City of Annapolis v. United Food Workers, Local 400

MURPHY, Chief Judge. This case involves a constitutional challenge to a mandatory, suspicionless post-employment drug testing program for police officers and fire fighters of the City of Annapolis. I. For some years prior to 1986, all persons seeking employment with the City were required to take a pre-employment ⁵⁴⁶ physical examination, which included analysis of a urine specimen. Uniformed police and fire fighter personnel employed by the City were also required to submit to periodic post-employment physical examinations, including a urinalysis as part of the examination.

In September of 1986, the City proposed the adoption of a drug testing program requiring its uniformed police and fire fighter personnel, as a part of their regularly scheduled periodic physical examinations, to submit a urine sample to determine the presence of illegal drugs. The program’s stated objectives were to provide safe, healthful and efficient working conditions for these employees and the public served by them. The frequency of the examinations of these uniformed employees was predicated upon their age. The examination was to be conducted during the “birthday” month of the police officer or fire fighter, and they were to be afforded thirty days prior notice of the week that the examination would be given.

In addition, the plan required that the employee be given a forty-eight hour advance notice of the exact time of the examination. The City presented its plan in September of 1986 to the employee organizations (the unions) representing the police officers and fire fighters under collective bargaining agreements. Disagreement arose over specific details of the City’s drug testing plan as an apparent result of which, after approximately one year, no agreement had been formalized between the City and the unions. 1 On October 21, 1987, the City filed a complaint of unfair labor practices against the unions with the Maryland Mediation and Conciliation Service (the Mediation Service), a unit functioning within the State Division of Labor and Industry under Maryland Code (1985 RepLVol.), Article 89, § 8. That section authorizes the Mediation Service, on behalf of the Commissioner of Labor and Industry, to investigate a ⁵⁴⁷ labor dispute which “may result in a strike or lockout” and to “seek to mediate it.” The City alleged in its complaint that the unions had refused to negotiate in good faith, as required by their collective bargaining agreements.

It purported to act pursuant to ch. 3.32 of the Annapolis City Code (1986), which in § 3.32.060 requires the City and recognized employee organizations “to negotiate collectively and in good faith with respect to the terms and conditions of employment of employees in the unit.” Section 3.32.-070(A) prohibits, as an unfair labor practice, the refusal of a union to negotiate in good faith with the City, and § 3.32.070(B) directs that claims of unfair labor practices be filed with the Mediation Service. That section also provides that the Service “may issue an order dismissing the complaint or may order a further investigation.” The Mediation Service, after a proceeding in which the City and the unions participated, found that drug testing of the police and fire fighter personnel was a mandatory subject of collective bargaining under their agreements. It concluded that the “principle” of drug testing of these uniformed employees had been agreed upon in good faith collective bargaining between the parties but that the details of the program remained to be negotiated—that no agreement existed on the details of the plan for implementing the drug testing program with regard to obtaining, receiving and testing the urine, or procedures for rechecking positive results, or safeguards for confidentiality, or disciplinary and rehabilitative procedures. The Mediation Service noted that the employee’s right to privacy with respect to the urine sample was not in question “because urine historically has been collected and routinely ... tested as part of a fire or police officer’s regular physical examination.” As a consequence, it said that the employee’s only objection “to these examinations or the manner in which they are performed ... can be to the employer’s testing of urine lawfully collected.” The Mediation Service was of the view that, notwithstanding the unions’ objection that suspicionless drug testing violated constitutional protections and ⁵⁴⁸ was therefore illegal, the City’s drug testing plan “conducted within the framework of tests of urine specimens and other tests now performed during required physical examinations of police officers and fire fighters, is not unconstitutional” as an unreasonable search and seizure.

It nevertheless determined, without assessing fault, that the parties were “hopelessly at impasse” and it declined to order further negotiations. Instead, it found that the City was free to unilaterally implement the details of its drug testing proposal. The City determined to proceed with its drug testing program and so notified employees of the fire and police departments whose routine physical examinations had been scheduled. Before any examination was given, the unions sought judicial review of the decision of the Mediation Service in the Circuit Court for Anne Arundel County under the Maryland Administrative Procedure Act, Code (1984 Repl.Vol.), §§ 10-101—10-217 of the State Government Article.

