Can Maryland require state employees in safety-sensitive jobs to take drug tests without individual suspicion?

Plain-English summary

A member of the House of Delegates asked the Attorney General two questions about House Bill 370, a 1990 bill that would have written explicit drug-testing authority into the state Merit System Law. First, was the bill constitutional? Second, if it failed, could the Secretary of Personnel set up a drug-testing program anyway under existing law?

The Attorney General answered yes to both. On constitutionality, he leaned on two 1989 U.S. Supreme Court decisions, Skinner and Von Raab, which held that government drug testing is a "search" under the Fourth Amendment but can be reasonable even without individualized suspicion for certain safety- and security-sensitive jobs. House Bill 370 limited suspicionless (including random) testing to four "sensitive" categories: jobs with major responsibility for others' safety where impairment could kill or injure; jobs requiring a firearm; jobs directly interdicting narcotics into state institutions; and narcotics law enforcement. Working through each category against the developing federal case law, the opinion found all four constitutional, and it concluded the bill was constitutional on its face. Employees not in a sensitive job could still be tested, but only on reasonable grounds to believe they were using drugs illegally. On the second question, the opinion pointed to a 1986 Attorney General opinion and unchanged statutes to conclude the Secretary already had authority to adopt a drug-testing program by regulation, so the bill was a useful clarification rather than a legal necessity.

Currency note

This opinion was issued in 1990. 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.

The opinion analyzed a specific 1990 bill and the state of Fourth Amendment drug-testing law as it stood right after the Supreme Court's 1989 Skinner and Von Raab decisions, when the lower courts were still working out how far suspicionless and random testing could go. Constitutional doctrine on workplace drug testing, the Merit System Law's structure (then in Article 64A), and the governing regulations (then COMAR 06.01.09) have all developed since. Do not rely on the specific statutory sections or the "current law" conclusions here without checking today's statutes, regulations, and case law.

Common questions

Could Maryland drug test state employees without any individual suspicion?
Under this 1990 opinion, yes, but only for employees in "sensitive" positions or classifications. For those jobs, the opinion concluded the state could require even random, suspicionless testing. Employees not in a sensitive job could be tested only when an appointing authority had reasonable grounds to believe the employee was using drugs illegally.

What jobs counted as "sensitive" enough to allow random drug testing?
House Bill 370 defined four categories: an employee with a substantially significant degree of responsibility for the safety of others, where impaired performance could cause death or injury; an employee required to carry a firearm; an employee directly involved in interdicting narcotics into state institutions; and an employee directly involved with narcotics law enforcement.

What made suspicionless drug testing legal under the Fourth Amendment?
The 1989 U.S. Supreme Court decisions in Skinner v. Railway Labor Executives' Ass'n and National Treasury Employees Union v. Von Raab. Those cases treated drug testing as a Fourth Amendment search but held it reasonable, without individualized suspicion, for certain safety- and security-sensitive positions, such as train crews involved in accidents and Customs employees seeking drug-interdiction or firearm-carrying jobs.

Could correctional officers be drug tested?
Yes, those who had contact with prisoners. Following the Seventh Circuit's decision in Taylor v. O'Grady, the opinion concluded that employees "directly involved in efforts to interdict the flow of narcotics into State institutions" could be tested, but noted that under that same case, testing could not extend to employees with only administrative or clerical duties who lacked contact with the prison population.

Did Maryland need to pass House Bill 370 to drug test employees?
No. The opinion concluded that even if the bill were defeated, the Secretary of Personnel already had authority under the existing Merit System Law to adopt a drug-testing program by regulation, drawing on a 1986 Attorney General opinion that reached the same conclusion. The bill would have made that authority explicit rather than created it.

Background and statutory framework

The request came as drug testing of government workers was moving quickly through the courts. House Bill 370 would have added a new §18C to Article 64A of the Maryland Code (the Merit System Law), confirming the Secretary of Personnel's authority to establish a drug-screening program for applicants and employees "in sensitive positions or sensitive classifications" and requiring regulations spelling out who was covered, the circumstances of testing, and the discipline for a positive result. The bill's four-part definition of "sensitive" tied testing to concrete risks: responsibility for others' safety, carrying a firearm, narcotics interdiction into state institutions, and narcotics law enforcement.

