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Fire Dep’t v. Persico
OATH Index No. 2207/04 (July 25, 2005)
Petitioner proved that respondent tested positive for a controlled substance. Respondent’s claim of innocent ingestion was not credible. Termination of employment recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
FIRE DEPARTMENT
Petitioner
- against -
DAVID PERSICO
Respondent
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REPORT AND RECOMMENDATION
KEVIN F. CASEY, Administrative Law Judge
The Fire Department brought this employee disciplinary proceeding pursuant to section 75 of the Civil Service Law against paramedicDavid Persico. The charges allege that respondent tested positive for a controlled substance in violation of section 4.2.12 of Operating Guide Procedure No. 101-01 (ALJ Ex. 1).
On January 19, 2005, a hearing commenced at this tribunal. Following a number of adjournments due to the unavailability of the participants, the hearing concluded on June 21, 2005. Petitioner presented testimony from Dr. William Closson. Respondent testified on his own behalf. He claimed that he was unaware that an appetite suppressant, given to him by a doctor a few days before the drug test, was a controlled substance. For the reasons stated below, I find that the charge is sustained. The recommended penalty is termination of employment.
ANALYSIS
The parties stipulated that, based upon reasonable suspicion, the Department requested and received a urine sample from respondent on November 5, 2003 (Tr. 6-7). It was further stipulated that the sample was forwarded to a laboratory, where gas chromatographymass spectrometry testing revealed the presence of oxazepam and temazepam (Tr. 5, 8, 15, Pet. Exs.1-5).
Dr. William Closson, a forensic toxicologist, testified that temazepam and oxazepam are members of the benzodiazepine class of drugs (Tr. 17). Benzodiazepines are depressants, such as valium,thatare prescribed for nervousness or hyperactivity(Tr. 19). They are commonly used in emergency rooms to control muscle spasms (Tr. 19).
According to Dr. Closson, “off-label” drug use refers to a physician’s prescription of a medication for a purpose not expressly approved by the Food and Drug Administration (Tr. 28). Dr. Closson agreed that, in certain instances, benzodiazepines could suppress a person’s appetite (Tr. 29). However, he did not believe that appetite suppression was a major benefit or use of benzodiazepines(Tr. 29).
Respondent testified that he became an emergency medical technician(EMT) in 1991 and a paramedic in 1996 (Tr. 34, 36). As a paramedic, he has training and experience in the administration of some controlled substances, including valium (Tr. 37, 44). Before and after this incident, respondent has been repeatedly subjected to drug testing. This was the only time that he had ever tested positive (Tr. 35).
According to respondent, he became depressed in October 2003 following a number of distressing work-related incidents. Because he was eating excessively and gaining weight, respondent went to see a doctor(Tr. 32, 41, 44-45).
On October 30 or 31, 2003, the doctor gave respondent seven pills to help him relax and suppress his appetite (Tr. 33, 39). The pills made respondent lethargic, so he stopped taking them aftera few days. Thus, he only used five of the pills (Tr. 34).
“Maybe three days after that,” the Department tested respondent for drug use (Tr. 33). On the pre-testing disclosure form, respondent noted other medications that he was using, but he made no mention of the appetitesuppressant that he had stopped takinga few days earlier (Tr. 33; Pet. Ex. 4).
When notified of the positive test result, respondentdid not immediately tell Department representatives about the appetitesuppressant (Tr. 36). Instead, he went to see his doctor. Respondent claimed that his doctor kept making excuses (Tr. 33). According to respondent, the doctor said that she would not help him defend against this charge because she administered the drug “off label” and did not want to jeopardize her medical license (Tr. 33-34).
Respondent did not call the doctor as a witness. There was no request for an adjournment to secure her attendance. No subpoena was ever requested for the doctor or her records.
Preliminarily, respondent argued that the charges must be dismissed because petitioner failed to identify the specific drug that yielded a positive test result. He further maintained that petitioner did not rule out substances that could generate a false positive result. Respondent is mistaken.
Dr. Closson testified that benzodiazepines are controlled substances (Tr. 22-23). Oxazepam and temazepam, the benzodiazepines for which respondent tested positive, arelisted insection 3306, schedule IV (c) (36) and (44) of the Public Health Law as controlled substances. Dr. Closson testified that no other substances could have yielded the positive results obtained in this case(Tr. 21). Thus, petitioner’s unrefuted evidence established that respondent used a controlled substance.
Respondent’s claim of innocent or unknowing ingestion was not credible. He could not pinpoint the date or time of the doctor visit and he vaguely recalled taking the drug for two, three, or four days (Tr. 34, 39). It was not until cross-examination that he named the doctor who supposedly administered the drug. Moreover, respondent never identified the drug.
There were also no documents or physical evidence to support respondent’s story. Questioned about billing or reimbursement for his visit, respondent claimed that he paid cash (Tr. 44). No appointment note, prescription, medicine bottle, sample packaging, or any other evidence confirmed that respondent visited a doctor who dispensed the medication. Although respondent claimed that he only used five of seven pills, there was no effort to account for the remaining two pills.
In short, it is unlikely and unproven that a doctor gave respondent an anti-anxiety drug to suppress his appetite. It is also doubtful that respondent, an experienced paramedic, would have taken – with no questions asked – an unknown medication that was, in fact, a controlled substance.
Section 4.2.12 of the Department’s Operating Guide Procedure No. 101-01 for emergency medical service personnelprohibits the use of “illicit drugs, medications, narcotics, or other controlled substances.” Petitioner has proved that respondent used a controlled substance. Accordingly, the charge is sustained.
FINDING AND CONCLUSION
The Department proved that respondent tested positive for use of a controlled substance in violation of section 4.2.12 of Operating Guide Procedure No. 101-01.
RECOMMENDATION
Having made these findings, I requested and reviewed respondent’s personnel record. He has been an EMT or paramedic for 14 years and he has no significant disciplinary record. The Department seeks termination of respondent’s employment.
Respondent has tested positive for a controlled substance. Absent exceptional mitigating circumstances, the Department’s policy is to terminate employees who test positive for drug use. See Fire Dep’t v. St. Cloud, OATH Index No. 128/05 (Apr. 7, 2005) (firefighter terminated for positive drug tests indicating presence of anabolic steroids); Fire Dep’t v. Perez, OATH Index No. 621/04 (Apr. 29, 2004), modified on penalty, Comm’r Dec. (May 24, 2004) (EMT terminated after testing positive formarijuana use, despite evidence of rehabilitation and lack of prior disciplinary record); Fire Dep’t v. Lumsden, OATH Index No. 265/85 (Oct. 2, 1985), aff’d, 134 A.D.2d 595, 522 N.Y.S.2d 4 (2d Dep’t 1987) (firefighter dismissed for positive drug test indicating the presence of marijuana); see also Fire Dep’t v. Gill, OATH Index No. 579/97 (June 18, 1997), aff’d, NYC Civ. Serv. Comm’n Item No. CD 99-8-SA (Feb. 1, 1999) (EMTterminated for refusing to submit to a drug test). There is no compelling reason for a different result here. Hence, I recommend that respondent be terminated from his employment.
Kevin F. Casey
Administrative Law Judge
July 25, 2005
SUBMITTED TO:
NICHOLAS SCOPPETTA
Commissioner
APPEARANCES:
ROBERT GIGANTE, ESQ.
Attorney for Petitioner
RICHARD BRUCE ROSENTHAL & ASSOCIATES
Attorneys for Respondent
BY: RICHARD BRUCE ROSENTHAL