New York City Office Of s1

Fire Dep’t v. Maresca OATH Index No. 2564/08 (Nov. 19, 2008)

Firefighter was arrested for possession of cocaine and tested positive for cocaine use. Evidence also established that respondent suffers from post-traumatic stress disorder (PTSD) and a permanent lung disability. Case presented complex aggravating and mitigating factors. Termination of employment recommended based on undisputed cocaine use and lack of candor about the circumstances and extent of that use, but because of firefighter’s undisputed permanent, serious disabilities from service to the city on and after 9/11, and proof that respondent was not given meaningful assistance after he sought help and counseling at work before he slid back to cocaine use, it is recommended that agency hold that penalty in abeyance and allow respondent to retire in accordance with the findings of its own expert medical and psychiatric review panels. ______

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of FIRE DEPARTMENT Petitioner -against- JOSEPH MARESCA Respondent ______

REPORT AND RECOMMENDATION JOAN R. SALZMAN, Administrative Law Judge The Fire Department (the “Department”) brought this disciplinary proceeding under section 15-113 of the Administrative Code, against firefighter Joseph Maresca. The Department alleges that on August 2, 2007, respondent was arrested for possession of cocaine, and, on August 3, 2007, tested positive for cocaine use in violation of his oath of office, the Department All Units Circular 202 (Oct. 12, 2005) (“AUC 202”), section 4.1, and sections 25.1.6, 25.1.3, and 25.1.1 of the Rules and Regulations for the Uniformed Force (Jan. 1, 1997). 2

At a hearing on July 8 and August 7, 2008, petitioner relied upon documentary evidence and testimony from three witnesses: two police officers and an investigator from the Department’s Bureau of Investigations and Trials. Respondent presented documentary evidence, testified in his own behalf, and offered testimony from five other witnesses: a retired firefighter, a retired lieutenant, a clinical psychologist, a psychiatrist, and respondent’s wife. Following post-trial submissions, the record was closed on August 15, 2008. For the reasons set forth below, I find that the charges have been sustained and recommend a penalty of termination of employment, to be held in abeyance, in the discretion of the Commissioner, to enable respondent to retire from service due to extenuating circumstances: respondent’s job-related permanent disabilities (major depression, post-traumatic stress disorder (“PTSD”), and respiratory problems)) stemming from his city service on and after September 11, 2001. ANALYSIS There is no dispute that respondent tested positive for cocaine in his system on August 3, 2007. On August 2, 2007, respondent was arrested in Brooklyn for criminal possession of a controlled substance, cocaine (ALJ Ex. 1; Pet. Exs. 6-8). Officer Todd Byrnes of the Street Narcotics Enforcement Unit (SNEU) was in plain clothes, working at an observation post (Tr. 22). He was on 23rd Street between 6th and 7th Avenues (Tr. 24), which he described as “a drug prone location” (Tr. 20). From his post about ten feet away, Byrnes saw two people in the car: respondent and a young girl, who, he later learned, was respondent’s six-year-old daughter (Tr. 25). As Byrnes watched, another car pulled up. Respondent got out of his car and approached the second car. Respondent admitted that he knew the other driver, “Gary,” though he said he had not seen this “kid” in years, and asked him if he had “anything on [him]” (Tr. 274-75). He took a cigarette box with cash inside and handed it to Gary, who then placed some glassine envelopes containing what Officer Byrnes identified as “a white, rocky substance” in the cigarette box (Tr. 26-27). Respondent did not appear to the officer to be intoxicated or under the influence of drugs (Tr. 30). Byrnes radioed to another unit, which stopped respondent after he got back in his car and drove away. Byrnes returned to his undercover vehicle and followed the dealer in the second car (Tr. 27). 3

Police stopped respondent’s car approximately two to three minutes later (Tr. 28-29). He initially refused to give his cigarette box to the police officer who made the stop, but became more cooperative when the officer made clear that he knew that respondent was in possession of drugs (Tr. 35). Respondent told the officer that he was a member of the Department and that he was on the Lieutenant’s list (Tr. 30). Respondent told Byrnes that he was a firefighter who had been assigned to the firehouse that lost a lot of people as a result of the terrorist attack of September 11, 2001 (Tr. 32). Respondent was crying (Tr. 34). Police recovered six glassine envelopes from respondent at the time of his arrest. The substance in the bags was field tested and found to be cocaine (Tr. 30-31; Pet. Ex. 7). The same substance was vouchered (Pet. Ex. 8), and laboratory tested. The laboratory test confirmed that the six bags contained a total of about three grams of cocaine (Pet. Ex. 9). After his arrest, respondent was taken to the precinct in a prisoner van by Sergeant Rudy Purrone. Another police officer drove respondent’s car and his daughter to the precinct (Tr. 38). When Purrone arrived at the arrest scene, respondent was in handcuffs. He told Purrone that he was a firefighter and was afraid that he would lose his job as a result of the arrest (Tr. 38). As a courtesy to a firefighter, and, out of concern for the child, police officers did not follow normal procedure (to call child protective services), but instead called respondent’s wife so that she could come and retrieve their daughter and car (Byrnes: Tr. 33; Purrone: Tr. 39). Richard Dun, Deputy Chief Investigator for the Department’s Bureau of Investigations and Trials was notified by Fire Operations Command that a firefighter had been arrested for narcotics and was at the 72nd Precinct in Brooklyn (Tr. 42). Dun went to the precinct and spoke to police officers, who confirmed that respondent was in custody. Dun identified himself to respondent and told him that he was there to conduct a drug test (Tr. 43). Respondent agreed to the test and started to fill out the required paperwork. Dun testified that, while filling out the paperwork, respondent told him, “I smoked marijuana two weeks ago and used coke three days ago” (Tr. 44). Respondent provided a urine sample which tested positive for cocaine at 1128 nanograms per milliliter. It tested negative for marijuana (Pet. Exs. 4, 5). Respondent’s arrest was reported in two New York City newspapers (Pet. Exs. 2, 3). His criminal case was eventually dismissed after he successfully completed a six-month outpatient treatment program (Tr. 276; Resp. Exs. F, K). 4

