Could Maryland fire a state employee for an off-the-job drug or alcohol conviction under Governor Schaefer's 1989 substance abuse policy?

Plain-English summary

A Maryland state senator asked the Attorney General in 1989 to review Governor William Donald Schaefer's newly issued executive order setting a State of Maryland Substance Abuse Policy, particularly the parts that let the State discipline classified employees for drug or alcohol convictions that happened entirely off the job, on their own time. The policy required all employees to report a drug conviction within five days, made off-the-job drug or alcohol convictions a policy violation, and mandated termination for employees in "sensitive classes," roughly, jobs with real responsibility for other people's safety, while leaving discipline for other employees to be handled case by case. The Attorney General concluded the whole policy was lawful: the Governor had authority as head of the Executive Branch to issue it, it did not violate constitutional due process or equal protection, it was consistent with the federal Rehabilitation Act because it targeted job-related risk rather than an employee's status as an addict or alcoholic, and its off-duty-conviction provisions fit within the Merit System Law's requirement that a classified employee can be fired only "for cause," since a substantial line of case law recognizes off-duty misconduct as valid cause for discipline when there is a real connection to the employee's job responsibilities.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Maryland's Merit System Law, then codified at Article 64A of the Maryland Code, has since been recodified into the State Personnel and Pensions Article; the federal Rehabilitation Act's definitions have also been affected by later disability-rights legislation, including the Americans with Disabilities Act of 1990. This page describes what the opinion concluded about the specific executive order and statutes in effect in 1989, not current Maryland personnel law or federal disability law.

Common questions

In 1989, could Maryland fire a state worker for an off-duty drug conviction under this policy?
Yes, according to this opinion, at least for employees in "sensitive classes" involving public safety responsibilities, where the policy mandated termination. For other classified employees, the opinion concluded discipline had to be handled case by case, consistent with the Merit System Law's requirement that removal be for "cause."

Did the federal Rehabilitation Act protect an employee from being fired just for being an addict or alcoholic?
The opinion concluded the Act protected an employee's status as a recovering or rehabilitating drug abuser or alcoholic, but did not bar the State from disciplining the workplace or public-safety consequences of substance abuse, or from taking action against a current abuser not in a rehabilitation program, based on the one court decision (Burka v. New York City Transit Authority) that had squarely addressed the question at the time.

Did the Governor have the authority to issue this kind of executive order?
Yes. The opinion concluded that, as head of the Executive Branch under Article II, §1 of the Maryland Constitution and SG §3-302, the Governor had authority to supervise and direct Executive Branch employees' conduct, and that this executive order was simply the latest in a long line of similar orders addressing employee conduct or benefits.

Could the policy be applied without violating an employee's Fifth Amendment rights?
The opinion concluded the policy's requirement that employees "cooperate fully" with law enforcement investigating illegal drug or alcohol use was not intended to, and legally could not, force an employee to waive the Fifth Amendment privilege against self-incrimination regarding their own conduct; it read that provision as being about cooperating in the investigation of other people's illegal activity.

Background and statutory framework

In late 1988, Congress passed the Drug-Free Workplace Act of 1988 as part of a broader Anti-Drug Abuse Act, requiring federal grant recipients, including many Maryland State programs, to adopt specific workplace drug policies. On April 7, 1989, Governor Schaefer issued Executive Order 01.01.1989.05, which went well beyond the federal act's minimum requirements: it applied to all Executive Branch agencies regardless of federal funding, covered alcohol as well as drugs, and extended discipline to off-the-job conduct, requiring employees to report any drug conviction within five days and treating any off-the-job drug or alcohol conviction as a policy violation. Employees in "sensitive classes," defined by the Secretary of Personnel as jobs carrying significant responsibility for others' safety, faced mandatory termination for a violation; other employees faced discretionary discipline up to termination under Article 64A, the Merit System Law.

The opinion worked through four separate legal questions. First, on the Governor's authority, it found ample precedent in a series of prior executive orders addressing State employee conduct and concluded that regulating Executive Branch employee conduct falls squarely within the Governor's constitutional and statutory role as head of that branch. Second, on constitutional limits, it concluded a State policy of disciplining drug or alcohol offenders easily satisfies rational-basis review under substantive due process and equal protection, while procedural due process was satisfied for classified employees because the Merit System Law and its regulations already provide notice and a hearing before termination. Third, on the federal Rehabilitation Act, the opinion traced a 1978 amendment excluding from protection only those current drug abusers or alcoholics "whose current use ... prevents [performance of] the duties of the job" or who pose a safety threat, and concluded, relying most heavily on Burka v. New York City Transit Authority, the only case squarely on point, that the Act protects rehabilitating or rehabilitated abusers but not current abusers outside any rehabilitation program, regardless of their job performance. Fourth, on the Merit System Law's requirement that removal of a classified employee be "for cause," the opinion surveyed a substantial, multi-state body of case law (many of it involving air traffic controllers and other public-safety-sensitive jobs) holding that off-duty misconduct can constitute valid "cause" for dismissal when the agency can show a real connection, or "nexus," between the misconduct and the employee's job responsibilities, particularly for safety-sensitive positions, while lower-risk positions may need a more individualized showing.

