Interesting background to the below lawsuit: the plaintiff in question is
about as straight as you can possibly be while still breathing :-) No drugs
*at all*. He's not even into the legal drugs! Nevertheless, he's a long
time GoodGuy, and this is just another example.
Thanks CR!
--
Yours,
J.A. Terranson
[EMAIL PROTECTED]
If Governments really want us to behave like civilized human beings, they
should give serious consideration towards setting a better example:
Ruling by force, rather than consensus; the unrestrained application of
unjust laws (which the victim-populations were never allowed input on in
the first place); the State policy of justice only for the rich and
elected; the intentional abuse and occassionally destruction of entire
populations merely to distract an already apathetic and numb electorate...
This type of demogoguery must surely wipe out the fascist United States
as surely as it wiped out the fascist Union of Soviet Socialist Republics.
The views expressed here are mine, and NOT those of my employers,
associates, or others. Besides, if it *were* the opinion of all of
those people, I doubt there would be a problem to bitch about in the
first place...
--------------------------------------------------------------------
---------- Forwarded message ----------
Date: Thu, 7 Nov 2002 22:45:51 EST
From: [EMAIL PROTECTED]
To: undisclosed-recipients: ;
Subject: Lawsuit-I'm famous!!!
Text of Article 78 lawsuit filed against Division regarding drug testing
policy
By: Board of Directors, Date: 2002-10-29
STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY
__________________________________________________
DANIEL M. DeFEDERICIS; DON POSTLES; GORDON D. WARNOCK; THOMAS P. POMEROY;
JOHN P. MORETTI, JR.; JAMES C. MONTY; GARY N. OELKERS; ROBERT A. KOTIN;
JEFFREY J. KAYSER; JAMES NEEDHAM, JR.; KEITH L. FORTE; ERIC J. CHABOTY;
ROBERT P. HOVEY; and THE POLICE BENEVOLENT ASSOCIATION OF THE NEW YORK STATE
TROOPERS, INC., on behalf of its Members,
Petitioners-Plaintiffs,
For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules
PETITION/COMPLAINT
- against –
NEW YORK STATE DIVISION OF STATE POLICE; JAMES W. McMAHON, as Superintendent
of the New York State Division of State Police,
Respondents-Defendants.
__________________________________________________
Petitioners/plaintiffs, by their attorneys, Gleason, Dunn, Walsh & O'Shea,
and for their Verified Petition/Complaint, respectfully allege upon
information and belief:
INTRODUCTION
1. This is a combined Article 78 proceeding and declaratory judgment action
challenging the legality of certain policies and procedures (denominated
"regulations") recently adopted and implemented by the respondents
prohibiting sworn Members of the Division of State Police ("Division") from
the otherwise legal use of lawful, commercially available products and
substances, including foods, cosmetics and health care products that contain
the derivatives or active ingredients of any illegal drug. Such legal and
widely available commercial products include rolls, bagels and bakery
products containing poppy seeds and over-the-counter pain medications and
cold medicines as well as other products.
2. This proceeding/action also challenges that aspect of the Division's
regulations which provide that the ingestion or use of these otherwise legal,
consumer products is no defense to a positive drug test. That aspect of the
regulation unilaterally deprives Members of the Division of a legitimate and
valid defense to disciplinary charges alleging the use of illegal drugs. As
such, the regulation improperly affects and limits their ability to protect
their property rights in their jobs.
3. Petitioners/plaintiffs assert that this regulation is inconsistent with
and violative of New York Labor Law §201-d and the New York State and United
States Constitutions.
PARTIES
4. Petitioner/plaintiff The Police Benevolent Association of the New York
State Troopers, Inc. ("PBA"), is the certified and recognized employee
organization which represents the bargaining unit consisting of all Troopers
of the Division of State Police and the bargaining unit consisting of all
commissioned and non-commissioned officers of the Division of State Police.
5. Petitioner/plaintiff, Daniel M. DeFedericis, is the President of the PBA.
President DeFedericis is currently on leave from his employment with the
Division, but upon returning from his leave will be subject to the challenged
regulation.
6. Petitioner/plaintiff, Don Postles, is the Vice President of the PBA. Vice
President Postles is currently on leave from his employment with the
Division, but upon returning from his leave will be subject to the challenged
regulation.
7. Petitioner/plaintiff, Gordon D. Warnock, is the Secretary of the PBA.
Secretary Warnock is currently on leave from his employment with the
Division, but upon returning from his leave will be subject to the challenged
regulation.
8. Petitioner/plaintiff Thomas P. Pomeroy is the Treasurer of the PBA.
Petitioner Pomeroy is employed as a Trooper with the Division and is subject
to the challenged regulation.
