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Fire Dep’t v. Fahey
OATH Index No. 1376/07 (Oct. 9, 2007), modifiedonpenalty, Comm’r Decision (Nov. 19, 2008), appended
In disciplinary proceeding, petitioner proved that firefighter tested positive for cocaine and ALJ recommended20-day penalty, while also suggesting the Department consider alternatives. ALJ credited evidence that firefighter suffered from post-traumatic stress disorder related to 9/11 and found that it mitigatedpenalty.
Commissioner did not accept the penalty recommendation and he terminated the firefighter for reasons set forth in his decision.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
FIRE DEPARTMENT
Petitioner
- against -
EDWARD FAHEY
Respondent
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REPORT AND RECOMMENDATION
TYNIA D. RICHARD, Administrative Law Judge
The Fire Department brings this disciplinary proceeding against Firefighter Edward Fahey pursuant to section 15-113 of the Administrative Code. The charges allege that Firefighter Fahey tested positive for cocaine, in violation of his oath of office, section 25.1.6 of the Rules and Regulations for the Uniformed Force, and All Units Circular Section 202 (Feb. 1, 1996) (“AUC 202”).
At the hearing held on May 18 and June 20, 2007, petitioner presented testimony from Investigator Eugene Samojedny,chief investigator for the Department’s Drug Testing Unit, and Dr. William Closson, Director of Toxicology at the Department’s outside testing laboratory. Respondent testified on his own behalf and presented the testimony of his wife, Shannon Colonna, his therapist, George Brown, Deputy Assistant Chief Joseph Pfeifer, retired Assistant Chief of Department Harold Meyers, and Firefighters John Gilhooly and Steven Rogers.
Based on the record of the proceeding, I find that the charges were sustained. Respondent suffered from post-traumatic stress disorder at the time of his positive drug test, and though I did not find that his illness was a defense to the charge, it did contribute to his misconduct and should mitigate his penalty. Thus, I recommend a penalty of forfeiture of 20 days’ pay, in accordance with section 15-114 of the Administrative Code.
ANALYSIS
Respondent is charged with testing positive for cocaine during a random drug test administered by the Department on October 14, 2004. Respondent denied ever ingesting cocaine, and he asserts that he suffers from post-traumatic stress disorder due to his service for the Department during and after September 11, 2001, which he offers either in defense or in mitigation of penalty.
The Department’s Random Drug Test
As an initial matter, I found the Department’s evidence of respondent’s positive drug test prima facie evidence establishing the charge.
On October 14, 2004, respondent was tested for the presence of controlled substances along with his unit, Ladder 1 of the Manhattan Borough Command, and four other units selected for testing pursuant to Departmental procedures (Pet. Ex. 1).
The Department’s chief investigator for its Drug Testing Unit, Eugene Samojedny, testified about the Department’s procedures for random testing, indicating that he received the lab report with respondent’s positive test result from the Department’s outside testing laboratory, Bendiner & Schlesinger Laboratories, and delivered it, along with the drug testing questionnaire and the chain of custody form, to the Department’s Medical Review Officer, who certified the positive result (Tr. 20-22; Pet. Exs. 2, 3 & 4). Respondent did not dispute that he was randomly selected for testing (Tr. 10).
The parties stipulated that the appropriate steps were taken to obtain a urine sample from respondent and to preserve the sample while in the Department’s possession, and that the chain of custody was followed until the sample was delivered to Bendiner (Tr. 31-32).
Respondent disputes the accuracy of the laboratory test result, which is petitioner’s burden to establish. Petitioner’s chief witness was Dr. William Closson, the Director of Toxicology at Bendiner and a certified forensic toxicologist (Tr. 34). He testified about Bendiner’s testing procedures and his review of respondent’s positive test result. As a part of the checks and balances that it uses to ensure the integrity of its substance testing, the lab evaluates each specimen for acceptability, making sure there is no sign of tampering, and it confirms the accuracy of the demographic information on the specimen bottles and the chain of custody (Tr. 35-36). After initial review of the sample, and acceptability and integrity checks of the condition of the sample, the accessioner receiving the sample signs to indicate it was received in tact without irregularities (Tr. 39). The sample arrives with identifying information provided by the Department and the lab assigns it a unique laboratory number that is never used again. The lab number is placed on the chain of custody form and on the specimen bottles in a bar coded and readable format; respondent’s number was 042920688 (Tr. 39-40). Two bottles of an employee’s specimen are obtained; one is used for the tests conducted at Bendiner and the other is sent to a second lab whenever an employee requests a retest of a positive result (Tr. 53-54).
Bendiner’s procedures are authorized by the New York State Department of Health. To maintain its licensing, the lab must have 100% accuracy in its testing of proficiency samples sent by the DOH on a quarterly basis (Tr. 41).