Respondent testified extensively about his use of drugs in the period from late 2003 until his arrest in August 2007. He admitted using cocaine three or four times a year during that period. He also testified about his practice of buying drugs in bars in his Bay Ridge neighborhood (Tr. 271). Respondent testified that he never used drugs while working (Tr. 272). At the time of his arrest, he told Sgt. Purrone that he was on vacation (Tr. 38). However, AUC 202 forbids the use and possession of illegal drugs whether on-duty or off-duty (Pet. Ex. 1, at § 4.1). Respondent testified that he was aware of Department regulations prohibiting the use of cocaine, but did not care at the time he was using drugs (Tr. 272). Accordingly, on this record, respondent cannot avoid liability for misconduct on the theory that his drug use was involuntary or unconscious. He knew what he was doing. We have found such knowing use of cocaine to be voluntary. See, e.g., Fire Dep’t v. Kelly, OATH Index No. 804/06, at 11 (June 9, 2006) (“Although an underlying physical or mental condition may be considered a mitigating factor, illegal drug use is typically viewed as an independent, voluntary act”), modified on penalty, Comm’r Dec. (Jan. 2, 2007), aff’d sub nom. Kelly v. Scoppetta, 2008 NY Slip Op. 8490, 2008 N.Y. App. Div. LEXIS 8304 (2d Dep’t Nov. 5, 2008). Other indicia of respondent’s knowing use of cocaine are set forth in the penalty section of this report and recommendation. Although respondent’s counsel argued that respondent turned to cocaine because he was sick (Tr. 338, 348), there was insufficient proof to sustain a defense that PTSD and depression excused respondent’s misconduct for liability purposes. There was no specific reference to the Human Rights Law of New York as a basis to excuse liability for misconduct; that law was not invoked by respondent’s counsel.1 Nonetheless, respondent’s real suffering with major depression and PTSD will be considered in full with respect to the recommendation of an appropriate penalty. Respondent’s admissions and the evidence of petitioner’s witnesses and documents, including the result of respondent’s positive test, are more than sufficient to sustain the charges. It cannot be disputed that respondent suffered from major depression, PTSD, and a lung ailment following his service on and after September 11th. The remaining question before me is whether

1 Nor is it clear that the Human Rights Law would exculpate respondent. See Fire Dep’t v. Peltonen, OATH Index No. 2101/08 (Oct. 9, 2008); Fire Dep’t v. Kirk, OATH Index No. 441/06 (Apr. 26, 2006), aff’d sub nom. Kirk v. City of New York, 47 A.D.3d 406, 848 N.Y.S.2d 169 (1st Dep’t 2008) (failure to establish that drug abuse was causally related to alcoholism). 5 there are mitigating circumstances in this case that warrant consideration of a penalty short of termination. 6

FINDING AND CONCLUSION

Following his arrest for possession of cocaine on August 2, 2007, respondent tested positive for cocaine use on August 3, 2007, in violation of sections 25.1.6, 25.1.3 and 25.1.1 of the Rules and Regulations for the Uniformed Force, and of the All Units Circular 202.

RECOMMENDATION Having made these findings, I requested and reviewed respondent’s personnel records. He has no history of prior discipline. For the misconduct found here, the Department seeks the termination of his employment. Respondent no longer wishes, due to his health, to work as a firefighter and requests a penalty other than termination in light of mitigating circumstances, so that he can retire with disability benefits and a pension that reflect the condition of his health. Respondent joined the Department on February 1, 2000 at the age of 31. At the time he got sick, he was a very new firefighter, at the end of his probation. While he does not have a lengthy tenure, he has somehow managed to put in more than eight years on the job, despite his desperate struggles to retain his equilibrium on and off the job. He had, until his arrest, a clean record and a promising career, and it is undisputed that he devoted substantial professional time to helping the surviving families of victims of the terrorist attack of September 11th. Respondent’s first assignment was at Ladder 106 in Greenpoint, Brooklyn (Tr. 251). Michael Duffy, a retired firefighter, was assigned to Ladder 106 at that time. He described respondent as outgoing and extremely attentive to his job (Tr. 48). According to Duffy, respondent always had a smile on his face and was well-liked (Tr. 49). Respondent “went above and beyond” his normal duties (Tr. 52). He always helped out around the firehouse, received good evaluations, and was promoted to the position of driver of the back of the ladder truck (Duffy: Tr. 49; J. Maresca: Tr. 252-53). Respondent testified to his love of his job in this early period of his service. He aspired to promotion, and studied for and passed the Lieutenant’s exam in November 2005 (Tr. 115-16, 251). He considered himself outgoing and participated in company social events and outings (Tr. 251). Respondent testified that he was an occasional social drinker at that time but did not use illegal drugs, although he had used them occasionally when he was younger (Tr. 252). Duffy saw no evidence of alcoholism or drug use by respondent (Tr. 49, 53). 7

In January 2001, respondent rotated to Engine 54 in Manhattan’s theatre district. Retired Lieutenant Robert Jackson, one of respondent’s commanding officers there, testified that respondent was a well-liked, dedicated firefighter who was always willing to help in the kitchen or in cleaning the firehouse (Tr. 62-63). Respondent testified to his excitement over the various duties the company was called upon to perform (Tr. 254-55). He was enthusiastic about his new assignment and the opportunities it gave him to learn (Tr. 253). Clelia Maresca, who was then respondent’s fiancée and is now his wife, was pregnant on September 11, 2001; respondent and she were expecting their first child that month; Jackson testified that respondent was happy and excited about having a baby (Tr. 63). Respondent stated that he was “ecstatic” about becoming a father (Tr. 254). Jackson saw no evidence of drug use or alcohol abuse by respondent before 9/11 while he was at Engine 54 (Tr. 72). Clelia Maresca testified that she met respondent before he became a firefighter, while they were both working on the maintenance staff of New York University. They began to date in 2000. She described him as being funny, smart, and a “really nice person.” The couple has a daughter who was born on September 30, 2001; respondent and his fiancée were married on July 6, 2003. Before 9/11, respondent was looking forward to the birth of their child and showed no evidence of alcohol or drug abuse (Tr. 129-31). On the evening of September 10, 2001, respondent worked the night tour, from 6:00 p.m. until 9:00 a.m. On the morning of September 11, Clelia Maresca met respondent at the firehouse. She was eight months pregnant and the couple had an appointment with her doctor that morning. Respondent showered at the end of his tour while his fiancée waited for him. He was in the shower when word came in that there had been an explosion at the World Trade Center. He ran out of the shower but the company’s trucks had already responded to the emergency (Tr. 255-56). Respondent wanted to go to the site in his own car but was ordered to stay in the firehouse and answer the telephone (Tr. 256-57). When Lt. Jackson arrived at the firehouse that morning, it was empty except for a couple of off-duty firefighters, including respondent. Fifteen firefighters from repondent’s company had responded to the alarm and gone to the World Trade Center site (Tr. 64). Jackson arranged for other firefighters to be called in (Tr. 65). The off-duty firefighters, including respondent, loaded trucks and headed downtown at 10:15 a.m. (Tr. 257). By the time they reached the West Side Highway, both towers had collapsed (Tr. 65). Respondent and his colleagues jumped off 8 the rig and raced into the cloud, seeing people bloodied. The firefighters stretched hose lines and dug through the rubble “looking for anybody” all day (Tr. 257). All 15 firefighters from Engine 54 who originally responded to the alarm were killed in the collapse of the towers (Jackson: Tr. 64, 66; J. Maresca: Tr. 258). At the recitation by his attorney of respondent’s loss of all 15 of his brethren from Engine 54, respondent dissolved silently, for an extended time, into tears and his face reddened as he wiped his eyes and face. I have no doubt that this was genuine grief, and it was not the only time during the trial when respondent was visibly upset by the recounting of his misfortunes. The survivors from Engine 54 worked in the rubble at the World Trade Center site (sometimes called the pile or the site) for several days straight (Jackson: Tr. 66-67; J. Maresca: Tr. 258). On September 14, respondent was working there late at night when he had what he described as a “very surreal experience.” He stated that, “it was like I was looking for myself, because that was the day that I realized I was the only one that survived” (Tr. 259). Respondent told Dr. Kristina Jones, a psychiatrist who has treated him since September 2007, after his arrest, that he felt he was looking at himself from outside (Tr. 153). Dr. Jones used the term “traumatic dissociation” to describe respondent’s experience and compared it to the feelings of people who have suffered sexual abuse, “who often report that they feel like they’re floating on the ceiling watching themselves do something as though they’re in a movie” (Tr. 154). After the dissociative event, respondent asked to be taken off his assignment at the site because he was so upset (Tr. 154). Although he stayed away from the site, he continued to report for work everyday and acted as a liaison between survivors of those who were lost and the Department. In particular, he helped the widow of a fellow firefighter and her two young children (J. Maresca: Tr. 260; Jackson: Tr. 68). In March 2002, he returned to the site because the remains of five members of his firehouse were found and there was a tradition among firefighters of returning to the site to go down with the rig and carry out, as he put it, “our own.” Respondent described the condition of the bodies they found in parts, in graphic detail. Referring to one deceased colleague, he testified: “we carried him out in two pieces. In just like mummified mush. He was this big, strapping guy, and it just tore me apart” (Tr. 261). He brought up the body of his friend in two pieces and somebody else he knew was brought up without a head, or, as respondent put it, “beheaded,” so “it was very clear that he was highly exposed to that” (Dr. Jones: Tr. 154; J. 9

