Fire Dep’t v



Fire Dep’t v. O’Neill

OATH Index No. 1973/05 (Sept. 20, 2005), aff’d, 52 A.D.3d 258, 859 N.Y.S.2d 183 (1st Dep’t 2008)

Petitioner proved that respondent tested positive for marijuana. Respondent’s defenses that new random drug testing policy was unconstitutional and that sample was collected improperly because respondent himself applied security tape rejected. Termination of employment recommended.

_________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

FIRE DEPARTMENT

Petitioner

- against -

KEVIN O’NEILL

Respondent

_________________________________________________

REPORT AND RECOMMENDATION

JOAN R. SALZMAN, Administrative Law Judge

The Fire Department brought this employee disciplinary proceeding pursuant to section 15-113 of the Administrative Code against firefighter Kevin O’Neill. The Department alleges that respondent tested positive for marijuana, an illegal substance, in a random drug test conducted on November 29, 2004, in violation of section 4.1 of the All Units Circular (AUC) 202 (Feb. 1, 1996) (prohibiting illegal drug use)[1] and Regulations for the Uniformed Force, sections 25.1.6 (prohibiting marijuana use) and 25.1.3 (conduct reflecting discredit on the Department) (Jan. 1, 1997) (ALJ Ex. 1).

On July 22, 2005, at the hearing held at this tribunal, petitioner presented testimony from three Department witnesses with knowledge of the Department’s relatively new random drug testing procedures, and from an expert toxicologist. Respondent declined to testify and offered no witnesses. For the reasons set forth below, I find that the Department proved the charges by a preponderance of the credible evidence and recommend termination of respondent’s employment.

ANALYSIS

There is no question that respondent tested positive for the presence of marijuana in his system on November 29, 2004 (Tr. 61; Pet. Ex. 7). In declining to testify, respondent offered no explanation for his positive drug test. Nor did he offer any scientific evidence to refute the Department’s highly credible proof that he tested positive for marijuana. The proof of chain-of-custody showed convincingly that respondent’s urine samples were carefully labeled, securely stored, and promptly transferred to the secure drug laboratory for testing (Tr. 8-77). I credit fully the testimony of Bonney Trent, a certified scientist for the last ten years at Bendiner & Schlesinger, Inc., a forensic toxicology laboratory (Tr. 66-67). The parties stipulated to Mr. Trent’s qualifications as an expert toxicologist (Tr. 67). I also give credence to the laboratory documents showing that respondent’s urine samples generated a result showing a level of marijuana in his system five times the New York State Department of Health’s cut-off for a positive test result. Respondent’s samples showed 76 nanograms of the metabolites for marijuana per milliliter under the GCMS (Gas Chromatography Mass Spectrometry) confirmatory test done following an initial screening. The cut-off is 15 nanograms per milliliter (Tr. 73-74; Pet. Ex. 8). Mr. Trent reviewed respondent’s questionnaire and confirmed that respondent listed nothing that he ingested (medicine, food or drink) that would account for this high positive test result or that would cause a false positive result (Tr. 75-77; Pet. Ex. 2).

There also is no doubt on this record that the urine samples at issue were respondent’s and that the procedures for their collection and testing were followed appropriately. See Tr. 47-77; Pet. Ex. 2, the random drug testing questionnaire completed by respondent, showing the last four digits of respondent’s social security number and badge number, in a sealed envelope; Pet. Ex. 3, the chain of custody form; Pet. Ex. 4, the log book, showing the pick up and delivery of the specimens to and from the lab by a named courier; Pet. Ex. 6, the daily field journal confirming the tests administered on named firefighters, completed contemporaneously by the testing staff; Pet. Ex. 7, the lab report results; Pet. Ex. 8, the full lab report with chain of custody entries.

