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Fire Dep’t v. Condon

OATH Index No. 866/05 (May 20, 2005)

Upon finding several liquor bottles in a padlocked locker, Fire Department officials tested all firefighters at the firehouse for drugs. ALJ finds that employer lacked reasonable suspicion to believe that the firefighters used or possessed drugs and recommended that charges be dismissed.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

FIRE DEPARTMENT

Petitioner

- against -

JOHN CONDON

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This is a disciplinary proceeding referred by the petitioner, the Fire Department, pursuant to section 15-113 of the Administrative Code of the City of New York. The charges allege that respondent John Condon, a firefighter, tested positive for cocaine.

A hearing on the charges was conducted before me on April 18, 2005. Petitioner called an investigator who described how all of the firefighters at a Manhattan firehouse came to be tested for alcohol and drugs after liquor was discovered at the firehouse. Respondent called no witnesses.

For the reasons provided below, I find that the employer lacked reasonable suspicion to test respondent for drugs and that the evidence of the drug test results must be suppressed. Since these test results constituted the sole proof of misconduct offered by petitioner, the charges should be dismissed.

ANALYSIS

The facts surrounding the drug test order are undisputed and were detailed through the testimony of Chief Investigator Thomas McCourt. For some time prior to 2004, the Department Bureau of Investigations and Trials had been randomly selecting firehouses throughout New York City to be searched for illegal substances. On January 18, 2004, the Bureau investigation team, which included Chief Investigator McCourt, chose Engine 53/Ladder 43 to be inspected. The investigation team arrived at the firehouse at around 4:30 p.m. and waited while the firefighters responded to a series of calls. At around 5:00 p.m., the team began a systematic inspection of the entire firehouse. Initially, nothing was discovered. However, the investigators noticed a locker in the commissary pantry with a padlock on it and asked for a key. The firefighters present denied having a key. Upon shining a flashlight through a slat and spying the label of a liquor bottle, the investigators cut the lock and discovered a large quantity of alcoholic beverages, including 25 cans and two bottles of beer, a bottle of rum, a bottle of vodka, a bottle of whiskey, eight mini-bottles of assorted hard liquor, two bottles of cordial, and two bottles of wine. In an adjacent locker were five taps for beer kegs. The date on the bottoms of some of the beer cans was October 25, 2000, and the date on the remainder of the cans was October 20, 2002 (Tr. 24).

After making this discovery, the investigators reported their find to Assistant Commissioner James Drury. Assistant Commissioner Drury told them to put the unit out of service, notify the chief of what had been found, and perform drug tests of the firefighters present. The investigators directed all of the uniformed employees upstairs to an office, where they were taken one by one into bathrooms and asked to provide urine samples for testing. It was stipulated that all the drug testing procedures regarding the proper labeling, identification, storage and transportation of the samples were followed. According to laboratory report (Pet. Ex. 1), also stipulated into the record, respondent's primary and backup samples tested positive for benzoylecgonine, the cocaine metabolite, at a level of 1,869 nanograms per milliliter.

Respondent did not testify, relying instead upon a legal argument that the drug test was illegal under both the Department's own regulations and federal constitutional law.

The legality of the drug test order must be measured first by the constitutional guarantees against unreasonable searches articulated in the Fourth Amendment of the United States Constitution, as interpreted by the federal courts. It is well settled that an order by a public employer that an employee must submit to a drug test constitutes a search within the ambit of the

Fourth Amendment. Skinner v Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 1413 n.4 (1989), citing, Lovvorn v. Chattanooga, 846 F. 2d 1539, 1542 (6th Cir. 1988); Copeland v. Philadelphia Police Dept., 840 F. 2d 1139, 1143 (3rd Cir. 1988). As a general rule, all such drug test orders must be based upon either a warrant or an "individualized reasonable suspicion" that the employee to be tested is using illegal drugs. Schmerber v. California, 384 U.S. 757, 767-768 (1966). In its post-hearing memoranda, petitioner concedes that, in the instant case, there was no individualized reasonable suspicion that respondent and the other firefighters had used or possessed alcohol. Thus, the issue in this case concerns whether the discovery of the liquor provided a legal justification for the Department to order drug tests in the absence of reasonable suspicion.

