Attorney Whitney Lawson speaking before the Frankfort Board of Commissioners

Attorney Whitney Lawson spoke before the Frankfort Board of Commissioners on Dec. 20, 2021, on behalf of her client, Mike Hogan, who was terminated by the City of Frankfort after failing a drug test for marijuana. 

A city employee’s termination was brought before the Frankfort City Commission during a meeting in December, where the employee’s lawyer took the floor to urge the commission to review its policies concerning alcohol and substance use in the workforce. 

Whitney Lawson, an attorney at True Guarnieri Ayer LLP, spoke on behalf of Mike Hogan during the Dec. 20 city commission meeting. Hogan was previously employed by the city as a public works tech III in the Public Works and Solid Waste Department.

In her statement to the commission, Lawson said there are things in Hogan’s case that she, as a citizen herself, believes require immediate attention in terms of employees and the personnel actions that are taken, including the ability they have to speak to those personnel actions before they are made. 

“I’m sure everyone on the commission is very aware of how your all’s personnel matters are handled, which is a determination is made, and you all have complete discretion as to whether that individual is given a hearing,” she said. “Quite frankly, the way it is written make your all’s decisions, as a commission and the City of Frankfort, it protects immensely decisions that are made by the city with very little oversight.”

Lawson explained to city leaders that the state government recognizes the importance of anyone’s ability to question a decision that is made by an employer, especially when the employer is a government entity. She added at the state level, an individual is entitled to a hearing before anything is done permanently in regards to employment. 

“This is something that I think immediately needs to be reviewed. In conjunction with that, I think there needs to be a review of the alcohol and substance use policy,” she said. 

Currently, Lawson pointed out the city has a “no tolerance policy,” which seems reasonable and to be expected as a part of city employment.

“But like so many things in life, what is said on paper and how it plays out in reality are two very different things. I have seen in the immediate situation an employee who is a good employee, has been a good employee for the City of Frankfort over the last six years, who is posed to lose his employment over something that simply does not fulfill the purpose of that policy,” she said. 

The purpose of the policy, Lawson added, is to ensure citizens and employees are safe while the city’s duties are being executed. She added the policy was one to be enforced if an individual was under the influence while out working for the city. 

“What’s happened to Mr. Hogan, that’s not the case at all,” she said. 

Lawson went on to say the federal statute requiring Commercial Driver's License (CDL) holders working for the city to have random screenings and to also submit to them in the event of accidents is an “unfortunate reality, but it is a reality that is disproportionately impacting minorities that work for this city.”

“You all have got to review these policies to give more discretion to those supervisors within the city to the commission, and you all have got to give employees of the city an opportunity to bring these issues to you all before these types of decisions are made,” Lawson said.

“It is, quite frankly, unfair and you are, in allowing this to continue, we’re putting ourselves in a position as a city that we are losing formidable, good employees over policies that in effectuating them are not meeting the goals of why they were put in place to begin with.”

The State Journal reached out to Lawson to learn more about Hogan's termination that she addressed in the aforementioned meeting. Hogan granted permission for Lawson to speak on his behalf. 

In an interview, Lawson stated that Hogan was called for a random drug screening on Nov. 2, which is required by federal statute for CDL holders (382.305 Subsection A), adding it was not because he appeared to be under the influence. She said all of Hogan’s previous screenings had been clear. The screening results came back seven days later and showed he failed for marijuana. 

Lawson said the city called Hogan the same day and told him to turn in all of his uniforms the next day because he was being terminated. 

On Nov. 12, Lawson and Hogan met with City Solicitor Laura Ross and City Human Resources Director Kathy Fields to go over his drug screening and termination. Lawson said she pointed out the drug screening only failed for marijuana and tried to steer the punishment away from termination. 

“We really tried to work through different options,” she explained, noting Ross and Fields did not seem interested in compromising. 

Lawson said Hogan was also contacted before the meeting was held and told to meet his supervisor, Byron Roberts, in the Frankfort City Hall parking lot. She added it was made clear to Hogan it was important he meet with Roberts beforehand, but no conversation took place when Lawson and Hogan had arrived for the meeting though Roberts was in the parking lot. 

Signed at the bottom of the letter giving notice of the intent to terminate was Hagg, which Lawson thought was strange. Lawson stated she and her client had never met with Hagg concerning the termination yet the city manager’s signature was on the document dated Nov. 12 in a decision Fields had made. 