Citations and references

Statutes and regulations:

• SG §3-302 and Article II, §1 of the Maryland Constitution, establishing the Governor's authority over Executive Branch employees
• SG §8-201, listing the Executive Branch's principal departments
• Article 64A, §33(b)(2)(i) and §33(d)(1), the Merit System Law's "for cause" removal requirement and the Secretary of Personnel's authority to define cause by rule
• COMAR 06.01.01.47, .45A, and .60, the personnel regulations defining sufficient cause for removal and disciplinary/appeal procedures
• Article 24 of the Maryland Declaration of Rights, Maryland's due process counterpart to the Fourteenth Amendment
• Section 504 of the Rehabilitation Act, 29 U.S.C. §794, and 29 U.S.C. §706(8)(B), the federal disability-discrimination provisions and definition analyzed at length
• The Drug-Free Workplace Act of 1988 and its parent Anti-Drug Abuse Act, Public Law No. 100-690, 102 Stat. 4181, and 102 Stat. 4304
• 5 U.S.C. §7513(a), the federal civil service "efficiency of the service" removal standard used for comparison
• Pub. L. No. 95-602, §122(a), 92 Stat. 2955, 2984-85, the 1978 amendment carving current unrehabilitated drug/alcohol abusers who cannot do the job or pose a safety threat out of Rehabilitation Act protection

Cases (grouped by the point they support):

• On the Governor's executive order authority: Stein v. James, 651 S.W.2d 624, 628 (Mo. App. 1983)
• On constitutional limits on the policy: Kelley v. Johnson, 425 U.S. 238, 247 (1976); New York City Transit Authority v. Beazer, 440 U.S. 568, 592-94 (1979); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985); Gardner v. Broderick, 392 U.S. 273, 279 (1968); Benjamin v. City of Montgomery, 785 F.2d 959, 963 (11th Cir. 1986)
• On the Rehabilitation Act's application to drug abusers and alcoholics: Davis v. Bucher, 451 F. Supp. 791 (E.D. Pa. 1978); Crewe v. U.S. Office of Personnel Management, 834 F.2d 140, 143 n.6 (8th Cir. 1987); Heron v. McGuire, 803 F.2d 67, 68-69 (2nd Cir. 1986); Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1231 n.8 (7th Cir. 1980); Whitlock v. Donovan, 598 F. Supp. 126, 129 n.3 (D.D.C. 1984); Burka v. New York City Transit Authority, 680 F. Supp. 590 (S.D.N.Y. 1988), the case the opinion relied on most heavily
• On the meaning of "cause" for removal under merit system laws generally: Sheetz v. City of Baltimore, 315 Md. 208, 214, 553 A.2d 1281 (1989); Martin v. Matthys, 501 N.E.2d 286, 290 (Ill. App. 1986); Department of Driver Services v. Secretary, 477 N.E.2d 1372, 1374 (Ill. App. 1985); Rosselli v. Reading Housing Authority, 541 A.2d 417, 419 (Pa. Cmwlth. 1988); Peseau v. Civil Service Board, 385 So.2d 1310, 1312 (Ala. App. 1980); Doerr v. Commonwealth, 491 A.2d 299, 302 (Pa. Cmwlth. 1985); Brengle v. Commonwealth, 474 A.2d 352, 353 (Pa. Cmwlth. 1984); Young v. Hampton, 568 F.2d 1253, 1261 (7th Cir. 1977); Crofoot v. United States Gov't Printing Off., 761 F.2d 661, 664 (Fed. Cir. 1985); Bonet v. United States Postal Serv., 661 F.2d 1071 (5th Cir. 1981)
• On off-duty misconduct as valid cause for discipline: West Virginia Department of Corrections v. Lemasters, 313 S.E.2d 436, 439 (W.Va. 1984); Thurmond v. Steele, 225 S.E.2d 210 (W.Va. 1976); Ramirez v. California State Personnel Board, 251 Cal. Rptr. 9, 11 (Cal. App. 1988); White v. United States Postal Serv., 768 F.2d 334 (Fed. Cir. 1985); Thompson v. State Personnel Board, 247 Cal. Rptr. 210 (Cal. App. 1988); Stouffer v. Commonwealth, 464 A.2d 595 (Pa. Cmwlth. 1983); Brown v. Sexner, 405 N.E.2d 1082 (Ill. App. 1980); Sherburne v. School Board of Suwannee County, 455 So. 2d 1057, 1062 (Fla. App. 1984)
• On drug or alcohol convictions specifically as cause in safety-sensitive jobs (largely air traffic control and similar positions): Borsari v. FAA, 699 F.2d 106, 110-12 (2d Cir. 1983); Stump v. Department of Transportation, 761 F.2d 680 (Fed. Cir. 1985); Masino v. United States, 589 F.2d 1048 (Ct. Claims 1978); Dew v. Halaby, 317 F.2d 582 (D.C. Cir. 1963); McDowell v. Goldschmidt, 498 F.Supp. 598 (D. Conn. 1980); Fulton v. Dept. of Public Health, 494 So. 2d 73 (Ala. Civ. App. 1986); McLeod v. Department of the Army, 714 F.2d 918, 921 (9th Cir. 1983); Sanders v. United States Postal Service, 801 F.2d 1328 (Fed. Cir. 1986)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1989/Volume74_1989.pdf (this opinion appears at printed pages 200-220 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PERSONNEL

Executive Orders - Drug Abuse - Rehabilitation Act - Merit System
Law - Executive Order Setting Out State's Drug Abuse Policy Is
Lawful In All Respects

                          August 8, 1989

The Honorable F. Vernon Boozer
Senate of Maryland

You have requested our opinion concerning the State's new

substance abuse policy, as embodied in Executive Order
01.01.1989.05. You ask generally about the legality of the policy.
More particularly, you are concerned about the portions of the policy
that hold State classified employees open to discipline for drug or
alcohol abuse that occurs on the employee's own time, away from the
work place.

For the reasons stated below, we conclude that the policy is itself

lawful and can be applied consistently with applicable legal
requirements. Specifically, we conclude that:

1. The Governor had the authority to issue the executive order
   embodying the policy.

   2. The policy is constitutional.

   3. The policy does not violate the federal Rehabilitation Act.

   4. The policy's treatment of off-duty drug or alcohol convictions
      is consistent with the requirements of the Merit System Law.

                             I
      
            Federal Drug-Free Workplace Act
      

   In late 1988, Congress enacted an omnibus Anti-Drug Abuse Act.
   Public Law No. 100-690, 102 Stat. 4181. One portion of the omnibus
   law is the Drug-Free Workplace Act of 1988, 102 Stat. 4304. This act
   requires federal contractors and recipients of federal grants to meet
   certain requirements for a drug-free workplace.

