Dep’t of Education v



Dep’t of Education v. Halpin

OATH Index No. 818/07 (Aug. 9, 2007)

ALJ sustained charges that Supervisor of Carpenters committed misconduct by submitting false time records indicating that he worked the entire workday on 63 occasions, when in fact he left early. Charges were established using data from global positioning mechanism inserted in respondent’s Department-issued cell phone, which was held to be reliable circumstantial proof of respondent’s whereabouts. ALJ recommended termination.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF EDUCATION

Petitioner

- against -

JOHN HALPIN

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

TYNIA D. RICHARD, Administrative Law Judge

This disciplinary proceeding was referred to this tribunal by petitioner, the Department of Education (“the Department”), pursuant to section 75 of the Civil Service Law. Respondent John Halpin, Supervisor of Carpenters, is charged with 83 separate instances of leaving work before the end of the workday and submitting false timekeeping information.[1] Respondent denies the charges.

The hearing was held before me on March 15, 16, 19 and April 10, 2007. At respondent’s request, the parties submitted written briefs in summation of the evidence on May 24, 2007, at which time the record was closed. Petitioner presented the testimony of Timothy George, Eric Weinbaum, Angelo Landriscina, and Vincent Radziul. Respondent, who testified on his own behalf, presented the testimony of Patrick Markham, James Finnerty, Cornelius Lucid, Paul Augustyn, and Bruce Cook.

Based on the evidence adduced at trial, I find that petitioner established the misconduct charged and recommend the penalty of termination.

ANALYSIS

Respondent is charged with two specifications of misconduct: leaving early from work on 83 separate occasions from March 2, 2006 to August 9, 2006, and submitting false information that he worked a full day on those dates (ALJ Ex. 1).[2]

As a Supervisor of Carpenters, respondent supervises six to nine carpenters who maintain and repair the Department’s school facilities in Regional Operations Center 6 (“ROC 6”) in Manhattan. Respondent supervises the carpenters’ completion of assignments from start to finish and visits multiple sites during the day. His duties include providing his crew with access to the buildings they are assigned and transporting their work materials to the site. Respondent’s work hours are 8:00 a.m. to 3:30 p.m., including a half hour for lunch. He may not use flextime.

In April 2005, the Department issued respondent a cell phone to use in connection with his assigned duties (Pet. Ex. 1). The cell phone is outfitted with a Global Positioning System (“GPS”) that allows the Department to track his whereabouts. According to the Department, the GPS is intended to improve efficiency by enabling the Department to locate personnel and reassign them when necessary. It is not clear whether the Department’s use of this technology for purposes of surveillance and discipline was discussed with the supervisors at the time the phones were distributed.

Eric Weinbaum is a Regional Facilities Planner with the Department (Tr. 228-30). He testified that the Department started investigating respondent after Vincent Radziul, a Supervisor of Mechanics, reported noticing that respondent was not present at the jobs listed on his itinerary and that respondent’s time cards were unusual in that they appeared to be stamped by the same time clock at the end of each day. Since respondent’s duties placed him in different locations each day, it would be expected that the time clock punches would be dissimilar. He brought his suspicion to Timothy George, the Regional Facilities Manager, and they looked at the GPS data to confirm respondent’s whereabouts. Mr. Weinbaum said the GPS data showed that respondent was leaving work before the end of his workday on most days of the week and that respondent was traveling in the direction of his home in Levittown, Long Island, by 1:30 or 2:00 on most afternoons (Tr. 230-31).

Vincent Radziul testified that, in May 2006, he approached Weinbaum and Angelo Landriscina, a Supervisor of Mechanics, with his suspicions that respondent’s time cards appeared unusual (Tr. 207, 258-59). Although it was common for most punches on a supervisor’s time card to vary, he found that most of the afternoon punches on respondent’s time card were of the same type size and color, even though his movement sheets indicated he was clocking out from different locations. The morning punches, he noted, were varied. The tribunal made the same observations. He said that he had visited schools where respondent was supposed to have ended the day, according to respondent’s own itinerary, and respondent was not there.

