Trauma Can't Excuse It
Seek SanWorker's Firing Over Drugs

By REUVEN BLAU

An Office of Administrative Trials and Hearings judge has recommended firing a Sanitation Worker who failed his third drug test after his truck accidentally hit and seriously injured a young mother walking on the street.

ALESSANDRA F. ZORGNIOTTI: Tough call.

Administrative Law Judge Alessandra F. Zorgniotti noted that Sanitation Worker Noel Betancourt was adhering to a drug-and-alcohol rehab program, but concluded that was no guarantee that he would not suffer a relapse. "My sympathy for respondent's situation is outweighed by my concern that respondent poses an unknown safety risk," her 7-page recommendation concluded.

Recurring Problem

Mr. Betancourt, who started working for the city in 1999, failed his first drug test on Sept. 24, 2001. At the OATH proceeding dealing with his latest transgression, he testified that he used drugs as a teenager and that he began drinking and using cocaine after he passed his departmental probationary period.

As a result of the failed test, he agreed to be placed back on probation and to go to rehab. But on April 2, 2002 he failed another random drug screening. Following that test, he signed a last-chance agreement and was placed in the department's Employee Assistance Unit.

During the next two years, he turned things around, passing repeated drug and alcohol tests. But on June 18, 2005, that changed after he accidentally smashed into a woman with his truck as he was turning the corner.

Mr. Betancourt testified that he looked into his mirror and saw "a leg sticking out." He then stopped his truck, ran back, and saw a woman lying in the street with blood all over. The scene, he said, was the most horrific thing he had ever seen, and he almost fainted. He called 9/11 and notified the department, and wanted to accompany the woman in the ambulance but was advised not to go, Ms. Zorgniotti's ruling said.

At the scene and later, Mr. Betancourt was questioned about the incident and immediately tested for drugs; the test came back negative. He was ultimately found not culpable, as he told investigators that he never saw the woman, who was hit in an intersection where there are signs posted not to cross, according to the OATH recommendation.

'Fell Off the Handle'

But he testified that he was extremely upset during the initial investigation, which led him to immediately drive to a bar and have his first drink in years. He said that he drank to excess until he forgot what had happened.

When he returned to work the following Monday, he testified that he was shaking and uncomfortable behind the wheel. He wanted to send flowers but was advised not to and was unable to get information about the woman's condition until he read in the newspaper that she was 28 years old and had two children.

After her family filed a claim against the city, he learned that she was in a permanent vegetative state, he testified. He was unable to eat or sleep and started having nightmares and flashbacks of the accident, the recommendation stated. At the OATH proceeding, he said that he "fell off the handle" and did not seek any help. His attorney noted that the department did not send him for counseling.

'Relieved' When He Failed

On Sept. 22, 2006, he failed his third drug test, and he testified that he was relieved to get caught. Shortly afterwards, he entered an intensive 28-day substance-abuse program where he successfully finished his treatment. He then moved into a halfway house for recovering substance-abusers, where he attends daily meetings and is subject to constant random tests. He plans to stay at the facility for several years because of the support network, he said.

Despite those steps, the department asserted that his third positive test indicated that he could no longer cope with his problem, arguing that he is a safety risk.

Mr. Betancourt's attorney, however, contended that his client should be given a "second last chance." Several department supervisors and a social worker at the rehab home all testified on his behalf as well, asserting that he's a hard worker who was suffering from Post-Traumatic Stress Disorder.

'Can't Cope Using Coke'

ALJ Zorgniotti said that the arguments presented by both sides were compelling, but she noted Mr. Betancourt's prior problems. "While the pedestrian accident was tragic, it does not excuse the use of cocaine as a coping mechanism," she added. "Indeed, respondent failed to seek treatment services and was abusing substances for over a year before he was caught."

She continued, "Certainly, the department has the right and responsibility to draw the line somewhere, and a 'three strikes and you are out policy' is not unreasonable."

But she also admonished the department for not offering counseling to Mr. Betancourt after the accident. "While it is troubling that respondent did not seek treatment for his nightmares, depression, and substance abuse, it is also unfortunate that the department did not inquire whether counseling for this on-the-job tragedy would have been helpful, especially in light of respondent's prior substance abuse history," she said.

Doherty's Call

Her recommendation was forwarded to DSNY Commissioner John J. Doherty, who has final authority in disciplinary matters.

Ms. Zorgniotti's decision also noted that the Administrative Code limits the penalties that OATH can impose in such cases to either a 30-day suspension or termination. But she pointed out in a footnote that Commissioner Doherty has the ability to place Mr. Betancourt on a long period of monitored probation "given the unusual factors underlying respondent's relapse and the fact that he has apparently re-gained control over his substance problem and is viewed by his colleagues as an asset to the department."