   Many State programs, of course, are recipients of federal grants.
   Therefore, they are required to comply with this law. Specifically, the
   law requires a grant recipient to provide a drug-free workplace "by
   taking the following actions":

   (A) publishing a statement notifying employees that
       the unlawful manufacture, distribution,
       dispensation, possession, or use of a controlled
       substance is prohibited in the grantee's workplace
       and specifying the actions that will be taken
       against employees for violations of such
       prohibition;
   
    (B) establishing a drug-free awareness program ...;
   
    (C) making it a requirement that each employee to be
        engaged in the performance of such grant be
        given a copy of the statement required by
        subparagraph (A);
   
    (D) notifying the employee in the statement required
        by subparagraph (A), that as a condition of
        employment in such grant, the employee will -
   
        (i) abide by the terms of the statement; and
   
        (ii) notify the employer of any criminal drug
        statute conviction for a violation occurring in the
        workplace no later than 5 days after such
        conviction;
   
     (E) notifying the granting agency within 10 days
         after receiving notice of a conviction under
         subparagraph (D)(ii) from an employee or
         otherwise receiving actual notice of such
         conviction;
   
     (F) imposing sanction on or requiring the satisfactory
         participation in a drug abuse assistance or
         rehabilitation program by any employee who is
         so convicted ...; and
   
     (G) making a good faith effort to continue to
         maintain a drug-free workplace through
         implementation of subparagraphs (A), (B), (C),
         (D), (E), and (F).
   

Section 5153(a)(1). Under Section 5154, an employer who receives
notice from an employee of a conviction for a drug violation occurring
in the workplace must either "take appropriate personnel action against
such employee up to and including termination" or "require such
employee to satisfactorily participate in a drug abuse assistance or
rehabilitation program ...."

                                    II

                              State Policy

On April 7, 1989, Governor Schaefer issued Executive Order

01.01.1989.05, "State of Maryland Substance Abuse Policy." The
preamble indicates that the executive order was intended in part to
assure the State's compliance with the Drug-Free Workplace Act.
However, the executive order clearly is intended to go beyond the
requirements of the federal act. The executive order establishes a
significant State policy in its own right.1

 1
   The executive order applies to all Executive Branch agencies, whether or not

they receive federal grants. Cf. note 8 below.

The State policy applies to both drug and alcohol abuse. Several

of the provisions in the policy address drug or alcohol abuse during
working hours.2 Your inquiry assumes the validity of these
provisions.

 The policy also extends to off-the-job drug and alcohol abuse.

Paragraph B(6) requires that "all employees must report any drug
conviction to their supervisor within five (5) days of that conviction."
This requirement exceeds that of the federal act, which requires
reporting only convictions for drug offenses in the workplace. In
addition, paragraph B(8), which calls upon employees to "cooperate
fully with appropriate law enforcement authorities in the investigation
and prosecution of illegal drug or alcohol use," is not limited to job-
site investigations.

The key provision, paragraph B(7), provides that "all employees

convicted of off-the-job drug or alcohol offenses will be in violation of
this policy." Employees who violate the policy are subject to
discipline. "Those employees who are assigned to designated sensitive
classes will be terminated if they are found to be in violation of this
policy." Paragraph B(11).3 All other employees "found to be in

 2
     These are:
        "(1) Employees are prohibited from unlawfully manufacturing,

distributing, dispensing, possessing, or using a controlled substance in the workplace.

       (4) All employees must report to work in a fit condition to perform their

duties. Reporting to work under the influence of drugs or alcohol is a violation of
this policy and shall subject the employee to disciplinary action.
(5) All employees on official business, on or off the workplace, are
prohibited from purchasing, transferring, using, or possessing illegal drugs or from
abusing alcohol or prescription drugs in any way that is illegal."
3
The executive order defines a sensitive class as follows:
"'Sensitive classes' are those in which the Secretary of
Personnel has determined that all of the following conditions
exist:
(a) A substantially significant degree of responsibility for
the safety of others;
(b) A potential that impaired performance of the employee
could result in death of or injury to the employee or others; and
(c) Lack of close monitoring of the employee's behavior
which reduces the possibility of intervention or assistance by
another when necessary."
Paragraph A(6).

violation of any of the provisions of this policy shall be subject to the
penalties contained in Article 64A of the Annotated Code of Maryland,
which provides sanctions up to and including termination." Paragraph
B(12).4 We understand that this aspect of the policy is intended to be
administered with customary concepts of "progressive discipline" in
mind.5

To illustrate the application of the policy: If an employee is

arrested and convicted of possession of marijuana at a weekend party,
for example, the employee is required by the policy to report that
conviction to his or her supervisor within five days of the conviction.
If the employee is in a sensitive class, the agency is to institute
termination proceedings. If the employee is not in a sensitive class, the
agency may seek to impose any form of discipline authorized by law.

 If an employee is arrested and convicted of driving under the

influence of alcohol after a weekend party, to take another example,
the employee is not required to report that conviction to his or her
supervisor. However, if the agency learns of the conviction, and the
employee is in a sensitive class, the agency is to institute termination
proceedings. If the employee is not in a sensitive class, the employee
is subject to discipline for violating the policy.

These two examples suggest the applications of the policy that gave

rise to your particular concern. For purposes of analysis in this

 4
   The policy provides the following exception: "Employees will not be

terminated for voluntarily seeking assistance for a substance abuse problem.
However, continued unacceptable job performance, attendance and/or behavior
problems shall result in disciplinary action up to and including termination."
Paragraph B(10).
5
Disciplinary sanctions short of termination include reprimand, suspension, and
demotion. See COMAR 06.01.01.45A.

opinion, we will assume that the agency is seeking to terminate an
employee for an off-the-job drug or alcohol conviction. If this
disciplinary action were legally permissible, obviously a lesser sanction
would be permissible as well.