Maresca: Tr. 263). Dr. Jones testified that respondent was “sobbing” and “just distraught” when he described this incident to her several years later (Tr. 154). In the period of the immediate aftermath of 9/11, respondent described himself as feeling confused, angry, sad, and guilty (Tr. 261). He drank heavily, to “extreme excess,” “from the minute we got back to the firehouse on 9/11 that night” (Tr. 261-62). Both respondent and Jackson testified about heavy drinking among firefighters in general immediately after 9/11 (J. Maresca: Tr. 262; Jackson: Tr. 73). Respondent’s co-workers and family noticed marked changes in his personality in the months and years following 9/11. Lt. Jackson testified that he “wasn’t the happy go lucky guy anymore.” He was “[m]ore edgy” (Tr. 71). Lt. Jackson remembered two incidents in particular when respondent seems to have acted inappropriately. In the first, he saw respondent in an altercation with another motorist on a street in midtown. Respondent argued with another driver over a parking spot (J. Maresca: Tr. 299). Respondent yelled at the other motorist and then reached in his car to grab him. Lt. Jackson ordered respondent to leave the scene. The other motorist was “kinda shooken up” [sic] (Jackson: Tr. 72). Lt. Jackson reminded respondent that such behavior was unacceptable and respondent “just stopped” (J. Maresca: Tr. 269). Respondent ascribed his behavior to “anger issues” (Tr. 299). The second incident occurred when respondent tried to get a room in a hotel that had been providing accommodations for firefighters. After some time had passed since 9/11, that free promotion stopped, and there was a rate discounted from the market rate. He had a verbal altercation with a desk clerk one morning at 2:00 a.m., when the clerk refused to provide him with a room at no charge (Jackson: Tr. 77). Respondent was intoxicated at the time and does not recall any details of the incident. He testified: “I was drunk out of my mind” (Tr. 269, 299). Lt. Jackson went to the hotel to “smooth that over” because respondent had made a scene (Tr. 77- 78). Lt. Jackson testified that respondent was also involved in “confrontations” in the firehouse with other firefighters over, for example, cooking duties. Lt. Jackson described respondent as “tense,” “nervous,” and “on edge” in this period immediately following 9/11 (Tr. 78). Clelia Maresca also noticed a marked change in her husband immediately after 9/11. He began to stay out late and come home smelling of alcohol. As time went on, she testified, “he 10 was crying and quiet and angry and guilty” (Tr. 133). He told her he felt guilty because they were having a baby while other children had lost their fathers on 9/11 (Tr. 133-34). When their daughter was born, on September 30, 2001, respondent testified that he was unable to enjoy what should have been a time of happiness. He said, “I felt guilty about my child being born. What gave me the right to be alive and be a father?” (Tr. 260-61). He was drinking to “extreme excess” and “really trying to get numb” (Tr. 262). Respondent’s condition began to be a strain on his relationship with his wife (Tr. 134). They began to argue more, in part because he was frequently away from home attending funerals and memorials of firefighters, including those of the five firefighters from Engine 54 whose remains were found in March 2002. Soon afterward, on April 8, 2002, respondent’s mother passed away, three weeks after she was diagnosed with lung cancer (Tr. 262-63). In the spring of 2002, respondent continued to drink heavily. He decided to seek help with the Department’s Counseling Services Unit (“CSU”) in an attempt to deal with his feelings of anger (Tr. 263-64).2 Respondent met with a counselor named Amy Stack and explained that he was the only survivor of his firehouse and that he was feeling very angry. He did not tell her about his heavy drinking at that time. The counselor suggested that he take a few weeks off to spend with his family (Tr. 264-66). The Department has lost all treatment records for respondent’s visits to CSU counselors except for a list of the dates of his visits (Tr. 264; Resp. Ex. I). Ms. Stack was not called as a witness, although she still works for the Department. In these circumstances, I draw the inference requested by respondent’s counsel (Tr. 340): that had the missing witness and documents been presented, they would have supported respondent’s case, not petitioner’s. “An adverse/negative inference based on a missing witness may be appropriate where the moving party has laid a foundation that the witness has knowledge about a material issue, that he would naturally be expected to give [non-cumulative] testimony favorable to the party who failed to call him, and that the witness is available to that party.” Dep’t of Homeless Services v. Aigbedion, OATH Index No. 2340/07, at 7 (Nov. 2, 2007) (citing People v. Gonzalez, 68 N.Y.2d 424, 509 N.Y.S.2d 796 (1986); Police Dep’t v. Smith, OATH Index Nos. 345-346/01, at 22 (May 23,

2 Dr. Jones recalled respondent telling her that his first visit to CSU was in April 2002 (Tr. 156). The Department’s incomplete records, however, give the date of his first visit to CSU as June 12, 2002 (Resp. Ex. I). Three counselors including Ms. Stack were listed in the September 21, 2007 letter from the nurse-director of the Department’s CSU, apologizing for the lost records. The Department did not call them as witnesses to refute the assertion that respondent did not receive proper care from CSU. Respondent’s case was marked “closed” several times, according to this letter, on particular dates in 2002, 2003, 2006 and 2007, each time shortly after his listed visits, prior to his arrest. After the arrest, he was carried on Department records as having an “open” case at CSU (Resp. Ex. I). 11