According to Department procedures, respondent is required to punch in and out using a time clock on each workday. Standard Operating Procedures require him to punch his own time card and keep the card with him at all times (Tr. 195). Since he does not have a stationary work location, he is to punch in upon arrival at his first assignment for the day, and he must punch out at his final assignment for the day (Tr. 41). He is required to use the time clock in the school’s general office, as opposed to any other location in the school (Tr. 195). After punching his time card in the morning, respondent is responsible for listing each of the school facilities that he visits during the day on the back of his time card, along with the amount of time spent at each location.

Supervisors are required to submit a daily itinerary, which identifies the locations he intends to visit the following day (Tr. 273-74). Supervisors must also complete a “Supervisor’s Site Visit sheet” (hereinafter “Site Sheet”), which details the order of his visits, the time spent there, the services performed and the materials delivered or needed (Pet. Ex. 4; Tr. 31, 134, 226). The Site Sheets are to be filled out contemporaneously with a visit, specifically noting the time of arrival and departure, and faxed to a clerical worker to input into the database. They should be consistent with the information written on the back of the time card (Tr. 31, 242). Their purpose is to measure productivity by showing what the supervisor did that day (Tr. 226). It is also a budgetary tool that tracks not only the work a supervisor performs from day to day but also contains work order numbers that are used to ensure that a school is charged the proper amount against allocated funds (Tr. 45).

Petitioner noted that the information that respondent submitted on his time cards, Site Sheets and itineraries often differed. This information also varied from respondent’s actual movements according to the GPS data.

For example, respondent reported on his Site Sheet that, on March 2, he spent more than seven hours at P.S. 42 (“M042”), but his time card indicated he was there only a half hour (Pet. Exs. 2 & 4). His time card indicated his last stop of the day was M044 where he spent six hours (Tr. 31-32). According to Mr. George, P.S. 44 is located on the Upper West Side of Manhattan, and the GPS data showed no readings on the Upper West Side that day. The GPS showed respondent stationary in the area of 53 Hester Street from 8:48 a.m. to 1:58 p.m.; by 2:49 p.m., he was on Glen Cove Road in Old Westbury, Long Island and he was in Levittown by 4:30 p.m. (Pet. Ex. 2).

On March 6, the GPS data shows respondent in Long Island City, at the Department’s Queens Area Office (“QAO”) all day until 2:40 p.m. (Pet. Ex. 2; Tr. 35-36).[3] The data shows movement thereafter until 5:00 p.m. when he arrived in Levittown. Respondent’s time card and Site Sheet state that he spent six hours at the QAO but then visited M134, on the Lower East Side of Manhattan (Pet. Exs. 3 & 4). There was no indication in the GPS data that respondent entered Manhattan that day.

On March 7, respondent reported ending his day at M044, on the Upper West Side, but the GPS data shows respondent leaving 249 6th Avenue (near a school located on the Lower West Side of Manhattan) at 2:20 p.m. and then mobile until 4:22 p.m. when he arrived in Levittown (Tr. 47).

These examples of incorrect entries become more significant when combined with the GPS data. Respondent admitted that his entries were frequently incorrect but blamed it on the frenetic pace of his work and the unreasonable demand on his time.

Petitioner contends that the GPS data illustrates a clear pattern of respondent leaving work before 3:30 p.m. each day, traveling eastward to Long Island, and arriving at home in Levittown many days at or before his quitting time, 3:30 p.m. The data does follow a pattern, as is set forth in the chart below.