                                   III

                        Governor's Authority

 A decade ago, the Attorney General observed that "there is little

Maryland authority on the nature or effect of an executive order." 64
Opinions of the Attorney General 180, 181 (1979). That statement is
just as true today.6 Nevertheless, we need not here try to define the
outer limits of the Governor's authority, for we are able to conclude
that an executive order dealing with the conduct of Executive Branch
employees is within that authority.

"The Governor is the head of the Executive Branch of the State

government and, except as otherwise provided by law, shall supervise
and direct the officers and units in that Branch." §3-302 of the State
Government Article ("SG" Article).7 This statute reflects the role of
the Governor under Article II, §1 of the Maryland Constitution. As
the Revisor's Note to SG §3-302 observes, "the Governor clearly is
head of the Executive Branch of State government and has
responsibilities as to officers and units within that Branch." Thus, the
Governor has "extremely broad authority to 'supervis[e] and direc[t] ..
the officers and agencies ... assigned to the Executive Department'."
67 Opinions of the Attorney General 203, 207 (1982) (quoting former
Article 41, §15).

6
   Indeed, there is little authority anywhere. "Executive orders are rarely the

subject of judicial opinions." Stein v. James, 651 S.W.2d 624, 628 (Mo. App.
1983).
7
SG §8-201 enumerates the principal departments of the Executive Branch,
including the Department of Personnel.

 The executive order embodying the State's drug-free workplace

policy addresses Executive Branch employees.8 It does not purport
to impose requirements on persons outside State government. Cf. 48
Opinions of the Attorney General 72 (1963). Rather, it is the latest in
a series of executive orders that, over the years, have "supervised" or
"directed" some aspect of employee conduct or provided a benefit to
employees. See, e.g., Executive Orders 01.01.1974.16 (grievance
procedures for unclassified employees, later rescinded); 01.01.1981.10
(criteria for employee release in emergencies); 01.01.1987.13 (smoking
policy); 01.01.1988.10 (procurement of group life insurance benefit).
In our view, executive orders of this kind are valid (assuming, of
course, no inconsistency with a constitutional or statutory provision)
and are enforceable through applicable disciplinary procedures.

                                     IV

                     Constitutional Considerations

 Although the Due Process Clause of the Fourteenth Amendment

and its State counterpart, Article 24 of the Maryland Declaration of
Rights, place certain substantive limits on State actions, they do not
prohibit a State policy of terminating an employee who is convicted of
an off-the-job drug or alcohol offense. A State decision to terminate
drug or alcohol abusers would unquestionably be rational, and that is
all that the substantive aspect of due process protection requires.
Kelley v. Johnson, 425 U.S. 238, 247 (1976). See 67 Opinions of the
Attorney General 322, 328 (1982).9

 To be sure, a classified employee has a property interest in his or

her job that is protected by the procedural element of the Due Process

 8
   Although the order is not expressly so limited, it is not enforceable against

employees who are not subject to the Governor's direction. However, any State
entity not subject to the order that receives federal grants should either comply
voluntarily with the executive order or adopt its own policy to conform to the federal
requirements.
9
The result is no different under the Equal Protection Clause. New York City
Transit Authority v. Beazer, 440 U.S. 568, 592-94 (1979). See also 67 Opinions of
the Attorney General at 324-26.

Clause. Accordingly, a classified employee must be afforded certain
procedural rights prior to termination. See Cleveland Board of
Education v. Loudermill, 470 U.S. 532 (1985).

The procedural protections of the Merit System Law, Article 64A

and its implementing regulations, amply satisfy the requirements of
procedural due process. 70 Opinions of the Attorney General 151
(1985). The executive order specifically refers to the Merit System
Law and, we understand, is intended to be applied with full regard for
the procedural protections of Article 64A. Therefore, because any
classified employee who is disciplined for a policy violation will have
been given the notice and opportunity for hearing called for by Article
64A, the policy comports with procedural due process requirements.
See 70 Opinions of the Attorney General at 157.10

Finally, one particular provision in the executive order raises a

question under the Fifth Amendment. Paragraph B(8) states that "[a]ll
employees must cooperate fully with appropriate law enforcement
authorities in the investigation and prosecution of illegal drug or
alcohol use." We do not believe that this provision was intended to
(nor, in any event, could it) infringe upon an employee's Fifth
Amendment right not to be "compelled in any criminal case to be a
witness against himself." Clearly, the State may not penalize the
exercise of this right.11 Rather, Paragraph B(8) embodies an
expectation that State employees will cooperate fully in the
investigation of other persons' illegal drug or alcohol use.

 10
    Unclassified employees have no "property interest in continued employment"

so as to invoke procedural due process protections. 70 Opinions of the Attorney
General at 159. See note 16 below.
11
"[T]he mandate of the great privilege against self-incrimination does not
tolerate the attempt ... to coerce a waiver of the immunity it confers on penalty of the
loss of employment." Gardner v. Broderick, 392 U.S. 273, 279 (1968). See also,
e.g., Benjamin v. City of Montgomery, 785 F.2d 959, 963 (11th Cir. 1986) ("a public
employee cannot be terminated for refusing to waive fifth amendment rights").

                                      V

                       Federal Rehabilitation Act

A. Introduction

The same fact, receipt of federal grants, that makes State programs

subject to the Drug-Free Workplace Act also makes those programs
subject to the federal Rehabilitation Act of 1973. In pertinent part, the
Rehabilitation Act protects individuals with handicaps against
employment discrimination. In this portion of the opinion, we explain
our conclusion that the State policy on substance abuse is consistent
with the Rehabilitation Act.

B. Applicability to Drug Abusers and Alcoholics

Section 504 of the Rehabilitation Act, 29 U.S.C. §794, prevents a

recipient of federal financial assistance from discriminating against an
"otherwise qualified individual with handicaps."12 An "individual
with handicaps" is, generally, any person "who (i) has a physical or
mental impairment which substantially limits one or more of such
person's major life activities, (ii) has a record of such an impairment,
or (iii) is regarded as having such an impairment." 29 U.S.C.
§706(8)(B).

