Dep't of Correction v



Dep't of Correction v. Jiminez

OATH Index No. 1551/05 (May 24, 2005)

Charge that correction officer engaged in conduct unbecoming an officer and violated agency directive when he tested positive for cocaine use was sustained where Department demonstrated that respondent was randomly selected for drug test, which was properly administered, and expert proof of positive test result was undisputed. Termination of employment recommended.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

JOSUE JIMINEZ

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

This disciplinary proceeding was referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Josue Jiminez has been employed by the Department as a correction officer for less than four years. He is charged with conduct unbecoming an officer and of a nature to bring discredit upon the Department in that he was allegedly randomly selected for drug testing and provided a urine specimen that indicated he had used cocaine, in violation of Department Directive 7507[1] and Department Rules and Regulations sections 3.20.010, 3.20.030, and 3.20.300 (1996).

For the reasons set forth below, I find that respondent was in fact randomly selected, on a “neutral basis,”[2] by the Department for drug testing, his urine specimen tested positive for cocaine based on reliable and uncontested scientific proofs, and the charge is sustained.

PRELIMINARY MATTERS

This case was given a calendar preference due to the serious nature of the charge. Respondent had been suspended without pay, with eleven days remaining in his 30-day suspension as of the original trial date, April 7, 2005. Counsel for the parties alerted me on the eve of trial by a conference call that respondent wanted to find a new attorney. On the morning of trial, respondent appeared at this tribunal with his original counsel of record and sought an adjournment. I granted a brief adjournment, on the record, over the objection of the Department that respondent’s application was an improper delaying tactic. This adjournment was granted, pursuant to a stipulation by respondent that his suspension would continue for the same eleven days following the adjourned trial date, and that the adjournment would be final. Respondent indicated that he wanted to meet with another attorney whom he had identified, and that he needed time to determine whether he could retain new counsel of his choice. Counsel of record never moved to withdraw and appeared in all proceedings herein on behalf of the respondent. On April 7, 2005, I also set interim deadlines on the record for the exchange of discovery and identification of expert witnesses, and the trial was rescheduled to April 22, 2005, the date chosen for the additional purpose of allowing respondent adequate time to recuperate from a long-scheduled medical procedure expected to be performed April 15, 2005 (Tr. 1-29).

Following the April 7, 2005 proceedings, I was informed by counsel for both parties in another conference call, this one on April 13, 2005, that respondent had made some inquiries and spoken with another attorney, but had not changed attorneys. Thereafter, he abandoned any further efforts to secure new counsel, and he appeared at this tribunal with his original attorney for trial on April 22, 2005.

ANALYSIS

At the trial conducted before me on April 22, 2005, petitioner presented the testimony of nine witnesses employed by the Department. Respondent testified on his own behalf. At the request of respondent, I held the record open for one week, until April 29, 2005, for post-trial submissions.[3] Respondent did not present any expert proof (Tr. 36), but instead relied on, and stipulated to, the expert findings of the Department’s expert, Dr. William Closson, Director of the Toxicology Department at Bendiner and Schlesinger Medical Laboratories (Tr. 204-05). The record was closed on April 29, 2005.

Respondent seeks to have the charges dismissed on the principal basis that the procedures employed by the Department violated agency Directive 7507R, entitled “Random Testing to Detect and Deter Drug Abuse” (Apr. 13, 2001), as revised in Directive 7507R-A (Feb. 15, 2005), and that the Department applied the earlier directive to his selection for testing, but the later directive to the collection and testing of his specimen, thereby denying him due process of law. I find that there was no denial of due process of law here. Respondent’s other line of defense, innocent ingestion of medications that allegedly could have caused a false positive test result, was not supported by the evidence. Finally, respondent’s attempts at trial to challenge the chain of custody of the specimen and his argument that because he was on indefinite sick leave he should not have been eligible for selection for drug testing failed.

The Chain of Custody of Respondent’s Urine Specimen Was Intact

There is no doubt on this record, from the testimony of petitioner’s witnesses,[4] and that of respondent himself (Tr. 223-24), that the urine sample at issue here was taken from respondent, was never left unattended by Department staff who handled the specimen, was properly locked in secure drop safes at the Department’s Health Management Division and Toxicology Units, was properly logged in the Department’s log book records, and was properly received and secured in locked rooms and tested by the experts at Dr. Closson’s laboratory, Bendiner & Schlesinger (Pet. Exs. 6-15). Here, as in Dep’t of Correction v. McNeely, OATH Index No. 119/92, at 12 (Nov. 3, 1991), and Dep’t of Correction v. Gray, OATH Index No. 930/03, at 15 (May 29, 2003), the labeling and sealing of the sample bottles with special evidence tape, and the sealing of the bottles in a tamper-proof evidence bag delivered to the laboratory, made unauthorized access virtually impossible and were sufficient to establish by a preponderance of the evidence that no tampering occurred. The numerical identification number assigned to respondent’s specimen, R27999, appeared on all the relevant documentation (Drug Screening Questionnaire, Pet. Ex. 5; envelope of Questionnaire, as initialed by respondent, Pet. Ex. 6; log books for safes where samples were secured and properly opened according to procedure, Pet. Exs. 7, 8 and 10; lab reports and lab receipt, Pet. Exs. 11, 12 and 13; letter report by Dr. Closson on list of drugs respondent contended he took, Pet. Ex. 14).

Failure of the “Innocent Ingestion” Defense

Respondent denied that he knowingly consumed any narcotic substances on or about the date of the drug test (Tr. 223), and asserted that he was hospitalized in early February for at least seven days (Tr. 219), a week or more before the test was taken on March 3, 2005. He never contended that all the drugs he thought he was given in the hospital were taken within the 72 hours[5] before his urinalysis. However, his claim that certain of the multiple medications he testified were administered to him in the hospital could have resulted in a false positive test for cocaine was entirely defeated by the Department’s expert, Dr. Closson, and the scientific evidence submitted by the Department (Pet. Exs. 13 and 14). Respondent has relied entirely on Dr. Closson, who reviewed seventeen drugs identified by respondent’s counsel, and wrote and testified without contradiction that none of them, individually, or taken together,[6] could have resulted in a positive test for the presence of cocaine (more specifically, benzoylecgonine, the cocaine metabolite) in urine (Tr. 213-18, Pet. Ex. 14).