In accordance with the testing protocols, respondent’s specimen underwent two different tests: the initial screening test, called the immunoassay test, and the confirmatory gas chromatography mass spectrometry test (“GCMS”) (Tr. 41-42). When respondent’s immunoassay test showed a positive reading for the cocaine family of substances, the more sophisticated GCMS test was employed (Pet. Ex. 4, at 36, 45; Tr. 44, 53). To perform the GCMS test, another specimen was taken from the same bottle as the immunoassay test and another chain of custody was conducted (Pet. Ex. 4, at 55-74; Tr. 45). Benzoylecgonine is the cocaine metabolite. It is the substance that the body converts cocaine into as it is excreted into the urine; benzoylecgonine can come only from cocaine (Tr. 47). To be considered a positive result, the test must detect 150 nanograms per milliliter or better of benzoylecgonine. The GCMS detected 697 nanograms per milliliter of benzoylecgonine in respondent’s specimen (Pet. Ex. 4, at 56, 72-74; Tr. 46). Dr. Closson testified that he personally reviewed all of the steps involved in the testing of respondent’s specimen and found them acceptable (Tr. 38-40).
To test its own accuracy, Bendiner introduces control specimens purchased from scientific supply companies that are either drug free or that contain a specified amount of drugs (Tr. 36). These specimens are unknown to the testers and go through the testing process as would any other sample (Tr. 50-51). Before releasing the results of the donor specimen, the certifying scientist reviews the results of the control samples and compares them to their original values to verify that the testing instrumentation is working accurately and successfully. This internal blind quality control sample must be accurate within an acceptable level of variability, which according to Department of Health standards, is plus or minus 20% (Tr. 51-52). The variability results from the fact that humans are performing the tests, small amounts of the sample are being used and moved from place to place, and the electronic instrument has slight variations in the electronics. Dr. Closson testified that respondent’s GCMS test and the controls utilized were within the 20% acceptable range of variability.
Respondent attempted to discredit the testing process by contending that it was flawed, but he provided no evidence in support of the claim (Tr. 227). Respondent argued that the lab that evaluated his retest was subsequently expelled from the Department’s approved list of testing labs because it produced a test result for another firefighter that was outside of the acceptable variability range; thus, respondent argued that his retest, which had an acceptable variability of only 10%, is “suspect” (Tr. 209-11). This contention fails to undermine petitioner’s proof in any substantive way. SeeFire Dep’t v. Milano, OATH Index No. 2029/05, at 2 (July 3, 2006) (speculation that a stranger laced his drink with cocaine was insufficient to prove that respondent “innocently” ingested the drug); see also Gordon v. Brown, 84 N.Y.2d 574, 620 N.Y.S.2d 749 (1994) (testimony by lab director established reliability of positive test for cocaine). First, it should be noted that the lab conducting the retest was not the Bendiner lab, and respondent failed to call anyone from the retesting laboratory to testify about its results or procedures. Second, evidence of the lab’s retest of another employee’s specimen was not shown to be relevant to its retest of respondent’s specimen. Third, there was no evidence that respondent’s immunoassay and GCMS tests or his retest were improperly administered or otherwise faulty and, thus, could have produced inaccurate results.
I find that the Department proved by a preponderance of the credible evidence that its test results were accurate and reliable.
Respondent’s Case
As a result of his positive drug test, respondent was removed from his firehouse and reassigned to the fire academy library. He also began seeing a therapist and was diagnosed with post-traumatic stress disorder (“PTSD”) resulting from his work on September 11, 2001 (“9/11”) and thereafter. Respondent testified that the day after 9/11, he returned to his home in Montgomery, New York, opened a bottle of Vodka and started a three-year spate of binge drinking in an attempt to dim the horrible images of death encountered on September 11thand to muffle overwhelming feelings of anxiety, grief and guilt. His therapist testified that his drinking was a symptom of the PTSD (Tr. 198). Although respondent reports a period of three years starting on September 12, 2001, in which he drank to excess practically every night, he maintains that his substance problem was limited to alcohol and that he never ingested cocaine or any other illegal substance. Nevertheless, he suggested, by his testimony, that his alcohol use led to the positive drug test.
WorldTradeCenter: September 11, 2001
On September 11, 2001, respondent was a firefighter assigned to Ladder 1 in Battalion 1 of the Manhattan Borough Command (Tr. 81). That day, he was assigned to work as the aide for Battalion Chief Joseph Pfeifer, a role that he had performed only once or twice before. One of his duties was to drive the chief. Both Firefighter Fahey and Chief Pfeifer vividly described what they encountered that day in the NorthTower of the WorldTradeCenter (Tower 1) and their survival of that building’s collapse. On the morning of September 11th, Jules Naudet, a French filmmaker making a documentary about the life of a proby[1] assigned to respondent’s company, happened to be riding along with Chief Pfeifer and shooting footage (Tr. 115). The three men were together sometime after 8:30 a.m. at a call about a gas leak at Lispenard and Church Streets when they heard and then saw the first plane approach and then slam into the NorthTower. The filmmaker’s video captures the plane plunging into the NorthTower and is possibly the most vivid recorded memory of the attack. On Chief Pfeifer’s order, they rushed to the WorldTradeCenter. Their particular experience of 9/11 was captured by Naudet and his video was entered in evidence as a record of what respondent encountered that day (Resp. Ex. A) (“9/11 video”).
