Forfeiture Of Pension Too Harsh A Penalty For Firefighter’s Cocaine Use

Thomas McDougall was a 25-year member of the Fire Department of the City of New York. After a positive random drug test confirmed the presence of cocaine in McDougall’s system, a “Step-1” conference was held to review the charges for violation of regulations brought against McDougall by the Department. Following that conference, a deputy assistant chief of the Department recommended that, although he found McDougall guilty of all charges, due to “extenuating circumstances,” McDougall should be allowed to resign in addition to being fined the sum of $80,000, representing approximately one year’s salary. The extenuating circumstances identified by the deputy assistant chief consisted of McDougall’s lengthy service to the Department without any previous disciplinary problems and the severe hardship that termination would impose upon McDougall and his family since it would include forfeiture of McDougall’s pension benefits.

Thereafter, the Department submitted the matter to an administrative law judge (ALJ) for a hearing. Numerous witnesses testified on behalf of McDougall attesting to his good character, devotion to the Department, and lack of prior drug usage, which was confirmed by prior negative drug test results. Moreover, McDougall testified that he was the sole wage earner for his family and that the loss of his pension and medical coverage would impose a severe hardship on his family. Notwithstanding the mitigating testimony, the ALJ determined that the only available appropriate penalty was termination of McDougall’s employment, which he recommended. The Fire Commissioner upheld the ALJ’s termination order, and as a result, McDougall not only lost his job but forfeited his pension, which was valued at approximately $2,000,000, and retirement benefits, which included health insurance coverage.

An appeals court reinstated the original proposed punishment. The Court found that “the Department’s ‘zero tolerance’ policy, no matter how laudable in purpose, does not distinguish between junior members of the Department and those who have served the Department well past the time that he or she could have retired, like McDougall herein. This inflexibility is contrary to the analysis set forth in prior court decisions, which have considered such factors as an employee’s length of employment, the probability that a dismissal will leave the employee without any alternative livelihood, the employee’s loss of retirement benefits, and the effect upon the employee’s innocent family in cases where there is an absence of grave moral turpitude and grave injury to the agency involved or to the public weal.

“The testimony at the hearing was undisputed that this was the first and only time that McDougall had tested positive for an illegal drug; to wit, cocaine. Several times prior to and after the positive test, McDougall tested negative. Due to the termination of his employment, McDougall and his family will suffer the consequence of losing his pension and retirement benefits McDougall earned during his 25 years of dedicated service to the Department. The loss of those pension benefits, valued at approximately $2,000,000, is particularly shocking in this context because McDougall chose to continue as a member of the Department even after he was eligible for full retirement benefits after 20 years of service. The testimony is uncontroverted that McDougall was the sole wage earner of his family and that the loss of his benefits would be financially devastating. Moreover, it is also undisputed that McDougall was an exemplary member of the Department, considered to be a mentor and role model within his firehouse.

“This Court recognizes that McDougall committed a serious infraction which militates against his continued employment as a firefighter. However, this incident was isolated. When coupled with the significant loss of benefits, termination of McDougall’s employment so that he forfeits all of his retirement benefits cannot be sustained. Indeed, we have held that the dismissal of a long-term employee with an unblemished record following a

singular positive drug test to be so shocking to our sense of fairness that annulment of the administrative agency’s determination and the imposition of a lesser penalty was required.

“McDougall should be allowed to retire and be fined in the sum of $80,000, as recommended by the Department’s deputy assistant chief following the Step-1 conference.”

McDougall v. Scoppetta, 2010 WL 2816471 (N.Y. A.D. 2 Dept. 2010).

This article appears in the September 2010 issue