Respondent Stipulated that His Urine Tested Positive for Cocaine

Respondent’s counsel stipulated that the substance found by the laboratory in the urine specimen “was indeed cocaine” (Tr. 204). Thus, respondent, who offered no expert testimony on his own behalf and expressly relied on Dr. Closson’s testimony (Tr. 36), conceded at trial that the undisputed expert proof in this record showed a reliable, true positive test that found cocaine, in effect, in respondent’s urine specimen taken March 3, 2005, as the chain of custody was unbroken, and that none of the medications identified and submitted by respondent to the expert could have resulted in a false positive test. The burden rests on the respondent to prove the defense of innocent ingestion of drugs, see, e.g., Fire Dep’t v. St. Cloud, OATH Index No. 128/05, at 5 (Apr. 7, 2005) (anabolic steroids); Dep’t of Correction v. Gray, OATH Index No. 930/03, at 22 (May 29, 2003) (passive inhalation defense with respect to marijuana); Dep’t of Correction v. Hines, OATH Index No. 537/94, at 15 (Oct. 4, 1994) (cocaine); Dep’t of Correction v. Cosby, OATH Index No. 890/91, at 9 (Mar. 29, 1991), aff’d, NYC Civ. Serv. Comm’n Item No. CD 92-107 (Sept. 24, 1992) (cocaine and morphine), and respondent has offered absolutely no proof that he unwittingly ingested any substance that could account for his positive test showing high levels of cocaine in his system (Tr. 213-18).

Respondent denied knowingly consuming narcotics: “Naw, I just got out of the hospital, I was at home, they gave me medication already so the medication I was on, I couldn’t really leave the house” (Tr. 223). He claimed further that because of his unspecified medical condition, which is a private matter he was entitled to keep to himself, he has, as his lawyer put it in questioning him at trial, a particular vulnerability that creates a potential for harm to him if he were to consume narcotics. He testified: “Yeah, I can’t do drugs, I can’t drink or anything like that” (Tr. 223). This naked and vague denial is thoroughly unconvincing because respondent offered no plausible explanation for the cocaine found in his system, and the undisputed expert testimony completely foreclosed any defense based on ingestion of 17 medications respondent thought he had taken in the hospital in the weeks before his urinalysis or otherwise in the 72 hours before the test. Thus, respondent has provided no factual basis upon which he could overcome or explain away the overwhelming scientific evidence, to which he stipulated, that his urine tested positive. Dr. Closson testified that the cocaine in respondent’s specimen was at a high level, 2,485 nanograms of benzoylecgonine (the substance into which the body converts cocaine) per milliliter of urine (retested at 2,659 nanograms per milliliter), by the Gas Chromatography/Mass Spectrometry Data (GCMS) confirmatory test, “well above” the New York State Department of Health cutoff of 150 nanograms per milliliter for a positive finding (Tr. 211-14; Pet. Ex. 13). Against the documented test results and the testimony of an expert respondent’s counsel called “well respected” (Tr. 205), respondent’s testimony was perfunctory and incredible.

On this record, respondent has utterly failed to meet his burden as to the defense of innocent ingestion of cocaine.

Randomness of Selection for Drug Testing

Accordingly, the sole remaining question presented here is whether the process by which the Department selected respondent for drug testing was legally invalid because, as respondent asserts, it was not truly random. Respondent contends that he was denied procedural and substantive due process of law per se under applicable case law interpreting the Fourth Amendment of the United States Constitution and the New York State Constitution (article I, section 12), which protect people against unreasonable searches and seizures conducted by the government, because the Department failed to follow its own procedure in Directive 7507R. Respondent contended at trial that the procedure used by the Department to select officers to be tested was found inherently corruptible in a prior case, Dep’t of Correction v. Pettiford, OATH Index No. 236/05 (Feb. 25, 2005), aff’d, Comm’r (May 4, 2005), that all drug tests taken using the procedure utilized in Pettiford are “inherently unreliable” (Tr. 225-26) and should be rejected as invalid, that the selection of respondent was not random because he was on indefinite sick leave and should have been considered inactive and, therefore, not subject to testing, and that there was a fatal discontinuity in the procedures here because respondent was selected under Directive 7507R, and his urine specimen was tested after the effective date of Directive 7507R-A, revised as of February 15, 2005. Respondent was selected by computer on January 31, 2005, under Directive 7507R. His urine test occurred on March 3, 2005, under revised Directive 7507R-A. Respondent argues that contrary to agency directives, the Legal Division representative notified an integrity control officer (“ICO”), Captain Keith James of the Health Management Division, who was replaced as ICO by the time of testing by Captain Robert Lopez, and that Captain Lopez, therefore, did not personally receive the notification directly from the Legal Division representative under Directive 7507R (Tr. 266). I find, however, that neither directive precludes reassignment of staff serving as ICO’s; rather, both directives give the Department the ability to substitute officers if the designated ICO is unavailable.

The Department promulgated Directive 7507, entitled “Random Testing to Detect and Deter Drug Abuse,” on November 12, 1990. Directive 7507 was subsequently revised and renumbered Directive 7507R (effective April 13, 2001). Again revised and renumbered, Directive 7507R-A (effective February 15, 2005), applicable to selection for tests administered after the selection of respondent here, retains the procedure for random selection through the use of a neutral numerical identifier, such as the social security number.

A comparison of the three versions of Directive 7507 shows that the penultimate one, Directive 7507R, applicable at the time of the selection process in this case, is identical to Directive 7507 with respect to random selection. The current version is not materially different. Each version provides for an initial, computer-generated list of randomly selected officers, showing social security or other neutral identifying numbers only, without the officers’ names or other identifying information as follows.

Department Directive 7507 (Nov. 12, 1990) §§ VI (A) (3) – (5)

Department Directive 7507R (Apr. 13, 2001) §§ VI (A) (3) – (5):

• Each biweekly pay period, a random number generator will provide up to one hundred (100), but not less than fifty (50) random integers through the computer’s Fortran system. The generated integers will then be matched to the corresponding sequentially ordered social security numbers.

• The social security numbers shall be printed in the presence of a representative from the Legal Division without any reference to name, rank, facility or other identifying information. The printed list shall immediately be placed in an envelope and sealed.

• The Legal Division representative shall match the list of randomly selected social security numbers with the names of the corresponding employees and their work locations.

Cf. Department Directive 7507R-A (Feb. 15, 2005) §§ V (A) (3) – (5) (same, except that “social security numbers” are now replaced by “unique numerical identifiers” and “the computer’s Fortran system” is replaced by “the Department’s computer system”).

I find that there was no material change in the directive that prejudiced respondent here, nor did respondent point to any particular amendment in the directive that worked to his detriment. The pertinent changes appear to be a slightly revised notification form and the elevation of the rank of the ICO’s where staffing is available. The new directive provides that the ICO must be of the rank of deputy warden or a supervisor identified by the commanding officer in the absence of an assigned deputy warden. Directive 7507R-A §§ (V) (A) (6), (8). Cf. Directive 7507R § VI (A) (6), (8) (method of selection of ICO in the first instance not specified; if ICO unavailable, ICO would be another supervising officer designated by the warden).

