a federal waiver. Iowa Code § 17A.23(4).” No federal funding, waiver, court ruling, or other action is associated with this rule.

During the public comment section of the Administrative Rules Review Committee (the legislative oversight committee assigned to reviewing proposed rules) the NRC attorney claimed the “Commission has the authority to include Eurasian collared-doves because the definition of “Columbidae” in section 481A broadens the scope of game birds with the definition’s introduction of ‘such as’.” “‘Such as’ is legally considered to be an expander”, she said. What she failed to mention is that the definition ends with the word “only”.

“Game” means all of the animals specified in this subsection except those designated as not protected, and includes the heads, skins, and any other parts, and the nests and eggs of birds and their plumage.

a.  The Anatidae:  such as swans, geese, brant, and ducks

b.  The Rallidae:  such as rails, coots, mudhens, and gallinules.

c.  The Limicolae:  such as shorebirds, plovers, surfbirds, snipe, woodcock, sandpipers, tattlers, godwits, and curlews

d.  The Gallinae:  such as wild turkeys, grouse, pheasants, partridges, and quail.

e.  The Columbidae:  such as mourning doves and wild rock doves only.

Iowa Code § 481A.1(21)(2015)(Emphasis added). Notice that the Columbidae is the only species that ends with the qualifier “only”. Does “expander” negate “only”?

The Eurasian collared dove is not a protected bird. The only members of the Columbidae family that are protected species are:

DOVE, Inca, Columbina inca
Mourning, Zenaida macroura
White-tipped, Leptotila verreauxi
White-winged, Zenaida asiatica
Zenaida, Zenaida aurita

Title 50, section 10.13, Code of Federal Regulations (50 CFR 10.13).

The Eurasian collared-dove, Streptopelia decaocto, falls into a category of non-protected “Family Columbidae”, which includes the Rock Pigeon, the Island collared-dove, and many more.

The Commission’s attorney has said that, since the Commission may protect a bird that is considered protected, it may also protect a bird that is not protected. Possibly so, but that doesn’t mean that the Commission can include what it wants to include when the law is narrowly tailored to one specifically identified bird – the mourning dove.

Now here’s the crazy part. “There is justifiable concern, that over time,” the Commission’s lawyer said, “there is a possibility that the Eurasian collared-dove could push Mourning Doves and other native birds out of their native habitat, which could impact their (sic) population of birds”. We don’t disagree, if we understand her babble correctly. But then, why would you want to protect them? From that point on, the protection of Eurasian collared-doves became the theme rather than disrespect for the law.

At the hearing, there was considerable banter between Rep. Rick Olsen (D-Des Moines) and the Commission’s attorney about the wild rock dove. Neither the attorney nor Rep. Olson knew what a wild rock dove looked like. Later, during testimony, a self-described wildlife biologist, and a deputy director, claimed that there were no rock doves in Iowa; that they were very limited. Rep. Olson asked which answer was it – there are no rock doves in Iowa, or they are very limited? He received an identical response. The meeting over this rule was getting almost comical. By the way, a wild rock dove is a common pigeon.

Rep. Olson asked if there were any other doves in Iowa besides the mourning dove, the Eurasian collared-dove and the very limited non-existent rock doves. No one knew the answer. The deputy director, relying upon information from staff, claimed that the mourning dove and the Eurasian collared-dove are the only two doves hunted in Iowa. That still doesn’t answer the question of why the bureaucrats cannot see beyond the very narrowly-tailored law that establishes a hunting season for mourning doves only.

Let’s put this into simple terms. The Legislature passed a law allowing for the legal hunting of mourning doves. The NRC added the Eurasian-collared dove to the rule without authority, but only because it looks like a mourning dove from a distance. The Eurasian-collared dove is an invasive species. It could wipe out the native habitat of mourning doves. Yet, the NRC gave it protective status along with the mourning dove. A sportsman could shoot 15 Eurasian-collared doves (the bag limit is 15) and no mourning doves, and that would be all the he could get for the day. Theoretically, the sportsman should be able to continue until she shot 15 mourning doves: the Eurasian-collared doves would be bonuses.

