Opinion
8707/09.
Decided November 30, 2009.
William V Decacandido. PC, Forest Hills NY, Petitioner.
Maxwell Leighton Esq., MICHAEL CARDOZO, NY NY, Respondents.
Petitioner, TERENCE J. DEITCH (DEITCH), a terminated New York City Police Officer, in this CPLR Article 78 petition seeks: reinstatement as a Police Officer with respondent THE NEW YORK CITY POLICE DEPARTMENT (NYPD); a declaratory judgment that a hair analysis drug test administered by NYPD to petitioner on October 8, 2008 is null and void; recovery of damages resulting from petitioner' s wrongful termination from the NYPD, on December 11, 2008; and, related relief. Respondents, THE CITY OF NEW YORK (THE CITY) and NYPD, seek dismissal of the instant petition and cross-move for a change of venue to New York County.
After hearing oral argument by the parties and reviewing the papers submitted and applicable case law, the Court, for the reasons to follow, denies respondents' cross-motion to change venue and grants petitioner's DEITCH's petition to reinstate him as an NYPD Police Officer. Venue is proper in Kings County. Petitioner is a resident of Kings County and material events took place in Kings County.
The October 8, 2008-hair analysis drug test administered by NYPD to petitioner is null and void. The use of a nonconsensual hair analysis drug test upon an NYPD officer outside a departmental investigation violates the collective bargaining agreement between respondents and petitioner's union, the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) ( City of New York v Patrolmen's Benevolent Association of the City of New York, Inc. , 56 AD3d 70 [1d Dept 2008]). Routine drug screening tests are a mandatory subject of collective bargaining. The October 8, 2008-hair analysis drug test administered by NYPD to petitioner was implemented without any consultation with the PBA. Further, not only was petitioner's employment termination by respondents a violation of the First Department's decisional law in City of New York v PBA, supra, but it was in bad faith. Petitioner was suspended on October 17, 2008, one day subsequent to the First Department's holding in City of New York v PBA, that the use by NYPD of the hair analysis drug test is a mandatory subject of collective bargaining and its use without any consultation with the PBA violates public policy. Further, petitioner's termination, on December 11, 2008, was 56 days subsequent to the October 16, 2008 City of New York v PBA decision.
Therefore, all parties shall appear in Part 27, on Wednesday, December 23, 2008, at 10:30 A.M., for a hearing, to be conducted by me, to determine the damages suffered by petitioner DEITCH as a result of his wrongful termination, including lost wages, benefits and pension credit.
Background
Petitioner DEITCH was appointed a Probationary Police Officer on January 10, 2007. Approximately six months later, after graduating from the Police Academy, petitioner was assigned to the 71st Precinct in the Crown Heights section of Brooklyn.
Petitioner testified under oath at a hearing, pursuant to General Municipal Law § 50-h, on May 6, 2009 [exhibit A of reply — 50-h transcript]. While assigned to the 71st Precinct, to petitioner's knowledge, no complaints were made against him by members of the public or against him to the Civilian Complaint Review Board, or investigations of him by NYPD's Internal Affairs Bureau (IAB) [p. 33 of 50-h transcript]. Petitioner denied taking any drugs while a police officer, other than Advil on several occasions [p. 34 of 50-h transcript].
Petitioner expected to take a physical examination at the end of his two years' probation [p. 41 of 50-h transcript]. Petitioner was ordered to report to an NYPD facility in Queens, on October 8, 2008, for urinalysis and hair sample drug testing. Chief of Personnel Rafael Pineiro, in his November 13, 2008 recommendation to First Deputy Commissioner George Grasso that petitioner be terminated [exhibit 1 of verified answer], wrote "[o]n October 8, 2008, Probationary Police Officer Deitch was administered a random drug screening test . On October 17, 2008, Probationary Police Officer Deitch's drug screening test yielded positive for cocaine and as a result he was suspended from duty. Recommend termination [ Emphasis added ]."