|GPS DATA |

|Date |Time at Last identifiable |Movement shown by |Time at First identifiable |Time of Arrival in |Citation to the |

| |location in Manhattan |longitude, latitude |location in Long Island |Levittown |record |

|March 6 |2:40 pm |2:46 – 4:48 pm | |5:00 pm |Tr. 35 |

| |Long Island City, Queens | | | | |

| |Area Office (QAO) | | | | |

|March 8 |1:31 pm |1:41 – 2:20 pm | |2:40 pm |Tr. 49 |

| |East 8th Street | | | | |

|March 10 |2:40 pm |3:01 – 3:29 pm |3:42 pm |4:21 pm |Tr. 52 |

| |53 Hester Street | |Long Island Expwy | | |

|March 15 |1:48 pm | |2:29 pm |3:18 pm |Tr. 59 |

| |102 Clinton St. | |Westbury, L.I. | | |

|March 17 |2:30 pm |2:38 – 4:20 pm | |4:30 pm |Tr. 62 |

| |East 22nd Street | | | | |

|March 23 |1:03 pm |1:23 – 2:28 pm | |2:38 pm |Tr. 70 |

| |QAO | | | | |

|March 28 |12:58 pm |2:36 – 3:31 pm | |3:50 pm |Tr. 78 |

| |West 18th Street | | | | |

| |(near M440) | | | | |

|March 30 |12:30 pm |1:13 – 3:32 pm | |3:54 pm |Tr. 79 |

| |QAO | | | | |

|April 4 |2:28 pm |2:46 – 4:17 pm | |4:27 pm |Tr. 82 |

| |QAO | | | | |

|April 6 |2:17 pm | |3:07 pm |3:27 pm |Tr. 84 |

| |East 35th Street | |Wantagh State Pkwy | | |

|April 14 |2:17 pm | |3:36 pm |4:06 pm |Tr. 88 |

| |3rd Avenue | |East Meadow | | |

| |(near M167) | | | | |

|April 19 |2:01 pm | |2:21 pm |3:01 pm |Tr. 90-91 |

| |Spring Street | |I-495 | | |

|April 24 |12:58 pm | |1:59 pm |2:11 pm |Tr. 91-92 |

| |3rd Avenue | |Westbury | | |

|April 26 |1:55 pm | |3:15 pm |3:33 pm |Tr. 93 |

| |11th Avenue | |Northern St. Pkwy | | |

| |(near M615) | | | | |

|April 28 |2:04 pm | |3:23 pm |3:53 pm |Tr. 94 |

| |East 60th Street | |Northern St. Pkwy | | |

|May 2 |2:04 pm | |2:54 pm |3:04 pm |Tr. 96 |

| |53 Hester Street | |Westbury | | |

| |(near M042) | | | | |

|May 4 |2:44 pm | |3:56 pm |4:16 pm | |

| |53 Hester Street | |Northern St. Pkwy, | | |

| | | |Westbury | | |

|May 8 |2:35 pm | |3:26 pm |4:15 pm |Tr. 98 |

| |Delancey Street | |Westbury | | |

|May 10 |2:54 pm | |3:34 pm |4:14 pm |Tr. 99 |

| |1st Avenue | |Grand Central Pkwy | | |

|May 12 |3:08 pm | |4:09 pm |4:41 pm |Tr. 100 |

| |1st Avenue | |East Meadow | | |

|May 16 |3:06 pm | |3:50 pm |No arrival in |Tr. 101 |

| |3rd Avenue | |Grand Cent. Pkwy, |Levittown by 5:00 | |

| | | |Bellerose, L. I. |p.m. | |

|May 18 |1:24 pm | |2:41 pm |3:03 pm |Tr. 102 |

| |West 50th Street | |Old Westbury | | |

|May 26 |2:07 pm | | |3:37 pm |Tr. 103 |

| |Norfolk Street | | | | |

|May 31 |2:07 pm | | |3:14 pm |Tr. 107 |

| |Forsyth Street | | | | |

|June 2 |2:07 pm | |3:13 pm |3:46 pm |Tr. 108 |

| |West 18th Street | |Grand Cent. Pkwy, | | |

| |(near M440) | |Bellerose, L.I. | | |

|June 6 |1:25 pm | |2:41 pm |2:51 pm |Tr. 113 |

| |East 11th Street | |Wantagh St. Pkwy, | | |

| |(near M060) | |East Meadow, L.I. | | |