Respondent’s counsel objected, however, that there was a failure by the Department to conform to proper procedure because the Department’s testing staff did not apply the red security tape initially to the specimen cups; rather, respondent himself took the red security tape into the bathroom with him and sealed the specimen cups. Kate Szczelaszczyk, who administered the test for the Department, testified most credibly that respondent had made an honest mistake, which she documented, and that she determined that it was unnecessary to ask him to repeat the test for the simple reason that there was nobody else in the area (Pet. Ex. 5; Tr. 48-66, 64). He was the only person who went into the bathroom with the specimen cups. She then, for added security, and with respondent’s consent, added two more strips of security tape onto each cup (Pet. Ex. 5). Thus, the specimens here were doubly sealed, and Ms. Szczelaszczyk never opened the samples (Tr. 56-57, 64). They were intact. Ms. Szczelaszczyk locked them in the refrigerator for interim storage in a locked room at headquarters (Tr. 56-57). The terms of the procedure were not violated. AUC 202, Addendum 1, provides at section 4.5.12 that “[s]pecimens shall be tightly capped, properly sealed with evidence tape and labeled in the presence of the member tested who shall initial both the labels and any accompanying form(s).” This was done here (Tr. 64-65). Therefore, respondent’s argument that the test results should be nullified because of his own handling of the samples (Tr. 78) -- although there is no doubt that the samples were his alone -- is so patently without merit that it requires no further discussion.

The sole question remaining is whether, as respondent argues, the Department’s random drug testing policy violated respondent’s federal and state constitutional rights to be free from unreasonable search and seizure. This appears to be the first time the Department’s relatively new random drug test policy has been challenged at this tribunal, and research revealed no reported federal or state cases addressing the adequacy of this policy.[2] For the reasons set forth below, respondent’s contention that he was singled out for testing because the testing process includes an exercise of discretion by the Department’s legal officer is rejected. In fact, that discretion is extremely limited. The legal officer determines only whether a day or a night shift will be tested on a given date. In short, the legal officer makes that choice without knowing which firehouses have been randomly selected by computer, and, therefore, without knowing which particular firefighters will be tested. This blind selection process and its application here are not fatally flawed and respondent has not suffered a deprivation of his constitutional rights. See Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832, cert. denied, 498 U.S. 847 (1990) (procedure for computerized random drug testing of tenured correction officers upheld); 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) (emphasis supplied).

Under Patchogue-Medford, the agency may not subject respondent’s reasonable expectation of privacy to “unregulated discretion.” It has not done so here. In reviewing the Department’s related drug testing policy, which applies when the Department has reasonable suspicion that a firefighter has used drugs, the federal district court noted in dicta: “It is well established that because of the important government interests in assuring that employees in safety-sensitive jobs are free from the effects of drug use in connection with performing their jobs and because of the lower expectations of privacy for employees performing such jobs, the government need not have a warrant or probable cause before requiring such a[] urinalysis test . . . . When a drug urinalysis test is part of a systematic, uniformly applied program, it may meet the reasonableness requirement without requiring a showing of reasonable suspicion that an individual required to be tested has been using drugs.” Nocera v. New York City Fire Comm’r, 921 F. Supp. 192, 199 (S.D.N.Y. 1996).

The Department has based its random drug test procedure upon the federal Department of Transportation’s procedures, and has in place a computerized selection process using a random number-generating computer software called Random Ware, which selects members of the service to be tested by selecting, not from the entire pool of employees, but rather by randomly selecting, daily, five firehouses to which firefighters are assigned (Tr. 9, 12). Each firehouse or “unit” is assigned a unique number in Random Ware (Tr. 9-12; AUC 202, Addendum 1, §§ 4.1.1-4.1.2). There are 385 units, including 360 line units and 25 units of probationary firefighters (Tr. 9-10).

The Department selected Random Ware because it met federal Department of Transportation standards and has a random number generator that avoids human error and can select randomly from among large numbers (Tr. 12, 29). The Department of Transportation’s random drug testing program has been held to satisfy constitutional requirements and has also served as the model for other such programs in this country, which have been upheld as constitutionally sound on various grounds. See, e.g., Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402 (1989) (random drug testing of railroad employees in safety-sensitive jobs was reasonable where government interest in ensuring the safety of the traveling public outweighed privacy interests under Fourth Amendment); Shipman v. Dep’t of Transportation, 58 Fed. Appx. 481, 2003 U.S. App. LEXIS 2354 (Fed. Cir. 2003) (federal regulations concerning marijuana upheld against substantive due process attack because regulations were “rationally related” to a legitimate government goal); UAW, Local 1600 v. Winters, 385 F.3d 1003 (6th Cir. 2004), cert. denied, __ U.S. __, 125 S.Ct. 1972, 2005 U.S. LEXIS 3759 (May 2, 2005) (citing, inter alia, Skinner, 489 U.S. 602, 109 S.Ct. 1402 (1989), and Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384 (1989)); Gonzalez v. Metropolitan Transportation Auth., 73 Fed. Appx. 986, 989, 2003 U.S. App. LEXIS 17774 (9th Cir. 2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1886 (2004) (Los Angeles mass transit workers held safety-sensitive jobs properly subject to random drug testing under federal transportation regulations, and intrusion on Fourth Amendment rights was justified; “We have never found random drug testing of employees who perform safety-sensitive functions to be unconstitutional”).