According to the letter, pursuant to Frankfort Code of Ordinances, Section 37.50 and the City Personnel Policies and Procedures Manual, Sections 3.4 and 3.5, Hogan was being given written notice that he had been placed on an “unpaid work suspension effective Nov. 15” lasting until Nov. 22 or when the commission had made a determination in his employment status. It noted the maximum length of his suspension would be 15 calendar days. 

“Based upon your positive drug test results following a random drug test, I am recommending your employment dismissal to the City of Frankfort Board of Commissioners,” the letter states. “A positive DOT (Department of Transportation) drug test is a violation of the federal drug and alcohol testing regulations and the City of Frankfort’s drug and alcohol policy, which states that use of an illegal drug shall result in termination for the first offense.”

Hogan was allotted 72 hours to submit a request to a medical review officer for an additional test of the specimen, for which he would be reimbursed for the cost of the test by the city should the test result be negative. 

The ordinances and policies referenced in the letter gave Hogan three options relating to his employment, such as filing for a hearing that is at the discretion of the commission on whether or not it is granted, resignation or allowing his employment to be listed as a termination on the Nov. 22 meeting agenda so the commission could vote on it. 

“If we do not hear from you by noon on Wednesday, Nov. 17, we will proceed with listing your employment as a termination on the Nov. 22 regular session agenda,” the letter said. 

A request for an appeal on Hogan’s behalf was made soon after, but Lawson said another letter was received on Nov. 23 stating the commission had met and voted to deny the appeal in open session. The letter also stated that if Hogan wished to resign, he must submit his resignation on Nov. 24, a day before city hall would be closed for the Thanksgiving holiday. 

Lawson said resignation was to no benefit to Hogan, as it was unlikely the city would grant future employment and no benefit packages were tied to the condition if he were to resign. She added Hogan would also not likely be eligible for unemployment benefits because the city would likely claim his termination was “with cause.” 

The Nov. 23 letter stated the commission had also discussed Hogan’s request to be considered for another position with the city. 

“The Board did not make an official decision regarding the request, as many different factors must be considered in any employment decision, including particular position and requisite qualifications,” the letter reads.

Hogan submitted to an independent drug screening on Dec. 1. The results of that screening showed he was negative for all substances, including marijuana, Lawson said.

Lawson decided to speak before the commission on Dec. 20 because “it was the only way to be heard if they did not agree to the appeal.” 

No discussion was held on item 10 of the consent calendar portion of the meeting agenda concerning personnel action. Items in the section were considered by the commissioners and were enacted by one motion and one vote, according to the regular meeting agenda.

After the meeting, Lawson said neither the commissioners or the city reached out regarding the termination. 

The State Journal also reached out to Fields, who said the City of Frankfort is not opposed to working with Hogan in the future after he undergoes a treatment program and has the violation removed from his CDL license. Fields said the city must follow the federal guidelines and be in compliance with them even if the city’s policy were to be different.

“That is not something the city has control of,” Fields said. “These are the rules established way beyond the city.”

A copy of the DOT Office of Drug and Alcohol Policy and Compliance Notice was also shared in a recent email with Fields. 

The letter from Director Jim Swart, dated Dec. 3, 2012, said though some state initiatives had permitted use of marijuana, these initiatives have “no bearing” on the department’s related drug testing program. Per regulation, the DOT “does not authorize the use of Schedule I drugs, including marijuana, for any reason,” the letter stated.

“It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana,” said Swart in his letter. “We want to assure the traveling public that our transportation system is the safest it can possibly be.”

Unlike Lawon’s allegations that the city was not interested in compromising and working with Hogan, Fields said the city is “concerned and wants to find a compliant resolution,” but Hogan’s CDL license must also be cleared of the violation. 

Fields said prior to the attorney’s statement given at the Dec. 20 meeting, the city had been discussing viable options to return Hogan to work in some capacity. 

“Our doors are still open to conversations,” she said. “He’s been with us for a number of years and is a good employee. We won’t close any doors on his relationship with the city.”

Should a position become available and Hogan’s license is cleared, Fields said the city is open to rehiring him should the opportunity arise.

The city wishes to be compliant with regulations while also working with Mr. Hogan. Keeping a path open for his potential return was a way to achieve both objectives,” Fields said.

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