In this Article 78 proceeding, petitioner seeks an order and judgment from this Court annulling as illegal, arbitrary and capricious respondent Belfiore's March 31, 2006 decision terminating petitioner as a police officer in DPS after a disciplinary proceeding held on January 23, 2006 pursuant to Civil Service Law § 75. Prior to petitioner's termination, petitioner worked for DPS as a police officer for approximately ten years. He also served as senior technician of a six member bomb squad, which required on call duty 24 hours a day, seven days a week (Transcript of Hearing held on 1/23/06 at 77, Answer, Exhibit D).

The disciplinary proceeding was instituted after respondent Belfiore preferred the following four charges against petitioner after his urine tested positive for marijuana use pursuant to a random drug test taken on or about November 29, 2005: [*2]

(1) violation of Department General Order 18.01 (subject: Discipline: Rules of Conduct) Section XXIV-A (entitled: Possession and Use of Drug) in that he used a controlled substance (see Answer, Exhibit Q);

(2) violation of Westchester County Executive Order 6-1998 (subject: Drug-Free Workplace) by failing to maintain a drug-free workplace (see Answer, Exhibit P);

(3) violation of Department General Order 18.01 (subject: Discipline: Rules of Conduct) Section XI-A (entitled: Unbecoming Conduct) by engaging in conduct unbecoming an officer based on petitioner's failure to conduct himself in a manner consistent with the highest standards of the law enforcement profession and prejudicial to the good order, efficiency or discipline of the Department (see Answer, Exhibit Q); and

(4) violation of Department General Order 18.01 (subject: Discipline: Rules of Conduct) Section XI-B (entitled: Unbecoming Conduct) by engaging in conduct unbecoming an officer including bringing the Department into disrepute, reflecting unfavorably upon you as a member of the Department or tending to impair the operation or efficiency of the Department (see Answer, Exhibit Q).

The Notice of Charges advised petitioner that if he was "found guilty of any of the ... charges, the penalty or punishment imposed ... may consist of dismissal from service, demotion in grade and title, suspension without pay for a period not exceeding two (2) months, a fine not exceeding one hundred dollars ($100) or a reprimand" (Notice of Charges at 3, Answer, Exhibit F).

Despite the possibility of a lesser sanction, during the disciplinary proceeding, DPS sought the maximum punishment of termination, arguing:

"Rice blatantly disregarded County policies and the general public welfare by testing positive for marijuana. Police officers are to serve and protect the public welfare, to uphold the law, and, in the course of their duties, to effect arrests and respond to emergencies. Consequently, as shown by the evidence, the use of illegal drugs by members of the DPS cannot and will not be tolerated. Rice's conduct is particularly egregious since he is a bomb squad technician who handles explosives and who is entrusted with the safety of the community and fellow law enforcement officers County-wide and across County lines. The public demands that police officers' integrity be above-reproach and Rice's actions have violated public trust and the integrity of DPS" (DPS's Closing Brief at 1-2, Answer, Exhibit K).

The hearing was held before Hearing Officer Steven T. Sledzik, a former Assistant County Attorney and a hearing officer regularly designated by the County for its disciplinary proceedings.^[FN1] At no time either prior to or during the disciplinary hearing did petitioner object to Hearing Officer's Sledzik's appointment, nor did petitioner seek Hearing Officer Sledzik's recusal.

The hearing itself was somewhat circumscribed based on petitioner's agreement to stipulate that for the purposes of the hearing and any subsequent judicial proceeding, he would not contest either the accuracy of the positive test finding of marijuana use or the County's compliance with the required procedures for the collection of the urine sample pursuant to the provisions of the parties' CBA (see Answer, Exhibit I). Indeed, during the hearing, petitioner admitted that he had smoked the marijuana on one isolated occasion ^[FN2] during the week before the drug test while he was visiting his girlfriend in South Carolina.

