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Fire Dep't v. McDougall

OATH Index No. 862/08 (May 22, 2008)

Firefighter found to have used cocaine. Despite his 25 years of service, appropriate penalty found to be termination.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

FIRE DEPARTMENT

Petitioner

- against -

THOMAS J. MCDOUGALL

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 Thomas J. McDougall, a firefighter, used cocaine.

At the hearing held before me on April 9, 2008, petitioner presented the positive test results of a drug test and documents showing the random selection of respondent’s unit for drug testing, the collection of respondent's urine specimen, and the delivery of that specimen to a lab for testing. At the hearing, respondent admitted ingesting cocaine, but presented four witnesses who testified to his lengthy and distinguished career as a firefighter and who all shared the view that it would be unjust to terminate him over one positive drug test.

For the reasons provided below, I find that the evidence is sufficient to prove the charges of drug use and recommend that respondent be terminated.

ANALYSIS

Petitioner’s proof of the positive drug test, which was not objected to by respondent,consisted of various documents explaining the random testing of respondent's urine and the laboratory results of those tests. First, petitioner presented documents showing that, on March 5, 2007, Ladder Company 117, the unit to which respondent was assigned, was selected for random drug testing pursuant to the Department’s drug testing program (Pet. Exs. 5 and 6). Subsequently, the drug testing was scheduled to be completed on March 9, 2007, at the unit’s firehouse in Brooklyn, New York.

On March 9, 2007, respondent and the other members of his company provided urine specimens, see Pet. Ex. 7, at the same time filling out chain of custody forms (Pet. Ex. 1) indicating that the specimens were labeled, sealed, and delivered on March 12, 2007, to BioReference Laboratories, Inc., a toxicology laboratory in Elmwood Park, New Jersey (Pet. Ex. 8). Laboratory staff labeled the samples with laboratory accession numbers to ensure proper identification and tracking throughout the testing process. A sample of respondent’s urine was first subjected to an enzyme multiplied immunoassay technique test and tested positive for cocaine at above the cutoff level of 300 nanograms per milliliter. After the sample returned a positive reading, another sample was subjected to gas chromatography and mass spectrometry screening and again tested positive for the cocaine metabolite benzoylecgonine at 36,450 nanograms per milliliter. This value was well above the threshold of 150 nanograms per milliliter set as the minimum concentration level necessary in order to justify a positive reading for cocaine. Petitioner's proof thus established that respondent and other members of his unit were randomly selected for testing pursuant to an agency-wide random testing policy and computer-generated selection, raising no apparent constitutional problems. See Seelig v. Koehler, 76 N.Y.2d 87, 556 N.Y.S.2d 832 (1990). The proof of chain-of-custody also convincingly displayed that respondent's urine was carefully labeled, securely stored, and promptly transferred to the drug laboratory for testing.

In his testimony, respondent admitted taking a white powder which he now believes to have been cocaine. He testified that, on March 7, 2007, he was at home on his day off and had an argument with his wife. He angrily left the house and went to a local bar, where he proceeded to drink for the next two hours. He had six beers and then an acquaintance named John arrived. They continued to drink together and respondent drank several Yagermeisters. John praised respondent as a hero and told him he shouldn’t be depressed. He then offered respondent a white powder which John said would make respondent feel better. Respondent inhaled the powder and continued drinking for two more hours (Tr. 53-54).

The next day, also a day off for respondent, he had a bad hangover. The following day, however, he was well enough to report for work. It was this day that respondent and the other members of his unit were required to submit to random drug testing (Tr. 55). Several days later respondent received a letter of suspension for a positive drug test and assumed that the white powder was to blame (Tr. 57).

Following his suspension, respondent was evaluated by an employee assistance counselor who indicated respondent had a drinking problem. Respondent therefore began attending outpatient sessions at Inter Care four times per week for a total of six weeks. He continues to attend one session per week. Respondent denied that he had a drinking problem at the time of the hearing (Tr. 58-59).

Respondent’s testimony and the positive drug test support a finding that on March 7, 2007, respondent ingested cocaine. Such use of illegal drugs is in violation of sections 25.1.6 and 25.1.1 of the Department Rules and the charges must be sustained.

FINDING AND CONCLUSION

Charge 1 and 2 should be sustained in that on or about March 7, 2007, respondent used cocaine in violation of sections 25.1.6 and 25.1.1 of the Department Rules.