No one seemed to understand our argument. Almost. The director of the Department of Natural Resources at that time, Chuck Gipp, understood it perfectly. He smiled as I attempted to explain the (illegal) loophole. Talking with him after the meeting, he iterated what was explained. But his boss was the governor, and like most sportsmen, the governor (Terry E. Branstad) didn’t get it.

Posted in General | Tagged , , , , , , | Comments Off on Flaws in the Laws: Part II – Mourning Dove Hunting

How much does it cost to buy a constitutional amendment?

Posted on March 6, 2019 by Marty Ryan

How much do you think it would cost to amend the Iowa Constitution? To fund an amendment to the U.S. Constitution? Or, the constitutions of all 50 states? What staggering amount would you have to cough up to amend all fifty-one constitutions? We’re about to find out.

An attempt to amend all state constitutions as well as the federal constitution to include the rights of victims is a goal of billionaire Dr. Henry T. Nicholas.

Known as Marsy’s Law, the proposal is named for a California resident, Nicholas’ sister Marsalee (Marsy) Nicholas, who was stalked and murdered by her ex-boyfriend and neighbor. Marsy’s mother and brother walked into a grocery store one week after the slaying and were confronted by the accused murderer. The family had no idea that the accused, Kerry Michael Conley had been released on $100,000 bail. [Subsequently convicted of 2nd degree murder, he died in prison of natural causes at the age of 53.]

Amending the Iowa Constitution, or any constitution for that matter, is serious business. Changing a constitution should not be taken lightly. An amendment to a constitution should not be controversial, or at the least, it should have minimal or token opposition. Adopting Marsy’s Law as a constitutional amendment is highly controversial.

Governor Kim Reynolds has indicated in her Condition of the State address that she will call “for a constitutional amendment enshrining victims’ right in the state’s constitution”.

Currently, voters in a dozen states have approved constitutional amendments to adopt some form of Marsy’s Law. However, the Montana Supreme Court has struck down its version of Marsy’s Law as “void in its entirety” because when “voters were required to vote ‘yes’ or ‘no’ for (the amendment) in its entirety, they were forced to vote for or against multiple, not closely related, changes to the Montana Constitution with one vote”. It’s that statement that has many organizations, including the ACLU, the Iowa Coalition Against Sexual Assault, the Iowa Coalition Against Domestic Violence, and dozens of newspaper editorial boards (including the NY Times), strongly opposing the enactment of this measure.

The Marsy’s Law movement originated in California with Proposition 33 in 2008. The California initiative includes 17 rights in the judicial process, “including the right to legal standing, protection from the defendant, notification of all court proceedings, and restitution, as well as granting parole boards far greater powers to deny inmates parole.” Those rights are codified in Iowa Code Chapter 915. However, the proposed amendment goes far beyond that.

Proponents in Iowa cite a couple reasons for their support of this proposal. First, they claim that those rights in Chapter 915 can go away, easily. They envision a gutting of victims’ rights provisions in Chapter 915 and therefore the need to enshrine the rights into the constitution. That’s a nonexistent probability. What group of legislators would commit political suicide by denying victims the rights already statutorily provided? Next, proponents say victims should have rights equal to those guaranteed to defendants. But that’s not what they are seeking. The current proposals give victims the right not to be deposed (among other amenities). Rights no criminal defendant has, nor should have.

Consider this: Every constitutional right is available to all citizens, and those rights protect the citizenry from the government and the government alone. Marsy’s Law protects one citizen from another. Further, the concept of equating rights to protect one from the government as compared/opposed to protecting one from another crosses the line between civil and criminal laws. Due process is a right proffered by constitutional law. Due process is not a component of civil law.

A Montana county attorney explained that Marsy’s Law was well-intended, but aside from depriving Montana voters “of the ability to consider the many, separate ways it changed Montana’s constitution” it failed to “explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal judicial system.”