They claimed that the City’s program was unconstitutional under both the state and federal constitutions because it did not “require reasonable suspicion as the cause for the drug test.” They asked that the case be remanded to the Mediation Service with directions that the parties be required to resume negotiations to obtain a lawful drug testing program for City police and fire personnel and that, in the meantime, the City be enjoined from implementing its proposed plan. The unions also filed a verified complaint for an order directing the mediation Service to require the parties to conduct further negotiations, and to enjoin the City from implementing its mandatory, suspicionless drug testing program of police and fire fighter personnel. The circuit court (Williams, J.) determined that the decision of the Mediation Service was not appealable under the Maryland Administrative Procedure Act because the Service was not an agency “authorized by law to adjudicate contested cases” under § 10-201(b)(l) and (2) of the Act. It concluded, however, that the alternative remedy sought by the unions to prevent implementation and enforcement of ⁵⁴⁹ the proposed drug testing program by the City was appropriate.

It believed that the program was unconstitutional under the Fourth Amendment because it was not based on individualized suspicion of drug use among the covered employees or generalized suspicion of drug use in their respective departments. Specifically, Judge Williams framed the issue before him as “whether mandatory testing for illegal drugs as part of a police officer’s or fire fighter’s routine periodic physical in the absence of individualized suspicion or any evidence whatsoever of an existing departmental problem constitutes an unreasonable search and seizure under the Fourth Amendment.” After finding that mandatory urinalysis of public sector employees was a “search” under the Fourth Amendment, the court undertook to “balance the invasion of the employees’ legitimate expectations of privacy against the government’s need for supervision, control and the efficient operation of the workplace,” citing O'Connor v. Ortega, 480 U.S. 709, 719-20 , 107 S.Ct. 1492, 1499-1500 , 94 L.Ed.2d 714 (1987) (plurality opinion), quoting United States v. Place, 462 U.S. 696, 703 , 103 S.Ct. 2637, 2642 , 77 L.Ed.2d 110 (1983). The court adopted the statement from Lovvorn v. City of Chattanooga, Tenn., 846 F.2d 1539, 1542-43 (6th Cir.) (later vacated, reh’g granted en banc, 861 F.2d 1388 (1988)) that “[t]he act of urinating is one of the most private of all activities. The subjective expectation of privacy felt by ' many individuals when urinating is undoubtedly one that society is prepared to consider reasonable.

There are few other times where individuals insist as strongly and universally that they be let alone to act in private. Furthermore, the information that may be gleaned from the analysis of an individual’s urine compels the conclusion that a mandatory urinalysis, whether directly observed or not, constitutes a ‘search’ within the meaning of the Fourth Amendment.” Regarding the governmental interest to be protected, Judge Williams also adopted the statement in Lovvorn that “ ‘the City’s interest in having its fire fighters free from drugs is ⁵⁵⁰ a compelling one.’ ” 846 F.2d at 1544 . And the court recognized that the use of controlled dangerous substances by police officers and fire fighters “is especially dangerous.” Nevertheless, it adopted the reasoning in Lovvom, id. at 1547, that fire fighters do not hold positions whereby “ ‘significant losses could be imposed on society because of drug impairment’ ” as might be so with drug-impaired air traffic controllers or nuclear plant operators. Judge Williams agreed, therefore, with the holding in Lovvom that “for a mandatory drug test of fire fighters to be reasonable, there must be some evidence of a significant department-wide problem or individualized suspicion.” Id.

Applying this test to the City’s program, the court found the mandatory drug testing of City police and fire personnel unconstitutional because “there is absolutely no evidence that a drug problem exists within a governmental department or any suspicion of an individual’s drug use, as the City has conceded.” The City appealed from the court’s issuance of the writ of mandamus enjoining it from implementing and enforcing its suspicionless drug testing program for police and fire fighter personnel. We granted certiorari before decision by the intermediate appellate court to consider the significant issue of public importance presented by the case.

II

The Fourth Amendment of the United States Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is applicable to the states through the Due Process Clause of the Fourteenth Amendment, Wolf v. Colorado, 338 U.S. 25, 27-28 , 69 S.Ct. 1359, 1361-62 , 93 L.Ed. 1782 (1949), and conduct by government employers is subject to its limitations. O’Connor v. Ortega, supra, 480 U.S. at 715 , 107 S.Ct. at 1497 . The constitutionality of drug testing programs was recently considered by the Supreme Court of the United ⁵⁵¹ States in two cases, each decided after the circuit court’s decision in the present case. National Treasury Employees Union v. Von Raab, — U.S.-, 109 S.Ct. 1384 , 103 L.Ed.2d 685 (1989) involved a mandatory suspicionless urinalysis for drug use of United States Customs Service personnel who sought transfer or promotion to positions having a direct involvement in drug interdiction or to positions that required the carrying of a firearm.