The court in UAW found that substantial public safety concerns justified random searches of seven categories of civil service positions without individualized suspicion, such as employees who carried firearms, provided health care services to prisoners, and had access to controlled substances. 385 F.3d 1003. There can be no doubt that a firefighter’s duties are to protect the public safety and that they must be alert and unimpaired by drugs so that they can rescue members of the public from life-threatening fires and hazards without injury to themselves, their colleagues, and others. The Department’s use of a random drug test policy is valid given the Department’s substantial need to protect the public safety. AUC 202, Addendum 1, states at sections 1.2 and 1.3: “The mission of the FDNY is to protect the lives and property of the citizens of New York City. The efficient performance of this mission demands the highest level of mental and physical fitness, stamina and alertness . . . . [T]he Department has an obvious and unquestionable interest in assuring that its members are physically and mentally able to perform their duties. Drugs alter and impair these abilities, increasing the dangers of accidents and injuries to a member, fellow firefighters and fire officers, and the public.” In Nocera, Judge Koeltl quoted the Eleventh Circuit United States Court of Appeals in finding that New York City has a compelling interest in keeping its firefighters drug-free: “‘The City has a compelling interest in having its firefighters free from drugs. Firefighters must be prepared to react and make decisions quickly in order to insure public safety.’” 921 F. Supp. at 200 (citation omitted).

Frank Buccellato, the Department’s Chief Compliance Officer and former Director of the Management Analysis and Planning Unit (“MAP”), and Eugene Samojedny, Chief Investigator for the Testing Unit (Tr. 8-9, 28), consistently explained the features of the random drug test procedure, as confirmed by AUC 202, Addendum 1. Mr. Samojedny has a masters degree in information science and systems (Tr. 36-37). Mr. Buccellato testified that he was chosen to select the computer program because he has a background in statistics and would understand the idea of random number generation (Tr. 11). The Department’s Compliance Unit observes MAP’s selection of firehouses using the computer program. Both the MAP staff member and the Compliance Unit member present sign the Unit Selection List to certify that the random selection is authentic and is the only one for the day (Tr. 10). MAP secures the original computer-generated list of five fire companies in a “locked area” in a sealed envelope showing only the proposed testing date printed on the outside of the envelope and provides the sealed envelope to the Deputy Commissioner for Legal Affairs (currently Mylan Denerstein) or his or her designee within the Bureau of Legal Affairs “in a timely fashion” (Tr. 10, 17; AUC 202, Addendum 1, § 4.1; 4.1.4). The Internal Audit Unit has observers present to watch each computerized selection (Tr. 10, 29).[3] The Deputy Commissioner for Legal Affairs returns the still-sealed envelope, with signatures of every staff member who handles the envelope shown across the taped seal, to MAP, without opening the envelope, and without viewing the contents, and simply writes “night” or “day” to indicate the tour to be tested. The purpose of the selection of the day or night tour is to ensure sufficient staffing by drug testing staff, who must travel to the listed firehouses until they find a company of firefighters present and not out on assignment (Tr. 32-41).