|June 8 |2:30 pm | |3:30 pm |3:40 pm |Tr. 113 |

| |East 58th Street | |Westbury, L.I. | | |

|June 14 |2:32 pm | |3:15 pm |3:40 pm |Tr. 115 |

| |Park Avenue | |Grand Cent. Pkwy, | | |

| |(near M620) | |Little Neck, L.I. | | |

|June 19 |2:29 pm | |3:15 pm |3:48 pm |Tr. 116 |

| |Kenmare Street | |Mineola Avenue | | |

|June 22 |12:36 pm | |1:27 pm |1:40 pm |Tr. 116 |

| |QAO | |Wantagh Avenue, | | |

| | | |Wantagh, L.I. | | |

|July 7 |2:54 pm | |3:26 pm |No arrival in |Tr. 121 |

| |East 52nd Street | |Glen Cove Road, |Levittown by 6 p.m. | |

| | | |Old Westbury, L.I. | | |

|July 12 |1:30 pm | |2:10 pm |2:40 pm |Tr. 122 |

| |Holland Tunnel | |Glen Cove Road, | | |

| | | |Old Westbury, L.I. | | |

|July 17 |1:16 pm | |2:41 pm |No arrival in |Tr. 122 |

| |Murray Street | |Mineola Avenue, |Levittown by 6 p.m. | |

| |(near M089) | |Carle Place, L.I. | | |

|July 19 |2:22 pm | |3:07 pm |3:16 pm |Tr. 124 |

| |QAO | |Old Westbury, L.I. | | |

|July 24 |3:07 pm | |3:48 pm |4:03 pm |Tr. 125 |

| |East 61st Street | |East Meadow, L.I. | | |

|July 26 |12:33 pm | |2:56 pm |3:20 pm |Tr. 126 |

| |West 26th Street | |Northern St. Pkwy, | | |

| | | |Great Neck, L.I. | | |

|July 28 |2:56 pm | |3:32 pm |3:56 pm |Tr. 127 |

| |Lexington Ave. | |Northern St. Pkwy, | | |

| | | |New Hyde Park, L.I. | | |

|August 1 |1:58 pm | | |3:06 pm |Tr. 128 |

| |East 22nd Street | | | | |

| |(near M040) | | | | |

|August 4 |1:39 pm | |2:33 pm |2:45 pm |Tr. 129 |

| |Delancey Street | |Westbury, L.I. | | |

|August 8 |1:38 pm | |2:41 pm |2:51 pm |Tr. 130 |

| |Lafayette Street | |Hicksville, L.I. | | |

The pattern that arises from the GPS evidence shows that on all of the above dates respondent left the vicinity of work locations in Manhattan or the Queens Area Office in Long Island City, Queens, before the end of his workday, 3:30 p.m. Upon leaving, he drove eastward and his routes were readily identifiable in the data: the Northern State Parkway, Grand Central Parkway, Long Island Expressway, Wantagh State Parkway, or the Brooklyn Queens Expressway (“BQE”) (Pet. Ex. 2). The trip took approximately an hour to an hour and a half from the time he left Manhattan to his arrival in Levittown, Long Island, where he lives (Tr. 472). Even respondent admitted that the earliest he could arrive home if he left work at 3:30 p.m. was 4:15 p.m., since the drive from the Queens Area Office takes approximately 45 minutes (Tr. 473). Thus, it can clearly be inferred from the evidence that respondent was leaving work and going home early, before the end of his scheduled workday, without authorization to do so. There was no reason to believe that respondent was making work-related stops in Queens or Long Island. Mr. George testified that respondent had no business purpose for being in Long Island (Tr. 131), nor did respondent claim that he had.