2001); Transit Auth. v. Davila, OATH Index No. 383/92, at 4-5 (Mar. 23, 1992)); Prince, Richardson on Evidence § 3-140 (Lexis 2008). In October 2002, respondent and Mrs. Maresca saw the counselor together. Mrs. Maresca was also experiencing emotional difficulties; she was depressed and having panic attacks (Tr. 134). She and respondent told the counselor about his heavy drinking. Respondent told the counselor that he was drinking “a few nights a week. Six, eight, ten beers” (C. Maresca: Tr. 135; J. Maresca: Tr. 267). The counselor referred Mrs. Maresca to a psychologist, Dr. Carmen Rivera, who treated her “short-term” as an outpatient from November 2002 until March 2003. Dr. Rivera only saw Mr. Maresca twice, and only the course of Mrs. Maresca’s treatment, but did not recommend any further treatment for him because he was not referred to her by CSU; she gave him only one day off, a Sunday (C. Maresca: Tr. 135; Resp. Ex. C). According to respondent, Ms. Stack of CSU told him to “slow it down,” in reference to his drinking, but did not recommend any treatment other than to give him two weeks off, and to transfer him back to Ladder 106 in Brooklyn (J. Maresca: Tr. 267-68). In 2002, when respondent transferred back to Ladder 106, his personality had changed in a “substantial” way. He was withdrawn and “wasn’t himself.” He was also drinking more than he had before (Duffy: Tr. 50). Respondent stated that he was drinking every day that he was off duty. He isolated himself by staying at home and drinking until he fell asleep (Tr. 269). Respondent’s drinking continued to worsen (C. Maresca: Tr. 136). In September 2003, two days before their daughter’s second birthday -- also an anniversary of 9/11 and all it meant to him -- respondent and Mrs. Maresca had a major fight. Nothing like this had ever happened between them before 9/11. Respondent had spent the night before drinking at a party until 5:00 a.m. He slept at the firehouse and went home around noon. They argued when Mrs. Maresca questioned respondent about where he had been, and the fight quickly escalated into a loud verbal and physical confrontation. Mrs. Maresca hit respondent and he spat at her. She took a steak knife from a kitchen drawer and chased him to another room, threatening to kill him. Fortunately, Mrs. Maresca did not stab her husband, but in her anger she plunged the knife into the wall. Her hand slid along the knife blade, cutting her and severing tendons and nerves in her hand. The police came to break up the fight. Mrs. Maresca received treatment for her wound and spent four days in a hospital psychiatric ward. Respondent got more time off, but no help (J. Maresca: Tr. 270; C. Maresca: Tr. 136-37). Respondent told essentially the same story of the 12 fight, but in more unflattering detail, including the fact that she questioned where he had been, and with whom, and hit him, and that he hit her back; realizing, however, that she is so much smaller than he, and wanting to avoid hurting her in a physical struggle, he spat at her, enraging her. He did not believe she would hurt him, and she did not. He also admitted that they used foul language with each other during the fracas (Tr. 270). Respondent again visited CSU. His reception there was hostile. The counselor told him, “You can’t keep coming here for time off. You have three years on the job. You have to handle your family problems.” Respondent told the counselor about his heavy drinking, but she did not refer him to an alcohol treatment program. He felt that the counselor was “belligerent” and that he was not welcome at CSU. He took two weeks off but did not return to CSU for more counseling (Tr. 271). As was the case in Fire Department v. Fahey, OATH Index No. 1376/07, at 14-15 (Oct. 9, 2007), I find that the Department should have done more about respondent’s and his wife’s expressed concerns about his drinking problem. In both cases, respondents’ wives told responsible parties in the Department that their husbands were drinking to fall asleep. It is also true that respondent lost an opportunity, as did firefighter Fahey, to avoid a penalty by seeking help under Department Order No. 39, section 2.2 (Apr. 5, 2002), which provides that termination is required for those firefighters who fail to seek help for an illegal substance abuse problem. Members who voluntarily seek assistance either through CSU or another treatment program of their choice do not face any penalty unless they thereafter test positive for illegal drugs or fail to complete a treatment program successfully. Respondent went for help, but he cited only the alcohol problem. Thus, respondent is ineligible for an exemption from penalty under this order and agency policy, but it is tragic that CSU was unable or inadequately equipped to address his alcohol problem and depression in any meaningful way. He was so lost that he turned to drugs. By that point, he was suicidal and unable or unwilling to come back for the help he desperately needed. After his arrest, respondent finally began to get the help he needed. Dr. Max Heinrich, a clinical psychologist, began treating respondent in November 2007.3 Respondent told Dr. Heinrich of his feelings of anxiety, sadness, and diminished interests (Tr. 99-100). He also told

3 I credit Dr. Heinrich’s testimony. Although Dr. Jones, who testified after Dr. Heinrich’s testimony was completed, mistook him as a regular witness for members of a firefighters’ organization, respondent’s attorney took pains to submit an affidavit of Dr. Heinrich, sworn to August 7, 2008, after the first hearing session, indicating that Dr. Heinrich is not affiliated with that organization and has only rarely testified in court. I have included that affidavit in the record as Respondent’s Exhibit N. I have no reason to doubt Dr. Heinrich’s professionalism. 13

Dr. Heinrich that the Department had not offered him adequate counseling, support, or treatment (Tr. 103). Dr. Heinrich suspected that respondent was suffering from post-traumatic stress disorder (PTSD). A psychological test administered to respondent indicated depression, guilt, suicidal thoughts, hyper-sensitivity, aggression, and difficulty with personal relationships including his marriage. According to Dr. Heinrich, these symptoms are consistent with PTSD (Tr. 100). Early in his treatment of respondent, Dr. Heinrich saw evidence of intrusive thoughts, recollections, and flashbacks. Respondent has recurring nightmares. He talks continually about the loss of his friends in the Department. The death of any firefighter since 9/11 has been “extremely difficult” for respondent to accept. Even events unrelated to the Department, such as a recent fatal crane accident and the death of his father December 2005, produced in him panic and anxiety. Dr. Heinrich testified that symptoms associated with PTSD include persistent re- experiencing of an event, persistent avoidance of trauma related to certain stimuli, and persistent symptoms of increased watchfulness (Tr. 102, 104). Dr. Heinrich emphasized what he found to be respondent’s sense of loss and feelings of guilt (Tr. 105). After testing and treating respondent, Dr. Heinrich had no doubt that respondent suffers from PTSD (Tr. 105). He has also diagnosed respondent as suffering from major depression. Dr. Heinrich found a “causal relationship” between respondent’s 9/11 experiences and his current psychological state. In regard to respondent’s drug use, Heinrich noted that people with mental disorders often engage in substance abuse, “medicating themselves,” particularly in the absence of other treatment (Tr. 107). In Dr. Heinrich’s opinion, there is a link between respondent’s PTSD and major depression and his drug use after 9/11, especially since he did not receive adequate treatment in the period immediately after the events that gave rise to his PTSD (Tr. 108). Dr. Heinrich has extensive experience treating Holocaust victims at Maimonides Hospital in Brooklyn. He likened respondent’s condition to the “survivor guilt” suffered by those who survived the Holocaust. In the aftermath of that debacle, the survivors struggle to understand why they were chosen to live while their loved ones were killed: [S]urvivor guilt is a general concept, it’s not a diagnosis in any formal sense. It’s a description of people who say essentially and show it by the affective display at the time, which is usually remorse, sadness, depression[, t] hat they feel that they had no[] right to live or why did they get chosen to live. In the extreme, I've seen 14

this with Holocaust victims who actually took food from other people to live and the other people died and the kind of remorse and guilt that went on for 20, 30, 40 years afterward. So, essentially survivor guilt may also be described as an anger at one[’s] self for surviving, translating into a depression and sadness and remorse.

