Beth A. Burassa, Attorney
The Malone Town Board is compelled to respond to certain statements contained in the Oct. 28, 2009, Press-Republican news report regarding Thomas Shanty, a heavy-equipment operator employed by the town. The town has in all respects acted responsibly with respect to this matter, and is dismayed to learn that one or more members of the Town Highway Department have acted contrary to the interests of the town.
The Press-Republican suggests that Town Supervisor Howard Maneely and other members of the Town Board knew or should have known of the results of a Dec. 8, 2008, post-accident drug test for Mr. Shanty, based on their review and approval of an invoice for that test.
BOCES regularly conducts random and other routine drug testing of town employees in safety-sensitive positions, pursuant to federal law, and regularly invoices the town for such services. The invoices do not include the names of any employees who have been tested, or the results of those tests. Routine review and approval of invoices for drug testing would in no way alert any member of the Town Board that any employee has tested positive.
Results of positive drug tests are given only to designated contact persons, and Mr. Maneely had been surreptitiously removed as a designated contact from sometime prior to December 2008 through mid August 2009. During that time, the sole designated contacts were Alvin Livernois, highway superintendent; and Mark Besio, a Highway Department clerk/laborer. Neither of those individuals advised the Town Board of any positive drug test results. When the Town Board learned of this matter in mid August, Mr. Maneely was reinstated as a designated contact for positive drug test results. The Town Board then conducted a prompt investigation and commenced a proceeding under New York Civil Service Law § 75 to seek Mr. Shanty's removal from his position as a heavy-equipment operator.
The Town Board was most dismayed to learn, on Oct. 27, 2009, that a Highway Department employee had taken it upon himself to provide portions of the town's confidential investigation file, and federally protected records related to Mr. Shanty, to the Press-Republican. That employee did so without the knowledge or consent of any member of the Town Board, in response to a Freedom of Information Law ("FOIL") request which had been addressed to him.
Pursuant to Section 34 of the Town Code, the town clerk is the designated records access officer for the town. FOIL requests are to be addressed to and responded by the town clerk. As noted in the Press-Republican article on Oct. 28, the town clerk, in her official capacity as records access officer acting on behalf of the town, denied the majority of a Press-Republican FOIL request for the investigation file related to Mr. Shanty. Unbeknownst to the Town Board, however, a similar FOIL request had been directed to a rank-and-file employee at the Highway Department, who promptly responded to that request by providing to the Press-Republican all portions of the investigation file, except for records related to his own interview in connection with that investigation.
The Town Board is cognizant of Mr. Shanty's due process rights, as well as his rights to confidentiality of certain records which are protected from disclosure by federal law. The Town Board does not believe that Mr. Shanty's due process rights have in any respects been violated, and will continue to refrain from litigating the merits of its case against Mr. Shanty until the fair hearing proceeds as scheduled on Nov. 9, 2009. The Town Board regrets the release of confidential documents pertaining to Mr. Shanty by a Highway Department employee who was acting outside of the scope of his authority, and in contravention of Section 34 of the Town Code. The Town Board further regrets that the actions of a very few individuals have tarnished the reputation of the Highway Department and the fine work done by most members of that department.
The Town Board trusts that all further FOIL requests will be addressed solely to the town's designated records access officer.
This opinion was submitted by attorney Beth A. Burassa of the Albany law firm Whiteman, Osterman & Hanna, which represents the Malone Town Board. It "shall constitute the town's response to an article which appeared in the Press-Republican (Oct. 28)," according to the attorney's cover letter.