In 1977, the Attorney General of the United States was asked

whether the definition set out above included alcoholics and drug
addicts. Attorney General Griffin Bell concluded that individuals with
these conditions were "handicapped individuals," for purposes of
Section 504 of the Rehabilitation Act. "[T]he statute requires that
[employers] covered by the Act not automatically deny employment or
benefits to persons solely because they might find their status as
alcoholics or drug addicts personally offensive, any more than
contractors and grantees could discriminate against an individual who
had some other condition or disease, such as cancer, multiple

 12 Prior to 1986, the statutory term was "handicapped individual." In 1986, in

a change not pertinent to this analysis, Congress amended the Act to replace the term
"handicapped individual," wherever it appeared in the statute, with the term
"individual with handicaps." Pub. L. No. 99-506, §103(d)(2)(B), 100 Stat. 1807,
1810.

sclerosis, amputation, or blindness, unless its manifestations or his
conduct rendered him ineligible." 43 Op. A.G. No. 12 (April 12,
1977), at Westlaw pp. 7-8. An alcoholic or drug addict would not be
protected by Section 504 "if the manifestation of his condition
prevented him from effectively performing the job in question ...." 43
Op. A.G. No. 12, at Westlaw p. 1.

In adopting regulations to implement the Rehabilitation Act, the

Secretary of Health, Education and Welfare ("HEW") expressed the
same construction of the statute. 42 Fed. Reg. 22,686 (May 4, 1977),
codified at 45 C.F.R. Part 84, App. A, at 375. The Secretary of HEW
drew the same distinction between a person's status as a drug addict,
on the one hand, and the workplace manifestations of that drug abuse,
on the other:

     The fact that drug addiction and alcoholism may be
     handicaps does not mean that these conditions must
     be ignored in determining whether an individual is
     qualified for services or employment opportunities.
     On the contrary, a recipient [of federal funds] may
     hold a drug addict or a alcoholic to the same standard
     of performance and behavior to which it holds others,
     even if any unsatisfactory performance or behavior is
     related to the person's drug addiction or alcoholism.
     In other words, while an alcoholic or drug addict
     may not be denied services or disqualified from
     employment solely because of his or her condition,
     the behavioral manifestations of the condition may be
     taken into account in determining whether he or she
     is qualified.

Id. Moreover, the Secretary went on, "employers may enforce rules
prohibiting the possession or use of alcohol or drugs in the work place,
provided that such rules are enforced against all employees." Id.

The only case that extensively analyzed the applicability of the

original Rehabilitation Act to drug abusers was Davis v. Bucher, 451
F. Supp. 791 (E.D. Pa. 1978). This case was brought by job
applicants who claimed that they were denied employment solely on the
basis of former drug use, "without regard to their qualifications,
present rehabilitative status, or the nature of the job for which they had
applied." 451 F. Supp. at 793. The applicants were fully qualified for
the positions for which they applied, and the City of Philadelphia
conceded that "but for the old scars and admissions of prior drug use,
the applicants would have been hired ...." 451 F. Supp. at 794.

The district court found that the city's refusal to hire these

rehabilitated drug addicts violated the Rehabilitation Act. In so
holding, the court concluded "that persons with a history of drug use,
including present participants in methadone maintenance programs, are
'handicapped individuals' within the meaning of the statutory and
regulatory language." 451 F. Supp. at 796. Because none of the job
applicants in the case were current drug abusers, the court did not have
to consider how the Act would apply to them.

 In 1978, Congress added language to the definition of "handicapped

individual" that, for purposes of employment discrimination,
specifically addressed alcoholics and drug abusers: "[T]he term
'handicapped individual' ... does not include any individual who is an
alcoholic or drug abuser whose current use of alcohol or drugs prevents
such individual from performing the duties of the job in question or
whose employment, by reason of such current alcohol or drug abuse,
would constitute a direct threat to property or the safety of others."
Pub. L. No. 95-602, §122(a), 92 Stat. 2955, 2984-85. In substance,
this is part of the current definition. 29 U.S.C. §706(8)(B).13

 The key question is whether this amendment was intended to codify

the distinction drawn in the Attorney General's opinion and the
interpretation of the Secretary of HEW, that is, between current drug
abusers who nevertheless can perform the job and current drug abusers
who cannot. The statutory language suggests such a result. It
identifies one category of current drug abusers and alcoholics who are
outside the Act, those "whose current use of ... drugs prevents ... [the
performance of] the duties of the job in question" or who constitute a
threat to others; and, inferentially, another category, current alcohol
and drug abusers who are able to do the job and who do not pose a
threat to others, who remain within the Act's protection.

 13 See note 12 above regarding the change from "handicapped individual" to

"individual with handicaps."

 The legislative history on the whole suggests that this distinction

reflects Congress' intent. The House version of the provision would
have limited the employment protections of the Rehabilitation Act to
those alcoholics and drug addicts who had already completed
rehabilitation. See H.R. Rep. No. 1149, 95 Cong., 2d Sess. (1978),
reprinted in 1978 U.S. Code Cong. & Adm. News 7333-34.14

 The Senate version was broader. Its language would have

protected all alcoholics and drug abusers, except an abuser whose
condition "renders that individual not qualified for employment by
preventing him from performing the essential functions of the job in
question." 124 Cong. Rec. 30,332 (1979). One Senator, at least,
thought that this language protected "active" alcoholics who could do
the job, apparently without regard to their rehabilitative status: "Many
'active' alcoholics ... hold jobs and perform them satisfactorily ....
[T]he Rehabilitation Act protects such persons ... from being fired
solely because of their alcoholism ...." 124 Cong. Rec. 30,324
(remarks of Senator Hathaway). Another Senator, however,
emphasized current rehabilitation, that the provision would protect
"persons stabilized in methadone maintenance treatment [who] are fully
employable." 124 Cong. Rec. 30,323 (remarks of Senator Williams).