(Tr. 101, 114).

Dr. Jones also diagnosed respondent’s condition as PTSD. She explained that the symptoms of PTSD fall into three basic groups: (1) re-experiencing, meaning events such as nightmares and flashbacks; (2) avoidance and fear; and (3) anxiety. Respondent had symptoms in all of those categories. Specifically, he has nightmares and thinks about 9/11 constantly; he cannot go near the site of the tragedy, even to pick up his wife, who works nearby; he is hyper- vigilant; and he is gripped by shame that he did not die on that day as did his friends. Respondent also has trouble sleeping and difficulty controlling his anger (Tr. 155). She quoted him as saying, “I did a lot [of cocaine] after 9/11. I was really out of control. I was afraid of hurting my kid” (Tr. 188). Respondent discussed his post-9/11 lack of adequate mental health treatment with Dr. Jones. He told her that he had been put on “WTC stress” leave and told to “go home, calm down, get a grip, spend time with his family” (Tr. 156). In Dr. Jones’ opinion, CSU should have referred respondent to alcohol abuse counseling or Alcoholics Anonymous, to a psychiatrist, or for individual therapy (Tr. 160, 228). She found it “very unusual” that he did not receive any such referral (Tr. 160). Dr. Jones felt that respondent was ill enough to recommend a voluntary psychiatric hospital admission. Respondent declined, however, as he was already in a substance abuse treatment program, and she did not insist (Tr. 160-61). Dr. Jones felt he needed intensive treatment. She prescribed Seroquel, an anti-psychotic drug, which is also a powerful sedative (Tr. 162-63). Respondent also takes medication for depression and insomnia (Tr. 167). Respondent’s medications impair his concentration and prevent him from driving or operating machinery (Tr. 168). The medication has been effective; respondent is no longer depressed and his drug and alcohol abuse has stopped. However, in Dr. Jones’s opinion, respondent still has PTSD (Tr. 165). According to Dr. Jones, there is “a very strong connection” between respondent’s PTSD and his use of cocaine (Tr. 173). She also spoke of a “strong causal link” between PTSD and 15 cocaine use. People with PTSD are at “extremely high risk” of drug abuse (Tr. 211). Dr. Jones had no doubt that the cause of respondent’s PTSD was 9/11 and his experiences working at the site in the aftermath. The “most significant contributing factors” to his alcohol and drug use were 9/11 and the physical injuries he sustained as a result (Tr. 225, 227). She believed that respondent was “self-medicating,” which is common among people with PTSD (Tr. 174). She could only speak of “extreme risk” of illegal drug use, but could not otherwise assess cause and effect (Tr. 211). Respondent has applied for a disability retirement based on PTSD, emphysema, and lung nodules (Tr. 110; Resp. Ex. L). Dr. Heinrich believes that respondent is currently unfit to return to active firefighting duty (Tr. 109). Dr. Jones testified that respondent is “severely mentally ill” (Tr. 227). She felt that respondent was so “impaired,” that she referred him to Dr, Feirstein, one of the Department’s medical officers, for a duty determination status evaluation (Tr. 174). The Department’s own experts, who formed a medical review committee of the Department, agreed with Drs. Heinrich and Jones in two written evaluations of respondent’s condition. The first, dated May 1, 2008, entitled “Result of Medical Committee,” by Drs. Weiden, Coplan and Marchisella, states that respondent had no cardiopulmonary complaints4 before the collapse of the World Trade Center, arrived at that site on the morning of its collapse, and thereafter suffered “significant exposure to dust and products of combustion” there. The committee diagnosed reactive airways disease with cough, dyspnea (difficulty in breathing), irritant sensitivity, and chronic, recurrent sinusitis. The Medical Board Committee found that he has a partial, permanent respiratory disability, making him permanently unfit for firefighting duties (Resp. Ex. M). The findings were signed by Dr. K.J. Kelly, Chief Medical Officer of the Department. The second evaluation, dated May 19, 2008, by a Medical Board Committee, this one consisting of Drs. Feirstein, Kelly and Miller, and also signed by Chief Medical Officer Kelly, found respondent unqualifiedly, permanently unfit for firefighting duties as a result of his experience since 9/11. The evaluation notes that respondent had no known history of psychiatric disorder before 9/11. It goes on to review his experience of being ordered to stay at the firehouse while his 15 colleagues went down to the World Trade Center and perished. Also recited are respondent’s terrible experience in the rescue effort, his symptoms of dissociation when he went to the pile for four days, and his harrowing return there in March 2002, where he helped carry

