Dayton gets to rehire firefighter after losing lawsuit on drug testing

We can’t hire new firefighters because of the Department of Justice lawsuit, and are “browning out equipment” because we are paying too much in overtime due to the shortage.

Now we get to hire back a firefighter dismissed over three years ago for a second positive drug test for cocaine because the city attorney didn’t know whom to subpoena in the appeal.

Ronald Royse was a 14-year veteran firefighter when he failed a random drug test for cocaine on May 14, 2007. He went through mandated treatment and then would be subject to additional urine tests as a condition of continued employment. He passed two random tests after his return to work, but on November 16, 2007,  he failed the test and was terminated.

Expensive lawsuits ensued, with the question being the validity of the evidence of the second test. Basic rules of evidence require that for it not to be called “hearsay” certain guidelines and chain of custody requirements must be met. The firms that handle the drug tests should have been called as witnesses to explain the procedure, but an incompetent city attorney instead asked city employees to testify about a process that they were unable to properly document and explain.

The City of Dayton’s only two witnesses at the hearing before the Board were Ken Thomas and Maurice Evans. Ken Thomas is the Safety Administrator for the City of Dayton. He testified that he has never been to ATN’s laboratories and has never observed their testing process. He did not exhibit sufficient knowledge of ATN’s actual testing procedures or internal recordkeeping. Further, he testified that the medical review officer does not perform any tests on the urine samples, but instead reviews the results of the testing performed by ATN.

{¶ 29} Maurice Evans is the City of Dayton’s designated employer representative. He testified regarding his familiarity with the process used in collecting urine samples for drug tests. But he does not test the urine samples and relies on others to provide those test results.

{¶ 30} In short, there is no evidence of record demonstrating that the documentary evidence of positive test results and the ultimate conclusions reached therefrom were trustworthy. This  is the very type of evidence that the requirement of authentication in Evid.R. 901(A) was meant to preclude from consideration. Without testimony from a witness that could testify, based on personal knowledge, regarding the testing procedures and internal recordkeeping of ATN and ASTS, the Board and trial court should not have relied on the positive test results. Therefore, the trial court erred in finding

Today, the Ohio Supreme Court Montgeomery County Court of Appeals granted Ron Royse back his job in a 2-1 decision with Judges P.J. Grady and J. Fain agreeing and J.Hall dissenting, based on the poor legal work by City Hall. His case will be sent back to Judge Gorman who will probably take his her time in enforcing the return and setting the payout- which will be for what Royse would have made, including average overtime over the period of his dismissal- as well as legal fees and damages. So, the citizens will be paying for a firefighter who wasn’t working- and won’t work again until Judge Gorman rules.

Now you know part of the reason Dayton is broke.

You can read the entire PDF of the Ohio Supreme Court Montgeomery County Court of Appeals decision here: http://www.supremecourt.ohio.gov/rod/docs/pdf/2/2011/2011-ohio-3509.pdf

note: when I made some errors in the original post- this may go on for another several years, with an appeal to the supreme court. In the meantime, we still need all the firefighters we can get. Maybe the City should be smart- put him back to work and continue drug testing while the court case continues on, just for expediency.

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8 Responses

  1. David Esrati July 16, 2011 / 7:38 am

    I made a few error corrections to this post. No excuse for sloppy reporting. I apologize.

  2. Gary July 16, 2011 / 6:21 pm
    Ronald’s going to have a good ol’ time while he waits on his reinstitution date; in the meantime, he’d better be looking in Yellow Springs for a good detoxer …
    A cookie outsmarts the City, ha, ha!
  3. Diane June 14, 2012 / 7:47 am
    So Dayton will hire this guy back, randomly drug test him again at some point (at which time he’ll likely flunk), and then Dayton can fire him the right way. Practice makes perfect!
  4. dpage June 21, 2012 / 2:43 pm
    Whether the city has to rehire him is still up to the common pleas court, which heard the original appeal. The appeals court remand the case to common pleas. Now that the Supremes have said no thanks to hearing the appeal (perhaps because the city has changed its rules for evidence in administrative hearings), any final order will come out of common pleas
  5. David Esrati June 21, 2012 / 3:38 pm

    Thanks for the update dpage. I’m pretty sure the lawyers will end up making a lot more money on this.

  6. Barry Jive June 22, 2012 / 10:35 am
    Actually, if you read the Second District’s opinion (linked above), it’s pretty clear they have to rehire him:  ““the trial court erred in finding that the Board’s decision was supported by a preponderance of substantial, reliable, and probative evidence.”  (¶ 30).

    The “preponderance” standard was required to be satisfied in order to uphold the termination. Both the Opinion and Final Judgment Entry “remanded for further proceedings consistent with this opinion.”

    I think the DDN article is a little misleading.  The Second District held that there was no evidence of drug tests before the Civil Service Board (which conducts a full evidentiary hearing).  This means, in terms of his employment with the City, he did not fail any drug tests.

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