Petitioner testified that a Captain, from a command unknown to him, informed him that he tested positive for cocaine, suspended him and relieved him of his gun and shield [pp. 43 — 44 of 50-h transcript]. Charles V. Campisi, Chief of IAB, in his October 17, 2008-memorandum to the Police Commissioner stated that "[o]n Friday, October 17, 2008 Probationary Police Officer Terence Deitch . . . 71 Precinct, was suspended by Captain Anthony Mainolfi, Internal Affairs Bureau, Group 32, under the authority of the undersigned. PPO Deitch was suspended pursuant to testing positive for cocaine at the end of probation drug screening test [exhibit 2 of verified answer]."
Petitioner, at his 50-hearing, was asked how he responded to his suspension. He testified [p. 44] that he spoke to his lawyer the next day and then had a polygraph test. He scheduled an appointment with his physician, who conducted another urinalysis test, performed blood work and administered another hair sample test. About one month later he had a toenail sample taken for a drug test. He said that all tests were negative for drug use.
The report for Petitioner's October 21, 2008-polygraph test shows that he was not lying when he claimed he never bought or used cocaine or any other illegal drugs [exhibit E of petition]. The laboratory report for his October 24, 2008 hair analysis for drug use was negative [exhibit F of petition]. The laboratory report for petitioner's toenail sample, collected on November 13, 2008, was negative for controlled substances and marijuana [exhibit G of petition]. Plaintiff's counsel claims, in ¶ 32 of the instant petition, that "hair tests usually test for drug use up to three (3) months prior to the test," and, in ¶ 35 of the instant petition, that drug usage can be detected from toenail samples "over one (1) year after ingestion or use."
Petitioner alleges that the October 8, 2008-hair sample test was inaccurate and probably contaminated by NYPD's failure to sterilize the testing equipment and the environment in which the hair sample was taken. With respect to the environment in which NYPD collected petitioner's hair sample, the following colloquy took place at the 50-h hearing, p. 53, line 22 — p. 55, line 5:
Q. Was the hair sample taken from you by the police department done in the same manner as the private hair sample that you did after you were suspended?
A. It was taken pretty much in the same manner. They went and — I was alone when I had the private sample taken. And they kind of lined us up to take the, the one for the police department. They had us kind of at stations.
Q. In one room?
A. In one room, yes.
Q. How many people were in the room when that hair sample was taken?
A. Maybe twenty. I'm not exactly sure of the number, though.
Q. There were approximately twenty police officers?
A. Twenty people. I don't know if they were all police officers or not.
Q. After you were suspended from the police department were you ever offered a hearing?
A. No, sir.
Q. Were you ever offered an opportunity to rebut the claims that you had failed the hair sample?
A. No, sir.
Q. Were you ever offered an opportunity to rebut a claim that you had used cocaine?
A. No, sir.
Petitioner's counsel argues, in ¶ 48 of the petition, that the positive results for cocaine in the October 8, 2008-hair sample is an " outlier,' a test result falling outside the norm. An "outlier" usually occurs due to human or equipment error. An outlier' is flawed, inaccurate and invalid. It is irrational and without sound basis in reason and regard to the overwhelmingly substantial evidence to the contrary to use an outlier' as the sole basis for Petitioner's termination." Respondents do not directly challenge this in their opposition papers. They deny this accusation, in ¶ 48 of their verified answer, and state as a second defense, in ¶ 96 of their verified answer, "as bourn out by the record, petitioner was terminated a Probationary Police Officer solely because his random drug test yielded positive for cocaine."
Subsequent to petitioner's suspension, the Employment Management Division Committee, chaired by Assistant Commissioner Arnold S. Wechsler, met on October 28, 2008, to review whether petitioner should be continued as a Probationary Police Officer.
The Committee unanimously recommended to Chief of Personnel Pineiro that petitioner be terminated [exhibit 3 of verified answer]. As stated above, Chief Pineiro recommended petitioner's termination on November 13, 2008. This was endorsed by First Deputy Commissioner Grasso on November 20, 2008 and approved by Police Commissioner Raymond V. Kelly on December 9, 2009 [exhibit 4 of verified answer].
Ultimately, NYPD's bureaucracy notified petitioner, by certified mail, return receipt, of his termination, effective "2400 hours, December 11, 2008," in a letter dated December 11, 2008, by Assistant Commissioner Wechsler [exhibit 7 of verified answer].