4 Respondent did indicate in his personal history questionnaire submitted to the Department when he applied for the job in 1998 that he had sinusitis, a nose condition, and chronic bronchitis (Pet. Ex. 10). 16 bodies, in pieces, of his dead comrades to a morgue staging area. The report confirms his diagnosis of PTSD, and notes respondent’s alcohol and substance abuse disorder, in remission, anxiety, sleep disturbance, isolation, irritability, and marked preoccupation with the loss of his fellow firefighters, as well as physical problems including asthma/reactive airways disorder and chronic nasal congestion for which he underwent unsuccessful surgery on March 15, 2008 (Resp. Ex. H). The Department now seeks a penalty of termination of respondent’s city employment. There is no question that respondent’s use of illegal drugs constitutes a serious violation of the Department’s rules. He testified that he was aware of the rules, but that he was in the throes of such extreme psychological difficulty that he did not care. I find that this admission, which inescapably shows deliberate misconduct for liability purposes, should receive a different kind of consideration when it comes to penalty, in the sense that respondent’s extreme carelessness and self-destructive conduct must be understood as the product, in some important way, of his serious illness, major depression and post-traumatic stress disorder. The Department has a zero tolerance policy for drug use. The policy requires termination unless a member voluntarily seeks help for illegal drug use. Dep’t Order No. 39 § 2.2 (Apr. 5, 2002). There is no doubt that the Department’s interest in safety for the public and for firefighters is vitally important. As explained in AUC 202 (Oct. 12, 2005), section 2.1, “the FDNY protects the lives and property of New York City residents and visitors.” The use of illegal drugs, which “alter alertness, judgment, physical agility and the ability to fulfill one’s work responsibilities,” is incompatible with the Department’s public safety mission. “Any impairment of the member’s physical and mental capabilities increases the danger of accidents and injuries, not only to the member, but to fellow firefighters and to the public.” Id. The AUC also notifies firefighters that even one positive test result for illegal drugs such as cocaine will result in termination of employment. AUC 202 §§ 3.2.2, 8.3. In this case, all agree that respondent is unfit to return to duty as a firefighter. The question here is whether respondent will be terminated or whether he will be allowed to retire with his benefits and disability pension after his service to the Department and to New York City, which resulted in the disabling impairment of his mental and physical health. It is clear to me that the difference in this man pre- and post-9/11 is stark, night and day. His life was broken as a result of his experience on the job on 9/11 and in its aftermath. Respondent is not 17 submitting a fraudulent claim -- there can be no doubt that he became severely ill. He was in a suicidal spiral and it took his arrest to get him the help he needs to come out of this tailspin. This is not a case where the mitigating factors offered by the respondent amount to nothing more than the ordinary stresses faced by many families. Firefighters are, and should be, held to a higher standard. For instance, in one recent case, this tribunal recommended termination of employment of a firefighter who claimed that the stress of caring for his ailing grandmother and worry for his brother serving in Afghanistan led to his use of cocaine, but he also had reasons for ingesting cocaine that suggested no basis for clemency. Fire Dep’t v. Lyon, OATH Index No. 2124/08 (July 28, 2008) (knowing use of cocaine, “[a]lso in part to score with [a] girl,” whom respondent knew, and who accompanied him from a local bar to his car for sex). A defense of PTSD relating to 9/11 was, more recently, rejected as a basis to mitigate the penalty of termination of employment in Fire Dep’t v. Peltonen, OATH Index No. 2101/08 (Oct. 9, 2008). This case, by contrast, is a troubling and close one, of a different order, more similar to other 9/11 cases where this tribunal has found that PTSD and physical ailments resulting from service on that terrible day and the ensuing months established the extraordinary mitigation necessary to recommend that termination be held in abeyance to allow retirement with benefits or that an alternative penalty, the maximum suspension without pay, be imposed in lieu of termination. It might be said that the cases concerning pleas for leniency by firefighters suffering from PTSD who have tested positive for illegal drugs fall within a spectrum between little or no basis to relax the zero tolerance policy (like Lyon) and extremely compelling mitigating factors that have led OATH judges to recommend that seriously ill firefighters be allowed to retire before termination is imposed, as in Fire Dep’t v. Kelly, OATH Index No. 804/06 (June 9, 2006) (recommending suspension without pay or the deferment of penalty so that respondent could retire on a disability pension due to work-related PTSD), modified on penalty, Comm’r Dec. (Jan. 2, 2007) (termination of employment imposed without grace period), aff’d sub nom. Kelly v. Scoppetta, 2008 NY Slip Op. 8490, 2008 N.Y. App. Div. LEXIS 8304 (2d Dep’t Nov. 5, 2008) (affirming penalty of termination for knowing cocaine use “despite evidence that the petitioner suffered from posttraumatic stress disorder”); Fire Dep’t v. Schroeder, OATH Index No. 1261/07 (Sept. 28, 2007) (ten days’ suspension or termination held in abeyance); Fire Dep’t v. Fahey, OATH Index No. 1376/07 (Oct. 9, 2007) (20-day suspension 18 recommended). See generally Puig v. McGuire, 121 A.D.2d 853, 856, 501 N.Y.S.2d 49, 51 (1st Dep’t 1986) (termination found disproportionate to offense where police officer refused to submit to drug test, given mitigation including many years of undercover work that resulted in severe disorientation; “root cause” of respondent’s extreme nervous condition could be directly traced to the pressure arising from the performance of his job). The recent affirmance by the Appellate Division, Second Department of the penalty of termination in Kelly, notwithstanding post-traumatic stress disorder suffered by the respondent there, can be read to mean that here, where the mitigating factors are arguably less compelling than those presented in Kelly, and the aggravating factors (issues about respondent’s lack of candor with the Department and at the hearing concerning the circumstances of his drug use) work against respondent here, termination is the appropriate penalty in this case. The Department could, by rights, continue to draw a clear line, and find that even those firefighters who suffered lasting psychological injury as a result of their service on 9/11, will be denied retirement benefits if they turn to illegal drugs. Such an approach has now been upheld by the Second Department without much discussion. It is reasonable for the Department to take the position that a firefighter who did not discredit the Department by using illegal drugs will retire with full benefits, but those who have used cocaine or other illegal drugs and failed to seek and accept help for that drug use will not. It appears, then, that any clemency for respondent rests within the sole discretion of the Commissioner. The sole issue is one of pity -- whether a firefighter who had the misfortune to get very sick in service to the City due to public service in the aftermath of 9/11 should be allowed full benefits despite serious misconduct. I recommend that respondent’s employment be terminated, consistent with applicable law and policy, but that the timing and manner of the severance of the employment relationship take into account respondent’s injuries on the job. In short, I recommend, on this complicated and problematic record, that in recognition of respondent’s very real illness and permanent disability suffered in service to the City, the Department allow him to retire with pension and benefits for which two sets of the Department’s own doctors found him qualified. This recommendation is limited to the unique facts of this case. Respondent’s counsel argued that the Department’s report, entitled “World Trade Center Health Impacts on FDNY Rescue Workers,” published as a six-year assessment of the health of firefighters who served during 9/11, makes the case that respondent should be given help by the 19

Department. It is true that report contains a pledge that the Department would continue to provide its members “who labored at the WTC site” with “the best medical and psychological monitoring and treatment for as long as it is needed” (Resp. Ex. E, at 4). The report finds that Department rescue workers who either were at the WTC site during the collapse of the buildings or lost loved ones on 9/11 felt the greatest impact on their mental health (Resp. Ex. E, at 35). The report explains that: Many members showed persistent behavioral changes and complex emotional reactions consistent with a stress-induced response to the disaster. Feeling numb, distant or detached are frequent findings in those suffering from PTSD, a psychiatric disorder that occurs after exposure to a terrifying event in which serious physical harm occurred or was threatened (as in the case of the WTC attacks). PTSD may occur immediately or at a later time and may persist. Effective treatment strategies involving social support, counseling and/or medications are available at FDNY-CSU [Counseling Service Unit]. It is unclear why some people are more prone to developing PTSD than others, but the process likely involves complex genetic, physical and social factors that are unique to each individual.

(Resp. Ex. E, at 40).