The hearing consisted primarily of testimony concerning the various policies and procedures regarding the County's random drug testing program found in the CBA, the County's Drug-Free Workplace Policy and Procedures, and two orders that had been issued by respondent Belfiore's regarding DPS's policy and procedures regulating DPS's random drug testing and the consequences of a positive drug test. Petitioner also provided testimony regarding his exemplary 10 year career with DPS (e.g., his stellar evaluations and numerous commendations), his educational achievements, and his voluntary submission to drug rehabilitation. Petitioner further argued that since he only smoked marijuana on that isolated occasion while he was on vacation in South Carolina, there was minimal risk that he would have been asked to participate in police duties on that date.

During the hearing, Deputy Commissioner Long testified that it was DPS's position that members who used controlled substances would be terminated from service, but he conceded that DPS's orders did not require termination and some lesser discipline would be consistent with DPS's policy. Petitioner also presented evidence that on February 28, 2005, as part of the collective bargaining process, the County submitted a proposal for a zero-tolerance policy which would require that if an employee failed a drug test, he/she would be subject to automatic termination without a hearing. However, since that new collective bargaining agreement had not been reached, this did not reflect the current CBA between the Westchester County Police Officer's Benevolent Association, Inc. ("PBA") and the County.

In its closing brief, DPS admitted that it has a zero-tolerance policy the purposes of which are to identify and discipline members who are putting themselves, co-workers and the members [*4]of the public at risk because they are armed and engaged in law enforcement activities, and that this zero-tolerance policy meant that members who use illegal drugs should be terminated from service.

In his post-hearing brief, petitioner argued that termination was not an appropriate punishment given the circumstances under which petitioner tested positive, and that to the extent respondents were concerned about petitioner's service as a part-time bomb technician, respondents could simply remove him from that assignment since there were a "plethora" of other assignments petitioner was qualified to handle.

On March 23, 2006, Hearing Officer Sledzik issued a report and recommendation finding petitioner guilty of three of the four charges ^[FN3] and recommending termination from employment. Hearing Officer Sledzik stated that termination was a fair and just penalty because petitioner, by using a controlled substance, "brought discredit on his Department and could have posed a risk to his or others' safety" (Hearing Officer's Report and Recommendation at 6, Answer, Exhibit C).

Thereafter, on March 27, 2006, the County's Police Advisory Board adopted a resolution setting forth its determination, which concurred with Hearing Officer's Sledzik's findings of fact as well as his recommended penalty of termination (Answer, Exhibit B). In making his decision to terminate petitioner, which was set forth in his letter to petitioner dated March 31, 2006, respondent Belifiore stated that he had reviewed the Police Advisory Board's resolution, Hearing Officer's Sledzik's Report and Recommendations, the hearing transcript and exhibits (Answer, Exhibit A).

In the petition, petitioner alleges that respondent Belfiore adopted and implemented an unwritten zero tolerance policy with regard to drug use (i.e., that any sworn member of DPS who tests positive for marijuana use must be terminated from his/her position) and that he was terminated pursuant to this unwritten zero tolerance policy. Petitioner contends that this was contrary to the written policy that had been adopted by the County since the County's written policy "does not contemplate the termination of any such person by reason of their simply testing positive for inter alia marijuana" (Petition at ¶ 4). Petitioner asserts that respondent Belfiore's decision was arbitrary and capricious since it was based on this illegally adopted unwritten zero tolerance policy. Petitioner further asserts that the punishment imposed was excessive and should be reduced. Finally, petitioner claims that he was not given a fair disciplinary hearing because Hearing Officer's Sledzik was biased in favor of the County based on his previous employment with the County as an Assistant County Attorney, and the numerous appointments he has received from the County to preside over its disciplinary proceedings.