In arguing that the drug test order here was valid, petitioner relies upon two lines of cases carving out exceptions to the general requirement of individualized reasonable suspicion. First, petitioner cites to a line of cases whereby employees in safety-sensitive positions have been subjected to drug and alcohol testing following major accidents impinging upon public safety. In Skinner v Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402 (1989), the United States Supreme Court upheld the Federal Railroad Administration's regulations which permitted railroad companies to administer blood and urine tests of covered employees following major train accidents or incidents and to administer breath or urine tests to covered employees who violate certain safety rules. It is important to note that the regulation being reviewed in Skinner embodied the generally accepted principle that individualized suspicion of drug or alcohol use was necessary prior to ordering a railroad employee to submit to drug or alcohol testing. Hence, the regulation provided that breath or urine tests, or both, may be ordered "after a reportable accident or incident, where a supervisor has a 'reasonable suspicion' that an employee's acts or omissions contributed to the occurrence or severity of the accident or incident."

The Court further noted that, "in limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy, by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion." 489 U.S. at 624, 109 S.Ct. at 1417. Applying this standard to the federal regulations for railroad workers, the Court found that the need for prompt investigation of a "major train accident," involving a fatality, the release of hazardous material, or damage to railroad property of $500,000 or more; was sufficient to warrant lifting the requirement for individualized reasonable suspicion.

In reaching this resolution, the Skinner Court determined that the privacy interest to be protected by requiring reasonable suspicion for alcohol and blood testing must give way to the compelling interests of protecting the traveling public and investigating accidents:

A requirement of particularized suspicion of drug or alcohol use would seriously impede an employer's ability to obtain this information, despite its obvious importance. Experience confirms the judgment that the scene of a serious rail accident is chaotic. Investigators who arrive at the scene shortly after a major accident has occurred may find it difficult to determine which members of a train crew contributed to its occurrence. Obtaining evidence that might give rise to the suspicion that a particular employee is impaired, a difficult endeavor in the best of circumstances, is most impracticable in the aftermath of a serious accident.

Skinner, 489 U.S. at 631, 109 S. Ct. at 1420-1421.

Petitioner's brief offers only the thinnest of explanations as to how the discovery of liquor at the firehouse is analogous to the policy issues discussed in Skinner, involving a major railroad accident. First, petitioner inappropriately relies upon Skinner as authority for ignoring the individualized suspicion requirement for all employees in "safety-sensitive" positions. In fact, this proposition is contrary to Skinner and all of the other case law discussed above, and must be roundly rejected. Even weaker is petitioner's second argument, seeking to equate the discovery of liquor bottles with a major railroad calamity. In short, rather than supporting the legality of the drug test in the instant case, Skinner makes it abundantly clear that, without individualized reasonable suspicion of drug use by respondent, the test was unconstitutional.

The other exception relied upon by petitioner to justify the drug test refers to a line of cases upholding drug tests as a prerequisite for employment. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 679, 109 S.Ct. 1384 (1989); Watson v. Sexton, 755 F. Supp. 583, 587 (S.D.N.Y. 1991); Burka v. New York City Transit Auth., 739 F. Supp. 814, 817-818, 847 (S.D.N.Y. 1990). These cases hinge upon the limited intrusion caused by giving job applicants advance notice of a drug test so that the applicants may, if they choose, avoid the test by not applying for the position. As stated in Skinner, "[i]ndividual interests protected by the warrant requirement are reduced when the search is (1) preceded by notice, and (2) administered subject to 'minimal discretion.'" Skinner, 489 U.S. at 619-622, 109 S. Ct. at 1415-16. A drug test announced and administered to job applicants during the application process is obviously different from a drug test ordered for an on-duty employee, making this line of cases inapposite to the case at hand.

As properly noted by respondent's counsel, the case of Fiorenza v. Gunn, 140 A.D.2d 295, 527 N.Y.S.2d 806 (2d Dep't 1988), offers a much more apt precedent for the factual situation presented in the instant case. In that case, as here, contraband was discovered in a locked locker which could not be linked to any individual employees and an order was given to all employees in the area to submit to blood and urine tests. This order was found to be constitutionally infirm in that it was not supported by reasonable suspicion that the individual employees to be tested had used drugs or alcohol.

Furthermore, I note that, even if the liquor bottles here could somehow have been linked to respondent, it seems doubtful that an employee's proximity to or possession of liquor, standing alone, would have constituted "reasonable suspicion" to test for drug use. See Dep't of Environmental Protection v. Bruni, OATH Index No. 1038/96 (May 16, 1996) ("[T]he mere presence of alcohol was insufficient to establish reasonable suspicion of drug use."). In the similar case of Coppinger v Metro-North Commuter Railroad, 861 F.2d 33 (2d Cir. 1988), supervisors discovered several bottles of liquor in some employee lockers and cups on a table in a lunch room. The supervisors ordered all of the employees in the lunch room to submit urine and blood samples. Mr. Coppinger's urine tested positive for cocaine and he was terminated. He then sued the MTA under 42 U.S.C. section 1983, alleging that the testing was an unconstitutional search. Although the Second Circuit did not reach the merits of the Fourth Amendment claim that the drug tests were unconstitutional, the court reiterated the well-accepted principle that "reasonable or particularized" suspicion of a violation of the employer's anti-drug policy was required in order to uphold the reasonability of the search.