Accuracy and Reliability of the GPS data

Respondent disputed the accuracy of the data. He testified that Carpenter James Finnerty told him that Mr. Radziul told him that the GPS system the Department purchased was not functioning properly (Tr. 446-47). “They’re trying to get it to work the way it’s supposed to work, but it’s just not doing it.” He also testified that it was discovered during his suspension in September 2006, that the Department’s records had an incorrect IMEI number for his phone (Tr. 447-48; Resp. Ex. C). He asked the technician who discovered the error whether the wrong IMEI number could have any bearing on the GPS data, but he did not know. While on suspension, respondent researched Nextel’s website to determine whether the incorrect IMEI could have affected the data the Department was using against him, but he never got a clear answer to his question (Tr. 449). I found respondent’s hearsay speculation about the functioning of the GPS, clearly not disinterested testimony, insufficient to draw an inference that the system was malfunctioning or the output inaccurate. The Department argued that the change in serial number merely accounted for the inventorying of its GPS equipment and had no bearing on the GPS tracking (Petitioner’s Post-trial brief, at 7).

To support the accuracy of the data, petitioner pointed out that respondent worked overtime on March 24 and 31, 2006, and that the data showed that he was in Manhattan until 6:00 p.m. that day (Tr. 75-76, 80; Pet. Ex. 2). It also indicates that on April 10 and 18, May 19 and June 13 and 20 -- days that respondent called in sick -- respondent was in Levittown or on Long Island all day (Tr. 85, 90, 102, 114, 116; Pet. Ex. 2). Respondent did not dispute this data.

In general, GPS has been found to be reliable to the extent that the tribunal may take official notice of research amassed by the federal government in support of its accuracy. See OATH Rules of Practice, 48 RCNY 1-48 (LEXIS 2007). According to the federal National Space-Based Positioning, Navigation, and Timing Coordination Office, the Global Positioning System “is a U.S. space-based radionavigation system that provides reliable positioning, navigation, and timing services to civilian users on a continuous worldwide basis – freely available to all.

For anyone with a GPS receiver, the system will provide location and time. GPS provides accurate location and time information for an unlimited number of people . . . anywhere in the world.” See .[4] The basic civil GPS signal provides tracking to within 20 meters accuracy. See . Thus, even without an expert, this tribunal has an independent basis upon which to find the GPS data reliable.

Respondent disputes that the GPS data establishes his whereabouts at 3:30 p.m. from March 2 to April 4, 2006, because the system produced only numerical data denoting longitude and latitude for those dates, rather than actual street locations (Tr. 154). Respondent also challenged Mr. George’s qualification to testify about the numerical data. Mr. George testified that the numbers represent the location of the cell phone according to the longitude and latitude of the cell phone’s signal (Tr. 36-37). He claimed that a sequential change in the numbers indicated that respondent was moving. He also said that he could tell when respondent was in motion, because the data would have a green color and the column entitled “speed” would contain a number, or he would see a series of different cell sites listed in succession (Tr. 151, 188).

Although George’s understanding of the data was somewhat limited, the inference that respondent was on his way home was a reasonable one to take away from the data, given the length of time between the last Manhattan address and the first Long Island address, which was typically an hour to an hour and a half later. This length of time was generally acknowledged as the expected length of travel time between the two points. Mr. George testified that travel time from Manhattan to Levittown was at least an hour but probably longer during rush hour traffic (Tr. 59-61). Radziul said it took him about an hour to travel to respondent’s home in Levittown from the Queens Area Office (Tr. 263). Respondent said that the drive home from the Queens Area Office took him approximately 45 minutes (Tr. 473). Nevertheless, in an abundance of caution, I decided to disregard the dates for which there was only numerical data because of the witness’ relatively limited knowledge of its meaning (Tr. 189).

The remaining GPS data, from April 5 to August 9, marked respondent’s movements by actual street address rather than numerical data, and I found that data to be quite compelling. According to Mr. George, the addresses provided in the GPS data sometimes represented the actual location of respondent’s cell phone and sometimes represented the location of the nearest cell tower receiving the cell phone’s signal (Tr. 56-57). He was unaware of the exact size of the area detected by a cell tower. The data shows that, after the last identifiable location in Manhattan, noted in the chart above, respondent traveled eastward through Queens (Woodside, Forest Hills, Queens Village, Jamaica, Elmhurst, etc.) into Long Island (Westbury, Wantagh, Seaford, Mineola, Carle Place) before reaching Levittown. Thus, even if the March 2 to April 4 data is eliminated, the remaining data is sufficient to show that respondent left work early without authorization on 63 occasions from April 5 to August 9, 2006, which I find to be sanctionable misconduct.