The conference committee version, which is that now contained in

29 U.S.C. §706(8)(B), appears to reflect an intent to apply the Act to
any abuser who can do the job. The conference report states that "only
those active alcoholics or drug abusers who cannot perform the
essential functions of a job in question or who present a danger to life
and property are not covered ...." H.R. Rep. No. 95-1780, 95th
Cong., 2d Sess. 102 (1978), reprinted in 1978 U.S. Code Cong. &
Adm. News 7413. The conference report does not discuss any
requirement that an active abuser be in rehabilitation.

 Subsequent judicial interpretations are not conclusive. Most of the

cases treat the question of current drug or alcohol abuse in passing
dicta. See Crewe v. U.S. Office of Personnel Management, 834 F.2d
140, 143 n.6 (8th Cir. 1987); Heron v. McGuire, 803 F.2d 67, 68-69
(2nd Cir. 1986); Simpson v. Reynolds Metals Co., 629 F.2d 1226,

 14
    The report suggested that the amendment "protects otherwise qualified self-

reformed or rehabilitated alcoholics or drug abusers from unreasonable
discrimination."

1231 n.8 (7th Cir. 1980); Whitlock v. Donovan, 598 F. Supp. 126,
129 n.3 (D.D.C. 1984). These dicta go in both directions.

 A recent case, Burka v. New York City Transit Authority, 680 F.

Supp. 590 (S.D.N.Y. 1988), contains the only extensive analysis of the
issue and is directly on point. In Burka, several of the plaintiffs were
current drug abusers not in any rehabilitation program. They claimed
that the Rehabilitation Act prevented the Transit Authority from
refusing to hire them because of their drug abuse. After a detailed
assessment of the legislative history of the 1978 amendment, Judge
Goettel concluded as follows: "We hold today that section 504 protects
only those otherwise qualified drug abusers who have been or are being
rehabilitated. It does not protect the illegal narcotics abuser who has
not sought or is not seeking treatment for his or her condition." 680
F. Supp. at 597. The court observed that its conclusion was
"consistent with sound public policy. It encourages those abusers of
illegal narcotics who have not done so to seek treatment for their
problem, but it does not provide those same abusers with the assurance
of safe haven in the workplace should they instead choose to continue
their illegal activity and ignore help." 680 F. Supp. at 600.

C. Effect On State Policy

Under any reading of the Rehabilitation Act, the State surely may

take disciplinary action against a drug abuser or alcoholic if the
employee's substance abuse impairs job performance or threatens
property or personal safety. Moreover, the Rehabilitation Act does not
preclude disciplinary action against a recreational drug user who does
not have "an impairment which substantially limits one or more of such
person's major life activities ...." As one commentator has observed:
"[T]emporary impairments, such as an occasional drinking problem or
occasional drug abuse, are more likely to be viewed as within the
employee's control and thus outside the scope of the Act." Note,
Hidden Handicaps: Protection of Alcoholics, Drug Addicts, and the
Mentally Ill Against Employment Discrimination Under the
Rehabilitation Act of 1973 and the Wisconsin Fair Employment Act,
1983 Wis. L. Rev. 725, 729.

There is also no doubt that the Rehabilitation Act protects some

drug abusers and alcoholics. Section 504 does not permit the State to
take disciplinary action against a drug abuser or alcoholic if the
employee's substance abuse does not impair his or her job performance
or pose a threat to property or other persons and the employee is in a
rehabilitation program. Paragraph B(10) of the executive order reflects
this requirement.15

 The closest question is whether the State may take disciplinary

action against a drug abuser or alcoholic if the employee's substance
abuse neither impairs job performance nor threatens property or
personal safety but the employee is not in a rehabilitation program. On
the one hand, the language, legislative history, and background of the
1978 amendment seem to reflect a legislative intention that the
Rehabilitation Act apply to all current drug abusers and alcoholics who
are able to perform their jobs satisfactorily. Nevertheless, the only
court to directly address the question to date has assessed the pertinent
material differently and forcefully reached the opposite result.
Accordingly, based on current (albeit limited) caselaw, the State may,
in enforcing its policy, take disciplinary action against an employee
who is a current drug abuser or alcoholic and who is not in a
rehabilitation program, regardless of the employee's job performance.

                                     VI

                      Merit System Requirements

A. "Cause" for Removal

 In this portion of the opinion, we consider whether discharge of a

classified employee for off-the-job drug or alcohol convictions would
be inconsistent with the Merit System Law. Article 64A, §33(b)(2)(i)
provides that "no employee who has completed his probation may be
permanently removed from the classified service except for cause ...."
Article 64A, §33(d)(1) authorizes the Secretary of Personnel, "by rule,
[to] prescribe what may constitute cause for removal ...."16

 15
   See note 4 above.
  16
   An unclassified employee may be removed without cause. See 70 Opinions

of the Attorney General at 159. It follows, then, that an unclassified employee may
be removed because of an off-the-job drug or alcohol conviction, or for any other
lawful reason. Under COMAR 06.01.01.60, an unclassified employee who is
terminated may submit an appeal to the Secretary, "limited to the legal and
constitutional bases for the termination."

In COMAR 06.01.01.47, the Secretary has set out certain

"sufficient cause[s] of removal, though removal may be for causes
other than those enumerated." One such cause is "that the employee
has been convicted of a criminal offense or of a misdemeanor involving
moral turpitude." COMAR 06.01.01.471.17 Another is "that the
employee has been guilty of conduct such as to bring the classified
service into public disrepute." COMAR 06.01.01.47M.