As a matter-of-fact, the administrative, financial and compliance burdens are exactly what has led some South Dakota legislators to consider repealing the constitutional amendment. South Dakota, the first state to enact Marsy’s Law after California, has experienced high costs in administering the provisions of the law, and in some cases, the law intended to protect victims has actually hampered investigations. Legislators are promising to add statutory rights for victims before calling for a total repeal. Those statutory rights offered are the same as Iowa has provided for years.

There is also the problem with the word “victim”. Who is and who is not a victim? A former Iowa prosecutor training coordinator once said that “there are no victimless crimes.” That can be interpreted as saying that when an Iowa county attorney prosecutes a defendant, that county attorney is prosecuting on behalf of the state. The State is the people of Iowa. We are all victims of the crime. The court heading in a criminal matter is always: “State v. ____”.

A good Democrat wanted a representative of Marsy’s Law to speak at a county central committee meeting. He insisted that the issue was non-partisan. It is. That’s why it shouldn’t be discussed at a partisan party function. It shouldn’t be discussed by Iowa legislators, either. Money should not be able to buy constitutional amendments.

This article was originally published in the Prairie Progressive – Winter, 2019 issue.

Posted in Criminal Justice, Fairness, General | Tagged , , | Comments Off on How much does it cost to buy a constitutional amendment?

Traveling Northward

Posted on February 27, 2019 by Marty Ryan

This story is both funny and sad.

I came home from a Monday night meeting and saw that my neighbor’s lights were still on, so I decided it would be a good time to deliver an apple cream pie to him. I had made the pie earlier as a token of appreciation for him clearing my driveway of snow and salt after the winter’s latest dump.

I rang his doorbell, but he didn’t answer. I guessed he was next door at the triplex he owns because a van advertising solutions to sewer problems was left running outside. Renters don’t call service people on their own.

After realizing that he wasn’t in his home, I was about to set the pie down on his step and go home, knowing that he would see it, know where it came from, and bring it inside to place in his freezer (the pie was already cut up into pieces). But I changed my mind when I saw a stranger walking up his driveway. The man had a huge backpack on his shoulders. He said he was hungry. Well, hell, I’m not going to give him the pie.

He asked for a ride and I told him I wasn’t going anywhere. He sat down on a decorative barrel that holds flowers in warmer months. I told him to leave. He shuffled down the driveway and headed north. I left the pie on the steps.

Catholic guilt got the best of me. I had just attended a funeral the Saturday before and heard the biblical passage of Matthew, Chapter 25, verses 35-40 [Matthew 25: 35-40]

35‘For I was hungry, and you gave Me something to eat; I was thirsty, and you gave Me something to drink; I was a stranger, and you invited Me in; 36naked, and you clothed Me; I was sick, and you visited Me; I was in prison, and you came to Me.’ 37“Then the righteous will answer Him, ‘Lord, when did we see You hungry, and feed You, or thirsty, and give You something to drink? 38‘And when did we see You a stranger, and invite You in, or naked, and clothe You? 39‘When did we see You sick, or in prison, and come to You?’ 40“The King will answer and say to them, ‘Truly I say to you, to the extent that you did it to one of these brothers of Mine, even the least of them, you did it to Me.’

Okay, the bible verse didn’t actually say, “I was walking and you gave me a ride”, but I think the sentiment was the same. I pulled out of the driveway and headed north. I didn’t see him. Perhaps he got a ride from someone else. I went around the block, saw my neighbor and told him the pie was on his step, and began driving north again. I saw the stranger coming out from behind some houses. I rolled the window down and said, “do you still need a ride?” He got into the car.

“Where you going”, I asked him. He mumbled something about a convenience store at the top of the hill. There is a convenience store on Lower Beaver Road, not that far from where we were. Then he said it was near a Perkins restaurant with a gas station across the street and that it might be on Merle Hay Road. “Okay, I know exactly where that it is.”

