Drug-test notification altered

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October 19, 2009

By DENISE RAYMO The Press Republican Mon Oct 19, 2009, 04:49 PM EDT

MALONE — The Malone Town Council is investigating who changed paperwork that designates who receives the results of employee drug tests.

The answers will explain how councilors did not know that Deputy Highway Superintendent Thomas J. Shanty allegedly tested positive for marijuana use following a snowplow accident on Dec. 8, 2008.

He was suspended without pay from his $35,000 job as a heavy-equipment operator last week and charged by the Town Council under Civil Service law with misconduct.

A hearing is set for 10 a.m. Monday, Nov. 9, in the Town Offices.

Shanty is running for highway superintendent against Ronnie Benware in the general election on Nov. 3. Alvin Livernois decided not to seek re-election to another four-year term as highway superintendent.

Shanty says the release of information about the accident and drug test is happening now to discredit him to voters and because of a rift involving Town Supervisor Howard Maneely.

But the supervisor denies any conflict with Shanty and said no one on the Town Council knew of a positive test until a few weeks ago.

FEDERAL LAW

The federal Drug-Free Workplace Act took effect in 1988, followed on Jan. 1, 1996, with the Omnibus Transportation Employee Testing Act under U.S. Department of Transportation regulations.

The law requires random and post-accident testing of people with commercial drivers’ licenses and in safety-sensitive jobs.

The town adopted an alcohol and drug policy on April 22, 1998, about two weeks after the union representing the highway workers did so.

The Town of Malone Unit 6858 -00 of Franklin County Local 817 of the Civil Service Employees Association, Local 1000 of the American Federation of State, County and Municipal Employees and American Federation of Labor-Congress of Industrial Organizations adopted the policy on April 9, 1998.

It states no one assigned to a safety-sensitive job, including heavy-equipment operators, “shall report to work unfit for duty at the beginning of a shift or upon return from any break, lunch or rest period as a result of consuming alcohol, illegal drugs or other intoxicant.”

Item 5 under “employee responsibilities” states that if it can be proven that an employee’s use of alcohol, drugs or another intoxicant contributed to a work-related accident, the person can face discipline, including being fired.

TESTED AFTER CRASH

The December 2008 crash occurred on Duane Road near the intersection with Bull Run Road about 8 a.m., where Shanty had stopped the snowplow.

Cody Lader, 20, of Norwood was driving north behind him, saw the plow stopped in the road and tried to brake. But the snowy pavement caused his Jeep to slide into the rear of the plow, according to a report made by Malone-based State Police.

No one was hurt. Lader was ticketed for failure to reduce speed for a special hazard; Shanty was not ticketed.

Shanty underwent a mandatory drug test following the crash.

CONTACT CHANGED

The town uses the Jefferson-Lewis-Hamilton-Herkimer-Oneida Board of Cooperative Educational Services in Watertown for its drug-test reporting since it is a federally approved site.

The agency keeps on file paperwork designating to whom the test results go.

Maneely and Livernois had been listed as the contacts on the application, but Maneely said that when he called BOCES in mid-August to check on Shanty’s December test results, “they said they couldn’t talk to me. They said I couldn’t find out because I wasn’t on the list. That’s how I found out I’d been removed from the list.”

He said that instead of his name and Livernois’s being listed as contacts, the document listed Livernois and Mark Besio, clerk of the Highway Department and manager of Malone-Dufort Airport.

But Besio said that, by federal law, he cannot be told the results because he is a secondary contact, not the primary one, on the paperwork.

Besides Shanty, “only Alvin can be told,” Besio said.

TRACKING IT DOWN

Maneely said the person who made the change had to contact BOCES for an application to alter the designees, fill out the paperwork and resubmit it before BOCES could make the change in notification.

Asked when and who made the change, the supervisor said, “That’s what we’re trying to find out.”

Maneely said the BOCES paperwork has since been changed back to include him.

He added that Livernois did tell the Town Council at its December 2008 meeting that Shanty had an accident with a snowplow, but none of the members received the test results because of the paperwork change.

The town will use its attorney, Lillian Anderson-Duffy, for its legal advice and also hired an Albany law firm to represent its interests, Whiteman, Osterman and Hanna LLP.

Law firm representative Beth Bourassa sent a fax and e-mail to the Press-Republican stating that any further questions should be made to her rather than Town Council members.

E-mail Denise A. Raymo at:

draymo@pressrepublican.com