Circumstantial evidence may be sufficient to sustain the agency's burden of proof in administrative civil proceedings, where it creates a preponderance of the evidence. That is, where collateral facts are established, this tribunal may draw a reasonable inference from those collateral facts to establish that the relevant disputed facts are more likely than not to be true. See Dep't of Sanitation v. Ivy, OATH Index No. 2376/00 (May 3, 2001), aff'd, NYC Civ. Serv. Comm'n Item No. CD 02-07-SA (Mar. 22, 2002); see also People v. Vitalis, 67 A.D.2d 498, 415 N.Y.S.2d 708 (2d Dep't 1979); Sherman v. Concourse Realty Corp., 47 A.D.2d 134, 137, 365 N.Y.S.2d 239, 242 (2d Dep't 1975). I find the GPS data sufficiently accurate and reliable to create a preponderance of evidence establishing the charges.

Respondent also challenged the reliability of the address data because petitioner’s witnesses had limited overall technical knowledge and ability to explain how the address data was derived (Tr. 26-27). Despite the witnesses’ relatively limited knowledge of the computer programming involved (Tr. 230-31), I concluded that the data was reliable after finding it easy to read and understand and that it was remarkably consistent, in part because of the clear patterns evident in respondent’s movements. I was unconvinced by respondent’s argument that the documents needed to be independently corroborated by an eyewitness in order to be reliable (Tr. 26), although I will note that some of the data was bolstered by the corroboration of eyewitness testimony. Nor did the documents, as business records, require an expert witness to be admissible or to be reasonably understood by a layperson (Tr. 26). I have considered respondent’s objections and found them wanting. In sum, I concluded that the data was reliable and credible and consistently accurate.

Because the evidence shows that respondent was often en route to his home at 3:30 p.m., the question arises how his time cards could have been punched at or around 3:30 p.m. each day. Petitioner speculated that respondent purchased his own time clock and used it to make the false punches. Petitioner argued that respondent’s time card punches for the end of the day look suspiciously similar when they should differ because he would be expected to punch out at different time clocks on most days (Tr. 41-44). Petitioner produced the actual time cards to demonstrate the differing colors of type (brown, blue, green and black) evident in respondent’s morning punches, while respondent’s afternoon punches almost never varied in typeface or color. Practically all of them are black and occurred at 3:30, 3:31, or 3:32 p.m. (see Pet. Ex. 2). Mr. George testified that punch clocks may be purchased at retail stores and he speculated that respondent purchased his own punch clock; he said that he knew individuals who had (Tr. 45).

To illustrate, petitioner produced the time cards of two of respondent’s subordinates, Barney Madden and Shawn McMahon, who along with respondent punched out at M535 on April 24, 2006. The punches for Madden and McMahon were identical and colored greenish-blue, while respondent’s was the uniform black of his other afternoon punches (Pet. Exs. 3, 16 & 17). Respondent conceded that he must not have punched out at M535 as his subordinates did (Tr. 517), even though his Site Sheet and time card both indicate that he completed his day at M535 (Pet. Exs. 3 & 4). The GPS indicates that he left Manhattan around 1:00 p.m. that day.

Respondent denied owning a punch clock and said that each punch on his time card was made in a school facility. He explained that the afternoon punches may be similar because the numbers are similar (e.g., 3:30 and 3:31) whereas the morning punches varied widely (e.g., 7:45 or 6:28). He then attributed the similarity in the punches to his belief that 98% of the schools have the same type of punch clock. The latter explanation was unworthy of belief because, if so, his morning punches would also have been similar to one another. I found the similarity of the evening punches, versus the diversity in the morning punches, to be compelling. In conjunction with the GPS data, it supported an inference that respondent’s evening punches were in some way adulterated. Mere coincidence was an unlikely explanation for the divergence.