Petitioner commenced the instant Article 78 proceeding on April 9, 2009. Respondents cross-moved for change of venue on April 28, 2009.
Venue
Venue in an Article 78 proceeding, according to CPLR § 7804 (b), is in a county as specified in CPLR Rule 506 (b), except as otherwise provided in CPLR Rule 506. The instant action does not fall under the special venue rules of CPLR Rule 506 (b) (1), (2), (3), or (4). CPLR Rule 506 (b) provides that:
A proceeding against a body or officer shall be commenced in any county within the judicial district where the respondent made the determination complained of or refused to perform the duty specifically enjoined upon him by law, or where the proceedings were brought or taken in the course of which the matter sought to be restrained originated, or where the material events otherwise took place , or where the principal office of the respondent is located. [ Emphasis added ]
In Hecht v New York State Teachers' Retirement System ( 138 Misc 2d 198 [Sup Ct, Suffolk County 1987), the Court held that the portion of CPLR Rule 506 (b) that allows venue "where material events otherwise took place" means that venue is not limited to the location where acts by the official, whose conduct is challenged, occurred. In the instant action, the "material events that otherwise took place," the suspension of petitioner DEITCH and his receipt of his termination notice, took place in Kings County. The Hecht Court quoted, at 200 — 201, 8 Weinstein-Korn-Miller (NY Civ Prac ¶ 7804.03), which states:
"The second general basis for venue, 'where the material events took place,' has, however, raised several problems of interpretation. It is clear that this provision does not limit venue to the place where acts by the official whose conduct is challenged occurred. Such a limited interpretation would make the 'material events' basis of venue superfluous, since the place where the challenged action occurred is already a proper venue under the first alternative of CPLR 506 (b ). Therefore, 'material events' forming a proper basis of venue include all such underlying facts and events which give rise to the official action challenged by petitioner. Thus, it has been held that a proceeding to review a determination of the State Liquor Authority could be maintained in the county where the premises involved were located, even though respondent's determination was made in a different county; and that a determination of the Department of Conservation to acquire land could be challenged in the judicial district where the land was located, since many acts preparatory to the Department's determination occurred in such district, even though the Department's ultimate determination was made in Albany County.
"Since the underlying facts and events which give rise to a challenged action can occur in more than one judicial district, it follows that each such judicial district in which a 'material event' takes place provides a proper venue as to any county therein."
(Emphasis added.)
Further, in Brothers of Mercy Nursing and Rehabilitation Center v De Buono, 237 AD2d 907 (4d Dept 1999), challenging the New York State Health Department's computation of a nursing home's Medicaid reimbursement rate, the Court held, at 907 — 908, that "[t]he location of the material events is the county wherein occurred the underlying events which gave rise to the official action complained of' ( Matter of Daley v Board of Estimate, 258 AD 165, 166 [2d Dept 1939]; see, Matter of Gardiner v Hartnett, 168 Misc 349 [Sup Ct., Onondaga County 1938] affd 255 AD 106 [4d Dept 1938]; see generally 6 NY Jur 2d, Article 78 and Related Proceedings, § 179 [1997 rev ed])."
In Lefkowitz v Beame ( 52 AD2d 925 [2d Dept 1975], the Court instructed that "Article 78 proceedings preferably should be heard and determined in a county in the judicial district in which the matter sought to be restrained originated, or where the material events occurred ( see CPLR 506, Matter of Laqua v O'Connell, 280 AD31 [1d Dept 1952]." ( See International Summit Equities Corp. v Van Schoor, 166 AD2d 531 [2d Dept 1980]).
In the instant proceeding, the material events occurred in Kings County. In addition, petitioner resides in Kings County and worked at the 71 Precinct in Kings County. His suspension occurred at the 71 Precinct. He received notification of his termination in Kings County. Therefore, venue is proper in Kings County. Respondents' cross-motion to change venue to New York County is denied.