The print-out from Random Ware shows the date and time of the selection, the name of the person who ran the program, and the name of the person who witnessed it (Tr. 12). The procedure was followed to the letter here (Pet. Ex. 1). Special Assistant Counsel Alex Fisher, the designee of the Deputy Commissioner for Legal Affairs, and Mr. Samojedny, as head of the Drug Testing Unit, signed the sealed envelope. Vasilos Vasilounis, who ran the program on November 24, 2004 for MAP and delivered the envelope to the legal unit, and Theresa B. Astramowitz, an internal auditor from the Compliance Unit, also signed the sealed envelope over the tape that sealed it (Pet. Ex. 1; Tr. 13-14, 32-33). When Mr. Samojedny received the fully signed envelope from the legal department showing the “Day” tour handwritten on the front, the envelope was still sealed. Mr. Samojedny testified that the envelope was sealed by saliva and scotch tape, with signatures over the tape (Tr. 39). He found nothing in the appearance of the original envelope to indicate any tampering with the envelope (Tr. 38-39).[4] If he did see tampering, he would bring such irregularity to the attention of Mr. Buccellato or the Deputy Commissioner for Legal Affairs. He has never seen any sign of tampering with an envelope, and the issue has not arisen (Tr. 46). He keeps seven such envelopes each week in the secure safe in his office (Tr. 31). On the date of testing, Mr. Samojedny removes the relevant envelope from the safe, signs the back of the envelope and enters a date to show that he is removing the selection list. At that point, he learns the specific units selected. Only Mr. Samojedny has knowledge of the unit or units to be tested at this point. He then verifies the roster of staff at that unit, and delivers the selection list to the testing staff scheduled to work the relevant tour administering drug tests. The testing staff takes a copy of the list (Tr. 31-32, 35-36). There is no process of matching numbers or the like that would require human intervention; the computer chooses the units, not Mr. Samojedny or others (Tr. 46-47). The testing staff, upon receiving the list of five firehouses, gathers a list of the number and identities of firefighters working at the first two listed firehouses selected (Tr. 49, 62).

It normally takes about one week between the time of selection and the time the actual testing is supposed to be done. Mr. Samodjedny receives seven envelopes once a week (Tr. 38). Here, the list was run on November 24, 2004, the Wednesday before Thanksgiving, and the test administered the following Monday, November 29, 2004 (Pet. Ex. 1; Tr. 19).[5] Mr. Samojedny signed the envelope at issue here on November 29, 2004, to show that on that date, he opened the envelope so the tests could be performed at Ladder Company 81, where respondent works (Pet. Ex. 1; Tr. 34, 40-41, 49-50). Mr. Buccellato described the program’s safeguards or “checks and balances” as follows: MAP places the list in a sealed envelope; the Compliance Unit audits, and the Deputy Commissioner for Legal Affairs selects the day or night shift without knowing the contents of the envelope (Tr. 10, 17, 19, 24). Mr. Samojedny testified emphatically that the legal officer has no knowledge of the contents of the envelope when he or she selects the day or night shift (Tr. 30). The Department rejected the computerization of the day or night shift selection expressly because the person running the test list or observing that process would know who was going to be tested. Mr. Buccellato testified that introducing the extra check of having the legal officer blindly select the shift provided an added safeguard (Tr. 23). He testified that selection of shift did not affect randomness. Rather, the legal officer must know at least some time in advance whether the drug testing staff will be needed on particular day and night shifts. Ensuring adequate staffing is the reason for the blind selection, to provide the flexibility that allows the Department to assign necessary staff to administer the drug tests in the field (Tr. 24, 26).

It is clear from the testimony that the legal officer has no knowledge of which fire company has been selected. The legal officer learns which unit was selected only after the drug screening is done (Tr. 36). In closing argument, respondent’s counsel stipulated with counsel for the Department that the Department may not know which members of service are reporting to work on a particular day or night shift because the members often engage in “mutuals,” swapping shifts with each other, and “to some extent, control their own schedules” (Tr. 80-81). The Department has conducted about 2,000 drug tests under the random drug test procedure, according to Mr. Samojedny (Tr. 35).