Skinner v. Railway Labor Executives Ass’n, — U.S.-, 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989) involved Federal Railroad Administration regulations that mandated the testing of blood and urine samples for drug use by employees following certain types of major train accidents or incidents. The same regulations also authorized, but did not require, breath and/or urine tests of employees found violating certain safety rules. These cases hold that the collection and testing of urine is a “search,” 2 and thus implicates the protections of the Fourth Amendment, Skinner, supra, 109 S.Ct. at 1413; Von Raab, supra, 109 S.Ct. at 1390; that the Fourth Amendment prohibits only those searches that are unreasonable, Skinner, supra, 109 S.Ct. at 1414; that reasonableness has traditionally been judged by “balancing [the] intrusion on the individual’s Fourth Amendment interests against [the] promotion of legitimate governmental interests,” id.; that in most criminal cases, a search is not reasonable “unless it is accomplished pursuant to a judicial warrant issued upon probable cause,” id.; but that exceptions to this rule are proper in non-criminal cases “when ‘special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirements impracticable.’ ” Id. (citation omitted).

In Skinner , the Court found that ⁵⁵² “[t]he Government’s interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, ‘likewise presents “special needs” beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.’ Griffin v. Wisconsin, 483 U.S., [868] at [874] 107 S.Ct., [3164] at 3168 [ 97 L.Ed.2d 709 ] (1987).” Id. 109 S.Ct. at 1414. In the absence of such warrant and probable-cause requirements, the Court has usually required “ ‘some quantum of individualized suspicion’ before concluding that a search is reasonable.” Id. 109 S.Ct. at 1416-17 (citation omitted). But it has sanctioned limitations on this requirement. “In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Id. at 1417.

III

(A) Privacy Expectations The case before us does not involve random post-employment drug testing of a broad array of government employees but rather is concerned with a mandated program, limited to uniformed police and fire personnel, conducted during the course of routine periodic physical examinations in which a urine sample is regularly produced and analyzed. The program is designed to serve needs other than law enforcement and test results may not be used for criminal prosecutions without the employee’s consent. As earlier observed, the program is aimed at providing safe and efficient working conditions for these employees and to protect the public by monitoring, treating and deterring the use of illegal drugs. ⁵⁵³ The central focus of the constitutional inquiry into the City’s proposed drug testing program for police and fire fighters is upon the nature of the intrusion—the actual drug analysis of the urine sample—and not upon the mandatory taking of the sample. This is so because these employees have regularly participated for several years, without objection, in providing urine specimens for analysis as part of their required periodic physical examinations.

Until the advent of the City’s proposed plan to test for illegal drugs in the employee’s system, the specimen was analyzed for physiological explications other than drug use deemed necessary to determine physical fitness for the demands of police and fire service employment. Therefore, the inquiry before us is the degree of intrusiveness in subjecting the samples to testing of substances illegal under Maryland law. While it is true that the actual assaying of the sample for drug use constitutes a search, 3 under facts like those now before us, the intrusion on reasonable expectations of privacy in the urine sample is not only “minimal” under Skinner and Von Raab , but negligible for several reasons. First, in Skinner , the Court approved of the manner in which the regulated procedures reduced the intrusiveness of the collection process.

It found that non-direct observation by a monitor and collection of the sample in a medical environment by personnel unrelated to the railroad employee to be “not unlike similar procedures encountered often in the context of a regular physical examination.” 109 S.Ct. at 1418. Likewise, in Von Raab , the prescribed procedures of the Customs Service were held to significantly minimize the program’s intrusion on privacy interests. “Employees ⁵⁵⁴ are ... notified in advance of the scheduled sample collection, thus reducing to a minimum any ‘unsettling show of authority’ that may be associated with unexpected intrusions on privacy. There is no direct observation of the act of urination ...[;] urine samples may be examined only for the specified drugs.” Von Raab, supra, 109 S.Ct. at 1394 n. 2 (citations omitted). As earlier noted, the covered employees in the present case have three distinct types of notice.