The constitutional analysis turned on the Fourth Amendment. In early 1989, the U.S. Supreme Court decided Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), upholding testing of train crews after accidents or safety violations, and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), upholding urinalysis of Customs employees seeking promotion into jobs involving drug interdiction or a firearm. Both treated testing as a search but found it reasonable as a matter of law for those positions. The Attorney General's office had already read those cases in a 1989 opinion (74 Opinions of the Attorney General 102), advising the Secretary of Personnel that categories like firearm carriers, narcotics-interdiction staff such as correction officers, narcotics law enforcement personnel, and employees whose impaired on-the-job behavior could cause death or serious injury (such as vehicle operators) could be subject to random or other suspicionless testing. House Bill 370 tracked those same categories, so the office had, in effect, already concluded the bill was constitutional.

The opinion then tested that conclusion against decisions handed down after its 1989 opinion. The Maryland Court of Appeals, in City of Annapolis v. United Food and Commercial Workers, Local 400, 317 Md. 544 (1989), upheld testing of police and firefighters during routine physicals but suggested in dictum that a "purely random" program might require more stringent review; the opinion read that as not disturbing its view, since the principles of Skinner and Von Raab applied to random testing too. Federal appellate decisions supported that reading: the Fourth Circuit in Thompson v. Marsh, and the D.C. Circuit in American Federation of Government Employees v. Skinner, National Federation of Federal Employees v. Cheney, and Harmon v. Thornburgh, among others, sustained random testing of employees in safety-sensitive positions. Going category by category, the opinion matched each part of the bill's "sensitive" definition to this case law: safety-related jobs (Skinner and its progeny), firearm-carrying jobs (Von Raab; Hartness v. Bush), narcotics interdiction into institutions (Von Raab; Taylor v. O'Grady, with its limit to officers who contact prisoners), and narcotics law enforcement (Von Raab; Harmon v. Thornburgh, holding unrelated law-enforcement duties alone were not enough). It found each category constitutional, and the bill constitutional on its face.

Finally, on existing authority, the opinion relied on a 1986 opinion by Attorney General Sachs (71 Opinions of the Attorney General 58) concluding that the Secretary of Personnel could establish a drug-testing program by regulation for applicants and employees, provided the Secretary found a link between drug abuse and particular job requirements, citing Article 64A, §§11, 16(a), 18(a), and 33(d)(1). Nothing since 1986 changed that, and the Department had regulations in place (COMAR 06.01.09). So the opinion's bottom line was that House Bill 370 was both constitutional and, as to existing authority, confirmatory rather than essential.

Citations and references

Statutes and regulations:

• Article 64A of the Maryland Code, the Merit System Law, to which House Bill 370 would have added §18C
• Article 64A, §§11, 16(a), 18(a), and 33(d)(1), the existing grants the 1986 opinion relied on for the Secretary's regulatory authority
• Article 26 of the Maryland Declaration of Rights, the state counterpart to the Fourth Amendment, discussed in City of Annapolis
• COMAR 06.01.09, the Department of Personnel's existing drug-testing regulations

Cases:

• Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989), the two U.S. Supreme Court decisions upholding suspicionless testing for safety- and security-sensitive jobs
• City of Annapolis v. United Food and Commercial Workers, Local 400, 317 Md. 544, 565 A.2d 672 (1989), the Maryland Court of Appeals decision on police and firefighter testing
• Thompson v. Marsh, 884 F.2d 113, 114 (4th Cir. 1989), Fourth Circuit approval of random testing at a chemical weapons plant
• American Federation of Government Employees v. Skinner, 885 F.2d 884; National Federation of Federal Employees v. Cheney, 884 F.2d 603, 608-09; and Harmon v. Thornburgh, 878 F.2d 484, 489, all D.C. Circuit (1989)
• Guiney v. Roache, 873 F.2d 1557 (1st Cir.), and National Treasury Employees Union v. Bush, 891 F.2d 99 (5th Cir. 1989)
• Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989), on testing correctional officers who contact prisoners
• Hartness v. Bush, 712 F. Supp. 986, 992; American Federation of Government Employees v. Cavazos, 721 F. Supp. 1361, 1373 (both D.D.C. 1989); and American Federation of Government Employees v. Thornburgh, 720 F. Supp. 154 (N.D. Cal. 1989)

The opinion also relied on prior Attorney General opinions at 74 Opinions of the Attorney General 102 (1989), 71 Opinions of the Attorney General 58 (1986), and 67 Opinions of the Attorney General 322 (1982).

