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 ""