There is no advance notice to the firefighters that would allow them to change the test conditions, except a call from the drug testing crew to the Borough Command Chief, two to three minutes before the crew enters the firehouse, so that the Chief can assist with putting the unit out of service for purposes of testing (Tr. 15, 43, 49-50; AUC 202, Addendum 1, § 4.2.1). If the house is empty due to exigent circumstances (like a call to a fire) for more than 60 minutes, the testing staff drives to the station next on the list of five station houses (Tr. 35). The drug testing staff simply arrives at the station and observes whether the service members are inside. Once inside, the staff introduce themselves and conduct a roll call, according to Ms. Szczelaszczyk, who conducted the drug test of respondent on November 29, 2004 (Tr. 50). When the testing staff arrives at the first selected unit, or firehouse, where the members are present, virtually always the first house on the list, everyone found onsite is then tested, including managers (Tr. 35, 42-43, 45-46; AUC 202, Addendum 1, § 4.1.6). The testing staff proceed with collection of urine samples from the members. Members on duty are tested; those out sick are excused (Tr. 44). On November 29, 2004, respondent was tested along with four other firefighters and a lieutenant (Tr. 45-46).

I have no reason on this record to doubt the testimony of Messrs. Buccellato and Samojedny and Ms. Szczelaszczyk. They were professional in demeanor and exhibited no incentive to fabricate their testimony, and I found them credible. Respondent offered no contradictory testimony.

It is the portion of the process that allows the Department’s legal officer to write “day” or “night” on the envelope that respondent challenges. Respondent argues that this discretion in the legal officer defeats the randomness of the selection. The operative section provides:

The Deputy Commissioner for Legal Affairs or his or her designee within the Bureau of Legal Affairs will have complete discretion to select the date and work tour for testing on an anonymous basis as to those being tested. Thus, the Deputy Commissioner or his or her designee within the Bureau of Legal Affairs must designate the tour to be tested (day or night), prior to being aware of the Line Units selected for a particular day.

AUC, Addendum 1, § 4.1.3. The phrase “complete discretion,” while clearly not ideal language for a random drug testing policy, is a misnomer for what is, I find, in fact a very limited exercise of discretion, counterbalanced by the anonymity of the selection of the day or night tour. I find nothing in the policy or its application in this case to violate the principles of randomness set forth in the cited case law in which random drug testing procedures of various government law enforcement agencies have been challenged.

Respondent’s argument that he has been singled out because the legal officer tries to alternate day and night shifts, and thus, the shift selection is not entirely random (there being a possible pattern of day/night/day/night), is defeated by his counsel’s own representation that the roster of particular members serving on each shift is subject to change every day, so that the legal officer would not know in any event exactly who is on a particular shift. Nor does respondent’s argument that selecting test subjects from among fire companies rather than from all individual firefighters defeat randomness, in the absence of proof to rebut the testimony of the Department’s witnesses. Counsel had challenged Department testimony initially during cross-examination of Mr. Buccellato by seeking to prove that choosing from among 360 firehouses rather than directly from 11,500 individual uniformed firefighters increased his client’s chances of being selected (Tr. 9, 20-23). However, the proof was to the contrary and the comparison a false one, as he was comparing companies, which house various numbers of individuals, on the one hand, and all individual eligible employees on the other (Tr. 22). Mr. Buccellato testified without contradiction that the probability is the same whether the Department selects by unit or by firefighters; the probability, or the odds, of being selected are one in 360, the same for every group (Tr. 21-22). It was Mr. Buccellato’s job to make sure that the odds of all uniformed personnel would “basically be the same for being tested” (Tr. 23).

Moreover, according to Mr. Samojedny, the Department tries to assign staff such that about half the month, those screened will be on the day tour, and half the month they will be on the night tour, so that the drug testing unit staff can be assigned appropriately (Tr. 40). One of the considerations of the Department in choosing units versus individuals was the logistical difficulty of sending drug testing staff to multiple boroughs. With the unit testing, the staff can go to the selected firehouse and complete the testing at the first of five listed locations where the firefighters are present. There also was no demonstration that the computer-generated list of firehouses was flawed or not in fact mathematically random, as shown by the Department’s witnesses. The Department exercises no discretion in the selection of the houses; rather, the computer makes the selection.