In their answer, respondents deny the material allegations regarding (1) that respondent "Belfiore adopted and implemented an unwritten zero tolerance' policy by reason of which any sworn member of the Department of Public Safety who tests positive for ... marijuana is required to be terminated from his/her position of employment" (Petition ¶ 3) (Answer at ¶3), (2) that this unwritten zero tolerance policy was the basis of petitioner's termination (see Answer at ¶¶ 18-23, 26-28). Instead, respondents contend that "[p]etitioner's termination occurred after a full and fair [*5]hearing under Section 75 which was recommended by the Hearing Officer, adopted by the Police Board and later implemented by the Commissioner" (Answer at ¶ 41). With regard to the allegations concerning the appointment and alleged bias of Hearing Officer Sledzik, respondents admit that Hearing Officer Sledzik was previously employed as an Assistant County Attorney and that Hearing Officer Sledzik is one of a select few who regularly serves as a hearing officer in connection with the County's disciplinary proceedings pursuant to Civil Service Law § 75, but respondents deny all of the allegations concerning Hearing Officer Sledzik's bias and the fact that the termination was predetermined by Hearing Officer Sledzik based on this unwritten zero tolerance policy (see Answer at ¶¶ 8, 13 29-30). In opposition to petitioner's position that the penalty imposed was excessive, respondents contend that the penalty imposed was entirely appropriate and rational in light of petitioner's misconduct (Answer at ¶¶ 31-36).

LEGAL DISCUSSION

As an initial matter, the Court notes that since the petition does not seek this Court's review of whether Hearing Officer Sledzik's decision was supported by substantial evidence and instead seeks a review of (1) whether petitioner's right to a fair hearing was violated based on the Hearing Officer's alleged bias, (2) whether the penalty of termination was arbitrary and capricious, and (3) whether the termination was arbitrary and capricious since it was based on an unwritten zero tolerance policy unlawfully adopted by respondents this Court has the jurisdiction to decide the issues raised.^[FN4]

Petitioner has alleged that the hearing was a sham based on Hearing Officer's Sledzik's bias in favor of the County because he is a former Assistant County Attorney who regularly receives hearing officer appointments from the County and always (with one exception) rules in favor of the County in its disciplinary proceedings.

There is a " presumption of honesty and integrity accorded to administrative body members'" (Matter of Yoonessi v State Bd. for Professional Med. Conduct, 2 AD3d 1070, 1071 [2003], lv denied 3 NY3d 607 [2004], quoting Matter of Sunnen v Administrative Review Bd. for Professional Med. Conduct, 244 AD2d 790, 791 [1997], lv denied 92 NY2d 802 [1998]). While an administrative determination may be annulled where there is a showing that " prejudice so permeate[d] the underlying hearing as to render it unfair'"(Matter of Richstone v Novello, 284 AD2d 737, 739 [2001], quoting Matter of Jean-Baptiste v Sobol, 209 AD2d 823, 824 [1994]), a petitioner's bald allegations of bias are insufficient. Instead, "the party alleging bias must set forth a factual demonstration supporting the allegation as well as prove that the administrative [*6]outcome flowed from it'" (Matter of Yoonsessi, 2 AD3d at 1071, quoting Matter of Sunnen, 244 AD2d at 791). Furthermore, bias objections are deemed waived unless they are made at the time of the hearing (Matter of Kabnick v Chassin, 223 AD2d 935, 936 [1996], affd 89 NY2d 828 [1996]); Matter of Lauersen v Novello, 293 AD2d 833, 835, n1 [2002]; Matter of Kole v New York State Educ. Dept., 291 AD2d 683 [2002]).

Petitioner's claims regarding Hearing Officer Sledzik's inherent bias based on his prior employment as an Assistant County Attorney and the income he earns from the County by presiding over the County's disciplinary proceedings are not preserved since petitioner failed to object to the appointment of Hearing Officer Sledzik at the time of the disciplinary hearing. Furthermore, even if these objections were preserved, there is nothing in the record to suggest that Hearing Office Sledzik had pre-determined the penalty prior to the hearing or that he was unfair during the hearing since the record demonstrates that he was even-handed with regard to his evidentiary rulings and he gave petitioner wide latitude in the presentation of his case (Matter of Connor v New York City Police Dept., 22 AD3d 425 [2005]).