Article 78 review standards
The Court's function in an Article 78 proceeding is to determine whether the action of an administrative agency had a rational basis or was arbitrary and capricious ( see Pell v Board of Educ. of Union School District No. 1 of the Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 230-231). "Arbitrary action is without sound basis in reason and is generally taken without regard to the fact." ( Pell at 231). A rational basis exists where the determination is "[supported] by proof sufficient to satisfy a reasonable [person], of all the facts necessary to be proved in order to authorize the determination"' ( Ador Realty, LLC v Division of Housing and Community Renewal , 25 AD3d 128 , 139-140 [2d Dept 2005], quoting Pell at 231).
Further, a reviewing court will not substitute its judgment for that of the agency unless the agency's determination is arbitrary, capricious, or contrary to law ( see Pell at 231; Matter of Brockport Cent. School Dist. v New York State Local Employees' Retirement System, 270 AD2d 706, 707-708 [3d Dept 2000]). Pursuant to CPLR § 7803 (3), "judicial review is limited to the question whether the measure or mode of penalty or discipline imposed' constitutes an abuse of discretion," ( Featherstone v Franco, 95 NY2d 550, 554). Further, the Court of Appeals ( Featherstone at 554) instructed that in an Article 78 review of administrative sanctions, "the sanction must be upheld unless it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."
Citing Featherstone, the Court of Appeals, in Kelly v Safir ( 96 NY2d 32, 38), held that weighing whether a sanction shocks the judicial conscience, "involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general ( Pell, supra at 234)."
Respondents' violation of case law and bad faith
In the instant proceeding, petitioner DEITCH's termination is an arbitrary and capricious abuse of discretion that violates the public policy of New York State and decisional law. Petitioner's termination, resulting from respondents' violation of collective bargaining, shocks the judicial conscience, flies in the face of case law, harms the public in general and is in bad faith.
Petitioner at the time of his termination was a probationary police officer. The Court is mindful that a probationary employee "could be terminated without a hearing or a statement of reasons, for any reason or no reason at all, so long as the dismissal was not in bad faith, for constitutionally impermissible reasons, or in violation of law ( Matter of Swinton v Safir, 93NY2d 758 [1999]; Matter of Che Lin Tsao v Kelly , 28 AD3d 320 [1d Dept 2006])." ( Johnson v Kelly , 35 AD3d 297, 298). ( See Duncan v Kelly , 9 NY3d 1024 , 1025; Cohen v Koehler, 82 NY2d 882; Frasier v Board of Educ. of City School Dist. of City of New York, 71 NY2d 763, 765; Johnson v Katz, 68 NY2d 649; York v McGuire, 63 NY2d 760; Lomando v Kelly , 33 AD3d 510 [1d Dept 2006]).
Petitioner DEITCH "bears the burden of establishing such bad faith or illegal conduct by competent evidence rather than speculation." ( Rossetti-Boerner v Hampton Bays Union Free School Dist. , 1 AD3d 367 , 368 [2d Dept 2003]). ( See Sztabnik v City of New York , 31 AD3d 456 [2d Dept 2006]; Che Lin Tsao v Kelly, supra; Rivera v Dept of Educ., City of New York, 25 AD3d 559 [2d Dept 2006]; Walsh v New York State Thruway Authority , 24 AD3d 755 [2d Dept 2005]). Petitioner DEITCH established, pursuant to Rossetti-Boerner, "bad faith or illegal conduct" by respondents, in their termination of his employment, which was in direct violation of the First Department's October 16, 2008 decision in City of New York v PBA ( 56 AD3d 70 [1d Dept]). The Court, in City of New York v PBA, at 71 — 72, held that:
"On August 1, 2005, NYPD abandoned the use of urinalysis as its preferred method of random drug screening of its members and substituted a type of hair follicle testing known as radioimmunoassay of hair (RIAH). The absence of any consultation with the unions representing NYPD members prior to the adoption of RIAH analysis resulted in the filing of an improper practice petition with the New York City Office of Collective Bargaining (OCB) by the Detectives Endowment Association on behalf of itself, the Patrolmen's Benevolent Association and the Sergeants' Benevolent Association (the unions). The petition alleged that by unilaterally changing the drug testing method, NYPD violated New York City Collective Bargaining Law (Administrative Code) § 12-306 (a) (4)."
