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

Earlier this year, we posted a blog about four former NYPD officers who were suing the Department over terminations after receiving false positives from the highly debated new method of hair drug testing. Click here to read the original blog.

In January 2005, the New York City Police Department announced that it would be using a new methodology for hair testing (radioimmunoassay or RIAH) for all drug screening of uniformed members. Then in August 2005, the NYPD changed its drug-testing method to using hair samples without first obtaining the unions’ consent. The unions protested that this would require collective bargaining prior to making the change. The Supreme Court agreed and ordered the NYPD to bargain with the police unions before implementing the aforementioned changes in drug-testing procedures. The Board of Collective Bargaining ruled that the expansion of the categories subject to testing, from urine to hair analysis, and the change in testing methodology should be subject to collective bargaining.

In January 2007, the City then brought about an Article 78 appeal to annul the Board’s decision arguing that hair testing was the most effective method of drug testing and that the procedures were identical to those already in effect in numerous contexts, as the NYPD already uses RIAH in certain situations. In December 2007, the Supreme Court granted the City’s petition and annulled the Board’s decision. In October 2008, the Appellate Division reversed the Supreme Court’s judgment and reinstated the Board’s decision. This resulted in yet another Supreme Court appeal.

The Court feels that since the detection and deterrence of wrongdoing within the NYPD, especially illegal drug use, is an integral component of the Police Commissioner’s responsibility to maintain discipline within the force. The Court believes that drug testing methodology and testing triggers are encompassed within the Commissioner’s disciplinary authority and therefore should be excluded from collective bargaining.

Accordingly, the Supreme Court reversed the decision of the Appellate Division, with costs, and reinstated the judgment of Supreme Court.

Read more about this Article 78 NYPD drug testing appeal.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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Matter of Peter Peltonen v Nicholas Scoppetta, Fire Commissiner of the City of New York, the Fire Department of the City of New York and The City of New York

Petitioner commenced this Article 78 appeal to annul the determination of Respondents terminating Petitioner’s employment as an FDNY fire fighter due to cocaine usage. Commissioner Scoppetta reviewed and accepted the recommendation of the Administrative Law Judge (ALJ), terminating Petitioner’s employment after he tested positive for cocaine during a routine drug screening. Petitioner argued that his termination was arbitrary and capricious and that his case was not handled in accordance with FDNY regulations.

Petitioner asserted that his alcoholism and cocaine usage was a result of his service following the attacks on the World Trade Center. Petitioner worked as a fire fighter to help in the rescue and recovery efforts and said the trauma of the daily stressed caused him to seek out a stronger drug than alcohol. Dr. John McCann, a clinical and forensic psychologist, diagnosed Petitioner with Post-Traumatic Stress Disorder (PTSD) and felt that the alcohol abuse and cocaine usage were effects of the PTSD. Petitioner also asserted that he suffered from a “disability” and therefore should not be fired.

Respondents argued that Petitioner’s use of cocaine was occasional and voluntary. Since he was able to exert self-control in the frequency of his cocaine use, his usage was a voluntary act of misconduct. Dr. McCann did not diagnose Petitioner with alcohol or drug dependency. Additionally, Petitioner used alcohol as a teenager and his alcohol use became a problem 2 years prior to 9/11. He also first used cocaine prior to 9/11.

The Court agreed with Respondents assertions that Petitioner’s drug usage was voluntary and felt that Petitioner failed to provide substantial evidence to prove otherwise. Since the purpose of the Court in an Article 78 appeal is to determine whether the action of an administrative agency had a rational basis, the Court found that the ALJ had sufficient evidence of Petitioner’s misconduct and that the penalty of termination was not shocking to one’s conscious.

Accordingly, the Supreme Court denied the petition.

Read more about this Article 78 appeal of a termination.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

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At least four former NYPD officers are currently suing the Department over their termination after receiving false positives from hair drug testing. One of these individuals is Roxann Hayes, a former NYPD Detective who tested positive for cocaine in a hair drug test. NYPD’s zero-tolerance drug policy resulted in Ms. Hayes losing her job and pension. According to her lawyer, Ms. Hayes’ sample was subject to cross-contamination and this error has caused her not only her job but also the ability to find a new employment.