Whether the day/night selection is, in a purely statistical sense, random was shown by neither side, but the Department put forward enough in its case to demonstrate that respondent here was not singled out for testing by this process, and I find that the policy passes constitutional muster. Randomness and anonymity are related factors to be considered in any review of the constitutional sufficiency of a random drug test procedure, and the curtailment of agency discretion is of paramount importance in that review. Skinner, 489 U.S. at 634, 109 S.Ct. at 1422 (random drug tests reasonable under Fourth Amendment “[i]n light of the limited discretion exercised by the railroad employers under the regulations, the surpassing safety interests served by toxicological tests in this context, and the diminished expectation of privacy that attaches to information pertaining to the fitness of covered employees”). I find that the exercise of discretion here was so limited as to have afforded the Department’s legal officer no means of singling out respondent, except deliberately illegal tampering, which could occur in the best of programs, and which certainly was not shown as a matter of fact here. There was no evidence that the Department deviated from its procedure or, more specifically, that the legal officer lawlessly opened the envelope and read the contents or altered the selection process in any actionable way.

Whether the Department’s random drug test procedure could be improved as a policy matter, as suggested by the defenses raised here (use of random, computerized selection of individuals rather than firehouses, and random, computerized selection of day or night shift, Tr. 20-24), is beyond the scope of this report and recommendation. Respondent offered no evidence, other than cross-examination of the Department’s witnesses, who conceded nothing as to the set-up of the new policy and its adequacy. On this record, then, respondent failed to mount a factual challenge based on evidence, statistical or otherwise, to the Department’s proof of the adequacy of its selection procedure here. Respondent was treated no differently from any other member of the service.

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.

The Court of Appeals in Seelig approved the Correction 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. The court thus placed its emphasis on the random, computerized generation of the list of officers to be tested. The Fire Department procedure similarly depends on a random selection of the officers based on a computer-generated list of firehouses.[6]

As in Seelig, the enumerated protections contained in 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. “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.” Storms, 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 (emphasis supplied). The process applied here is nothing like having an onsite supervisor who knows the candidates for testing and who could easily retaliate against particular individuals by pulling targeted name cards off a board; the process here was a blind, random, computerized selection. In fact, the Department exercised virtually no discretion in the selection of respondent. Indeed, even the legal officer who selected the day or night shift was unaware at the time that respondent was among those selected by virtue of his assignment to Ladder Company 81 (Pt. Ex. 1; Tr. 17). There are no exemptions (Tr. 41). In other words, everyone on ladder duty at Ladder Company 81 on November 29, 2004, was tested, so that all the members were treated the same way (Tr. 42).

The record here is utterly devoid of any improper motivation or conduct on the part of the Department officials responsible for the testing or of anyone else for that matter. Compare Dep’t of Correction v. Jiminez, OATH Index No. 1551/05 (May 24, 2005) (respondent correction officer was randomly selected for drug test, which was properly administered, despite claims that agency procedure was not followed and that a minor deviation from regulation violated due process rights), with Dep’t of Correction v. Pettiford, OATH Index No. 236/05 (Feb. 25, 2005), aff’d in full by Comm’r (May 4, 2005) (drug charges dismissed where Department failed to show that test was randomly administered). Respondent was unable to throw into question the random selection here. It has been said recently that once an employee plaintiff challenging his termination based on an allegedly discriminatory random drug test policy has offered some evidence raising a genuine factual dispute as to the randomness of the test, the burden shifts to the government to establish the randomness by a preponderance of the evidence. Drake v. Delta Airlines, Inc., 2005 U.S. Dist. LEXIS 14789, at 17-20 (E.D.N.Y. July 21, 2005) (noting that the court’s research revealed no case addressing the use of statistical evidence in regard to a Fourth Amendment claim, but that statistical evidence alone is insufficient to establish a claim of a non-random search and disparate treatment). Here, by analogy, the Department proved its prima facie claim through the testimony of Messrs. Buccellato and Samojedny and Ms. Szczelaszczyk, that the test here was indeed random, based on a computerized selection process totally blind to respondent’s identity, and respondent came forward with no facts, statistical or otherwise, to contradict that showing. Respondent’s cross-examination of the Department’s witnesses failed to raise any genuine factual issue that would detract from the Department’s case. There was no proof that the Department manipulated the selection or the test results or that they were susceptible to manipulation. Id. at 31-33 (possibility that unanimous denial by proponents of random drug test that tests could be manipulated might be disbelieved would not overcome showing of randomness; there must be some affirmative evidence that that event occurred). The defense here was based on conjecture; the Department’s case was based on credible testimony and documentary proof.