While I agree that the Department did not follow the literal terms of the directive in one respect, when it failed initially to confine its computer print-out to social security numbers only of the officers to be tested, and combined the random list of 100 social security numbers with the information identifying officers’ names and the facilities in which they worked in one print-out, the defect in procedure here did not defeat the randomness of the testing procedure, or the overall care the Department took to hold the information confidential and administer the drug test promptly.[7] Moreover, none of the other important factors in Pettiford that led to dismissal of the charge -- i.e., delay in the testing that could have allowed the Department to alter the list of officers to be tested, failure to follow several Department procedures protecting the privacy of officers, and testimony that the officer in Pettiford may have been singled out by his supervisor for testing, for nefarious, retaliatory reasons -- is present here. Respondent does not claim that his test was delayed. To the contrary, the test here would have occurred earlier, in February, but had to be postponed because respondent was in the hospital (Tr. 142). Nor does respondent contend that any member of the Department deliberately placed his name on the list of 100 officers to be tested, or added him to a list of subjects after the fact. This record is utterly devoid of any such factual assertions. There is not even a hint of actual foul play in the selection of respondent for testing.

Pettiford does not stand for the proposition, as respondent contends, that all drug tests administered under the process used here -- the combination on one document of the initial blind list of social security numbers with the information that identified the officers so that they could be tested -- are corruptible, and, therefore, invalid. With the Department’s drug test program, each case must be examined on its merits and a determination must be made as to whether the Department adequately followed legal procedures already found constitutional by the Court of Appeals in Seelig[8] or exercised unfettered discretion and unlawfully particularized the search for drugs. The actual separation of the steps of generating the name-blind list of social security numbers and matching the numbers with the names would serve as one indicium that the Department was actually selecting the officers randomly, before their full identities were known to Department staff. It is inevitable, however, that the social security numbers must be matched promptly with the name and command of the officers to be tested, or it would be impossible to run the tests, and the directive permits the very same legal representative to perform the matching exercise within moments of having the social security numbers alone.[9] Here, the credible testimony was that the information was in fact matched in two steps, the core program first generating the random numbers, and, thereafter, the output program displaying the identifiers, but the printing was done in one document (Tr. 48-49). Thus, the procedure was followed in substantial part. The Department clearly has control of the complete matching data available to it in its computerized payroll records (Tr. 46, 48). Another check on the Department’s ability to manipulate the data for improper reasons is the Department directive’s requirement that a representative of the Legal Division, and not individual supervisors of the various facilities who might harbor improper motives to single out particular officers they know, be involved in generating the random list of officers. The question is whether the information

was misused here. I find that it was not.

Thierry Stempfelet, who has worked for the Department for eleven years, is the supervisor in the Information Technology (“IT”) Division who runs the Department’s random drug testing program every two weeks, on the Monday or Tuesday following the two-week paydays (Tr. 44). The list is run soon after the end of each biweekly pay period, which ends on a Saturday, to avoid delay (Tr. 65). He entered a command on the agency computer called “random” and the program generated 100 social security numbers; he then had the program sort and display names and other identifying information corresponding to those numbers (Tr. 48). Luigi Dileone, of the Legal Division, picked up the print-out, which also contained officers’ names and other identifying information (Tr. 44, 62-63; Pet. Ex. 1). Mr. Dileone has been with the Department five years, and his duties are to manage the Department’s drug screening program and to do statistical work for the agency’s financial systems department (Tr. 63). The computer program randomly pulled the social security numbers based on then-current payroll data of the agency (Tr. 54). The pool of officers who can be selected randomly are the uniformed, active members of the Department who are on the payroll (Tr. 46). It is not possible to select a particular social security number (Tr. 46). The computer program automatically, electronically pulls the numbers from payroll data (Tr. 54). Mr. Stempfelet recalled that he ran the random program on January 31, 2005, the one that generated 100 social security numbers including that of respondent (Pet. Ex. 1) because Howard Bromley of the IT staff, who normally ran the program for Mr. Stempfelet, was out sick for a month due to his hospitalization for knee surgery (Tr. 47, 59). Respondent was listed on the computer run at ARDC, the Adolescent Reception and Detention Center (Pet. Ex. 1; Tr. 64-65).

Mr. Dileone called Mr. Stempfelet on the morning of January 31, 2005, to check whether the area around the IT printer was secure, and whether Mr. Stempfelet was ready to send the program to print (Tr. 51, 63-64, 78). Mr. Stempfelet runs the program once Mr. Dileone is standing near the printer (Tr. 51). Mr. Dileone verifies that nobody else is in the area by the printer, and not even Mr. Stempfelet sees the print-out of the list of 100 social security numbers, names and other data. Mr. Stempfelet “never” looks at the printed list (Tr. 47-48). Mr. Dileone testified that he is the only one at the printer to “[t]ry to keep it secure. We do not want anybody to look at any of these names. Thierry does not look at any of these names. I am the only one that looks at these names, other than the integrity control officer” (Tr. 78). He asks Mr. Stempfelet to print the list early in the morning, when there is minimal traffic near the printer (Tr. 98-99).

The IT division, to which access is restricted to IT personnel, is on the seventh floor of 60 Hudson Street in Manhattan. Mr. Dileone works on the sixth floor there and calls before he comes up to IT every two weeks to obtain the print-out under secure conditions, when nobody else is near the printer (Tr. 52, 57-58).

Although Directive 7507R, in sections VI (A) (4) and (5), applicable to this drug test selection process, requires by its literal terms that the Department first print the list of social security numbers only in the presence of the representative from the Legal Division without any reference to name, rank, facility or other identifying information, and seal the list in an envelope, and then that the same representative match the numbers with the corresponding employees and their work locations, the printed list showed not only the social security numbers of the 100 officers, but also the names and facilities where the officers worked, gender, shield number, rank and title (Pet. Ex. 1). Mr. Stempfelet testified, in a most credible and professional manner, that the additional information beyond the social security number enabled Mr. Dileone to “check faster who was picked up and where this person is working” (Tr. 48). Asked what impact this additional information had upon the randomness of the selected numbers, and how, if at all, he could affect the program to select a particular person or a particular social security number, Mr. Stempfelet testified:

Zero impact; because it’s done after the random program. Just a matter of format report at the end. There is no impact.

No; it has no bearing. Because, again, it’s being done after. So the selection has been made already.

(Tr. 48-49, emphasis supplied). Mr. Dileone corroborated this point in his post-trial affidavit of April 27, 2005, responding to written questions from respondent’s counsel:

Once the hundred social security numbers have been randomly selected, commands are then imputed [sic] into the computer to sort the social security numbers by facilities and include the names associated with the social security numbers.