Last, offering a reason why the GPS data might record him leaving work early, respondent testified that two or three times a month he drove his wife into Manhattan with him in the morning and she would take his car and cell phone with her to run errands, while he would travel to his work locations by subway or with a member of his crew. Thus, according to this testimony, the GPS would have been tracking his wife on those days. He did not specify which days those were (Tr. 450). He said she would return around 2:00 to 2:30 p.m. and he would let her drive the car home, with his phone in it (Tr. 456). Respondent denied that it was improper to entrust his Department-issued phone with someone else, insisting that he let his wife have it in case of emergency though she never used it. I found this explanation farfetched and completely lacking in credibility, skeptical of the claim that respondent’s emergency need of a cell phone was so compelling that he would repeatedly break Departmental rules to allow his wife to use his Department-issued phone, but would not simply buy one for his wife.

Of course, resolution of many of the issues in this case will rest upon an assessment of witness credibility. In making credibility determinations, this tribunal must look to “witness demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience.” Dep’t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998). Thus, respondent’s credibility must be assessed in light of the seriousness of the charges and possible penalty and his significant interest in vindicating himself.

Eyewitness surveillance of respondent’s movements

To bolster its circumstantial evidence of respondent’s movements, the Department dispatched Vincent Radziul to respondent’s home to record the time of his arrival there, and sent Angelo Landriscina to the school locations where respondent had reported in his itinerary that he would be working at the end of the day (Tr. 208, 236). Both men documented their findings in written memoranda (Pet. Exs. 5 & 13). Based on a pattern he discerned in the GPS data, Mr. George believed that respondent would not return to Manhattan for afternoon work listed on the itinerary if he was in the Queens Area Office at lunchtime, so Mr. George chose days when respondent was in the QAO at lunchtime to send Radziul to respondent’s home (Tr. 307). The supervisors made the following observations.

On June 22, 2006, Mr. Radziul went to respondent’s home to photograph him (Tr. 262-67). When Radziul arrived, he saw respondent’s car parked in front of the house. He parked and waited for respondent to come out, but he did not come out until Radziul called him on his GPS cell phone. Radziul photographed him as they spoke at approximately 3:30 p.m. -- the time that respondent should have been leaving work (Pet. Ex. 10). Respondent told him that he was at M475, a school located on 15th Street in Manhattan, when Radziul asked him about the progress of work at the school. The photographs show respondent pacing in front of a house with a cell phone to his ear, wearing a baseball cap and shorts with no shirt. Radziul produced his handwritten and typed notes corroborating this visit (Pet. Exs. 12 & 13).

Respondent admitted that the photos were of him at his home, but he denied they were taken before 3:30 p.m. on a workday (Tr. 426). He insisted that he worked the full workday on June 22nd. He pointed out that his wife’s minivan was in the photos and said that she does not get home from work until 4:15 p.m., so Radziul’s visit could not have taken place before then.

Because respondent’s itinerary indicated he would be ending his day at M475, Mr. Landriscina arrived at the school at 3:15 p.m. on June 22nd (Tr. 209-10). He entered the building and stood at the time clock at 3:30 p.m. and retrieved a sample punch to verify that it worked. He waited until 3:45 p.m., walked the building, and checked the job site. He saw two workers leave the building but never saw respondent (Pet. Ex. 5). He said there were two exits that he knew of, but he was only able to see one of them while waiting. He said that Con Edison was doing work at the opposite exit and had cordoned off the area with netting (Tr. 221-22, 226). Respondent also said there was construction being done by Con Edison, but that it did not block any exits (Tr. 424). Carpenter Cornelius Lucid said there were at least two exits that were open and available at that time (Tr. 351).

