Malone official drove after town action to restrict him

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October 27, 2009

By DENISE RAYMO The Press Republican Tue Oct 27, 2009, 07:54 PM EDT

MALONE — Deputy Highway Superintendent Thomas Shanty continued to drive a town snowplow, even though he wasn’t supposed to under federal regulations.

But he told a labor-relations official he was just following orders from his boss, Highway Superintendent Alvin Livernois.

Shanty, who is running for highway superintendent on Nov. 3, was involved in a property-damage accident on Duane Street Road near the intersection of Bull Run Road on Dec. 8, 2008.

The heavy-equipment operator submitted to mandatory alcohol-and-substance-abuse testing and was notified Dec. 12 that he tested positive for marijuana.

REMOVAL MANDATED

Under U.S. Department of Transportation regulations that his union participates in, Shanty was to be removed from safety-sensitive duties, such as snowplow driving, until he was evaluated by a substance-abuse counselor.

That counselor was to determine whether further drug-treatment assistance was needed, then decide when Shanty could return to safety-sensitive duties.

That evaluation took place in mid-December and was finished Dec. 31.

No follow-up treatment was recommended, so Shanty was cleared for return to duty on Jan. 15, 2009.

DROVE BEFORE CLEARED

But _ according to documents obtained from the Town Highway Department by the Press-Republican under the Freedom of Information law _ Shanty had plowed and sanded roads and driven other highway machinery at least 14 times between Dec. 12 and 31.

And between Jan. 2 and Jan. 16, when Shanty was filling in for his vacationing boss, he plowed and sanded another 10 times.

When asked Tuesday about the work-assignment records and Shanty’s driving, Livernois said, “The best thing for me to do is have no comment.

“This whole thing has been blown way out of proportion,” he said, but declined to elaborate.

HEARING SET

The Town Council passed a resolution on Oct. 14, suspending Shanty without pay on Oct. 14, stating, “You tested positive for marijuana during mandatory post-accident urinalysis testing.”

A New York State Civil Service Law hearing is set for 10 a.m. Monday, Nov. 9, at the Town Offices at the Malone Dufort Airport, where hearing officer Louis J. Patack will review the charge and make a recommendation on a penalty, which could include firing.

Town Supervisor Howard Maneely said Tuesday he could not make any comment because of the pending Civil Service hearing.

TEST RESULTS

The town’s drug testing is under the supervision of the federally approved staff at the Jefferson-Lewis-Hamilton-Herkimer-Oneida BOCES in Watertown.

On Dec. 12, BOCES faxed a copy of Shanty’s positive test results from Dr. Ivan Wolf to Livernois and provided a list of possible substance-abuse counselors for Shanty to see, according to the paperwork.

Wolf also called the Town Garage and talked to Shanty and Livernois that day, according to testimony that Shanty gave at a deposition last month.

WORK LOGS

Work logs and payroll sheets show that Shanty was assigned to the Highway Garage shop the day after the snowplow crash by Livernois.

But on Dec. 10, 11 and 12, Shanty was sent out to plow and sand roads. He worked a three-hour shift in the shop on Dec. 11 and a full day there on both Dec. 15 and 16.

The work logs and payroll sheets indicate he was assigned to plow and sand roads on Dec. 17, 18, 20, 21, 22, 23 and 24. On Dec. 19, he was assigned to the shop and had the day off for Christmas on the 25th.

But on Dec. 26, 30 and 31, Shanty was out plowing and sanding again. He also worked in the shop for three hours on the 26th.

Records indicate that Livernois assigned him to pushing up the sand pile at the Town Garage on Dec. 29 and had him plowing the race track at the Franklin County Fairgrounds on Dec. 31 from 11:30 a.m. to 3:30 p.m.

OUTPATIENT

In the meantime, Shanty was evaluated by Susan Marlow, a chemical-dependency counselor at North Star Behavioral Heath Services in Malone in mid-December.