(Pet. Ex. 15 at ¶ 11). Mr. Stempfelet added that after the 100 social security numbers are randomly selected by the program, there is an output report: “What we call an output report, that you can put – you can choose to display, for instance, just the Social Security number, or to display more. Because, of course, we have all the information pertaining to people” (Tr. 48). Thus, it appears that the deviation in this case from the directive is very technical in nature: the failure to print the list before sending the command to the computer to generate the matching information. The directive in no way precludes computerized matching of information in this age of technology.

In 2004, the program was used to print only social security numbers, but on request from Florence Hutner, General Counsel of the Department, Mr. Stempfelet began displaying social security numbers with additional identifying information (Tr. 51, 85). It was Mr. Dileone who, having spent up to two days every two-week payroll cycle, manually matching identifying information to social security numbers from lengthy payroll print-outs, in a painstaking procedure in his own handwriting, which he was concerned could lead to error, requested that the Department find a way of improving accuracy and efficiency, by having the computer perform the matching work (Tr. 80). He called the process “very cumbersome” and “a little archaic” (Tr. 80, 82). He requested that the computer replace the archaic method “to expedite notification” and to improve “accuracy”:

It would take me - it would take me - if the office was quiet and the phone wasn't ringing, it would take me two days to get the list into this form, sorted by facility. That's kind of a big delay. There's a lot of room for error at that point, too. My own handwriting is not the best, and I'll be the one - the first one to admit it. You're writing out 100 - you're receiving 100 Social Security numbers, randomly selected. And I would, in turn, write all that information down. There was just too much room for error, in my opinion, human error at least. I suggested that we improve the system by having the computer people still randomly select those 100 Social Security numbers, but sort it out as a last step by facility and by - by facility, and list them accordingly. That would expedite my notifications. There would be no question as to the Defendant's Social Security number, or the spelling of his last name, or his shield number, for that matter.

(Tr. 80-81).

Mr. Dileone got the approval of the Department to change the method of printing the data with only a “little step extra that the computer program had to do” (Tr. 81). “Once it did randomly select the 100 Social Security numbers, it would then sort them by facility” (Tr. 81). He testified further that once he handwrote the entries longhand, he would have to produce another sheet on the computer: “That’s a little archaic. We have technology today that we can leave human error out. Plus, I’m not so, you know, confident about my own handwriting. So it takes me that much longer to write it out. We shouldn’t have to handwrite anything like this” (Tr. 82). The agency changed back recently to the handwritten system “to be consistent with [its] directive,” 7507R, now 7507R-A (Tr. 85). The directive was never changed to reflect the use of computer technology to perform the matching of data in one step (Tr. 86, 95).

Mr. Dileone handled the information concerning Officer Jiminez with care and attention to its sensitivity and kept it confidential according to the applicable directive. The process he used was as follows. Mr. Dileone performs a daily reconciliation by recording on the print-out of 100 officers the dates on which they are tested for drugs (Tr. 66). After he picked up the secure list of 100 randomly selected officers from the IT printer, he made a working copy he could mark up and sealed the original print-out in pristine form in an envelope, so it would not be “infect[ed]” with his handwriting or any notes, and locked it in a file (Tr. 64-66, 82-83). He wrote on his working copy of the list that respondent was “indefinite sick” (Pet. Ex. 1), meaning out sick more than 30 days (Tr. 67). He learned this when he sent the list to ARDC, to Captain Hawkins, the designated ICO at that facility, on February 4, 2005 (Tr. 67, Pet. Exs. 2 and 3), and recorded that notification on his Legal Division “Random Report,” along with all dates on which he made similar notifications to other facilities’ ICO’s regarding the full set of 100 officers from the same random selection as respondent’s. Mr. Dileone called Captain Hawkins to verify that she would be standing by the fax machine before he faxed the confidential list, and Captain Hawkins called him back to confirm that she had received the fax of the list showing respondent’s name (Tr. 88-89, 91).

Respondent argued that because he was on indefinite sick leave, he should have been excluded from drug testing because those on that sick leave status are not considered active on the payroll (Tr. 225). However, the proof at the hearing was to the contrary: Mr. Dileone testified that “[i]ndefinite sick represents still on the payroll,” and that the individuals on the list of those selected for drug testing are all still on payroll even if sick because the drug selection program follows the payroll data, and “[b]ecause the list of individuals are [sic] grabbed based on who’s on the payroll for that particular period” (Tr. 76-77). He testified without contradiction that he understood the list of officers to be randomly selected by computer and that there was “absolutely nothing” in what he did “to single out individuals in this case at all” (Tr. 80). Captains James and Lopez confirmed that officers out on indefinite sick leave remain on the payroll and are still being paid (Tr. 145, 183). I credit the testimony of senior Department officials managing personnel that indefinite sick leave simply means the officer is on sick leave for more than 30 days, but is still carried on payroll records used by the computer to generate randomly the list of social security numbers of those to be tested, and is still being paid. Therefore, I find that there was no error in respondent’s having been deemed eligible for selection for random drug testing.

Because of the sickness notation, Captain Hawkins referred respondent’s name back immediately to Mr. Dileone. Mr. Dileone then referred respondent’s name to Captain James, the ICO of the Department’s Health Management Division (“HMD”) on the same date, first by phone, to confirm the security of the fax machine, and then by telecopy of a redacted copy of the print-out showing only the entries for Officer Jiminez (Pet. Ex. 2, Tr. 69). Mr. Dileone proceeded in this fashion to protect the confidentiality of the other officers whose selection HMD had no need to know (Tr. 69). HMD is responsible for getting sick officers to toxicology for testing (Tr. 66-69, 76). Captain James, a 23-year veteran of the Department, was assigned as ICO by Warden Goodman to handle notifications from the Legal Division with respect to drug testing of officers (Tr. 116-17). His designation as ICO by the warden complied with the applicable directive, 7507R, in effect on February 4, 2005, section VI (A) (6). Mr. Dileone had spoken with Captain James in the past and knew him. In his telephone conversation with the captain, Mr. Dileone confirmed that respondent was indeed out on indefinite sick leave before sending the fax (Tr. 69).

Mr. Dileone prepared a synopsis showing the chain of events in the notification process (Pet. Ex. 4; Tr. 74-75): the January 29, 2005, payroll date; the January 31, 2005, date of the computer run; and his February 4, 2005, notifications to Captains Hawkins and James. He also noted the actual date of the collection of respondent’s urine sample, March 3, 2005, on his copy of the computer print-out (Pet. Ex. 1; Tr. 104). Mr. Dileone testified that he tries to the best of his ability to ensure that only the person who is authorized to receive the list of officers to be tested receives it (Tr. 102-05).