There was no delay[7] here that could have led to individualized, versus random, selection of respondent, and absolutely no proof that any officer or employee of the Department deliberately placed him into the pool of those to be tested for any reason other than that his company was on the randomly generated list on November 24, 2004. Nor did respondent even try to show any reason for the few days that elapsed between selection and testing or address the intervening Thanksgiving holiday. Indeed, the test occurred within one week of the selection of units, and, therefore, was timely and in accordance with the procedure described by Mr. Samojedny (Tr. 38). 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, this 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, 70 N.Y.2d 57, 517 N.Y.S.2d 456) (emphasis supplied).

In Hines, respondent was on sick leave and any scheduling delay was attributable solely to respondent’s absence from work. Hines, OATH 537/94 at 9, 13 (six and a half month delay between selection and testing did not nullify positive cocaine test; integrity control officer 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).

Here, unlike the situation presented in Pettiford, where test results were nullified, there was no delay by the Department. Even if there had been a substantial delay, respondent would have to show that it was motivated by bad faith or other improper intent, Hines, OATH 537/94, at 13, but has not done 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 . . . by computer.” Hines, OATH Index No. 537/94, at 13. Availability of agency staff is a legitimate consideration in determining when to conduct drug tests. Cf. Gray, OATH Index No. 930/03, at 9-10 (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 876/94, at 3-4 (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 a shred of proof that any member of the Department exhibited bias or hostility toward respondent.

The Department has demonstrated that it exercised the proper restraint, limited its use of discretion, and kept the requisite privacy protections in place.

Under AUC 202, Addendum 1, section 4.12.6, firefighters who test positive for illegal drugs shall be disciplined as set forth in AUC 202. AUC 202 prohibits the use of any illegal drug, including marijuana, and provides that a positive illegal drug test results in termination even on a first offense. AUC 202 at §§ 3.2, 4.1, and 9.3. Section 25.1.6 of the Department’s Regulations provides that “[m]embers shall not, at any time, indulge in or be under the influence of marihuana or any controlled substance prohibited by the New York State Penal Law.” Section 25.1.3 of the Regulations provides in pertinent part that members “shall conduct themselves at all times in a manner which will not bring reproach or reflect discredit upon the department.” Petitioner has proved that respondent used marijuana, in violation of the regulations cited. Accordingly, the charges are sustained.

FINDING AND CONCLUSION

The Department proved by a preponderance of the evidence that respondent tested positive for use of marijuana in violation of section 4.1 of the All Units Circular (AUC) 202 and Addendum 1 thereto, and Regulations for the Uniformed Force, sections 25.1.6 (prohibiting marijuana use) and 25.1.3 (conduct reflecting discredit on the Department).

RECOMMENDATION

Having made these findings, I requested and reviewed respondent’s personnel record. He has been a firefighter for nearly eight years. In that time, he progressed from probationary employee and advanced in grade from firefighter level 6 to level 1 (FF6 to FF1). He has no disciplinary record. The Department advocate nonetheless seeks termination of respondent’s employment.

Respondent has tested positive for marijuana use. Absent exceptional mitigating circumstances, the Department’s “zero tolerance” policy is to terminate employees who test positive for drug use. See Fire Dep’t v. Persico, OATH Index No. 2207/04 (July 25, 2005) (paramedic’s termination recommended despite absence of any significant disciplinary record); Fire Dep’t v. Reinhard, OATH 647/05, at 5 (firefighter’s termination recommended where he tested positive for cocaine; “The penalty in this case is not in doubt. Generally, City employees who use illegal drugs such as cocaine are terminated because such conduct is incompatible with public service”); Fire Dep’t v. St. Cloud, OATH Index No. 128/05 (Apr. 7, 2005) (firefighter terminated for positive drug tests indicating presence of anabolic steroids); Fire Dep’t v. Perez, OATH Index No. 621/04 (Apr. 29, 2004), modified on penalty, Comm’r Dec. (May 24, 2004) (EMT terminated after testing positive for marijuana use, despite evidence of rehabilitation and lack of prior disciplinary record); Fire Dep’t v. Lumsden, OATH Index No. 265/85 (Oct. 2, 1985), aff’d, 134 A.D.2d 595, 522 N.Y.S.2d 4 (2d Dep’t 1987) (firefighter dismissed for positive drug test indicating the presence of marijuana). In Reinhard, the high level of cocaine metabolite found weighed heavily in favor of the most severe penalty. There is no reason to make an exception here. Trotta v. Ward, 77 N.Y.2d 827, 566 N.Y.S.2d 199 (1991) (dismissal of police officer for one-time marijuana use not so disproportionate to the offense as to shock one’s sense of fairness; reasoning below that officer should receive a more lenient penalty because he had used marijuana, and not cocaine or heroine, and had an unblemished, long record of service rejected), reversing, 163 A.D.2d 182, 559 N.Y.S.2d 636 (1st Dep’t 1990). Respondent here absorbed five times the New York State threshold amount of metabolite for a positive marijuana test and thereby placed himself and others in jeopardy. Such conduct is simply not permitted in an agency whose mission is to safeguard the public safety. Accordingly, I recommend that respondent be terminated from his employment.