Petitioner's argument that the penalty of termination was arbitrary and capricious is likewise without merit. The documentary evidence establishes that the CBA explicitly provides termination as a permissible sanction for positive drug tests based on the discretion of respondent Belfiore. Although the CBA sets forth an overarching policy of rehabilitation rather than discipline, there was nothing in the CBA which prevented respondent Belfiore from terminating petitioner based on his failed drug test. In situations such as this one, given the duties required of a police officer and the fact that police officers are permitted to carry their guns on and off duty, the punishment of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Gordon v Brown, 84 NY2d 574 [1994]; Trotta v Ward, 77 NY2d 827 [1991], rearg dismissed 79 NY2d 887 [1992]; Matter of Connor, 22 AD3d at 425; Matter of Seeley v City of New York, 269 AD2d 205 [2000]; Matter of Casey v New York City Housing Auth., 249 AD2d 230 [1998]; Matter of McCoy v Gunn, 153 AD2d 863 [1989]; cf. Matter of Catlin, 255 AD2d at 967).

Petitioner claims that respondents adopted an unwritten zero tolerance policy which required petitioner's termination and that this policy conflicts with the CBA's policy and the County's policy of rehabilitation rather than termination. A review of the record of the proceedings, however, does not support petitioner's position.

It is undisputed that the CBA controls the policy and procedures with regard to DPS's random drug testing and the consequences that arise for those DPS's police officers who test positive for drug use. Thus, the CBA provides that "[w]here the provisions of this agreement are in conflict with County policy or practices, this agreement shall govern, except as provided by law" (CBA, Answer, Exhibit O at § 1.5). Indeed, Deputy Commissioner Long testified that General Order 14.14.01 (regarding DPS's policies and procedures regarding drug testing) that had been issued by respondent Belfiore in October 2005 did not supercede the policy and procedures set forth in the CBA with regard to random drug testing and the consequences of positive results.

CBA, Article XII provides that "[t]he procedures annexed hereto as Appendix C shall apply to alcohol and controlled substance tests of employees" (id. at §12.1). CBA Appendix C, entitled Westchester Department of Public Safety Drug Testing Policy and Procedure, provides that all police officers would be subject to random drug testing (Answer, Exhibit O, Appendix C, [*7]¶ VII, G), and that "[p]olice [o]fficers who receive a verified positive test result for drugs may be disciplined and/or offered treatment (via referral to the EAP) at the option of the Commissioner" (id. at VII, H(1)(a)). The Policy and Procedure further provides that "[a]ny violation of the Drug-Free Workplace Policy may lead to disciplinary action. The severity of the action will depend on the circumstances of each case, however, employees need to be aware that certain offenses, including but not limited to the sale or use of controlled substances on County premises, will normally result in a recommendation of termination" (id. at VIII).

Nevertheless, the broad policy statement sets forth the CBA's intent, which was to create a humanitarian program where "[t]reatment, in lieu of discipline, is a very important aspect of the plan (Discipline, however, is always an option)" (id. at I) and that the Policy and Procedures "emphasize treatment and help rather than discipline in most cases" (id.). Thus, the CBA provides that "[i]t is believed that most persons with substance abuse problems can be treated while continuing in their positions" (id. at IV), however, "[v]oluntary requests for assistance will not prevent disciplinary action for violation of the County's Drug-Free Workplace Policy" (id.). During the hearing, Deputy Commissioner Long confirmed that the notion of treatment rather than discipline was the County's governing policy (Transcript of Hearing held on 1/23/06 at 43, Answer, Exhibit D).

Petitioner provided evidence during the hearing of an existing written zero tolerance policy set forth in respondent Belfiore's General Order No. 14.14.01 dated October 26, 2005,^[FN5] which was in effect at the time of petitioner's positive drug test. General Order No. 14.14.01 sets forth its purpose: "[t]o set guidelines for random drug testing of sworn members of the ... [DPS] in an effort to establish an effective deterrent to illegal drug use/controlled substance abuse" (Answer, Exhibit V at ¶ I) and that DPS's goal is:

"to ensure that its members do not use illegal drugs ... and maintain a high standard of performance in a safe and drug free environment. The use of illegal drugs ... will not be tolerated, and officers that do so will be subject to disciplinary proceedings. Notwithstanding the Westchester County Drug-Free Workplace Policy emphasizes treatment and rehabilitation rather than discipline .... the [DPS] has a Zero-Tolerance Policy. The purpose of the ... [DPS] drug testing program is to identify members of the Department who are using illegal drugs, and consequently placing their co-workers, the public and themselves at risk, and to initiate the disciplinary process" (id. at ¶ II [emphasis supplied]).