Captain James testified that he was the ICO in the Health Management Division as of February 4, 2005, when Mr. Dileone notified him of the selection of respondent under Directive 7507R, section VI (A) (6). He handled notifications from the Legal Division concerning drug testing. He confirmed that he went to the fax machine to receive the copy of the list of officers (Tr. 116-17). Due to an injury to Deputy Warden Owusu, Warden David Goodman appointed Captain James acting executive officer until Deputy Warden Darlene Merritt took over as executive officer (Tr. 117, 119). Captain James received the fax, went on the computer to ascertain respondent’s next medical appointment, filled out a notification form, had the Warden sign the form, and locked the fax and the form in a file cabinet (Tr. 117, 122-23).

Captain James had never met respondent until the day of the trial because he never had the opportunity to deliver the notice of the date and time of the originally scheduled drug test, February 24, 2005, to respondent (Tr. 117-18). This is so because respondent entered the hospital in February, and, therefore, did not report for his appointment at HMD on February 24th (Tr. 142-43). Officers are not notified prior to their arrival at HMD for medical appointments for two reasons: (1) the Department does not want to place added burdens on employees’ health when they are out sick and thus combines the drug test with a regular appointment for medical care; and (2) the test is confidential (Tr. 143-44), and the Department presumably does not want to provide advance notice to the officers, who would otherwise have time and opportunity to alter the test results by modifying their behavior or adulterating the test in some way. Directive 7507R states that the “[ICO] or designated supervisor shall personally notify the selected member, on the day of the scheduled examination, to report for testing at Health Management Division at the time specified.” Directive 7507R § VI (A) (8). I find that the draft notice form Captain James completed for the purpose of notifying respondent of the time of his drug test was a nullity because of respondent’s illness and his non-appearance at HMD for his regular appointment on February 24, 2005. The notification form Captain James used when Directive 7507R was in effect was essentially the same as the form Captain Lopez ultimately completed on March 3, 2005, and which was signed by Captain Lopez and respondent, except that the new forms, “Notice to Member For Random Drug Test,” mandated under Directive 7507R-A § V (A) (8) (Resp. Ex. A), in effect as of February 15, 2005, according to Captain James, now provide a place for a time stamp showing the times of arrival and departure by the officer being tested (Tr. 134-35).

Sometime between February 4, 2005, when Captain James completed a notification form for a drug test of respondent to be done on February 24, 2004 (Tr. 142), and March 3, 2005, when respondent provided his specimen, Captain Lopez, a 20-year veteran of the Department, was assigned to replace Captain James as ICO of the Health Management Division (Tr. 117, 120, 154). By the time respondent reported for drug testing on March 3rd, Captain Lopez had taken over the ICO’s position from Captain James (Tr. 120; Resp. Ex. A). Captain James passed the paperwork he had kept in a locked file cabinet in his office, the fax from Mr. Dileone, and the draft notification form, to Captain Lopez, following the instructions of Deputy Warden Merritt, to whom Captain James reported, and who, in turn, took instruction from Warden Goodman (Tr. 120-25). Deputy Warden Merritt made the change because she wanted the absence control unit to be in charge of drug testing (Tr. 124, 126). Captain James then took a three-week vacation at the end of February and returned to work on March 21, 2005 (Tr. 122, 124). Captain Lopez confirmed that he took over the random drug test responsibilities as ICO from Captain James (Tr. 155, 170) on instructions from Deputy Warden Merritt, the executive officer of HMD (Tr. 117).

By February 24th, Captain Lopez had taken over the drug testing assignment. Captain Lopez checked for respondent’s appointment and ascertained that respondent had not come in for his HMD appointment on February 24, 2005 (Tr. 155). He learned that respondent was admitted to the hospital on February 10th and was discharged on February 17th, 2005 (Tr. 155-56). Once an officer is admitted to the hospital, his HMD appointment is deleted, and the scheduling unit had not notified Captain Lopez of the deletion or next appointment for respondent because the scheduling unit does not know which officers have been selected for drug testing. That information is not shared with the scheduling unit to keep the identity of the officers randomly selected for drug testing confidential (Tr. 156).

Captain Lopez notified respondent of his drug test on March 3, 2005, and supervised the test (Tr. 154-57). Captain Lopez’s appointment as ICO by the commanding officer, Deputy Warden Merritt, satisfied the requirements of the directive in effect at the time of the March 3, 2005, test, because Directive 7507R-A states at section V (A) (6) that the ICO “shall be of the rank of Deputy Warden, or in the absence of an assigned Deputy Warden, a supervisor identified by the Commanding Officer.”

Captain Lopez destroyed the draft notification form he had received from Captain James because it was done under the old directive, which no longer applied (Tr. 171), and “to keep things confidential. To not have another form around” (Tr. 176). As noted, the earlier form was a nullity, as it applied to a test that never happened. There is no contention here that respondent did not receive notice of the test on the date of the actual test. The proper form in effect was completed and signed by Captain Lopez and by respondent. Neither Directive 7507R nor Directive 7507R-A requires that the ICO be the same person throughout the process; neither directive prohibits a reassignment of staff. To the contrary, both directives contemplate changes of assignment based on available staffing. There is nothing in this record to suggest that the assignment of Captain Lopez as ICO by Deputy Warden Merritt, who had prior experience at HMD, was done for any other reason than that the Deputy Warden wanted to have the drug testing responsibilities under the absence control unit, where Captain Lopez was in charge (Tr. 121, 126, 156). Neither captain was from respondent’s facility, and there was no indication that they even knew him, or that anyone had an improper motive to test him.

In short, I find that the initial selection of respondent for drug testing was random. No member of the Department and no laboratory personnel who touched this matter tampered with that original, random selection, with the integrity of the specimen, or with the lab results.

The constitutionality of the Department’s random drug testing scheme was upheld by the Court of Appeals in Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832, cert. denied, 498 U.S. 847 (1990) (tenured correction officers); see also Delaraba v. Nassau County Police Dep’t, 83 N.Y.2d 367, 610 N.Y.S.2d 928 (1994) (upholding random testing program for Nassau County police officers); McKenzie v. Jackson, 75 N.Y.2d 995, 557 N.Y.S.2d 265 (1990) (probationary Westchester correction officer tested positive for cannabis in random urinalysis test; citing Seelig); Caruso v. Ward, 72 N.Y2d 432, 435, 440, 534 N.Y.S.2d 142, 143, 146 (1988) (upholding random urinalysis testing of special cadre of narcotics police officers, who worked in “fishbowl-like circumstances undreamed of by Calpurnia herself”). Cf. Patchogue-Medford Congress of Teachers v. Bd. of Education, 70 N.Y.2d 57, 70, 517 N.Y.S.2d 456, 462 (1987) (“random searches conducted by the State without reasonable suspicion are closely scrutinized, and generally only permitted when the privacy interests implicated are minimal, the government's interest is substantial, and safeguards are provided to insure that the individual's reasonable expectation of privacy is not subjected to unregulated discretion”) (citation omitted).