In the hearing before OCB's Board of Collective Bargaining, NYPD argued that pursuant to the Court of Appeals holding in Matter of Patrolmen's Benevolent Assn. of City of New York, Inc. v New York State Public Employment Relations Bd. , 6 NY3d 563 , ( PBA v PERB) "testing procedures . . . and disciplinary consequences are inextricably intertwined, at least in this situation, with the Police Commissioner's disciplinary authority pursuant to City Charter § 434 and Administrative Code § 14-114 [ sic]." ( City of New York v PBA at 72). However, OCB granted the unions' petition and found that NYPD violated the New York City Collective Bargaining Law (Administrative Code § 12-306 [a] [4]) "by unilaterally changing drug testing procedures, a mandatory subject of bargaining." ( City of New York v PBA at 72).
Then, THE CITY, NYPD and the Mayor's Office of Labor Relations, among others, commenced City of New York v PBA, an Article 78 proceeding to annul OCB's granting of the petition by the unions. The petitioners argued again, relying on PBA v PERB at 574, that public policy "vests disciplinary authority over the New York City police force in the Commissioner and that investigatory procedures employed by the Commissioner . . . are not subject to collective bargaining." ( City of New York v PBA at 73). THE CITY and NYPD concluded that "RIAH testing is investigatory in nature and because it is ancillary' or tangentially related to' discipline, it is prohibited from being included in . . . collective bargaining.'" ( City of New York v PBA at 73). Also, petitioners claimed that the use of RIAH analysis had been used prior to August 2005 to test probationary police officers at the end of their probation "and on those as to whom NYPD had a reasonable suspicion for testing' or who voluntarily submitted to testing." ( City of New York v PBA at 73). Supreme Court, New York County, granted the petition and annulled OCB's determination that RIAH testing is a mandatory subject of collective bargaining, holding that the Court of Appeals in PBA v PERB ruled that submitting drug testing practices to collective bargaining would limit the authority of the Police Commissioner to enforce discipline in NYPD. ( City of New York v PBA at 73 — 74).
The First Department, in its unanimous 5 — 0 City of New York v PBA decision, reversed Supreme Court, New York County, holding at 71, that "we conclude that no persuasive policy reason has been advanced to require the New York City Office of Collective Bargaining to depart from its prior decisions, which have consistently found that routine drug screening procedures are a mandatory subject of collective bargaining." Further, at 74, the Court instructed:
Public policy strongly favors the use of collective bargaining ( see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778 [1976]) and procedures agreed upon by public employers and their employee organizations for the resolution of disputes over the implementation of their collective bargaining agreement ( Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122, 131 [1972]). "Public employers must, therefore, be presumed to possess the broad powers needed to negotiate with employees as to all terms and conditions of employment. The presumption may, of course, be rebutted by showing statutory provisions which expressly prohibit collective bargaining as to a particular term or condition" ( id. at 130). Unless NYPD is barred by public policy from negotiating the terms of its drug testing program, it must bargain with the police unions before implementing changes in testing procedures.
Then, the Court, in City of New York v PBA, at 75 — 76, explained that the Police Commissioner still had the discretion to conduct investigations into alleged drug infractions by NYPD members, but noted, at 76-77:
Petitioners seek to avoid their obligation to engage in collective bargaining with respect to routine drug testing of NYPD members by extending the investigatory authority granted to the Commissioner beyond the context of formal disciplinary proceedings to which it is confined. The limitation placed upon the scope of such authority must be construed as reflecting a balance struck by the Legislature between the competing public policy concerns of encouraging collective bargaining with public employees, on the one hand, and committing the discipline of the City's police force to the Commissioner, on the other.