RECOMMENDATION

The only contested issue at the hearing revolved around the issue of penalty. Petitioner’s attorney insisted that, given the Department’s zero tolerance policy for any use of illegal substances, respondent must be terminated. See Fire Dep’t v. Milano, OATH Index No. 2029/05 (July 3, 2006); Fire Dep’t v. Kirk, OATH Index No. 441/06 (April 26, 2006), aff’d sub nom. Kirk v. City of New York, 47 A.D.3d 406, 848 N.Y.S.2d 169 (1st Dep’t 2008) (rejecting firefighter’s argument that his cocaine use was the result of a disability, alcoholism, termination recommended); Fire Dep’t v. Persico, OATH Index No. 2207/04 (July 25, 2005) (paramedic’s termination recommended even absent any significant disciplinary record); Fire Dep’t v. Reinhard, OATH Index No. 647/05, at 5 (Oct. 21, 2004), aff'd sub nom. Reinhard v. City of New York, 34 A.D.3d 376, 825 N.Y.S.2d 44 (1st Dep't 2006), motion for lv to app. den., 8 N.Y.3d 808, 834 N.Y.S.2d 89 (2007) (firefighter’s termination recommended where he tested positive for cocaine).

Respondent’s proof focused on the mitigation of penalty allegedly necessitated by his exemplary 25-year career and the unfairness of terminating his pension for “one mistake.”Fellow Firefighter Richard Smithwick testified that he has worked with respondent for 23 years and knows him to be an excellent firefighter (Tr. 15-16). Captain Bruce Barvels worked with respondent at their local church, where respondent was a volunteer leader of a youth sports program for some 20 years (Tr. 21-22). Retired Firefighter Frank McCartin also worked with respondent for over 20 years and regarded him as one of his best and most reliable colleagues (Tr. 29-31). Respondent’s son, Firefighter Thomas McDougall, recalled that respondent was his inspiration for joining the Department and that his father always loved his job. Firefighter McDougall remembered that his father would speak of the importance of his pension in supporting his family (Tr. 36-37).

Respondent himself noted that he has had two previous random drug tests with negative results (Tr. 53). Although he admitted to experimenting with marijuana in college, he denied ever using any other illegal drugs prior to March 7, 2007 (Tr. 49). He insisted that he had no idea what the white substance that he inhaled was because he was “pretty intoxicated at the time” (Tr. 70).

Respondent indicated that he did not want to continue to work as a firefighter but wantedsimply to retire at full pension (Tr. 64). Captain Barvels described how critical the pension supplement of $12,000 was for firefighters and howrespondent would lose this supplement were he to be terminated for these charges (Tr. 27). Respondent submitted a calculation (Resp. Ex. D) prepared by a retirement counselor indicating that, were it not for the pending charges, respondent would have been eligible to retire with a pension of $67,754.

Respondent also sought mitigation due to his service at Ground Zero after September 11 for about three months. He was one of the searchers who discovered a foot in a sneaker in the days after the attack (Tr. 51-52). He also stated that he has never abused the Department’s medical leave policy (Tr. 45).

Despite the undisputed evidence that respondent has been an excellent firefighter, a good father, and a community leader, I also find some basis for further culpability. Respondent’s assertions of innocence with regard to inhaling an unknown white substance were not credible. No matter how intoxicated respondent may have been, I find it improbable that he ingested the white powder without knowing, or at least strongly suspecting, that the powder was cocaine or some other illegal drug. While respondent’s refusal to acknowledge his awareness that the powder was cocaine is understandable, his lack of candor on this fact, along with his willingness to take illegal drugs, must aggravate the penalty to some degree.

Taking all of the factors together, I find that none of respondent’s argumentswere sufficiently compelling to hold that respondent is deserving of a lesser penalty than the other firefighters found guilty of using cocaine, all of whom have been terminated and thus denied the retirement supplement which respondent wishes to retain. See, e.g.,Fire Dep’t v. Milano, OATH Index No. 2029/05 (July 3, 2006); Fire Dep't v. O'Sullivan, OATH Index No. 1914/05 (Sept. 29, 2005);Fire Dep't v. Coyle, OATH Index No. 850/02 (Aug. 20, 2002). The sole exception to this rule involved a firefighter with post-traumatic stress due to 9/11 for whom this tribunal recommended a penalty of less than termination and of disability retirement, as recommended by the Department medical board. Despite this “extraordinary mitigation,” the firefighter was nevertheless terminated by the Commissioner. Fire Dep't v. Kelly, OATH Index No. 804/06 (June 9, 2006), modified on penalty, Comm’r Dec. (Jan. 2, 2007). As pointed out by petitioner’s counsel in his closing, respondent’s mitigation argument is less compelling than this prior case because it revolves solely around his 25 years of service. While such a factor is worthy of some consideration, it lacks the extraordinary impact of a firefighter psychologically crippled by the circumstances of 9/11.

I therefore find that no appropriate penalty other than termination exists under the law. Pursuant to section 15-113 of the Administrative Code, the penalties available to punish a firefighter for misconduct are a reprimand, withholding of pay for no more than 10 days, or termination. Either a reprimand or a 10-day suspension would be utterly inadequate as a penalty for the misconduct committed here.

Accordingly, I recommend that respondent be terminated.

John B. Spooner

Administrative Law Judge

May 22, 2008

SUBMITTED TO:

NICHOLAS SCOPPETTA

Commissioner

APPEARANCES:

MATTHEW GELLER, ESQ.

Attorney for Petitioner

MICHAEL BLOCK, ESQ.

Attorney for Respondent