Chief Pfeifer and other commanders organized a command station for the legion of Department personnel who converged on the WorldTradeCenter sitein the lobby of the NorthTower, near West Street. The 9/11 video shows the Department command calmly plotting its course. Most, if not all, of the floor-to-ceiling windows along the front of the Tower’s ground floor were blown out. There is an indication from the audio, which is not entirely clear, that the Fire Department is experiencing difficulty sending and receiving communications through its radio system. Flying debris is observed outside the building.
Chief Pfeifer said they met burn victims at the door as they arrived at Tower 1 (Tr. 115). Shortly after arriving, the chief sent respondent to get a count of the fire companies that were reporting to the site. When respondent got outdoors, he realized it was “raining bodies around me” (Tr. 82). Subsequent news accounts reported that the occupants of Tower 1 started to jump to escape the inferno engulfing the top floors of the building. See N. Kleinfield, “Buildings Burn and Fall as Onlookers Search for Elusive Safety,” New York Times, Sept. 12, 2001. Chief Pfeifer later sent respondent out to get radios from the rig and he walked several blocks “watching one body after another explode.” Chief Pfeifer acknowledged sending respondent out under harrowing conditions and noted that he carried out every order efficiently and with “extreme courage” (Tr. 118).
Respondent stated that a firefighter who volunteered to help retrieve radios was walking toward Tower 2 when it collapsed and he never saw him again (Tr. 82-85). Respondent was in the lobby of Tower 1 when Tower 2 collapsed and was blown to the floor as everything went black and a dust-like debris filled the area. This event is captured in the 9/11 video. Respondent said he thought he was buried and, believing the top of the building must have fallen off, he awaited his own death thinking he would be crushed and run out of air. He heard people screaming and calling out and, when he was able to see again, he saw Father Michael Judge on the floor. He assisted a group of firefighters who carried Father Judge out of the building, and eventually he, Chief Pfeifer and Naudet left Tower 1. As they did, they realized for the first time that the prior explosion had been Tower 2 coming down. Not long after they cleared Tower 1, while they were standing on West Street near the WorldFinancialCenter, Tower 1 also collapsed. Respondent said he ran, thinking that he had to outrun the collapsing building (Tr. 84). He felt a great rush of air and dove behind a fire engine; he heard men screaming and “then the West Side Highway went just completely black.”
Respondent recalled wandering around afterward trying to find a working phone to contact his family and trying to see who was left alive (Tr. 85). Eventually, he returned to the WorldTradeCenter to see what he could do to help. By then it was a tangle of hundreds of men digging to find survivors. He stayed for three or four hours before returning to the firehouse around 1:00 or 2:00 that afternoon. Later that evening he returned to the World Trade Center site for a few hours and eventually went home around 1:00 or 2:00 a.m. He returned to work the next morning. He was scheduled to work every other day for the next few weeks, and he was at the site every workday for a month because his firehouse was assigned to respond to calls there (Tr. 85-86, 93-94). He was at the site a couple of days after 9/11 when several members of Squad 18 were found in the rubble. Chief Pfeifer testified that respondent’s firehouse became the command post for the recovery operation, with interagency (city, state, and federal) meetings held there every day at 7:00 a.m. and 4:00 p.m. In addition, members of the public continued to visit in pilgrimage to the heroism of the City’s firefighters and to those lost on 9/11 (Tr. 119-20). Thus, there were constant reminders of 9/11 at his firehouse. In spite of the stress, respondent refused to take any time off during this period.
Post-Traumatic Stress Disorder
The effects of the stress on respondent were marked and severe. Respondent testified that, for three years after September 11th, he drank practically every night to fall asleep (Tr. 87-89, 98-99). He slept on the sofa and often woke to find holes in the walls or tears in the sofa. He was rageful and he would drink and then make late night phone calls to family or friends and engage in angry confrontations. He was particularly angry with anyone who claimed to suffer the physical or psychological effects of the WorldTradeCenter collapse but was not present on 9/11. He never recalled these conversations but, after receiving complaints about them, he started checking his cell phone when he awoke in the mornings to see who he had called during the night. Throughout this three-year period, he drank to the point of blacking out perhaps nine of 10 nights (Tr. 96-97). He cannot remember some aspects of everyday life, such as his children’s birthdays or conversations with his wife. He drank at home, so his wife knew and was concerned about his drinking, and she wanted him to stop. She sent him to her physician, an internist, who prescribed a sedative for sleep and an anti-anxiety medication. He took the medication for a while but did not like how it made him feel. He later learned from his doctor that taking the medicine while he was drinking undermined its effectiveness.
According to his therapist, respondent exhibited the grief and guilt that are characteristic of PTSD. Respondent described the guilt he felt whenever he talked about his escape and people remarked how lucky he was to get out alive: “I felt guilty about it, there’s many days I wish I didn’t [get out alive]” (Tr. 109). Then there were the encounters with surviving family members who would tell him that he was one of the last people to see or talk to their loved one: “How did he seem?” they would ask, “Did he seem nervous?” (Tr. 87). Respondent thought about all the men he talked to in the lobby that day who never made it out. He lost a lot of friends on September 11th (Tr. 99).