The Court of Appeals, in Matter of City of Watertown v State of NY Public Employment Relations Bd. ( 95 NY2d 73), articulated that public policy favors collective bargaining for public employees and can only be overcome in situations where the legislative intent to do so is "plain" and "clear." The Court stated, at 78 — 79:
The Taylor Law (Civil Service Law § 200 et seq.) requires public employers to bargain in good faith concerning all terms and conditions ofemployment ( Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., 85 NY2d 480, 485 [1995]; supra; see also Civil Service Law §§ 202, 203, 204 [1]). As we have time and again underscored, the public policy of this State in favor of collective bargaining is "strong and sweeping" ( see, e.g. Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., 75 NY2d 660 [1990]; Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778 [1976]). The presumption in favor of bargaining may be overcome only in "special circumstances" where the legislative intent to remove the issue from mandatory bargaining is "plain" and "clear" ( Matter of Schenectady Police Benevolent Assn. v New York State Pub. Empl. Relations Bd., supra, at 486), or where a specific statutory directive leaves "no room for negotiation" ( Matter of Board of Educ. v New York State Pub. Empl. Relations Bd., supra, at 667).
Therefore, NYPD's administration of a random RIAH drug test upon petitioner, at the end of his probationary period, ran afoul of the collective bargaining process. While the Commissioner, as the upholder of discipline within the NYPD, can conduct drug testing if there is an alleged infraction by a member of the NYPD, the First Department's City of New York v PBA decision clearly strikes a balance between collective bargaining and the Police Commissioner's investigatory use of drug testing. It is clear that the Appellate Division, First Department found that the use of RIAH analysis without consultation with police unions violates the public policy of favoring collective bargaining. Therefore, the RIAH analysis of petitioner DEITCH's hair sample, taken on October 8, 2008 is null and void. NYPD's determination to terminate petitioner was predicated on a test administered in violation of collective bargaining, as determined by decisional law. The Court notes that petitioner DEITCH's subsequent testing of hair and toenail samples are irrelevant to the instant proceeding.
Moreover, the October 17, 2008 suspension of petitioner by Chief Campisi of IAB was in bad faith. It occurred the day after the First Department, in City v PBA, found that NYPD's use of RIAH analysis without consultation with police unions violates public policy. While it is possible that Chief Campisi was not aware of the prior day's decision, Assistant Commissioner Wechsler, when meeting on October 28, 2008 with the Employee Management Division Committee, should have been aware of the October 16, 2008 First Department decision. Further, when making their recommendations to terminate petitioner, Chief Pineiro and First Deputy Commissioner Grasso should have been aware of the City of New York v PBA decision. Commissioner Kelly, when approving petitioner's termination on December 9, 2008, should have been aware of the City of New York v PBA decision. NYPD's termination of petitioner DEITCH 56 days after the City of New York v PBA decision, on December 11, 2008, is clearly bad faith. Both THE CITY and NYPD, entities that must abide by the law, are not free from of the October 16, 2008 controlling holding of the First Department in City of New York v PBA. Further, petitioner's termination, almost two months after the First Department's City of New York v PBA decision, demonstrates by respondents an arrogance of power and bad faith. Moreover, it is arbitrary, capricious and an abuse of discretion. If NYPD wants to use RIAH analysis, it needs to consult with the various police unions.
Therefore, the Court grants the instant petition to the extent of restoring petitioner DEITCH to his employment as an NYPD police officer forthwith. Further, to make petitioner DEITCH whole, the Court will conduct a hearing to determine the damagespetitioner DEITCH suffered, including his loss of wages, benefits and pension credit.
Conclusion
Accordingly, it is
ORDERED, that the cross-motion of respondents, THE CITY OF NEW YORK and THE NEW YORK CITY POLICE DEPARTMENT, to change venue of the instant Article 78 proceeding to New York County, is denied; and it is further
ORDERED, that the petition of TERENCE J. DEITCH is granted to the extent that: petitioner TERENCE J. DEITCH is reinstated forthwith as a Police Officer in THE NEW YORK CITY POLICE DEPARTMENT; the October 8, 2008-hair analysis drug test administered by respondent THE NEW YORK CITY POLICE DEPARTMENT to petitioner TERENCE J. DEITCH is null and void; and, all parties shall appear in Part 27, Room 479, on Wednesday, December 23, 2009, at 10:30 A.M., for a hearing to determine the damages suffered by petitioner as a result of his wrongful termination, including lost wages, benefits and pension credit.
This constitutes the Decision and Order of the Court.