9. Petitioners/plaintiffs, John P. Moretti, Jr., James C. Monty, Gary N.
Oelkers, Robert A. Kotin, Jeffrey J. Kayser, James Needham, Jr. and Keith L.
Forte are all PBA Delegates, are employed as Troopers with the Division and
are subject to the challenged regulation.
10. Petitioners/plaintiffs Eric J. Chaboty and Robert P. Hovey are PBA
Delegates, are employed as Sergeants with the Division and are subject to the
challenged regulation.
11. Respondent/defendant, New York State Division of State Police
("Division"), is a division of the Executive Department of the State of New
York and is the current employer of all but the first three (3) of the
individual petitioners identified above.
12. Respondent/defendant James W. McMahon ("McMahon") is and at all relevant
times herein was the Superintendent of the Division of New York State Police
with principal offices located at Building 22, New York State Office Campus,
Washington Avenue, in the City of Albany, County of Albany, State of New
York, and has all the powers and duties set forth in pertinent laws, rules
and regulations.
BACKGROUND
13. At some time prior to the adoption and implementation of the policies and
procedures challenged herein, the respondents adopted and implemented a drug
testing program pertaining to the Members of the Troopers Unit and the
commissioned and non-commissioned Officers Unit of the Division. These
policies and procedures are set forth in the New York State Police
Administrative Manual at Article 8L. The Division also issued policies and
procedures prohibiting conduct regarding alcohol and drugs. These policies
and procedures are set forth in the New York State Police Administrative
Manual at Regulation 8H[1]. These policies and procedures, as previously
adopted and implemented, are not challenged herein. (Although these policies
and procedures, like the ones that are challenged herein, are denominated by
the respondents as "regulations", they are not official regulations published
in the New York Code of Rules and Regulations but rather are, in effect, work
rules.)
14. On or about June 11, 2002, and on or about September 17, 2002, respondent
Division unilaterally published new policies and procedures amending these
"regulations". These amendments banned the use or ingestion of certain
commercially available and otherwise lawful products or substances and
restricted the substantive and procedural defenses available in response to
disciplinary charges resulting from a positive test result on a drug test.
15. The new policies and procedures challenged herein were added by
respective amendments to the New York State Police Administrative Manual at
Article 8L and the New York State Police Administrative Manual at Regulation
8H1-2.
16. The amendment to the Administrative Manual – Regulation 8H1-2, which
implemented the new policies and procedures challenged herein provides, in
its entirety, as follows: The use or ingestion, by a Member of any
commercially available products or substances, including foods, cosmetics,
and alleged health care products, that contain the derivatives or active
ingredients of an illegal drug (including hemp/marihuana) is prohibited. The
ingestion or use of these products is therefore no defense for a positive
test result on a drug test.
(emphasis supplied). A copy of Regulation 8H1-2 as amended is attached as
Exhibit A.
17. The amendment to the Administrative Manual – Article 8L which implemented
the new policies and procedures challenged herein provides, in its entirety,
as follows: In addition, the unauthorized use or ingestion of prohibited
substances, as defined below, is not a valid defense when a positive drug
test occurs. Prohibited substances are defined as commercially available
products or substances including foods, cosmetics and alleged health care
products that contain illegal drug (including hemp/marihuana )or their
derivatives or active ingredients.
(emphasis supplied). The relevant portion of the Administrative Manual –
Article 8L as amended is annexed hereto as Exhibit B. 18. The new policies
and procedures challenged herein are contrary to New York State Labor Law
Section 201-d(2)(b).
19. That section provides: Unless otherwise provided by law, it shall be
unlawful for any employer or employment agency to refuse to hire, employ or
license, or to discharge from employment or otherwise discriminate against an
individual in compensation, promotion or terms, conditions or privileges of
employment because of:
an individual's legal use of consumable products prior to the beginning or
after the conclusion of the employee's work hours, and off of the employer's
premises and without use of the employer's equipment or other property;
(emphasis supplied)
20. The new policies and procedures challenged herein restrict completely
legal off-duty conduct and impose additional grounds and criteria for
discipline whereby completely legal off-duty conduct that does not affect or
impair the performance of job duties has been unilaterally prohibited and
made the subject of discipline.
21. The policies and procedures challenged herein are overly broad and unduly
impact Members by subjecting Members to discipline for the use and
consumption of commercially available products.
22. The effect of the new policies and procedures is to prohibit Members from
consuming or ingesting every-day, commercially available and completely legal
products containing poppy seeds which are the dried seed of the opium poppy.
Among the banned products are: bagels, rolls, muffins, lemon poppy seed cake
and poppy seed salad dressing.
