Sergeant Mark Sakauye
Sacramento Police Department
Sacramento, California 95815

RE: Safety-sensitive function; municipal police officers

Dear Sergeant Sakauye:

Thank you for your letter asking whether the Sacramento police officers working under contract to the Sacramento Regional Transit District (SRTD) are covered by FTA’s drug and alcohol rules. You write that the Sacramento Police Department contracts with SRTD for police protection; under this contract SRTD pays the Sacramento Police Department the salaries of all the officers assigned to SRTD. You write that although the police officers focus on transit-related crimes, they can, and do, handle nontransit-related police calls. You further state that the police officers report to you and you report to a Lieutenant of the Sacramento Police Department.

FTA’s drug and alcohol rules require "employers" to test "covered employees" for the use of five prohibited drugs and for the misuse of alcohol. A "covered employee" is one "who performs a safety-sensitive function for an entity subject to this part." 49 CFR 653.7 and 654.7. A "safety-sensitive function" means, among other things, "carrying a firearm for security purposes." 49 CFR 653.7 and 654.7.

It is clear under the rules that transit police officers who carry firearms and are directly employed by a transit system are subject to the drug and alcohol testing program; less clear are situations where local police may provide special policing for a transit system but remain part of the local police force. In our view, the intent of the rules is to cover those armed security personnel who provide security specifically for a transit operator, either directly, by contract, or some other arrangement, and who report to or are supervised by that operator. For example, police officers who as part of their normal duties patrol public transit facilities would not be subject to the rules. In your case, although the police officers’ salaries are covered by the contract, with SRTD, they are not under the supervision of SRTD and respond to nontransit-related police calls. In short, we conclude that because such police officers are not supervised by and do not work exclusively for SRTD, they are not subject to FTA’s drug and alcohol rules.

If you have any further questions, please contact Ms. Nancy Zaczek of my staff at (202) 366-4011.

Very truly yours,
(Signed)
Gregory B. McBride
Acting Chief Counsel