During the hearing, Deputy Commissioner Long testified that with regard to drug use, DPS holds its police officers to a higher standard because of the nature of the work they perform and the fact they are armed. He also testified that DPS has a zero tolerance policy which means that "any member of the service who uses controlled substances ... will be separated ... [i.e., terminated] from service" (Transcript of Hearing Held on 1/23/06 at 15, Answer, Exhibit D). Deputy Commissioner Long further testified that the zero tolerance policy provision set forth in General Order 14.14.01 requiring that the offending officer be disciplined up to and including termination did not conflict with the provisions of the CBA since it does not require termination upon a positive test and some lesser discipline would be consistent with the zero tolerance policy (id. at 52).

As part of petitioner's case, petitioner called Detective Kenneth Schaeffer, a Trustee for the Executive Board of the PBA, who represented the PBA in the contract negotiations that had been occurring with the County over a new CBA. He testified that the County proposed a new CBA that would change the drug screening policy to have a zero tolerance dismissal upon an employee's positive drug test (i.e., that rather than having a disciplinary hearing, the employee would be terminated without a hearing) (id. at 85-88). Mr. Schaeffer further testified that the current provisions of the CBA do not preclude DPS from disciplining and/or terminating a member of the department based on a positive drug test (id. at 89).

Finally, contrary to petitioner's position, it appears that Hearing Officer Sledzik was well aware that it was the provisions of the CBA (not the zero tolerance policy set forth in General Order 14.14.01) that governed his determination. Thus, during a colloquy over the admission of the proposed CBA agreement involving the new zero tolerance policy regarding immediate termination without a hearing, Hearing Officer Sledzik stated:

"the Collective Bargaining Agreement permits termination. It just doesn't require it ... if I choose not to decide what the County policy is and just apply the Collective Bargaining agreement, I have no problem" (Transcript of Hearing held on 1/23/06 at 91, 93, Answer, Exhibit D).

It is evident based on the documentary evidence and the hearing transcript that DPS had a written zero tolerance policy embodied in General Order 14.14.01, which required that DPS initiate a disciplinary proceeding with the goal of terminating a police officer who tested positive from service. Although that goal differs from the policy goal of rehabilitation set forth in the CBA, the zero tolerance policy does not violate the CBA's terms since they provide for the institution of disciplinary actions against members testing positive for drug use at the option of the Commissioner. The CBA also recognizes that such disciplinary proceedings may lead to sanctions up to and including termination. Similarly, the County's Drug Free Workplace Policy and Procedures embodied in Executive Order No. 6-1998 requires that all drug testing be conducted in accordance with the relevant agency's collective bargaining agreement. Furthermore, it specifically contemplates possible termination since it provides that "[a]ny violation of Westchester County's Drug-Free Workplace Policy and Procedures may be considered grounds for dismissal ...." (Answer, Exhibit P). Accordingly, contrary to petitioner's [*9]position, termination based on a positive drug test is not violative of either the CBA or the County's Drug Free Workplace Policy and Procedures.

Here, the decision to terminate petitioner occurred as the result of the findings of fact and recommended penalty set forth in the report issued by Hearing Officer Sledzik after the disciplinary proceeding held pursuant to New York's Civil Service Law § 75. Because the CBA and the County's Drug Free Workplace Policy and Procedures explicitly permit termination as a punishment for a positive drug test, and because petitioner was terminated pursuant to the disciplinary proceeding rather than pursuant to some unwritten zero tolerance policy, the Court finds respondent Belfiore's decision to terminate petitioner neither arbitrary nor capricious and well within his discretion (see Matter of Casey, 249 AD2d at 231).