23. In addition, poppy seeds are sometimes ground to a paste and used as part
of a recipe for meals in commercial food establishments which could therefore
be unknowingly consumed by Members of the Division.
24. Other commercially available and completely legal products are banned by
the new policies and procedures.
25. Numerous regularly and routinely used commercially available products can
provide false positives to drug tests. Petitioners/plaintiffs and Members of
the PBA are, by these new policies and procedures, being deprived, by this
regulation, from establishing a false positive defense to positive drug
tests.
26. Petitioners/plaintiffs and the Members of the PBA desire to engage in
lawful off-duty conduct which does not impact the performance of their duties
such as eating foods or using consumable products which may contain
substances that are banned and prohibited by the new policies and procedures.
27. Petitioners/plaintiffs and members of the PBA have a State law statutory
right pursuant to New York Labor Law §201-d(2)(b) to legally use consumable
products prior to the beginning or after the conclusion of the employee's
work hours without the restriction imposed by the new policies and
procedures.
28. Petitioners/plaintiffs and the Members of the PBA have been placed in a
situation where they must refrain from the legal use of consumable products
prior to the beginning or after the conclusion of their work hours, conduct
specifically and affirmatively permitted under State statute, in order to
remain in compliance with all Division regulations.
AS AND FOR A FIRST CAUSE OF ACTION
29. Petitioners/plaintiffs repeat and reallege each and every allegation
contained in the paragraphs above as if each were more fully set forth
herein.
30. The respondents' adoption and implementation of these regulations is an
act in excess of their jurisdiction, is arbitrary and capricious and
constitutes a failure of the respondents to perform a duty enjoined by law.
31. The respondents are about to proceed without or in excess of their
jurisdiction by enforcing the new policies and procedures.
AS AND FOR A SECOND CAUSE OF ACTION
32. Petitioners/plaintiffs repeat and reallege each and every allegation
contained in the paragraphs above as if each were more fully set forth
herein.
33. Because the new policies and procedures challenged herein are contrary to
New York Labor Law §201-d(2)(b), they should be declared null, void and
illegal.
AS AND FOR A THIRD CAUSE OF ACTION
34. Petitioners/plaintiffs repeat and reallege each and every allegation
contained in the paragraphs above as if each were more fully set forth
herein.
35. Petitioners/plaintiffs and Members of the Division holding the permanent
rank of Trooper and above have property rights in their jobs.
36. The challenged regulations deprive the petitioners/plaintiffs of their
right and ability to present valid and legitimate defenses on behalf of
themselves against disciplinary charges and to protect their property
interest in their jobs.
37. As such, the respondents' adoption and implementation of these
regulations is an act in excess of their jurisdiction, is arbitrary and
capricious and constitutes a failure of the respondents to perform a duty
enjoined by law.
38. The respondents are about to proceed without or in excess of their
jurisdiction by enforcing the new policies and procedures.
AS AND FOR A FOURTH CAUSE OF ACTION
39. Petitioners/plaintiffs repeat and reallege each and every allegation
contained in the paragraphs above as if each were more fully set forth
herein.
40. Because the new policies and procedures challenged herein, insofar as
they deprive petitioners/plaintiffs of their ability to defend their property
interests in their jobs, are contrary to the petitioners'/plaintiffs' rights
to due process of law as guaranteed by the New York State and United States
Constitutions, they should be declared null, void and illegal. WHEREFORE,
petitioners/plaintiffs demand judgment: 1) annulling the subject
"regulations"; 2) declaring the subject "regulations" to be violative of New
York Labor Law §201-d and the New York State and United States Constitutions;
3) granting petitioners/plaintiffs attorneys' fees, costs and disbursements
of this action; and 4) granting such other, further and different relief as
to this Court may seem just and proper.
DATED: Albany, New York October 29, 2002 ____________________________________
MARK T. WALSH, ESQ. GLEASON, DUNN, WALSH & O'SHEA Attorneys for
Petitioners/Plaintiffs 102 Hackett Boulevard Albany, New York 12209 (518)
432-7511
STATE OF NEW YORK ) ) ss: COUNTY OF ALBANY )
DANIEL M. DeFEDERICIS, being duly sworn, deposes and says:
That he is a petitioner/plaintiff and is the President of THE POLICE
BENEVOLENT ASSOCIATION OF THE NEW YORK STATE TROOPERS, INC., the corporation
named in the within action; that he has read the foregoing PETITION/COMPLAINT
and knows the contents thereof; and that the same is true to his own
knowledge, except as to the matters therein stated to be alleged upon
information and belief, and as to those matters, he believes it to be true.
__________________________________ DANIEL M. DeFEDERICIS
Sworn to before me, this ______ day of October, 2002.
____________________________________ NOTARY PUBLIC
""