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/1990/Volume75_1990.pdf (this opinion appears at printed pages 110-119 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.

CONSTITUTIONAL LAW

Personnel — Drug Testing — Authority of Secretary of Personnel

March 2, 1990

The Honorable Timothy F. Maloney
Maryland House of Delegates

 You have requested our opinion on two issues related to House Bill 370, "Department of Personnel — Drug Testing." First, you ask whether the bill is constitutional. Second, you ask whether the Secretary of Personnel would have the authority to adopt a drug testing program if the bill were defeated.

 For the reasons stated below, we conclude as follows: House Bill 370 is constitutional. Although it provides a useful clarification of the authority of the Secretary of Personnel, its defeat would not preclude the Secretary's adopting drug testing regulations under her current regulatory authority.

I

House Bill 370

 House Bill 370, departmental legislation, would authorize the Secretary of Personnel "to administer a drug testing program for certain applicants and employees ...." The bill "generally relate[s] to a drug testing program for State applicants and employees."

 House Bill 370 would add a new §18C to Article 64A of the Maryland Code, the Merit System Law. The bill would confirm the authority of the Secretary of Personnel to "establish and implement a drug screening program" for both applicants and employees "in sensitive positions or sensitive classifications." §18C(b)(1) and (c)(1). The Secretary would be required to adopt regulations that would, among other things, identify the employees or applicants to be subject to drug testing, "the circumstances under which drug testing may be performed," and the disciplinary action that may be taken as a result of a positive test result. §18C(d)(1), (2), and (4).

 The bill specifies that if an employee is not "in a sensitive position or a sensitive classification," the employee "may be required to submit to a drug test only when an appointing authority has reasonable and specific grounds for believing that the employee is using drugs illegally." §18C(c)(2).1 Conversely, although the bill does not say so expressly, employees who are in "sensitive positions or classifications" could be made subject to random drug testing, if the Secretary so determines in regulation.

 The key terms "sensitive classification" and "sensitive position" describe jobs that the Secretary has determined meet any of the following criteria:

         (i) The employee has a substantially significant degree of responsibility for the safety of others and a potential that impaired performance of the employee could result in death of or injury to the employee or others;

           (ii) The employee is required to carry a firearm;

            (iii) The employee is directly involved in efforts to interdict the flow of narcotics into State institutions; or

          (iv) The employee is directly involved with narcotics law enforcement.

§18C(a)(5) and (6).

II

The 1989 Supreme Court Decisions

 In early 1989, the Supreme Court upheld the constitutionality of certain government-ordered drug testing programs. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989); National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989).

 In Skinner, the Court upheld federal regulations authorizing railroads to test train crews involved in accidents or violations of safety rules. In Von Raab, the Court upheld urinalysis testing of Customs Service employees who sought promotion into jobs that involved either drug interdiction or the carrying of a firearm. The essence of the Court's reasoning was that, although the Fourth Amendment's prohibition against "unreasonable searches and seizures" applied to government-ordered drug testing, these testing requirements were reasonable as a matter of law.

 Shortly after these decisions, we wrote an opinion to the Secretary of Personnel that summarized the cases and explained their import for any drug testing program that the Secretary might seek to adopt. 74 Opinions of the Attorney General 102 (1989). In essence, our opinion addressed the changes in the law from this office's earlier opinion on drug testing of State employees, 71 Opinions of the Attorney General 58 (1986).

 We characterized the Supreme Court as having determined "that some categories of employees may be subject to drug testing without individualized suspicion." 74 Opinions of the Attorney General at 109. We acknowledged that the two Supreme Court decisions did not involve random testing programs. However, we pointed out, "we discern no constitutionally significant difference between categorical testing and random testing. The determinative point is that testing without individualized suspicion is constitutionally permissible under some circumstances. That the methodology of a testing program is random rather than categorical makes no difference, in our view." Id.