Petitioner is not Entitled to Disclosure

Pursuant to CPLR 408, a party must seek leave of court in order to take an examination before trial ("EBT") of either a party or non-party witness and ample need must be demonstrated "because discovery tends to prolong an action and is therefore inconsistent with the expeditious nature of a special proceeding" (Plaza Operating Partners Ltd. v IRM (U.S.A.) Inc., 143 Misc 2d 22, 23-24 [1989]). The party moving to take the EBT has the burden of demonstrating the necessity of any EBT and the areas sought to be investigated (Atkinson v Trehan, 70 Misc 2d 612, 613 [1972]; see also Matter of Town of Pleasant Valley v New York State Bd. of Real Property Servs., 253 AD2d 8 [1999]; Stapleton Studios, LLC v City of New York, 7 AD3d 273 [2004]). Although the granting of leave is within the discretion of the trial court, the court must find that the information sought is material or necessary to the prosecution or defense of the proceeding (Matter of General Electric Co. v Macejka, 117 AD2d 896 [1986]; Matter of Katz Buffalo Realty, Inc. v Anderson, 25 AD2d 809 [1966]). Where a court determines a petition does not state a cause of action, discovery is properly denied (Matter of O'Connor v Stahl, 306 AD2d 286 [2003]).

The standard for determining whether a party should be granted such leave has been set forth as follows:

"(1) whether the petitioner has asserted facts to establish a cause of action; (2) whether a need to determine information directly related to the cause of action has been demonstrated; (3) whether the requested disclosure is carefully tailored so as to clarify the disputed facts; (4) whether any prejudice will result; and (5) whether the court can fashion or condition its order to diminish or alleviate any resulting prejudice" (Matter of Lonray, Inc. v Newhouse, 229 AD2d 440, 440-441 [1996]).

Petitioner has moved to take the EBTs of respondent Belfiore and non-party witness Steven Sledzik "in order to resolve material issues of disputed fact as presented by the pleadings" (Notice of Motion Pursuant to § 408 of the CPLR at 1). Petitioner, however, fails to identify the areas of inquiry for each proposed deponent or how the EBTs are necessary for his prosecution of the proceeding.

Respondents oppose the motion on the grounds that it is untimely and that petitioner has [*10]failed to show how the EBTs are necessary to clarify the issues in this proceeding since neither respondent Belfiore nor Hearing Officer Sledzik were witnesses in the disciplinary proceeding.

Here, other than petitioner's conclusory assertion that the pleadings reveal that there are disputed issues of fact material to this proceeding, there has been no showing of how the EBTs of respondent Belfiore and Hearing Officer Sledzik are material and necessary to the issues present in this proceeding. It is clear that respondent Belfiore's decision to terminate petitioner was made after his independent review of the disciplinary proceeding, the findings of fact and recommended penalty provided by Hearing Officer Sledzik, and the resolution adopted by the Police Advisory Board. Hearing Officer's Sledzik's recommendation occurred after a full-fledged disciplinary hearing where Hearing Officer Sledzik specifically recognized that the discipline of termination was permitted pursuant to the CBA based on a positive drug test. There is no basis for petitioner's contention that Hearing Officer's decision was predetermined based on some unwritten and illegally adopted zero tolerance policy. Therefore, there is no need for petitioner to question respondent Belfiore over this alleged unwritten zero tolerance policy. Furthermore, as noted supra, petitioner's claims of bias against Hearing Officer Sledzik were waived based on petitioner's failure to raise this objection at the time of the hearing. Therefore, there is no need to question Hearing Officer Sledzik regarding the nature of his relationship with the County in order to establish his alleged bias. Because the Court has found the petition to be without merit, petitioner's application for disclosure is denied (see Stapleton Studios, LLC, 7 AD3d at 275).

Based on the foregoing, it is hereby

ORDERED, that petitioner's motion for disclosure pursuant to CPLR 408 and CPLR 7804(a) is denied; and it is further

ORDERED, that the petition is denied and the proceeding is dismissed.

The foregoing constitutes the Decision, Order and Judgment of this Court.

Dated: White Plains, New York

March 19, 2007_________________________________________

HON. JONATHAN LIPPMAN, J.S.C.

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