Joan R. Salzman

Administrative Law Judge

September 20, 2005

SUBMITTED TO:

NICHOLAS SCOPPETTA

Commissioner

APPEARANCES:

ROBERT A. GIGANTE, ESQ.

Attorney for Petitioner

RONALD E. KLIEGERMAN, ESQ.

Attorneys for Respondent

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

[1] An addendum to this circular was published after the actual test respondent underwent here (Tr. 5-6), but is dated and effective as of August 1, 2004, prior to the test respondent took on November 29, 2004. See AUC 202, Addendum 1 (Aug. 1, 2004). The amended circular reflects the de facto random drug testing policy in effect at the relevant time, as described by the Department’s witnesses. Respondent did not contend that he had no notice of the Department’s random drug testing policy prior to the test at issue here.

[2] In Fire Dep’t v. Reinhard, OATH Index No. 647/05, at 4 (Oct. 21, 2004), this tribunal noted that the Department’s 2004 agency-wide random drug testing policy and computer-generated selection raised no apparent constitutional problems, citing Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832, cert. denied, 498 U.S. 847 (1990), but the respondent’s attorney presented neither evidence nor argument in that case. Counsel for respondent here noted that there is a grievance pending concerning the policy, and was asked to supply any pertinent decision should one be issued prior to the publication of this report and recommendation (Tr. 83-84). I have received no decision or citation to precedent from counsel as of this writing. The Department’s counsel knew of no prior challenge to the randomness of the drug testing program at issue here (Tr. 83).

[3] Internal Audit performs an audit of the entire process six times a year to check that the list of units is current, that all the units of the Department are on the list, and that all personnel in uniform are assigned to one of the listed units (Tr. 10-11; AUC 202, Addendum 1, § 4.13.1).

[4] During the testimony of Mr. Samojedny, respondent’s counsel requested time to view the original envelope, which remained in Mr. Samojedny’s office safe. The Department’s counsel agreed to make the original available, and I invited counsel for both sides to bring to my attention anything untoward, or anything else of interest in their view, concerning the original envelope. I held the record open for one week from the close of the hearing, until July 29, 2005, for this purpose, and heard nothing further on this score from either side (Tr. 38-39).

[5] I take official notice under our rules, 48 RCNY § 1-48 (Lexis 2005), of the 2004 calendar, and find that the Thanksgiving holiday in 2004 occurred between the computer selection and the actual testing. Thus, four days passed between the generation of the sealed list and respondent’s test.

[6] The other Department of Correction 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. The Fire Department’s protocols include all the features approved in Seelig, with the sole exception of an express provision permitting a union representative or attorney to be present during testing. The Department’s policy does not appear to preclude such representation.

[7] There was nothing nefarious shown in relation to the brief passage of time over the holiday weekend, and respondent offered no evidence of any motive on the part of anyone at the Department to tamper with the selection or the test results. Cf. Dep’t of Correction v. Pettiford, OATH Index No. 236/05 (Feb. 25, 2005), aff’d in full by Comm’r (May 4, 2005) (drug charge dismissed where Department violated its own procedures, could not explain delay, and respondent correction officer gave uncontroverted testimony that he had argued with his warden the day before the test and that she was biased against him).

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download