 Continuing our interpretation of the Supreme Court decisions, we advised Secretary Ford that the following categories of State employees could be made subject to random or other forms of suspicionless drug testing:

          1. Employees required to carry a firearm;

         2. Employees, such as correction officers, who are directly involved in efforts to interdict the flow of narcotics into State institutions;

          3. Any employee, whether or not the employee carries a firearm, who is involved with narcotics law enforcement; [or]

          4. Any employee whose on-the-job behavior, if affected by substance abuse, could cause death or serious injury to other persons — for example, vehicle operators.

74 Opinions of the Attorney General at 109-10.

 House Bill 370 embodies exactly these categories in its definition of "sensitive classification" and "sensitive position." The last of the categories identified in our opinion is somewhat reworded in §18C(a)(5)(i) and (6)(i), but the gist of it is the same.

 Hence, unless the case law since the issuance of our opinion compels a different conclusion, we have in effect already expressed the view that House Bill 370 is constitutional.2

III

Subsequent Cases

A. Random Testing

 In dictum in a recent decision, the Maryland Court of Appeals suggested that there might be a constitutionally significant difference between random drug testing and other forms of suspicionless mandatory testing. City of Annapolis v. United Food and Commercial Workers, Local 400, 317 Md. 544, 565 A.2d 672 (1989). In that case, the Court of Appeals upheld the constitutionality of a program under which uniformed police and firefighter personnel, as part of their regularly scheduled periodic physical examinations, were required to submit a urine sample to determine the presence of illegal drugs. Applying the balancing test derived from the Supreme Court's decisions, the Court of Appeals concluded that the program "is not facially at odds with the Fourth Amendment simply because it is not based on reasonable suspicion of illegal drug use by covered employees." 317 Md. at 566.3

 The Court of Appeals pointed out that it had "no occasion to consider whether random drug testing, not based on reasonable suspicion, unconstitutionally invades reasonable expectations of privacy." 317 Md. at 561. The Court observed, however, "that a purely random physical examination program for the purpose of drug testing would likely necessitate more stringent review. This is so because the privacy expectations in that posture would appear to be greater than, as here, where providing urine samples during routine physical examinations is accepted by employees as essential for continued employment in safety-sensitive professions." Id.

 This dictum does not dissuade us from our view that random drug testing of employees in sensitive jobs is constitutional. The principles of Skinner and Von Raab apply equally to random testing. Indeed, the only decision of the Fourth Circuit on this issue stated flatly that "the Supreme Court upheld the constitutionality of random drug tests in Skinner ... and ... Von Raab ...." Thompson v. Marsh, 884 F.2d 113, 114 (4th Cir. 1989) (upholding random testing of civilian employees at chemical weapons plant).

 The same view of the significance of the Supreme Court cases have been taken by the D.C. Circuit. In American Federation of Government Employees v. Skinner, 885 F.2d 884 (D.C. Cir. 1989), the unions argued "that random testing ... is 'vastly more intrusive than the limited drug testing' approved by the Supreme Court." 885 F.2d at 888-89 (quoting appellants' supplemental brief at 1). The circuit court rejected this argument:

     We find [the] analysis [in Skinner] fully applicable in the present case. While it is true that the regulations sustained in Skinner required testing only after a triggering event and in a medical environment, we do not find that either of these facts compels "a fundamentally different analysis from that pursued by the Supreme Court." ... While it is true that random testing may increase employee anxiety and the invasion of subjective expectations of privacy, it also limits discretion in the selection process and presumably enhances drug-use deterrence.

885 F.2d at 891 (citation and footnote omitted). The court thus upheld the random testing of various employees in safety-sensitive positions. See also National Federation of Federal Employees v. Cheney, 884 F.2d 603, 608-09 (D.C. Cir. 1989) cert. den. 58 U.S.L.W. 3468 (Jan. 22, 1990); Harmon v. Thornburgh, 878 F.2d 484, 489 (D.C. Cir. 1989), cert. den. 58 U.S.L.W. 3468 (Jan. 22, 1990); Guiney v. Roache, 873 F.2d 1557 (1st Cir.), cert. den. 110 S. Ct. 404 (1989).