It is undisputed that in this case, the Department’s legal representative, Mr. Dileone, used a unified list showing more than the social security numbers of the 100 officers selected. The question then is whether that failure to adhere to the literal terms of the applicable directive invalidates the selection of Officer Jiminez for testing and requires dismissal of the charge here. I find that it does not, because the overwhelming proofs adduced here show that in fact Officer Jiminez was selected randomly for drug testing by a computer program that could not be and was not altered by Department personnel assigned to administer the drug testing program. The court in Seelig approved the Department’s testing protocols, including the feature that “[a] computer randomly selects 50 officers [now 100] (out of a force of 7,200) every two weeks.” 75 N.Y.2d at 95, 556 N.Y.S.2d at 836 (emphasis supplied). The court thus placed its emphasis on the random,

computerized generation of the list of officers to be tested.[10] Here, the uncontradicted proof was that there was no way for any officer involved in the drug testing program to alter the program that selected the 100 social security numbers from the city’s payroll roster of officers being paid and carried on payroll (Stempfelet: Tr. 46).

It is axiomatic that a compulsory urine test, a forced extraction of bodily fluid, is a search and seizure for purposes of the Fourth Amendment of the U.S. Constitution and the New York State Constitution, article I, section 12. See Patchogue-Medford, 70 N.Y.2d at 67-68, 517 N.Y.S.2d at 460; see also Storms v. Coughlin, 600 F. Supp. 1214, 1217-18 (S.D.N.Y. 1984). In a disciplinary proceeding where a public employer seeks to impose a sanction upon a public employee because the employee tested positive for drugs, the employer must prove, inter alia, that the search (the order to submit to urinalysis for drug testing) was constitutionally valid. See Dep’t of Correction v. Fogle, OATH Index No. 126/86, at 2 (July 14, 1986). In order to comply with the Fourth Amendment and the State Constitution, searches conducted pursuant to a drug testing scheme must either be random, see Seelig, or accompanied by reasonable suspicion, see Patchogue-Medford. There was no controversy here about reasonable suspicion; this is a random selection case.

Respondent argues that the Department’s “disavowed procedure” violated respondent’s due process rights and, particularly, the third prong of the three-part test articulated in Patchogue-Medford, requiring mechanisms to protect an individual’s privacy by not subjecting him to “unregulated discretion” (Tr. 41, 226). Mr. Dileone requested the more efficient computer-generated matching of names that saved two days of labor biweekly and minimized human error that concerned him when he did the work in his own handwriting from extensive payroll records (Tr. 80-81). It was the Department’s General Counsel who approved the collapsing of the two steps on Mr. Dileone’s request, but the agency has now had him revert to the “archaic,” handwritten method of matching names to social security numbers, in order to adhere to the literal terms of the current directive (Tr. 85). As noted, given that the original computerized selection of social security numbers was random, and the matching of the data to names of the officers followed that sorting of information immediately (Pet. Ex. 15 ¶ 11; Tr. 48-49), the Department substantially complied with the directive, and failed only to send the document to the printer twice, once with the numbers only, and again with the numbers, names and facilities of those chosen. That departure from the directive had, in the words of the IT supervisor, Mr. Stempfelet, “zero impact” (Tr. 48-49) on the randomness of the selection of respondent in the first instance.

The Department’s reasoning for combining the original selection of blind numbers with the identifiers onto one list was found “less than compelling” in Pettiford, OATH Index No. 236/05, at 12, where many other procedures were not followed and the Department exercised more discretion than its rules permitted and more than the Court in Seelig ratified. There, confidentiality was not carefully protected, and Captain Pettiford was able to show a retaliatory reason for his testing. However, the same technical failure to follow literal procedure for printing, by itself, is not fatal here. The process used here appears on this very different record, where the process was handled overall very carefully, somewhat more compelling (the savings of two of every ten work days, or a 20% increase in efficiency and enhanced accuracy of the data), particularly where delay is to be avoided to ensure random selection and confidentiality, and the Department otherwise acted correctly. Here, the Department showed that it made real and effective efforts to limit its exercise of discretion and to protect with care the privacy of its officers. It was a “combination of factors” in Pettiford, at 13, that led this tribunal to dismiss a drug charge there --unexplained delay before testing, the Department’s violation of its own procedures, particularly those protecting the identities of the officers on the list, those establishing the responsibilities of the ICO, and those designating who selects the time and place of the test, the failure to secure the list by verifying unequivocally that the person receiving the list was the authorized ICO, as well as Captain Pettiford’s uncontroverted testimony that he had argued with his warden the day before the test and that she was biased against him. The only factor this case has in common with Pettiford is the one-step list. The general failure by the Department to ensure the integrity of the testing process in Pettiford is simply not the case here. Mr. Dileone and the ICO’s exercised care with this testing process.

There is no proof that Mr. Dileone altered the lists of social security numbers. To the contrary, the testimony was that it was impossible for him to alter the core computer program, and that he was extremely careful to ensure, by phoning the ICO, that only the ICO saw the list and was at a secure fax machine to receive it. Mr. Dileone expedited the process to avoid delays that could provide time for discretionary acts by others and increased the accuracy of the identifying data.

Significantly, the Court in Delaraba read Seelig as having approved the selection of employees’ “names randomly by computer,” 83 N.Y.2d at 371-72, 610 N.Y.S.2d at 930 (emphasis supplied). The Court thus held the computerized, random selection of officers’ names to satisfy the third prong of Patchogue-Medford, as a safeguard in place to ensure that the individual’s reasonable expectations of privacy were not subject to “unregulated discretion.” Id. I find that the failure to follow the directive’s separation of printing a blind list of numbers and then matching the numbers to names and facilities does not affect any constitutional rights of respondent on the particular facts of this case, see U.S. v. Caceres, 440 U.S. 741, 751-52, 99 S.Ct. 1465, 1471 (1979), because the selection of officers here was in fact random.