In August 2005, the NYPD changed its drug-testing method to using hair samples without first obtaining the unions’ consent. This led to a hearing at the Board of Collective Bargaining in 2006 and eventually was heard in Supreme Court December 2007. The end result was that the NYPD must bargain with the police unions before implementing changes in drug-testing procedures.

Unfortunately, even after the ruling, former police officers who were affected by the new, now invalid, hair testing are still out their jobs. Some are suing for reinstatement.

Read full article here. (Subscription Required)

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Reinhard v City of New York

Petitioner, Christopher Reinhard, brought about petition to appeal the decision terminating him from the FDNY for illegal drug use. Petitioner argued that he was denied due process because the disciplinary hearing was conducted in his absence. The Court made multiple attempts to contact petitioner at his home address, through his attorney, and through his union. Petitioner did not inform the Court that he had entered an inpatient treatment facility. He was fully aware that disciplinary action would follow his positive test result and should have given notice of a change of address. Accordingly, the Supreme Court dismissed the petition, without costs.

Kirk v City of New York

Petitioner, Michael Kirk, tested positive for cocaine during a random drug test and the Fire Department terminated his employment. Petitioner argued that the random drug testing policy is unconstitutional. Although alcohol dependency qualifies as a disability under Human Rights Law, drug abuse does not and petitioner failed to prove his drug use to be casually related to his alcoholism. Accordingly, the Supreme Court dismissed the petition, without costs.

O’Neill v City of New York

Petitioner, Kevin O’Neill, was terminated for testing positive for marijuana during a random drug test under a zero tolerance policy in effect at the time of the decision. Petitioner argued that changes were made to the Fire Department’s policy regarding drug usage subsequent to his termination. The Court rejects petitioner’s claim that the changes should be retroactively applied to his case. Accordingly, the Supreme Court dismissed the petition, without costs.

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Gilliam v. New York City Department of Sanitation

Index No. 1664/08

Charles Gilliam, Petitioner, moves, by order to show cause, to withdraw his resignation from the New York City Department of Sanitation, Respondents.

 Mr. Gilliam while a uniformed sanitation worker, tested positive for cocaine in June 2007. Accordingly, he was suspended and sent to a rehabilitation center. Prior to returning to work, Mr. Gilliam submitted to a second drug test in August 2007 and again failed. After his two failed drug tests and his attempt at rehabilitation, DSNY gave Mr. Gilliam a third chance in the form of a Last Chance Agreement. The Last Chance Agreement was an offer for Petitioner to accept a plea bargain to resolve all departmental charges against him. By signing this agreement, Petitioner waived any hearing or right to be heard for the purpose of contesting a subsequent positive drug test or refusal to test and have the Department Advocate the right to submit his resignation in the case of a third positive drug test. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was aware that a third positive drug test would result in the termination of his employment.

 In November 2007, Petitioner failed a drug test for the third time. The urine sample, Mr. Gilliam submitted was substituted and found to be not urine. As a result of these laboratory findings, as required by the Last Chance Agreement, Petitioner’s resignation was submitted.

Mr. Gilliam does not dispute the test results but claims that the City and DSNY should have treated him for a line of duty injury due to Post Traumatic Stress Disorder caused by his experiences working during the 9/11. Mr. Gilliam, however, has failed to present the Court with any documentation that he worked at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. While, the Court is sympathetic to Petitioner’s plea for help, they feel he has been given ample opportunity by respondents to solve his drug and alcohol problems.

 Petitioner Gilliam failed to present any evidence that he was coerced to sign the Last Chance Agreement. He voluntarily entered into his Last Chance Agreement in order to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse.

 Accordingly, the Supreme Court denied the petitioner’s order to show cause and granted respondents’ summary judgment and dismissal of the instant petition.

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