Between 2002 and 2006, the Department granted 75 qualified members of service permanent disability benefits due to psychological impairment. Before 9/11, the agency reported no cases of permanent psychological impairment in which firefighters received disability pensions, but after 9/11, there has been an average of 15 such cases annually in which such disability pensions were awarded (Resp. Ex. 3, at 47). However, the record amassed before me shows that in none of those cases has the firefighter been cited for using cocaine, and the agency policy of no tolerance for illegal drug use has been consistently applied in recent years, with only one exception. The parties stipulated that one captain was allowed to retire in April 2004, after using cocaine, pursuant to a testing stipulation, but this was before the agency revised AUC 2002 as of October 12, 2005, and began to take “a more hard line stance” on its zero tolerance policy (Tr. 244-45). The captain’s case did not involve PTSD. Thus, with one distinguishable exception, the Department has consistently drawn a bright line since at least 2004, announcing that termination of employment would be imposed against firefighters who use illegal drugs. I turn here to an analysis of the aggravating factors relevant to the penalty because such aspects of the whole picture cannot be ignored. Some of the evidence presented here causes concern about respondent’s credibility. He was heavily medicated at the time of trial, for 20 depression and stress, and was not his own best spokesman at the trial, by which time he had told his troubles countless times to his doctors. Indeed, respondent’s wife, his physicians, and his colleagues made a better case for him than he did. If he was not entirely reliable in his accounts of his drug use, I attribute only some of the discrepancies in his testimony to the denial that goes with substance abuse,5 but I also find that was alert and seemed to be able to understand the difference between reality and fiction during the course of his testimony, and he was obliged to be candid in his testimony. Respondent testified that he began to use cocaine again in late 2003 or early 2004 (Tr. 271). This was not his first experience with illegal drugs. He stated that, in his teens and early twenties, he used cocaine “periodically” (Tr. 248-49). He started drinking alcohol in his senior year of high school and began using marijuana and cocaine right after high school (Tr. 288). Respondent, who was born in 1968, estimated that he used cocaine approximately once a month until the age of 22 or 23. That was well before he applied to join the Department in 1998 (Tr. 289). While such drug use in the distant past might be considered of limited relevance in a case like this one, the false statement respondent made about it to get the job are serious and disconcerting for the adjudicator. The only evidence of respondent’s early drug use comes from his own testimony, his doctors’ recitation of what he told them, and the medical records he released in order to defend himself here. I have no way of knowing if respondent’s account is accurate, but there was no evidence whatever that he was using cocaine between 1991, when he said he was off drugs because he had matured, and September 11, 2001. When the Department notified respondent of his possible appointment in 1998, he was required to fill out a “Personal History Questionnaire.” In the answer to a question about whether he had any past use of narcotic drugs, respondent admittedly checked the box for “No” (Tr. 291; Pet. Ex. 10). This act of dishonesty to get the job in the first place affects respondent’s credibility in regard to his previous drug use, and weighs heavily against him. He admitted at trial that he did not complete the questionnaire truthfully (Tr. 292). His interpretation of the question to exclude information from his young adulthood was not a reasonable one. It is no excuse that others may routinely lie about illegal drug use on job applications. This type of dishonesty could provide independent grounds for termination of employment, but the Department has not charged respondent here with that form of misconduct.

5 Dr. Jones testified: “I expect anyone with a drug abuse problem to minimize their drug abuse. So, no, it would not surprise me in the least. People minimize and I don’t call it lying all the time” (Tr. 210). 21

Moreover, respondent seemed to have more familiarity with the logistics of purchasing drugs than he was willing to admit, and he minimized his drug use. He testified that after he began using cocaine again, he found it easily in bars in his Bay Ridge neighborhood. According to respondent, he did not purchase cocaine for money, but only used it when he came across others using it in the mens’ rooms of bars that he frequented. He testified that he bought drugs for cash only once or twice. He claims that he would usually offer to buy beer, in exchange for cocaine, for any fellow at the bar who happened to have the drugs, which he would ingest alone in a bathroom stall at such bars (Tr. 303-04). This testimony was not believable. It is unlikely that the others with whom he used drugs were all strangers. Instead, it seems clear that respondent knew exactly how and where to get cocaine when he wanted it. Respondent’s testimony about his arrest was also not entirely believable. According to police, who were staking out the area, he was arrested in a known drug location. He testified that, although he lives in Bay Ridge, he drove to Park Slope that day to run some errands. He was on vacation and was planning to visit an amusement park two days later with his family. According to respondent, someone he knew from the neighborhood, whom he had not seen in years -- but whom he knew to be a drug dealer -- happened to pull up alongside him while he was in his parked car making phone calls. He knew that the drug dealer would have “a substantial amount of stuff on him.” Respondent took advantage of this alleged coincidence to “stockpile” cocaine (Tr. 274-75). If respondent’s drug use was as infrequent as he claims, it is unclear why he felt the need to stockpile drugs. Although respondent testified that he did not leave home that morning planning to buy drugs (Tr. 275), it is more likely that his arrest was the result of a planned drug buy. Furthermore, the police observed respondent using his cigarette pack to conceal the transfer of money and drugs with the drug dealer, which respondent also admitted (Byrnes: Tr. 26; J. Maresca: Tr. 275, 315). Respondent presented his drug use as infrequent, taking place only when he happened to come across illegal drugs while in bars in Bay Ridge. However, his familiarity with techniques of street drug purchases belies his claim. The media attention his arrest received, which caused embarrassment to the Department, is also an aggravating factor. Fire Dep’t v. Benson, OATH Index No. 1638/06, at 6 (Sept. 5, 2006), aff’d, Comm’r Dec. (Sept. 13, 2006). His admitted use of cocaine only when on vacation or days off when he would get other firefighters to cover his shift, (Tr. 305), also indicated, as he plainly admitted further, a 22 knowing attempt to evade being caught in random drug testing by the Department and a degree of control over his drug use. Buying drugs on the street while his six-year-old daughter was in the car was dreadfully reckless. Taking his child to an area where he participated in illegal activities showed extreme desperation and disregard for his family’s safety and well-being. Respondent and his family narrowly avoided separation from their young daughter because the police showed courtesy to a fellow member of a uniformed force of New York City and called Mrs. Maresca to pick up the child at the precinct rather than handing her over to protective services. The police officers were not happy that a fellow uniformed officer had placed his child in jeopardy and them in a quandary about how best to return the child to safety. Their exasperation with him was explicit and visible during their testimony (Tr. 38). Other aspects of respondent’s testimony about his drug use were also troubling. He testified that he used drugs to “get numb.” He described his feelings in extreme terms: “Nothing mattered. I didn’t care if I lived, I didn’t care if I died, nothing mattered. I just wanted to get the pain out of me.” However, he testified that he did not use drugs or drink while working (Tr. 272, 329). He stated that he always reported for work and never missed a tour (Tr. 272). Respondent also told Dr. Jones that he never used drugs while on duty. In her opinion, he had limited control over his actions (Tr. 218). Respondent’s ability to control his drug use to the extent that he got himself to work begs the question of why he was not able to control himself while off duty. AUC 202 outlaws illegal drug use or possession by firefighters whether they are on or off-duty. However, the mental health professionals who treated respondent agreed that his drug use, if not caused solely, in a legal sense, by PTSD, was made much more likely by that illness. His PTSD, major depression, and alcohol abuse went untreated for several years, despite respondent’s fruitless efforts to get help from the Department for his illness. Respondent’s conduct in fighting with his wife, his intimate knowledge of the drug scene in Brooklyn, and his meeting with a known drug dealer while his daughter was in the car were disheartening, and absent his severe illness, would be simply appalling. In light of his PTSD, however, his actions are more properly seen as tragic and geared mainly toward his own self- destruction. Thus, his difficulties inspire as much chagrin as pity because he is ill. Although he 23 is improving with the help of medication and caring treatment,6 he has no interest in remaining an active firefighter. Against the portrait of respondent’s bad conduct, the principal mitigating factors in his favor are: (1) his severe PTSD and major depression resulting from his terrible on-the-job experience on and after 9/11; (2) the bona fides of the diagnosis (there is no malingering or fraud in this record concerning his illness); and (3) the Department’s failure to help him when he repeatedly went to CSU for his trauma and was told, by an overwhelmed counseling unit treating 2,500 firefighters in the two-and-a-half years following 9/11 (Tr. 51-52, 75-76, 186-87, 340), only to take time off, without the proper counseling and treatment. It is his illness and the lack of treatment that weigh most heavily in favor of mitigation here. Respondent’s failure to get adequate treatment cannot be laid entirely at his feet; the Department bears a certain measure of responsibility for respondent’s condition. Respondent sought help, but CSU did not recognize the serious nature of his illness and did not recommend any treatment other than taking time off. Cf. Benson, OATH 1638/06 (failure to seek treatment for substance abuse until several months after arrest considered aggravating factor in termination of firefighter). When respondent felt that he was not welcome at CSU, because of what he perceived to be a belligerent and unhelpful attitude there, he stopped his treatment. Respondent’s condition continued to worsen and his drug use began. The effect of respondent’s illness on his family is noteworthy. Mrs. Maresca’s testimony was particularly affecting. Even today, her husband is “very upset, angered.” She has trouble communicating with him. When he is home, he is to his wife “like a piece of furniture.” She feels, since his experiences on 9/11 and after, that he is not the same man she met and married. Her poignant words were: “I feel like the Fire Department ruined my life and destroyed his life. Look – he’s not -- I want my husband back. He’s not the same anymore. He’s not the same guy” (Tr. 138). Respondent’s loss of livelihood and of retirement benefits, and the effect of termination of respondent’s employment and benefits on his innocent family, should play a role in the decision. See Pell v. Bd. of Education, 34 N.Y.2d 222, 235, 356 N.Y.S.2d 833, 843 (1974). Termination of employment for the serious misconduct of illegal drug use is a remedy available to the Department to punish and deter such dangerous and deplorable misbehavior.