We get to the intersection of Merle Hay Road and Meredith Avenue and he says, “this isn’t it.” He spotted a McDonalds down the road and said, “I remember that McDonalds, go that way.” So, I make a possible illegal turn and head north on Merle Hay Road. As we get close to the McDonalds, he notices that there is a QuikTrip on the other side of the Interstate and tells me that is the gas station by where he camped.

Under Interstate 35/80 and into the QuikTrip we go. He has second thoughts. I said, “You’re not from around here, are you?” “No, Washington state.” There was no way I was going to drop him off so that he could sleep under a bridge. The temperature thingy on my car’s dashboard indicated that it was 9 degrees outside.

I asked him what he was doing in Iowa. “No one comes to Iowa to bed down for the night in the middle of winter,” I told him. He said he was kicked out of some town in Illinois and went to Idaho. He didn’t want to go through Michigan. “I guess I’m just a rambler,” he said. No, it didn’t make sense to me either and I didn’t want to pursue it further.

He asked if we were in Urbandale. “No”, I said, “we’re in Johnston. He mumbled some things I didn’t understand and asked if we could drive up the road into Johnston. “What are you looking for,” I asked him. “Are you looking for a place to sleep?” I never got a straight reply. He wanted to travel up to the bridge straight ahead. I told him there was no bridge straight ahead and he wanted to argue with me. I once lived in Johnston – on the poor side of town.

“What’s over that way?” he asked.

“Grimes.”

“What’s in Grimes?”

“More houses like these.” I swept my hand over the homes north of 62nd Ave. He told me there was a golf course in Johnston.

“Yes, there is a golf course in Johnston. You’re not thinking of playing a round, are you?”

It was this point in our venture in which I began to either get pissed or scared. I turned around and said nothing more to him.

I pulled into a Casey’s store and asked him if he wanted anything. “Can you get me a maple log and a cup of coffee?”

I went into the store, almost forgetting to shut the car off and take the key with me. I asked the clerk if they had any maple logs. She told me that all the pastries were thrown out for the day. I poured a cup of coffee, put a lid on it, picked up a slice of pepperoni pizza and paid for it all. When I got in the car, I handed it to him.

“I’m taking you to the shelter,” I said.

“The one on University and Ninth?”

Hmm, I hadn’t thought of that one. I was thinking about the one on Mulberry Street. But that’s where I’ll take him; to the closest.

The guy didn’t eat the pizza right away. Out of the corner of my eye, I could see that he was staring at me. Then, he ate the pizza slice in about 3 bites.

On the way to the shelter, he started moving his arms and hands as though he was chasing a fly away and kept repeating: “Oh, Alice. It’s going to be alright.” Yep, he verified that there may be a mental screw out of place.

He asked me if I had any old cars. “This is the only old car I own. It’s the only car I own.” Well, that’s not true, but I think I know where he was going with the questioning. He had been looking for a car to sleep in.

I quit talking to him. A van in the left lane began to merge into our right-hand lane and I reacted quickly. He started rattling off all sorts of incomprehensible mumblings.

Well, I dropped him off at the Bethel Mission on 6th Ave. He got out, threw his backpack over his shoulder and thanked me. I told him to get a good night’s sleep and take care of himself. He closed the car door and I took off down the road. I could see in my mirrors that he did not walk into the mission, but proceeded to walk north, probably in search of an old vehicle with unlocked doors. He had told me earlier that he needs to protect himself and his possessions.

I realized there was nothing more I could do. I turned west onto Indiana Avenue and traveled to 9th street. I turned north onto 9th and when I got to 9th and Clark Streets there was a car with its front wheels stuck in a snowbank. A person was standing by the front of the car looking at the situation.

I quickly turned to the Bible verse. No, there was nothing there that I can recall about “I was stuck in the ditch and you pushed me out.” Nope.

 

 

Posted in General | Tagged , | Comments Off on Traveling Northward

Flaws in the Laws: Part I – Employment Drug Testing

Posted on February 20, 2019 by Marty Ryan

Prior to 1987, there was no law that regulated drug testing of employees or applicants for employment in Iowa.  Employers were free to test an employee, or an applicant for employment, for any drug or substance with impunity.  Since 1987, Iowa’s law addressing matters of employment drug testing have seen several drastic changes.