The inconsistency claimed here “is purely one of form, with no discernible effect in this case on the action taken by the agency and its treatment of respondent.” Id., 440 U.S. at 752, 99 S.Ct. at 1472. The actual process here does not raise any constitutional due process questions. Id. In Caceres, the Supreme Court found that the failure of the Internal Revenue Service to follow its own regulations and obtain approvals to record conversations with a taxpayer did not raise any constitutional questions where those approvals would have been granted. Id. See generally Dep’t of Correction v. Cosby, OATH Index No. 890/91, at 8 n.3 (Mar. 29, 1991), aff’d, NYC Civ. Serv. Comm’n Item No. CD 92-107 (Sept. 24, 1992); Dep’t of Correction v. Harrison, OATH Index No. 302/87, at 11-12 (Nov. 18, 1987) (rules of an administrative agency which regulate procedure affecting substantial rights may not be waived; where, “however, no substantial right protecting a party from prejudice is violated by an agency’s failure to abide by its own rule or regulation, such noncompliance constitutes harmless error”); Dep’t of Correction v. Pass, OATH Index No. 174/87, at 10-14 (May 22, 1987) (same). In Pass, the Department’s failure to comply strictly with its directive requiring approval of an attorney prior to ordering a member to submit to drug testing was not fatal because “[n]o substantial right of the respondent was prejudiced due to the breach.” Pass, OATH Index No. 174/87, at 10; it was held in Pass, in language equally applicable here, that the Department should impress upon its employees the importance of complying with established procedure, “for in different circumstances, such failure might foreclose the agency’s ability to take appropriate action.” Id. at 14.

As in Seelig, the enumerated protections of the Department’s protocols, including random selection of officers by computer, “overall allow for very little discretion and certainly not that which could be called ‘unregulated discretion.’” Seelig, 76 N.Y.2d at 96, 556 N.Y.S.2d at 836 (citing Patchogue-Medford, 76 N.Y.2d at 70, 517 N.Y.S.2d at 462). By contrast, in Storms v. Coughlin, 600 F. Supp. 1214, 1223, 1226 (S.D.N.Y. 1984), the federal court held that a state prison watch commander could not pull from a board in his office a few of the cards showing prisoners’ names each day as a method of selection for urinalysis drug testing because of the “unnecessary risk of harassment” due to the clear ability of that one guard to target particular inmates. Id. “The potential for abuse . . . is apparent. So long as he is potentially aware of the name of the prisoner he is choosing, the commander may, consciously or unconsciously, steer his choices toward less favored inmates.” Id., 600 F. Supp. at 1223. The court noted with approval that the state was moving to adopt a “computer-guided random selection” procedure and held that the defendants there “may not use a method of selection in which the official who chooses the inmates to be tested is aware of the identity of those prisoners while he is choosing them. Defendants must adopt a system of selection in which the prisoners to be tested are chosen blindly.” Id. at 1223, 1226. The process applied here is nothing like having the prison’s watch commander pulling name cards off a board; it was a blind, computerized selection matched only after random selection with the officers’ names and identities. The Department exercised no discretion in the selection of respondent.

Respondent was unable to throw into question his initial random selection by the computer. Nor did he even try to show delay. This tribunal has held that “when” an individual is sent for testing is just as important a protected interest as “who” is selected by the computer. The protected interest in when an employee is tested is “implicit in the requirement under the Fourth Amendment that a search be reasonable both at its inception and in its scope.” Dep’t of Correction v. Hines, OATH Index No. 537/94, at 12 (Oct. 4, 1994) (citing O’Connor v. Ortega, 480 U.S. 709, 725-26, 107 S.Ct. 1492, 1502-03 (1987)). In Hines, the tribunal reasoned that, when there is a delay between selection and testing,

the potential exists for an integrity control officer to pick and choose which of the selected officers in his facility to actually notify, and when to send them for testing, based on factors that are individual and not necessarily benign. In his discretion, an integrity control officer could single out officers for more or less favorable treatment depending on their circumstances. Once the focus is directed to an individual officer for reasons other than simply his random selection by computer, the actual testing or search becomes less random and more individualized, and may then require reasonable suspicion.

OATH 537/94, at 12 (citing Patchogue-Medford, supra) (emphasis supplied).

Here, unlike the situation presented in Pettiford, there was no delay by the Department. Respondent here did not even argue that the Department delayed the test. In Hines, as here, respondent was on sick leave and any scheduling delay was attributable solely to respondent’s absence from work. Hines, OATH Index No. 537/94 at 9, 13 (six and a half month delay between selection and testing did not nullify positive cocaine test; ICO testified that respondent could not be scheduled for testing while he was out sick, and that neither respondent nor anyone outside the testing process was advised of his selection during that waiting period). Even if there had been a substantial delay, respondent would have to show that it was motivated by bad faith or other improper intent, id., at 13, not so here.

Respondent bears the burden of proving bad faith or unregulated discretion; he must show that in his actual testing, he was singled out, for arbitrary and improper reasons, for disparate treatment from others selected randomly. Id.; Dep’t of Correction v. Gray, OATH Index No. 930/03, at 8 (May 29, 2003); Dep’t of Correction v. Binnie, OATH Index No. 876/94, at 4 (June 27, 1994), aff’d, 236 A.D.2d 264, 654 N.Y.S.2d 297 (1st Dep’t 1997). “Stated another way, respondent must demonstrate that the delay turned what was initially a random search into an individually focused search based on factors other than the selection of respondent’s social security number by computer.” Hines, OATH Index No. 537/94, at 13. Cf. Gray, OATH Index No. 930/03, at 9-10 (ICO explained three-month delay with testimony about the facility’s rationale and procedures for scheduling testing of officers based on the needs of the facility and staff availability); Binnie, OATH Index No. 876/94, at 3-4 (ICO explained that delay was caused by scheduling problems due to respondent’s leave and sick days and need for an available captain to escort respondent to the test).

I find that respondent was not in fact singled out for testing. Respondent failed even to articulate that he was improperly singled out due to bias or hostility of a superior, or for any reason. There was not even a scintilla of proof that any member of the Department exhibited bias or hostility toward respondent.

Here, in contrast to the showing it made in Pettiford, the Department has demonstrated that it exercised the proper restraint, limited the use of discretion, and kept the requisite privacy protections in place.

Respondent’s evidence in support of his innocent ingestion defense was thoroughly unconvincing as an explanation for his positive cocaine test results. His unadorned denial of knowing use of illegal narcotics (Tr. 223) was insufficient to overcome the substantial evidence to the contrary.

FINDINGS AND CONCLUSIONS

1. On January 31, 2005, respondent was selected randomly by the Department to supply a urine specimen for drug testing. On March 3, 2005, respondent provided the specimen. The same specimen was properly tested and proved to be positive for the presence of cocaine.

2. Respondent’s conduct is unbecoming a correction officer and violates Department Directives 7507R and 7507R-A and Department Rules and Regulations §§ 3.20.010, 3.20.030, and 3.20.300.

RECOMMENDATION

Upon making the foregoing findings, I obtained and reviewed a summary of respondent’s work history. His relatively brief record is unremarkable. He was appointed December 20, 2001. He was disciplined, in the form of command discipline, once for absence without official leave from May 18-19, 2004. There is also a cryptic entry that evidently refers to the forfeiture of respondent’s firearm on November 12, 2004. He was the subject of a recommendation for attendance counseling on July 6, 2004, and was suspended from December 14, 2004 to December 23, 2004, although the reason is not stated, and suspended more recently for the current charges, extended by stipulation through May 4, 2004 (Tr. 39-40).

