June. The court requested development of evidence on certain points. The submission of supplemental affidavits was completed on October 1, 1996.
The following facts are uncontested, unless otherwise noted. The principal source of the facts is contained in the statement filed by defendants pursuant to Rule 3(g) of the Civil Rules of this court. D'Amico has filed a counter-statement which concedes the truth of most of the items asserted by defendants.
D'Amico was appointed as a firefighter in 1982. In 1987 he began to use cocaine. At first this was about once a week. But by 1988 D'Amico snorted cocaine and ("freebased" (i.e., smoked crack) almost daily. In April 1988 D'Amico was arrested for assault, possession of a controlled substance, and resisting arrest. Following this arrest, the FDNY referred D'Amico to counseling within the FDNY but he did not reveal the extent of his cocaine habit to the counselor at that time. The charges involved in the arrest were apparently dismissed.
In September 1988 the FDNY received an anonymous letter accusing D'Amico of using and selling cocaine. The FDNY ordered D'Amico to submit to a urine test on or about December 13, 1988. He tested positive for cocaine and was suspended without pay. In January 1989 D'Amico's suspension was lifted and he was reassigned to light duty pending the outcome of disciplinary proceedings. He never returned to active duty as a firefighter.
When D'Amico's suspension was lifted, the FDNY again referred him to department counseling. The FDNY arranged for D'Amico to enter an intensive out-patient drug treatment program at Smithers Alcoholism Treatment and Training Center.
On April 7, 1989 the Smithers facility wrote the FDNY stating that D'Amico had been discharged from Smithers for failure to comply with his treatment agreement. The letter noted that he engaged in "inappropriate behavior," and further that he was to have completed the intensive phase of his treatment on March 17, but was absent on March 16 and 17, and was not heard from thereafter for over a week, at which time he was discharged. The internal record of Smithers states that D'Amico admitted using alcohol on one occasion and cocaine on another occasion during the course of the program.
In his counter-statement under Rule 3(g) D'Amico denies making any admission about drug use at Smithers, and asserts that he was totally drug free "from December 14, 1988 to the date of his discharge" from the FDNY.
In the meantime, the FDNY had made certain Charges for Violation of Regulations against D'Amico. Charge No. 1 is dated November 10, 1988 and alleges that he was "absent without leave" in that on September 21, 1988 he failed to report to the Bureau of Health Services, in violation of Section 17.11 of the Regulations of the Uniformed Forces. Charge No. 2 is also dated November 10, 1988 and alleges that the conduct set forth in Charge No. 1 amounted to a violation of D'Amico's oath of office.
Charge No. 3 is dated March 3, 1989 and alleges that on or about December 13, 1988 D'Amico used a controlled substance prohibited by the New York State Penal Law, i.e., cocaine, in violation of § 25.1.6 of the Regulations. Charge No. 4 is also dated March 3, 1989 and alleges that the use of cocaine on or about December 13, 1988 violated the All Units Circular 202A of the FDNY.
The provisions of the cited Regulations and of the All Units Circular need not be quoted. They simply prohibit the conduct charged.
On March 4, 1989 D'Amico was notified that a pre-trial conference would be held on March 30 regarding the disciplinary charges, and such a conference was held.
On April 17, 1989 D'Amico returned to Smithers and entered an in-patient drug treatment program. This was on D'Amico's own volition in contrast to being referred by the Department. D'Amico completed the program on May 15. The FDNY was promptly notified of this by Smithers.
On June 1, 1989 the FDNY made Charge No. 5 against D'Amico, alleging that on March 30, 1989 he had knowingly and falsely stated that he had not been discharged from Smithers.
A hearing on the disciplinary charges was held before Administrative Law Judge Ray Fleischhacker on June 23, 1989. Various witnesses testified regarding D'Amico's alleged misconduct. D'Amico did not testify nor did he call any witnesses in his defense.
The ALJ's Report and Recommendation was handed down on August 29, 1989. The ALJ found D'Amico guilty of Charges 1, 2, 3 and 4, and not guilty of Charge 5. The ALJ recommended that D'Amico be terminated from his employment with the FDNY. This recommendation was based upon Charges 3 and 4 dealing with the use of cocaine.
The ALJ discussed the information which the FDNY had received regarding D'Amico's cocaine usage. This discussion was mainly in connection with the issue of whether the FDNY was legally justified in requiring D'Amico to submit to the drug test in December 1988, a question which the ALJ answered in the affirmative. The ALJ referred to the anonymous letter which was received in September 1988 accusing D'Amico of using and selling cocaine, to testimony by Assistant Commissioner Bartels about D'Amico's extensive medical absences during 1987 and 1988, which fit a profile of possible drug use, and to further testimony by Bartels that she was aware of the April 1988 arrest and the dismissal of the charges. Due to an oversight D'Amico was not tested for drug use at the time of the arrest.
In the section of the ALJ's report dealing with the recommendation that D'Amico be terminated, the ALJ noted that D'Amico had involved himself in treatment for substance abuse following the 1988 test. The ALJ recognized that D'Amico had been dismissed from this program, although the ALJ apparently did not hold this against D'Amico, stating that the reasons for the dismissal were unclear. The ALJ described the fact that, subsequent to March 1989, D'Amico resumed and successfully completed drug treatment. Nevertheless, the ALJ recommended dismissal, stating:
Given the nature of the respondent's position and the nature of the misconduct found herein, the only appropriate available penalty under section 15-113 of the Administrative Code is termination from employment. No other available sanction ensures the safety of the public and the respondent's fellow firefighters. Although the Department's policy regarding drug use, as set forth in PAID 1/84, encourages rehabilitation through referrals, it clearly permits the Department to elect to discipline members who use illegal substances. Therefore, any action less than termination of employment remains entirely within the Commissioner's discretion. Accordingly, I recommend that Firefighter Vito D'Amico be terminated from employment and be dismissed from the Civil Service.
On September 8, 1989 Fire Commissioner Joseph Bruno issued the Commissioner's Decision accepting the ALJ's findings and concurring with the recommendation that D'Amico be terminated. The Commissioner stated:
In light of the grave responsibilities entrusted to a firefighter, the Respondent's continued employment with the Fire Department presents a significant risk, both to the general public and to his fellow firefighters.