House File 469 passed the Iowa House of Representatives in 1987 by a vote of 93-1.  The Senate passed the bill 31-16 and sent it to the governor.  Governor Terry Branstad signed the measure into law on June 5th.  The original bill, House File 63, was introduced by Rep. Ralph Rosenberg (D) of Ames.  It was referred to the Committee on Labor & Industrial Relations where it was assigned to the subcommittee of Reps. Tony Bisignano (D-Des Moines); Joan Hester (R-Honey Creek); and Rich Running (D-Cedar Rapids).

The bill defined a “drug test” meaning “any blood, urine, saliva, chemical, or skin tissue test for the purpose of detecting the presence of a chemical substance in an individual.”  The bill prohibited “random drug testing of employees.”  It required “reasonable suspicion” before an employee could be tested, and it allowed drug tests “authorized for peace officers or correctional officers of the state, or to drug tests required under federal statutes or regulations, or to drug tests conducted to determine if an employee is ineligible to receive workers’ compensation.”  The bill also required testing by laboratories approved by the Iowa Department of Health and provided that samples had to be split for the purpose of conducting confirmatory testing if the employee questioned the results of the original test.

The bill provided other language that protected the employer under certain conditions, prevented termination of an employee if the employee underwent a drug or alcohol evaluation and followed up with the evaluation’s recommendations.

The bill was a project by my predecessor at the Iowa Civil Liberties Union, Mark O. Lambert.  He had crafted the bill after a City of San Francisco ordinance.  At the time, Labor unions were not particularly fond of the bill.  Eventually, Labor began to see that the legislation actually protected employees from intrusive and unnecessary testing of employees and grew to accept the law and protect it.  The only changes to the law between its inception and my succession of Mark Lambert were amendments to coincide with the federal Commercial Drivers’ License laws.

There was an attempt in the early 1990s to amend the law by Republicans in the House.  However, Democrats continued to control the Iowa Senate, and although the majority party was pressured heavily to go along with the Republican changes, the session ended with the House bill landing in the round file.

Then, a man from Kiron, Iowa, became an Iowa Senator.  One of State Senator Steve King’s priorities was to amend Iowa’s drug testing law in favor of employers.  His bill was massive.  It would provide very few protections for workers and allow employers carte blanche control over employees’ bodies.  A favorite moment of mine was the day in which the bill was to be debated in the Senate Judiciary Committee.  Senator Tom Vilsack (D-Mount Pleasant) sat across from Senator King (R-Kiron) and when the bill was brought up for consideration, Senator Vilsack asked Senator King if it would be alright to record the proceedings.  Senator King was relaxed as he said it was fine.

I don’t recall another senator speaking during the committee consideration on Senator King’s bill.  It did surprise me that both adversaries were calm in their questioning of each other, citing facts, and expressing opinions.

Even after the bill was debated on the floor of the Senate, no one noticed a serious flaw in the bill.

“Sample” means such sample from the human body capable of revealing the presence of alcohol or other drugs, or their metabolites. However, sample does not mean blood except as authorized pursuant to subsection 7, paragraph “I”.

As you can see, a sample can mean just about anything; breath, urine, ear wax, skin, saliva, etc.  But not blood.  Breath is highlighted because of another provision in the bill:

Sample collection for testing of current employees shall be performed so that the specimen is split into two components at the time of collection in the presence of the individual from whom the sample or specimen is collected. The second portion of the specimen or sample shall be of sufficient quantity to permit a second, independent confirmatory test as provided in paragraph “i”. If the specimen is urine, the sample shall be split such that the primary sample contains at least thirty milliliters and the secondary sample contains at least fifteen milliliters.