A law limiting removal "for cause" is intended to address "future

job performance, rather than to punish employees for past wrongs ....
The [provision] regarding cause for discharge reflects [a] proclivity for
basing discharge on job efficiency, rather than on retribution." Sheetz
v. City of Baltimore, 315 Md. 208, 214, 553 A.2d 1281 (1989).18

The emphasis given by the Court of Appeals to "job efficiency

rather than ... retribution" reflects a well-settled construction of "for
cause" dismissal provisions in merit system laws. The Illinois Civil
Service Law, for example, provides for removal for "cause," without
further legislative elaboration. Under Illinois cases, "cause" has been
construed to mean "some substantial shortcoming which renders the
employee's continuance in office in some way detrimental to the
service's discipline and efficiency, and which the law and sound public
opinion recognize as good cause for his no longer occupying the
position. Such shortcoming need not be directly connected with the
performance of work, but must not be trivial, arbitrary or

 17 The term "criminal offense" presumably was intended to refer to felonies.

It cannot be read literally, for a literal reading would make a nullity out of the
immediately ensuing phrase, "a misdemeanor involving moral turpitude."
18 In this passage, the Court of Appeals was referring in particular to a portion
of the Baltimore City Charter that allows for an employee's removal "for any cause
... which, in the opinion of the person authorized by law to remove or dismiss such
officer or employee, may interfere with the efficient discharge of the duties of the
position." Article VII, §118(a) of the Baltimore City Charter. However, the context
of the Court's comment and its citation of authority indicate that it was referring
broadly to "for cause" dismissal provisions, not solely to the City Charter provision.

unreasonable." Martin v. Matthys, 501 N.E.2d 286, 290 (Ill. App.
1986). Accord, Department of Driver Services v. Secretary, 477
N.E.2d 1372, 1374 (Ill. App. 1985). As one Pennsylvania court
similarly put it: "The criteria for determining just cause must be based
on merit; that is, the criteria must be job-related and in some rational
and logical manner touch upon competency and ability." Rosselli v.
Reading Housing Authority, 541 A.2d 417, 419 (Pa. Cmwlth. 1988).
Accord, Peseau v. Civil Service Board, 385 So.2d 1310, 1312 (Ala.
App. 1980); Doerr v. Commonwealth, 491 A.2d 299, 302 (Pa.
Cmwlth. 1985); Brengle v. Commonwealth, 474 A.2d 352, 353 (Pa.
Cmwlth. 1984).

The federal courts have formulated a similar test. Under the

Federal Civil Service Law, an agency may discharge an employee
"only for such cause as will promote the efficiency of the service." 5
U.S.C. §7513(a). A long line of federal cases have interpreted this
requirement to mean that there must be a "nexus", "that vital
connection between the employee's complained of activities and some
identifiable detriment to the efficiency of the service ...." Young v.
Hampton, 568 F.2d 1253, 1261 (7th Cir. 1977). See also, e.g.,
Crofoot v. United States Gov't Printing Off., 761 F.2d 661, 664 (Fed.
Cir. 1985); Bonet v. United States Postal Serv., 661 F.2d 1071 (5th
Cir. 1981).

B. Applicability to Off-Duty Criminal Misconduct

A substantial body of case law rejects the argument that discipline

may be imposed only for misconduct occurring on the job. As the
West Virginia Supreme Court observed, "the fact that [the employee's]
conduct is alleged to have occurred while he was off duty is of no legal
significance" to the issue of "good cause" for dismissal under the West
Virginia Civil Service Act. West Virginia Department of Corrections
v. Lemasters, 313 S.E.2d 436, 439 (W.Va. 1984).

What is significant is a reasonable link between off-duty

misconduct and the employee's job-related responsibilities. The West
Virginia Supreme Court stated the test as follows:

     "If the employing authority dismisses or otherwise
     disciplines a civil service protected employee for
     gross misconduct occurring off the job and not
     involving state property, such misconduct must be
     substantial and not frivolous, trivial or
     inconsequential, and it must be shown that such
     misconduct reflects adversely upon the employee's
     ability to perform his job, impairs the efficient
     operation of the employing authority and bears a
     substantial relationship to duties directly affecting the
     rights and interest of the public."

Lemasters, 313 S.E.2d at 439 (quoting Thurmond v. Steele, 225 S.E.2d
210 (W.Va. 1976)). A California court stated the test similarly:
"[T]he mere finding of an off-duty act, coupled with a determination
that the act falls under the definition of failure of good behavior, is not
a sufficient basis for termination of employment. It must be shown
that the misconduct bears some rational relationship to his employment
and must be of such character that it can easily result in the impairment
or disruption of the public service." Ramirez v. California State
Personnel Board, 251 Cal. Rptr. 9, 11 (Cal. App. 1988). See also,
e.g., White v. United States Postal Serv., 768 F.2d 334 (Fed. Cir.
1985) (leaving scene of fatal accident by postmaster); Thompson v.
State Personnel Board, 247 Cal. Rptr. 210 (Cal. App. 1988) (off-duty
assault by correctional officer); Stouffer v. Commonwealth, 464 A.2d
595 (Pa. Cmwlth. 1983) (shoplifting by police officer); Brown v.
Sexner, 405 N.E.2d 1082 (Ill. App. 1980) (off-duty assault by
correctional officer).

For example, suppose that a State employee who was responsible

for handling State funds was convicted of embezzling money from a
private organization. No one would suppose that this employee was
qualified to continue to handle State funds. Certainly, in this example,
the off-duty misconduct would have a telling effect on the employee's
qualifications and ability to carry out the State job.

C. Drug or Alcohol Convictions as "Cause"

 These principles apply to convictions for off-duty drug or alcohol

offenses. The cases establish that such a conviction (or, indeed,
sufficient evidence of drug involvement even without a conviction)
affords the employing agency grounds for dismissal of a classified
employee where the agency can demonstrate a nexus between the
conviction and the employee's job responsibilities.

 Many of the federal cases involve air traffic controllers. In Borsari

v. FAA, 699 F.2d 106 (2d Cir. 1983), an air traffic controller had been
criminally convicted of possessing marijuana and had been
administratively determined to have sold marijuana and possessed
cocaine. He was discharged. In his appeal, Borsari claimed that
dismissal for these offenses was not necessary to "promote the
efficiency of the [civil] service," which was the basis for his dismissal.
He also claimed that the dismissal violated a statutory prohibition
against "discriminat[ion] ... on the basis of conduct which does not
adversely affect the performance of the employee ... or the
performance of others." Borsari pointed to "considerable evidence
indicating his superior job performance ...." 699 F.2d at 110.