IV

Sensitive Jobs

A. Safety-Related

 The Skinner decision, involving train crews, stands for the proposition that employees may be subjected to suspicionless drug testing if their "duties [are] fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." 109 S. Ct. at 1419.

 The cases applying Skinner reaffirm this view of the case. See American Federation of Government Employees v. Skinner, 885 F.2d at 890 (transportation safety jobs); National Federation of Federal Employees v. Cheney, 884 F.2d at 610 (pilots and aircraft mechanics); Thompson v. Marsh, 884 F.2d at 115 (chemical weapons jobs); American Federation of Government Employees v. Cavazos, 721 F. Supp. 1361, 1373 (D.D.C. 1989) (full-time government drivers). The point of the public safety rationale adopted by the Supreme Court, observed the D.C. Circuit, "was that a single slip-up ... may have irremediable consequences; the employee himself will have no chance to recognize and rectify his mistake, nor will other government personnel have an opportunity to intervene before the harm occurs." Harmon v. Thornburgh, 878 F.2d at 491.

 The first element of the definition of "sensitive" classifications and positions, §18C(a)(5)(i) and (a)(6)(i), properly reflects this rationale. This element of the definition of "sensitive" classifications and positions is therefore constitutional.

B. Firearms

 In Von Raab, the Supreme Court upheld suspicionless drug testing for "positions that required the incumbent to carry a firearm ...." 109 S. Ct. at 1393.

 The courts have generally rejected arguments that this aspect of Von Raab should be limited to employees who are frequently in situations that might require them actually to fire their weapons. "[I]t may be that most, if not all, of the GSA employees who carry firearms in the line of duty do not and will not use them .... But a misused firearm, like a misused locomotive, can be lethal.... [W]ith regard to the management of firearms it is better to be safe than sorry." Hartness v. Bush, 712 F. Supp. 986, 992 (D.D.C. 1989). See also American Federation of Government Employees v. Cavazos, 721 F. Supp. at 1372. But see National Treasury Employees Union v. Watkins, 722 F. Supp. at 770.

 Thus, in our view, the standard in §18C(a)(5)(ii) and (a)(6)(ii) is constitutional.

C. Drug Interdiction

 In Von Raab, the Supreme Court held that the government has a compelling interest in ensuring that "front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment...." 109 S. Ct. at 1393. Although the particular "interdiction" personnel discussed by the Supreme Court were customs agents seeking to interdict the flow of narcotics at the nation's borders, we concluded in our prior opinion that the same reasoning applied to those responsible for interdicting the flow of drugs into State institutions.

 Our understanding of Von Raab has been confirmed in subsequent cases. In Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989), the court upheld a program of across-the-board urinalysis testing of correctional officers having contact with prisoners:

     The presence of drugs in prison can lead to violence and the prospect of correctional officers selling illegal drugs to prisoners is an obvious security risk. A drug-induced episode carries with it the potential onslaught of violence by the impaired prisoner or escapee. Other prisoners, visitors, correctional officers, and public are all put at risk by the presence of drugs in a jail. Not only are prisoners under the influence of drugs a threat to safety, but prison employees who sell to prisoners are subject to blackmail.... Mandatory testing of correctional officers, therefore, "serves special governmental needs, beyond the normal need of law enforcement." Von Raab, 109 S. Ct. at 1390.

888 F.2d at 1197.

 The court in Taylor v. O'Grady also made it clear that suspicionless drug testing of correctional officers could not extend beyond those who had contact with prisoners. "[E]mployees not in contact with prisoners are indistinguishable from other nonprison governmental employees who ... are not subject to suspicionless, warrantless searches. Since those officers with only administrative or clerical duties or otherwise lacking contact with the jail population do not threaten claimed dangers if impaired while on duty, and since the record does not show they are able to smuggle drugs to the prisoners, the department gains nothing by testing them." 888 F.2d at 1197. See also American Federation of Government Employees v. Thornburgh, 720 F. Supp. 154 (N.D. Cal. 1989) (mandatory, random testing of all employees of the Federal Bureau of Prisons regardless of job functions could not be justified).