As you can see, no one noticed that a sample of breath would have to be “split into two components.”  It wasn’t until the bill was debated on the floor of the House when someone asked me how they were going to split breath.  I heard that question when I was sitting in the gallery watching the debate.  Sitting in the gallery working on something apart from the debate was Rep. Phillip Wise (D-Keokuk). I went over to where he was sitting and asked him if he could go to the floor, be recognized (at that time, you raised your microphone) and ask the floor manager how an employer would actually split the breath specimen into two components.  Rep. Wise was happy to do so.  When he was recognized, Rep. Wise asked the question, and the floor manager of the bill, Rep. Steven Sukup (R-Sheffield) said, “I don’t know.”  Any other questions Rep. Wise asked that pertained to that matter were answered in the same manner: “I don’t know.”  The bill passed along party lines, 54-44.

The following year, Senate File 115 was introduced and passed the Senate and the House.  The subject matter of the bill?  Making a correction to the employee drug testing law.  It seems as though there was a flaw in the previous year’s bill.  Someone came to the conclusion that an employer would not be able to split a sample of breath.

The employment drug testing law, Iowa Code §730.5, has been amended several times since the 1990s.  It was amended in 2018 to lower the acceptable level of BAC (Blood Alcohol Concentration) from .04% to .02% to mirror the federal standard.  That is all the 2018 legislation did to Iowa Code §730.5.  There was more to do that wasn’t done.

In 2017, the Legislature decided to add “hair” as one of the samples that could be used to determine presence of drug metabolites in an employee’s body.  Naturally, a lobbyist acquired a new client that wanted to analyze employment drug testing results using hair samples.  Hair is a very unreliable source of determining whether someone is impaired, which is what several Labor Unions and I have always argued.  You want safety, not a history of past usage, which may not be the case anymore.  Besides, hair testing has been controversial in how it affects African-Americans.

A recent decision from the United States District Court of Appeals for the First Circuit revived a lawsuit filed by eight police officers, a cadet, and a 911 operator. All are African American. All tested positive for cocaine after a hair follicle test was administered by the Boston Police Department. This was the second time the First Circuit found that the hair follicle test had a statistical disparate impact on African American officers in violation of Title 7 of the Civil Rights Act of 1964.

https://www.natlawreview.com/article/recent-challenges-to-use-hair-follicle-drug-testing

Nonetheless, Iowa Code §730.5 was amended to add “hair”.

“Sample” means such sample from the human body capable of revealing the presence of alcohol or other drugs, or their metabolites, which shall include only hair, urine, saliva, breath, and blood. However, “sample” does not mean blood except as authorized pursuant to subsection 7, paragraph “l”.

In the process of adding “hair” to the list of acceptable means of testing, the Legislature once again reverted to splitting the sample into two components at the time of collection:

Collection of a urine sample for testing of current employees shall be performed so that the specimen sample is split into two components at the time of collection in the presence of the individual from whom the sample or specimen is collected. The second portion of the specimen or sample shall be of sufficient quantity to permit a second, independent confirmatory test as provided in paragraph “i”. The If the sample is urine, the sample shall be split such that the primary sample contains at least thirty milliliters and the secondary sample contains at least fifteen milliliters. Both portions of the sample shall be forwarded to the laboratory conducting the initial confirmatory testing. In addition to any requirements for storage of the initial sample that may be imposed upon the laboratory as a condition for certification or approval, the laboratory shall store the second portion of any sample until receipt of a confirmed negative test result or for a period of at least forty-five calendar days following the completion of the initial confirmatory testing, if the first portion yielded a confirmed positive test result.

The change in the paragraph above was intended to simplify the means of splitting specimens.  In the process of simplification, the drafters may not have realized that breath cannot be split.  Legislature in charge of managing the bill had no idea that the changes were again requiring employers who use breath testing to split the breath at the time of collection.

It’s been two years since this “Flaw in the Law” occurred.  How many employers are not or have not been adhering to the law?

 

Posted in Fairness, General, Privacy, Substance Abuse and Alcoholism/War on Drugs | Tagged , , , , , , , , , , | Comments Off on Flaws in the Laws: Part I – Employment Drug Testing