6 Respondent completed a Bridge Back to Life program and his drug tests in that program were reportedly clean as of the time of the hearing (Resp. Exs. B, F). As noted, his criminal case has been dismissed (Resp. Ex. K). 24

Possession of cocaine is an independent violation of agency rules that has resulted in termination of employment where there was nothing on record to support a lesser penalty. See Fire Dep’t v. Palma, OATH Index No. 1579/95 (Oct. 30, 1995). Illegal drug use by a firefighter responsible for the lives of fellow firefighters and members of the public in high-stress, life-threatening circumstances requiring sobriety is ordinarily unpardonable. But termination can, in the sole discretion of the Commissioner, be deferred if deemed appropriate, to enable this injured firefighter to retire and proceed with his recovery. To drop him without a safety net now seems harsh, given the genesis of his illness -- he got hurt on the job in service to the Department. It is clear that this respondent’s employment with the Fire Department must end, both because he committed serious misconduct and because he is neither able nor willing to perform the job of firefighter due to his health. The question is how and when to effectuate his separation from the service, and whether this is one of the rare cases in which compassion should lead the employer to allow respondent to end the employment relationship in a way that recognizes respondent’s job-related illness, the strain on his family of his work-related troubles, and his need for the kind of benefits that will keep him on a path to recovery and treatment. To the extent that it falls to me to make a penalty recommendation, I recommend that respondent be given a chance to retire before the termination of his employment is effected. The public record of his admitted illegal drug use would remain on file, and there would be no question that the Department has no tolerance for such misconduct, but respondent’s illness can also be viewed as an independent, compelling mitigating circumstance, wholly apart from his cocaine use. He would not in any sense be excused for the cocaine use. He is finished as a firefighter, and he is the first one to say so. But neither should he perish for lack of necessary help. Rather, he could be separated from service with support for his 9/11-related health problems in a way that would help him to avoid self-destructive conduct in the future and to provide for his family members, who have suffered terribly, right along with him, as if in a nightmare. None of the foregoing should be taken to mean that this tribunal minimizes or condones respondent’s use of illegal drugs. Nor do I suggest that respondent bears no responsibility for his own misbehavior. Nonetheless, respondent adduced compelling evidence, which leads to the conclusion that some form of mitigation may be warranted here. I am not suggesting that the Department is legally required to defer the penalty. Rather, the question is one of beneficence. Respondent has no legal entitlement to clemency. But his work for the Department on 25

September 11, 2001, and in its aftermath, had a ruinous effect on respondent’s life and on his once promising career in the Department. The undisputed evidence is that on September 10, 2001, he was outgoing, happy, capable (as shown by his success, in spite of himself, when he studied for promotion to Lieutenant), dedicated to his job, eager to help, quick to ask questions and to learn, and excited about the prospect of his imminent fatherhood. After 9/11, he was very nearly destroyed; he became withdrawn, depressed, edgy, angry, and disposed to alcohol and drug abuse. He became fragile. His post-9/11 behavior, including his use of illegal drugs, according to those treating him, is attributable in no small part to PTSD. Respondent developed that illness, PTSD, as a result of his duties as a New York City firefighter and it went largely untreated by the Department until his arrest -- which, ironically, may have saved his life. There is nothing cut-and-dried about this matter. Rather, this case highlights the fact that even among the ranks of the New York City’s bravest, as firefighters are known here, human beings cannot be perfect, nor are we impervious to overwhelming and disastrous events. Complex troubles can knock even the optimists flat and put them out of commission -- destroy their health, beset them, and becloud their better judgment. Accordingly, I recommend holding imposition of the penalty of termination of employment in abeyance, so that respondent may retire on a disability pension due to his work-related medical and psychiatric conditions, which were found by the Department’s own panels of expert doctors to have disabled him permanently.

Joan R. Salzman Administrative Law Judge

November 19, 2008 26

SUBMITTED TO:

NICHOLAS SCOPPETTA Commissioner

APPEARANCES:

MATTHEW J. GELLER, ESQ. TYRONE HUGHES, ESQ. Attorneys for Petitioner

SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO P.C. Attorneys for Respondent BY: MICHAEL N. BLOCK, ESQ.