New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

Department of Sanitation v. Anonymous

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

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Department of Sanitation v. Anonymous

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

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Department of Sanitation v. Perez

          Employee disciplinary proceeding was brought about by Petitioner, Department of Sanitation pursuant to Section 16-106 of the Administrative Code.  Petitioner charged respondent, a sanitation worker, with being absent without leave and out of residence during supervised sick leave.

          Respondent was charged with being AWOL, for failing to report to work and failing to call in.  Respondent did not deny this charge.  This was respondent’s 13^th such absence in a 12 month period. 

          Respondent was charged with being away from the home without authorization while being on supervised sick leave.  Respondent claimed that he was home but, the Court believed that the Investigators testimony, who had gone to respondent’s home to make sure he was at home during his sick leave, was more credible than respondent’s denial. 

          Respondent was charged with: “Charge No. 8475 is sustained in that, … respondent was absent without authorization, in violation of Department rules.”  As well “Charge No. E156891 is sustained in that, … respondent was absent from home during supervised sick leave, without authorization, in violation of sick leave rule.” 

          Respondent had been a sanitation worker since 2000.  Since that time respondent has been disciplined on 10 separate occasions concerning time and leave violations.  He had “unsatisfactory” overall evaluation in 2008 and 2009 due to these violations. 

          Respondent acknowledged his disciplinary issues concerning time and leave and said that it was due to child care difficulties.  In 2009, he filed for hardship and was given a new work shift for nights to alleviate this burden.  He had less absences and had improved his sick leave status to the A category, from the chronic absence or C category. 

          The court found that although there were disciplinary issues in the past, they did not warrant termination.  Since the respondent had reversed a pattern of poor performance in his time and attendance since the commission of the misconduct two years ago. 

          The ALJ therefore recommended a 30 day suspension for the misconduct proven, which should adequately address the need for progressive discipline. Dep’t of Sanitation v. Perez (in PDF),

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The Bloomberg administration has proposed a $500 million three-district Department of Sanitation garage for Hudson Square. Community leaders recently enlisted the help of advertising and marketing firm Saatchi & Saatchi to help them convince the Bloomberg administration to accept a smaller community alternative. This alternative, the Hudson Rise plan, would accommodate a two-district Sanitation garage, create rooftop green space and cost $200,000,000 less than the Department of Sanitation project. The Sanitation project was granted approval from the City Counsel last November but Bloomberg agreed to hold off on construction for six months to allow the community time to suggest alternatives.

If the megagarage project is chosen over the smaller Hudson Rise plan, project opponents plan to challenge the Sanitation Department in court by filing an Article 78 appeal.

Read article here.

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