They know in advance that their physicals are during their “birthday” months; within thirty days they will know for which week of that month the examination is scheduled; and within forty-eight hours they will know the exact time of that week in which the examination will occur. There is no observation of urination. Positive test results are strictly confidential. While the procedural safeguards appear as protective of individual privacy as those in Skinner and Von Raab , we are not here concerned with whether the collection of urine itself is intrusive on reasonable expectations of privacy grounds because the covered personnel do not object to regular physical examinations whereby a urine sample is produced.

Even so, we doubt that there is a great expectation of privacy with regard to the mere unobserved passing of urine in the context of a physical examination which is accepted by the employees as necessary for their continued employment with the City. Second, in Skinner , the Court’s finding that the procedures were valid turned, in part, on the fact that the urine tests could not be used to inquire into private facts unrelated to alcohol or drug use. 109 S.Ct. at 1418. In the present case, the disclosure of “private facts” is part of the regular physical examination procedure. Moreover, it is expected that a physician professionally qualified in urinalysis will evaluate the contents of a urine sample for signs of physical infirmities or latent diseases.

No reasonable expectation of privacy exists with regard to those facts. In Skinner and Von Raab , testing only for specified drug use was held not unreasonably intrusive. Clearly, the nature of ⁵⁵⁵ the intrusion in those cases is greater in degree than that involved in the case before us. Third, in Skinner , the targeted railroad employees were also required to complete a form stating what medications they consumed in the thirty days prior to the tests.

Id. at 1418 n. 7. The City’s proposed program similarly requires that a medication form be completed for precisely the same reason, i.e., to discover whether a positive test result may be explained by the employee’s lawful use of drugs. Skinner found such a requirement permissible in these words: “While this procedure permits the Government to learn certain private medical facts that an employee might prefer not to disclose, there is no indication that the Government does not treat this information as confidential, or that it uses the information for any other purpose. Under the circumstances, we do not view this procedure as a significant invasion of privacy.” Id.

That this procedure is calculated to assure accuracy of test results is readily apparent. See, e.g., National Federation of Government Employees v. Cheney, 884 F.2d 603 (D.C. Cir.1989); Shoemaker v. Handel, 795 F.2d 1136, 1140 (3rd Cir.), cert. denied, 479 U.S. 986 , 107 S.Ct. 577 , 93 L.Ed.2d 580 (1986) and Weicks v. New Orleans Police Dept., 706 F.Supp. 453, 456 (E.D.La.1988). In some instances the required disclosure of information regarding prescribed medications may invade reasonable privacy expectations, but not here. The disclosure of other private medical facts, e.g., physical conditions for which the lawful medication is treatment, would naturally be the subject of inquiry during the course of a regular physical examination.

Finally, the Court in Von Raab found that employees involved in drug interdiction or who carry firearms should reasonably expect inquiry into their fitness and probity. It said, 109 S.Ct. at 1394, that “fbjecause successful performance of their duties depends uniquely on their judgment and dexterity, these employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness.” The accepted rationale for requir ⁵⁵⁶ ing regular physical examinations in this case, i.e., to ensure and promote physical fitness for the demands of police and fire-fighting related services, would logically extend to identifying and treating those employees with drug abuse problems. Uniformed police and fire personnel are required to meet a minimum level of fitness to sustain the demands of physical and mental stress that may arise spontaneously and in a manner not experienced by other public employees. See, e.g., Maryland Code (1957,1985 Repl.Vol.), Article 101, § 64A recognizing stress-related occupational hazards associated with fire fighting and police work and creating a presumption in favor of compensating fire and police personnel for specified ailments under the Workmen’s Compensation statute.

Additionally, the justified purpose of periodic physical examinations in monitoring a minimum level of health maintenance undoubtedly serves as motivation for police officers and fire fighters to stay fit. The analysis of the urine sample for the presence of illegal drugs furthers the purpose of the attendant physical examinations both to identify users of such drugs and to deter their use. Manifestly, these employees expect that their regular physical examinations be as thorough as necessary to identify health risks that would impede or impair the performance of their stressful obligations. In this context, there is little justification for excluding detection of illegal drug use which could have more adverse effects on a police officer or fire fighter than a substandard level of fitness.

