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Employee terminated following positive random test for illegal drugs

Employee terminated following positive random test for illegal drugs
Matter of Randall Rice v Thomas Belfiore, 15 Misc.3d 1105

A disciplinary action was instituted after Randall Rice, a police officer with the County?s Department of Public Safety [DPS], tested positive for marijuana after a random drug test.* A ten-year DPS veteran, Rice also served as senior technician of a six-member bomb squad. The bomb squad members were ?on-call duty? 24 hours a day, seven days a week.

The Hearing Officer, Steven T. Sledzik, found Rice guilty of three of the four charges filed against him. As to the penalty to be imposed, Sledzik recommended termination from employment. The appointing authority adopted the hearing officer?s findings and recommendations and dismissed Rice from his position with the County?s DPS.

Rice appealed in an effort to have the court overturn the decision terminating him from his position with the DPS. He argued that DPS had adopted and implemented an ?unwritten zero tolerance policy? with regard to drug use that mandated the termination of any sworn member of DPS who tests positive for marijuana.**

In contrast to the alleged ?unwritten zero tolerance policy? Rice alleged DPS relied upon as justification for his termination, Rice contended that the County?s written policy addressing employee-use of illegal drugs "does not contemplate the termination of any such person by reason of their simply testing positive for marijuana." In essence, Rice complained that DPS?s decision was arbitrary and capricious since it was based on an ?illegally adopted unwritten zero tolerance policy.?

In any event, Rice?s appeal did not ask the court to determine if the hearing officer?s findings were supported by substantial evidence, having stipulated the accuracy of the test and related matters. Rather, Rice asked the court to rule on the following questions:

Was the Hearing Officer was bias, thus denying him a fair hearing?
Was his termination arbitrary and capricious since it was based on an ?unwritten zero tolerance policy? unlawfully adopted by DPS.

In response to Rice?s allegation of bias: i.e., his hearing was a sham because Sledzik is ?a former Assistant County Attorney who regularly receives hearing officer appointments from the County and, except for one case, always rules in favor of the County in its disciplinary proceedings,? the court said:

There is a "presumption of honesty and integrity accorded to administrative body members" While an administrative determination may be annulled where there is a showing that "prejudice so permeate[d] the underlying hearing as to render it unfair, a petitioner's bald allegations of bias are insufficient.? Instead, "the party alleging bias must set forth a factual demonstration supporting the allegation as well as prove that the administrative outcome flowed from it."

The court ruled that Rice?s contention regarding the hearing officer?s alleged bias was not preserved because he failed to object to the appointment of Hearing Officer Sledzik at the time of the disciplinary hearing or demand that Sledzik recuse himself from acting as the hearing officer once he was so designated. Furthermore, said the court, even if these objections were preserved, ?there is nothing in the record to suggest that Hearing Office Sledzik had pre-determined the penalty prior to the hearing or that he was unfair during the hearing since the record demonstrates that he was even-handed with regard to his evidentiary rulings and he gave petitioner wide latitude in the presentation of his case.?

As to the issue of the appointing authority?s alleged reliance on an ?unwritten policy? to terminate Rice, the court found that the record contained documentary evidence that DPS had a written zero tolerance policy that required that DPS initiate a disciplinary proceeding with the goal of terminating a police officer who tested positive.

Although that goal differs from the policy goal of rehabilitation set forth in the collective bargaining agreement [CBA], Judge Lippman ruled that the zero tolerance policy does not violate the CBA's terms since CBA itself provides for taking disciplinary actions against unit members testing positive for drug use at the option of the Commissioner.

In this instance, the court said:

The decision to terminate [Rice] occurred as the result of the findings of fact and recommended penalty set forth in the report issued by Hearing Officer Sledzik after the disciplinary proceeding held pursuant to New York's Civil Service Law §75.

Because the CBA and the County's Drug Free Workplace Policy and Procedures explicitly permit termination as a punishment for a positive drug test, and because Rice was terminated pursuant to the disciplinary proceeding rather than pursuant to some unwritten zero tolerance policy, Judge Lippman said he ?finds [the appointing authority?s] decision to terminate [Rice] neither arbitrary nor capricious and well within [the appointing authority?s] discretion.?

* Rice stipulated that for the purposes of the hearing and any subsequent judicial proceeding, he would not contest either the accuracy of the positive test finding of marijuana use or the County's compliance with the required procedures for the collection of the urine sample pursuant to the provisions of the parties' collective bargaining agreement.

** A ?sworn member? is a law enforcement officer of a law enforcement agency in contrast to a civilian employee of such an agency.

For the full text of the decision, go to:
http://www.nycourts.gov/reporter/3dseries/2007/2007_50511.htm

Full post as published by New York Public Personnel Law on September 17, 2009 (boomark / email).