The Second Circuit, "not convinced this is the only relevant

factor," instead was persuaded by the FAA's argument about the
"incompatibility of drugs with successful air traffic control":

           The phrase "promote the efficiency of service"
      cannot be so limited as to require the Agency to wait
      for an on-the-job violation before dismissing an
      offending employee. Indeed, it has repeatedly been
      held that where an employee's misconduct is in
      conflict with the mission of the agency, dismissal
      without proof of a direct effect on the individual's job
      performance is permissible under the "efficiency of
      the service" standard.

Id. The court then described the extraordinary public safety
responsibilities of air traffic controllers and the need for absolute public
trust in the integrity of the air traffic control system. "For these
reasons, it is clear that any connection with illegal mind-altering
substances is anathema to proper control over air traffic." 699 F.2d at
111.19

 19 Borsari was not found to have used drugs. However, the court found it

"reasonable to infer that as a group, individuals possessing drugs are more likely to
employ them .... '[T]o an employer, there is a greater risk that an employee who has
once sold marijuana will use it than in the case of one who has never sold
marijuana.'" 699 F.2d at 111.

 Moreover, the court rejected Borsari's contention that his dismissal

amounted to improper discrimination "on the basis of conduct which
does not adversely affect the performance of the employee ... or the
performance of others." The court held that this prohibition was not
intended to negate the agency's discretion to dismiss an employee to
"promote the efficiency of service." Rather, "Congress expressly
permitted removal of employees whose actions might disrupt an
agency's smooth functioning by creating suspicion, distrust, or a
decline in public confidence." 699 F.2d at 112.

 Other courts have reasoned similarly when reviewing an agency's

dismissal of an employee from various jobs because of drug abuse.
Stump v. Department of Transportation, 761 F.2d 680 (Fed. Cir. 1985)
(air traffic controller); Masino v. United States, 589 F.2d 1048 (Ct.
Claims 1978) (customs inspector); Dew v. Halaby, 317 F.2d 582 (D.C.
Cir. 1963) (air traffic controller); McDowell v. Goldschmidt, 498
F.Supp. 598 (D. Conn. 1980) (air traffic controller); Fulton v. Dept.
of Public Health, 494 So. 2d 73 (Ala. Civ. App. 1986) (supervisory
employee of health department, which had responsibility to enforce
laws relating to drugs).

Two federal cases also illustrate the other element of the decisional

principle applied in this area, that a drug conviction alone is not
necessarily sufficient cause for removal of an employee. In the leading
case of Young v. Hampton, 568 F.2d 1253 (7th Cir. 1977), an
employee of an army arsenal was arrested during off-duty hours at his
residence for possession of marijuana and amphetamines. After the
employee's conviction, the government then terminated him for
misconduct.

The court pointed out, however, that the employee "had very little

contact with the public in performing his job," and his criminal
conviction was not so notorious as to cause the agency's reputation to
suffer. 568 F.2d at 1256. Moreover, there was no evidence at all of
job performance problems:

    His supervisor and foreman testified that he had done
    very good work, and that his ability to perform his
    job was substantially the same when he returned to
    work following his conviction. Young had never
    exhibited any kind of conduct on the job that would
      have affected his ability to perform his work. His
      conviction did not affect the quantity or quality of his
      work, and did not decrease his supervisor's opinion
      of his reliability or trustworthiness.

Id. The court distinguished one of the air traffic controller cases, Dew
v. Halaby, because the employee in that case was employed in "a
position which, unlike Young's relatively mundane product inspection
tasks, required split-second judgment and daily responsibility for many
hundreds of lives." 568 F.2d at 1261.20

 Similarly, in McLeod v. Department of the Army, 714 F.2d 918

(9th Cir. 1983), the court found insufficient as a basis for dismissal an
agency's finding that an employee had possessed marijuana. The court
emphasized the lack of evidence of any effect on the employee's
performance and the fact that the employee, a warehouse worker, "was
not in an authoritative position with responsibility and contact with the
public." 714 F.2d at 921.21

D. Effect on State Policy

 In our view, the cases discussed above underscore the soundness

of the distinction drawn in the State policy. Employees in "sensitive
classes", those involving public safety, are to be terminated for drug
or alcohol offenses. This policy decision by the State has an ample
legal basis.22 At the same time, the policy makes clear that other

 20 The court also distinguished cases in which the criminal offense was so

serious that "a court could properly find a nexus once the facts of the misconduct
were proven." 568 F.2d at 1262.
21 One other case suggests that even a low-level employee may be dismissed for
a drug offense. Sanders v. United States Postal Service, 801 F.2d 1328 (Fed. Cir.
1986) (post office clerk). However, this case may be distinguishable because of the
comparative seriousness of the offense, trafficking in cocaine, and the fact that a
portion of the transaction occurred on postal property. 801 F.2d at 1329.
22 Cases involving misconduct other than drug offenses likewise support the
proposition that employees in positions of special sensitivity are subject to discipline
under circumstances that might not lead to the discipline of employees in other jobs.
See, e.g., White v. United States Postal Serv., 768 F.2d at 336; Brown v. Sexner, 405
N.E.2d 1082, 1089 (Ill. App. 1980). Cf. Sherburne v. School Board of Suwannee
County, 455 So. 2d 1057, 1062 (Fla. App. 1984).

employees, while subject to discipline for off-duty drug or alcohol
offenses, are not automatically subject to dismissal. Rather, the policy
contemplates that each case will be considered on its own facts; the
appropriate level of discipline sought; and, if dismissal of a classified
employee is sought, the requisite cause established. In short, the policy
is intended to be administered so as to comply fully with the Merit
System Law.

                              VII

                          Conclusion

In summary, it is our opinion that the State's substance abuse

policy, Executive Order 01.01.1989.05, is lawful in all respects.

                                 J. Joseph Curran, Jr.
                                 Attorney General

                                 Jack Schwartz
                                 Chief Counsel
                                   Opinions & Advice