As respondent points out, the drug test order in this case also appears to violate the procedure outlined in the Department's own rules. The language of these rules seems to reflect the requirement of "individualized reasonable suspicion" mandated by the pertinent United States Supreme Court decisions. According to these rules, upon discovery of alcohol or drugs at a Department facility, the chief or officer must conduct a roll call and require that all members remain at the firehouse for observation and questioning. If, following this extended investigation, there is "reason to believe" that an individual member has used alcohol or illegal drugs, the officer must notify a medical officer and the Bureau of Investigations and Trials to conduct a "blood and/or urine test." A.U.C. 202 § 5.5, 5.6.

Petitioner argues that its directive regarding discovery of alcohol was not intended to apply at all to the facts of this case. According to petitioner's brief, the individualized reasonable suspicion standard embodied in A.U.C. 202 is applicable only to drug test decisions made by "uniformed officers" and not to decisions made by any member of the Bureau of Investigations and Trials. Petitioner contends that these decisions by civilian investigators are somehow exempt from the general rule regarding discovery of alcohol and are to be measured by a different section of A.U.C. 202, section 6.2.3. This alternative section provides that firefighters may be tested where investigators observe "symptoms or conduct" giving rise to "reasonable suspicion" of the use or possession of drugs or alcohol. According to petitioner, the discovery of the liquor in this case meets the "reasonable suspicion" standard.

Like many of the legal positions taken by petitioner in this case, the argument concerning its interpretation of its own rules is tortured, at best. The clear intent of the drug testing directive embodied in A.U.C. 202 is to provide all Department managers, uniformed and civilian, with legal guidelines as to when drug test orders are to be given after alcohol or drugs are discovered at a firehouse. The guidelines are modeled on the constitutional protections against unreasonable searches. The drug test order in this case was actually given by the uniformed command at the firehouse, albeit at the behest of the investigation team and Assistant Commissioner Drury. It makes little sense to suggest that the directive applies where uniformed staff finds contraband but does not apply where civilian investigators participate in the search through which the alcohol is discovered and then tell the command of the discovery.

Furthermore, it is readily apparent that the drug test order here was invalid under the alternative basis argued by petitioner. The facts here clearly show that there were no symptoms or conduct by respondent which would support a reasonable suspicion that he used or possessed drugs or alcohol, as required by section 6.2.3 of A.U.C. 202. Nor does petitioner mention any such "conduct." It suffices to say that the mere act of reporting for work at a site where alcohol is discovered is not suspicious or indicative of use of contraband, whether illegal drugs or alcohol. See Fiorenza v. Gunn, 140 A.D.2d 295, 527 N.Y.S.2d 806 (2d Dep't 1988) (employee's presence in area where alcohol discovered held insufficient to establish reasonable suspicion of alcohol or drug use). Where the alcohol was likely inside the locker for many months or maybe years, as the evidence here suggested, the connection between those currently on duty and the illicit substances appears especially tenuous. Thus, I conclude that the drug test order given in this case, based upon no more than the discovery of a number of alcoholic beverages in an unidentified locker, was in violation of the Fire Department drug testing directives, as well as in violation of the constitutional protections of the Fourth Amendment.

In sum, the overwhelming weight of the legal precedent indicates that the Department lacked "reasonable suspicion" to test respondent for drugs. Thus, the drug test order given to respondent and the other firefighters was unconstitutional and the test results based upon that order must be suppressed. Since petitioner had no other proof to support the misconduct charge, it must be dismissed.

FINDINGS AND CONCLUSIONS

The charges must be dismissed in that the drug test results offered here must be suppressed as unconstitutional and petitioner was unable to produce any other evidence that respondent violated the Department's drug use rules.

JOHN B. SPOONER

May 20, 2005Administrative Law Judge

SUBMITTED TO:

NICHOLAS SCOPPETTA

Commissioner

APPEARANCES:

DEBRA MONTE

Representative for Petitioner

LAW OFFICE OF WATTERS & SVETKEY

Attorneys for Respondent

BY: KYLE B. WATTERS, ESQ