She sent him a letter dated Dec. 31, stating that the evaluation team “feels there are no symptoms for a substance-abuse disorder” and added, “I am not recommending outpatient services at this time.”

Shanty was then free to have his return-to-duty test.

Billing vouchers submitted to the town from BOCES show the test did not occur until Jan. 15, 2009.

Shanty had already been driving for more than a month by then.

SHANTY RESPONDS

In a statement released through attorney William James, Shanty notes that he “is not charged with having operated his snowplow under the influence of any drug, and he denies having done so.”

He notes that a hearing officer has been appointed and that a hearing is scheduled for Nov. 9. After that, the officer will make a recommendation to the Town Council as to what action, if any, should be taken.

“It is unfortunate and quite possibly illegal that confidential information has been released to the press in advance of the hearing,” the statement reads.

“Mr. Shanty is concerned that it will disrupt and prejudice the legal process to which he is entitled. Not only does the release of information threaten Mr. Shanty’s rights, but, more importantly, it undercuts the belief that each of us should have that we all deserve and will receive our rights to due process, and that each of us is to be considered innocent until proven guilty.”

Shanty, who is now running for highway superintendent, says he has faith that residents “will not jump to conclusions, that they will not vote on the basis of speculation, that they will reserve their decision on the charge until after all the evidence has been heard at the hearing and that on November 3rd they will cast their votes based on his sound record of performance on the job and his dedication to the best interests of the people of the Town of Malone.”

TESTING BILL

The bill from BOCES for post-accident drug and alcohol testing completed Dec. 8 includes the last four digits of Shanty’s Social Security number and was departmentally approved by Supervisor Maneely and signed for approval for payment by Maneely, as well as Town Council members Jack Sullivan, Paul Walbridge and Irving Caplan on Feb. 11.

The bill from BOCES for the return-to-duty test dated Jan. 15 was approved at the department level by Maneely and approved by payment by him, Walbridge and Sullivan on March 25.

As required by DOT regulations, follow-up testing must occur for at least six months following a crash, and subsequent bills for those tests were submitted by BOCES and paid by the town.

‘HE’S THE BOSS’

The town hired a labor-relations officer to determine if any labor rules had been violated.

In a Sept. 11, 2009, deposition based on questioning from North Country Labor Relations Officer Daniel McKillip, Shanty said he did drive snowplows following the December 2008 crash.

“I did whatever Alvin told me to do,” he said. “He’s the boss.”

In the 45-minute interview — which was attended by Town Council members Sullivan and Walbridge and in part by Town Attorney Lillian Anderson-Duffy — Shanty said he was at the Town Garage with Livernois on Dec. 12 when Dr. Wolf called with the positive test result.

“Did (Wolf) say what happened after you tested positive for marijuana, in terms of you and your work?” McKillip asked.

“Nope. I just said, “Wait a minute. I’ll let you talk to my boss” and handed the phone to (Livernois),” said Shanty, who was granted immunity and had an attorney present during the deposition.

TOWN RECORDS

The town denied a majority of a Press-Republican Freedom of Information request for any and all materials pertaining to McKillip’s report, including any recommendation or opinions to the town following the deposition.

The town did provide copies of billing vouchers for Sept. 11 and Sept. 15 paid to McKillip for interviewing Shanty, as well as follow-up work, mileage, faxes costs and transcripts.

A second bill was for professional services on Aug. 24, with the notation, ‘mtg. with town re drug testing problem’; on Aug. 27 for ‘prep. Notice re Besio,’ apparently referring to Town Highway Department bookkeeper Mark Besio; and an Aug. 31 bill for ‘interview with Besio. Mtg. with town attorney and town supervisor; prep notice’ plus mileage costs.

The town agreed to pay all but half the mileage for the August trips to Malone because McKillip reportedly met with Village of Malone officials the same day.

E-mail Denise A. Raymo at:

draymo@pressrepublican.com