Respondent has been found to have used cocaine, “misconduct which is so antithetical to his position as a correction officer that no room exists for mitigation of the penalty. The Commissioner has a ‘zero tolerance’ policy for any uniformed member found to have tested positive for illicit drugs.” Binnie, OATH Index No. 876/94, at 10, aff’d, 236 A.D.2d 264, 654 N.Y.S.2d 297, 298 (1st Dep’t 1997) (dismissal from Department for marijuana use not so disproportionate to the offense as to be “shocking to our sense of fairness”). See generally McGovern v. Safir, 266 A.D.2d 107, 107-08, 698 N.Y.S.2d 477 (1st Dep’t 1999) (upholding Deputy Police Commissioner’s rejection as incredible that officer’s ingestion of marijuana was unknowing and involuntary; dismissal upheld); Dep’t of Correction v. Carlton, OATH Index No. 329/94, at 15 (Aug. 2, 1994) (“[I]llicit drug use . . . is completely antithetical to the status, duties and responsibilities of a correction officer. Such drug use raises the specter of contraband problems, security breaches and the risk of harm to oneself and to fellow correction officers”), aff’d sub nom. Carlton v. Schembri, 235 A.D.2d 306, 652 N.Y.S.2d 957 (1st Dep’t 1997) (penalty of dismissal for cocaine use upheld despite officer’s “unblemished, even exemplary record”); Gaudioso v. Schembri, 221 A.D.2d. 165, 633 N.Y.S.2d 142 (1st Dep’t 1995) (termination upheld for marijuana use).

A correction officer is charged with enforcement of the law in an inherently dangerous prison setting where he must have his wits about him. Seelig, 76 N.Y.2d at 91-95, 556 N.Y.S.2d at 833-36 (citations omitted). Respondent’s use of cocaine calls into question his own ability to obey the law, and, therefore, his capacity to enforce the law with any credibility among colleagues and inmates in the grueling environment of a city correctional facility. A peace officer holds a position of public trust. He places himself and others around him in jeopardy when he takes illegal drugs and, accordingly, cannot be permitted to continue as a member of the service. There is nothing before me to justify mitigation of the only appropriate penalty.

I recommend, therefore, that respondent’s employment with the Department be terminated.

Joan R. Salzman Administrative Law Judge

May 24, 2005

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

MARTHA-IBIS HERNANDEZ, ESQ.

Attorney for Petitioner

KOEHLER & ISAACS, LLP

Attorneys for Respondent

BY: LUIS A. SERRANO, ESQ.

-----------------------

[1] Department Directive 7507 has been amended twice. See Department Directives 7507R (Apr. 13, 2001) and 7507R-A (Feb. 15, 2005).

[2] Department Directive 7507R § VI (A) (1).

[3] See Tr. 34-40, 205-06, 216-18. I received sworn answers to written questions posed by respondent’s counsel to Luigi Dileone, the Department’s witness from its Legal Division, via fax on April 27, 2005. Upon the request of petitioner’s counsel, I have marked into evidence and included in the record Mr. Dileone’s sworn answers, dated April 27, 2005, to respondent’s interrogatories, together with the fax cover sheet from petitioner’s counsel, the attached interrogatories from respondent’s counsel, dated April 25, 2005, and the attached excerpts of the transcript of Mr. Dileone’s testimony of August 18, 2004, in Dep’t of Correction v. Pettiford, OATH Index No. 236/05, aff’d, Comm’r (May 4, 2005), as Petitioner’s Exhibit 15.

[4] Captain Robert Lopez of the Health Management Division (Tr. 154-85), Captain Jeannette Russell of the Health Management Division (Tr. 186-91), Correction Officer Maurice Adams of the Health Management Division (Tr. 191-98), Robin Gabriel of the Toxicology Unit (Tr. 198-200), Correction Officer Steven Kornfeld of the Toxicology Unit (Tr. 201-05), and Dr. Closson (Tr. 205-18).

[5] The Drug Screening Questionnaire that respondent completed, at Part B, calls for an exhaustive listing of medications taken in the 72 hours preceding the urine test (Pet. Ex. 5).

[6] Although respondent was given the opportunity post-trial to identify additional medications for Dr. Closson to evaluate, and to clarify the spelling of one of the drugs he had written illegibly on Part B of the drug screening questionnaire, on which he had recorded three medications he contended he had ingested in the 72 hours prior to the test, respondent submitted no additional listing of medications and no clarification of the illegibly identified medicine whose name he had written on the form.

[7] The Department has, according to the testimony of Mr. Dileone, the legal representative of the Department charged with keeping the lists and data on drug screening of Department employees, returned to the earlier version of its procedure, whereby, since the events in this case, Mr. Dileone now takes the computer-generated list of social security numbers only, and spends two days manually matching the numbers to the officers’ identities, despite the greater possibility of error in his handwritten, time-consuming entries (Tr. 80-85). Nothing in the directive, as revised, or in the case law, prohibits the use of computer technology to aid in the performance of this matching task. It is peculiar that, with computerization available to avoid error and unlawful delay in the testing and to help preclude tampering with the list of officers selected, where the directive permits the same legal representative to perform the matching task within moments of the production of the initial list of social security numbers only, the Department never enshrined the de facto practice into the directive and has now abandoned the technology in the matching phase of the procedure in favor of an “archaic” and error-prone, handwritten system (Tr. 82, 85). Indeed, the Court of Appeals in Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832, cert. denied, 498 U.S. 847 (1990), expressly approved the use of computerized random selection by the Department of officers for drug testing. In any event, the procedure before me is the one that was in effect at the time the list here (Pet. Ex. 1) was generated, and not the practices being employed by the Department in subsequent selection processes.

[8] See also Caruso v. Ward, 72 N.Y.2d 432, 534 N.Y.S.2d 142 (1988) (proposed urinalysis drug testing of elite narcotics police officers facially constitutional, but court could not rule on whether it was constitutional as applied, given that the procedure had not yet been implemented).

[9] Department Directive 7507R (Apr. 13, 2001) §§ VI (A) (1)- (5).

[10] The other Department protocols upheld in Seelig were that: (1) employees could be accompanied at testing by a union representative or attorney; (2) state-of-the-art techniques were used in collecting the specimen, assuring its integrity for testing and retesting; (3) samples testing positive were re-tested with sophisticated methods to assure reliability; and (4) employees had an opportunity for retesting by an independent laboratory. Seelig, 76 N.Y.2d at 95, 556 N.Y.S.2d at 836.

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