Illegal drug use itself can impair physical and mental performance. Plainly, the basis for drug testing here is reasonably and objectively related to the accepted purpose of medically investigating the employee’s fitness for duty. Amalgamated Transit U. v. Cambria Cty Tr. Auth., 691 F.Supp. 898 (W.D.Pa.1988), involved the same issue as the present case.

It dealt with mandatory drug testing of municipal bus drivers and mechanics during the course of their annual physical examinations. There, the court said: “We find that testing as part of a regular medical examination works a minimal intrusion on the plaintiffs’ ⁵⁵⁷ Fourth Amendment privacy interests. Since providing blood and urine samples has been part of the employees’ medical examinations for at least twelve years, drug and alcohol testing does not affront any reasonable expectation in bodily integrity. Further, in earlier years, the Authority collected these samples to learn physiological secrets about the employees’ health.

Drug and alcohol testing merely extracts some additional, limited information from the sample: whether any of ten substances is present in the body. “Unlike random and surprise drug testing, a routine medical examination takes place in a manner likely to allay anxieties. The employee has notice far in advance; the physical is always scheduled for his anniversary month. The Authority does not single any one out for an examination. Since everyone must submit to an examination, the worker should not suffer any stigma or shock. “... [Tjhese tests are for an administrative, not a criminal purpose. ‘While the fourth amendment protects against invasions for civil as well as criminal investigatory purposes, the need for protection against governmental intrusion diminishes if the investigation is neither designed to enforce criminal laws nor likely to be used to bring criminal charges against the person investigated.’ [Quoting from National Treasury Employees Union v. Von Raab, 816 F.2d 170, 179 (5th Cir.1987).] The Authority does not report positive results for illegal substances to law enforcement officials.” 691 F.Supp. at 904 .

See also Jones v. McKenzie, 833 F.2d 335, 340 (D.C.Cir. 1987) (mandatory drug testing of municipal bus drivers, mechanics and attendants conducted during routine, reasonably required annual medical examination minimized intrusion on privacy), vacated sub nom., Jenkins v. Jones, —— U.S. -, 109 S.Ct. 1633 , 104 L.Ed.2d 149 , modified on remand, 878 F.2d 1476 (1989); Amalgamated Transit Union v. City of Oklahoma City, 710 F.Supp. 1321, 1331-32 (W.D.Okla.1988) (mandatory drug testing of municipal transit employees operationally involved in the transportation ⁵⁵⁸ service during regularly conducted medical examinations minimizes intrusiveness); Wrightsell v. City of Chicago, 678 F.Supp. 727, 734 (N.D.Ill.1988) (police officers returning to duty from extended leave have minimal interest in urine sample provided during employment-related medical examinations). Most of the drug testing programs in these cases were originally part of a program of regularly scheduled medical examinations, unlike Amalgamated Transit U. v. Cambria Cty. Tr. Auth., supra and the case before us, which involve previously established medical examinations into which the disputed drug testing procedures were láter incorporated.

In this regard, it is apparent that employees who already participate in regular physical examinations experience even less privacy expectations than when a physical examination program is initially implemented. Von Raab, supra, 109 S.Ct. at 1397; see also Skinner, 109 S.Ct. at 1418 . The City’s proposed program is also vastly different from that in Lovvorn, supra, upon which the circuit court placed reliance in determining that the program violated the Fourth Amendment. In Lovvorn , municipal fire fighters were required to undergo drug testing of blood and urine samples in a department-wide program.

The program was intended to be substantially similar to an earlier testing program in which all emergency service personnel were given formal notice six days before the actual testing. Some of the tested subjects who were required to give a urine specimen were subject to a “pat-down” at the discretion of the City Fire and Police Commissioners. Most of the fire fighters were required to give urine samples in direct observation of a Deputy or Assistant Fire Chief. The tests were not conducted pursuant to any written orders, guidelines or standards.

Nor were methods for testing, handling or analyzing the urine samples or disciplinary procedures ever formalized in writing. Clearly, the unstructured and discretionary nature of that program promoted a substantially greater intrusion than does the drug testing program ⁵⁵⁹ here involved. Indeed, the federal district court in Lovvorn intimated such a distinction: “[T]here would seem to be no constitutional difficulty with the regularly conducted physicals or the requested physicals, or a pre-employment physical, even if they involve a urinalysis for drugs, provided that