 Thus, the standard in §18C(a)(5)(iii) and (a)(6)(iii) is constitutional, because employees "directly involved in efforts to interdict the flow of narcotics into State institutions" are those who have contact with the population of a prison or other institution.

D. Narcotics Law Enforcement

 We understood Von Raab to mean that an employee engaged in any aspect of law enforcement against illegal drug use could be subject to random testing. Although Von Raab did not address other law enforcement personnel, the D.C. Circuit subsequently held that the performance of other kinds of law enforcement duties, unrelated to drugs, did not alone give rise to a sufficient governmental interest to permit suspicionless drug testing. Harmon v. Thornburgh, 878 F.2d at 490.

 Because the standard in §18C(a)(5)(iv) and (a)(6)(iv) reflects this application of the Fourth Amendment, it is constitutional.

E. Summary

 The Constitution allows random drug testing of persons who hold the types of jobs identified in our 1989 opinion and in House Bill 370.4 Perhaps some particular future applications of these criteria will give rise to controversy, but that possibility in no way prevents us from concluding that House Bill 370 is constitutional on its face. See National Treasury Employees Union v. Bush, 891 F.2d 99 (5th Cir. 1989).

V

Existing Statutory Authority

 If House Bill 370 were not enacted, the Secretary of Personnel would not have express authority — indeed, under House Bill 370, an express duty — to adopt a drug testing program by regulation.5 Her authority to do so would depend on grants under current law.

 In this office's 1986 opinion on drug testing, Attorney General Sachs concluded that "the Secretary of Personnel has statutory authority to establish, by regulation, a drug testing program for applicants and current employees alike, assuming that the Secretary finds a link between drug abuse and the requirements of particular job categories." 71 Opinions of the Attorney General at 61-62. See Article 64A, §§11, 16(a), 18(a), and 33(d)(1). See also 67 Opinions of the Attorney General 322, 323-24 (1982).

 No change in the law since 1986 causes us to alter this conclusion, and the Department has so construed its statute.6

VI

Conclusion

 In summary, it is our opinion that: (1) House Bill 370 is constitutional. (2) If House Bill 370 were not enacted, the Secretary of Personnel has authority under current law to adopt by regulation a drug testing program.

                                               J. Joseph Curran, Jr.
                                               Attorney General

                                               Jack Schwartz
                                               Chief Counsel
                                                 Opinions and Advice

1
If an amendment proposed by the Department of Personnel is accepted, the words "and specific" would be deleted from this provision. Neither this change nor another, unrelated amendment to the applicant testing portion of the bill affects our conclusion. See note 4 below.

2
Assistant Attorney General James F. Truitt, Jr., counsel to the Department of Personnel, has also approved for legal sufficiency proposed regulations embodying the same criteria for random drug testing.

3
The Court also rejected the argument that the program violated Article 26 of the Maryland Declaration of Rights. The Court pointed out that Article 26 was in pari materia with the Fourth Amendment, "and while each provision is independent of the other, we find no basis for concluding that Article 26 is transgressed under the facts of this case." 317 Md. at 566 n.4.

4
For employees not in a "sensitive" classification or position, House Bill 370 provides for drug testing only if there are "reasonable ... grounds for believing that the employee is using drugs illegally." §18C(c)(2). The standard of reasonableness is constitutional; the more stringent "probable cause" test is not required. Von Raab, 489 U.S. at 667; National Treasury Employees Union v. Bush, 891 F.2d 99, 102 (5th Cir. 1989).

5
In its statement of support for House Bill 370, the Department of Personnel pointed out that "there is no specific section of the Merit System Law which directly addresses the issue of drug testing." Statement to House Appropriations Committee at 1 (Feb. 22, 1990). The Department's position is that "the functional responsibilities assigned to the Department [should] have a clear statutory basis." Id.

6
See COMAR 06.01.09 (current drug testing regulations). The Department's view of its existing authority is also set forth in its statement to the Appropriations Committee.