On July 5, 2006, Mr. Landriscina visited M475. He said he waited outside from 3:15 to 3:35 p.m., but respondent was not there (Tr. 212). He entered the building and was at the time clock at 3:37 p.m. He waited until 3:45 p.m., walking the building, but never saw respondent (Pet. Ex. 5). He admitted he was unable to see out of one of the exits (Tr. 222). Respondent’s Site Sheet states that he ended the day at M475 (Pet. Ex. 4). [5]

Again, on July 19, 2006, Mr. Radziul went to respondent’s home to photograph him arriving home early (Tr. 267-70). He said he arrived around 2:00 p.m. While waiting for respondent to arrive at his home, Radziul spoke to George who updated him on respondent’s location (Tr. 296). Respondent arrived around 3:30 p.m. and went inside the house. Again, Radziul called respondent on his cell phone and respondent came outside and spoke with him by phone about a work-related issue. Respondent told him he was in Manhattan. Radziul took several photographs of respondent pacing in front of his house as they spoke (Pet. Ex. 11), and he recorded his visit in his notes (Pet. Exs. 12 & 13). The photographs show respondent walking in front of the same house as before with a cell phone to his ear.

Respondent denied being at home at 3:30 p.m., insisting that he was at a school in Manhattan (Tr. 427). Respondent pointed out his wife’s minivan in the photographs (Tr. 428). He later admitted, however, that his wife does not work on Wednesdays, and her van could have been in the driveway at 3:30 p.m. on July 19th because it was a Wednesday (Tr. 458).

Respondent’s Site Sheet indicates that he ended that day at M490 (Pet. Ex. 4). Mr. Landriscina said he was outside of M490 from 3:15 to 3:29 p.m., and he entered the building and stood at the time clock at 3:30 p.m. (Tr. 213). He punched it to verify that it worked and stayed until 3:55 p.m., walking the building, but never saw respondent. He spoke to the custodial staff who had seen two carpenters working but had not seen Mr. Halpin “who they knew by name” (Pet. Ex. 5). He admitted there were multiple exits from the building and he could not see them all from where he waited (Tr. 224).

I found Mr. Radziul and Landriscina credible in their testimony about their surveillance. Although respondent had disparaging things to say about his supervisors, he articulated no clear motive for why they might be biased against him, nor did I find one. In addition, the photographic evidence of Mr. Radziul’s June visit to respondent’s home credibly supported his testimony. So did the GPS data, which indicates that respondent was at the Queens Area Office on June 22 at 12:36 p.m.; he was next tracked in Queens on Interstate 495 at 12:55 p.m., in Wantagh at 1:27 p.m., and in Levittown at 1:40 p.m. Consistent with Radziul’s testimony, respondent would have been at home already when Mr. Radziul arrived shortly before 3:30 p.m.[6]

When questioned about Mr. Radziul’s eyewitness accounts, respondent called him a “liar” and accused him of being on “so much medication” that he would not know what day he was there (Tr. 513-14).

On July 20, around 3:30 p.m., Radziul visited M003, a school located at Hudson and Grove Streets where respondent reported he would be all day (Tr. 271). After walking around the building and checking the exits, Mr. Radziul waited outside the exit on Grove Street, which he testified was the only unlocked exit (Pet. Ex. 12). He encountered Carpenter Bruce Cook who was leaving the building at 3:35 p.m., and they had a brief conversation. He entered the building and checked that all other exits were locked. Then he waited in the lobby until 4:00 p.m., and no one else came out of the building. Respondent disputed this account, claiming there were six available exits from the building (Tr. 424).

Bruce Cook testified that he recalled seeing Mr. Radziul outside of M003 one day in July 2006 after he clocked out at 3:30 p.m. (Tr. 373-75). He said that Radziul was standing outside of the school -- not inside the school near the time clock as Radziul testified. He said the building was unlocked on three sides, at the Hudson, Grove, and Bedford Street entrances, and that respondent had been present and had punched out at the same time that he did that day (Tr. 377). Disputing Cook’s testimony on the latter point was respondent’s own time card and Site Sheet, both of which indicate that respondent punched out at M490 on the day that Radziul said he encountered Cook at M003 (Pet. Exs. 3 & 4). The GPS indicates that respondent was in New Hyde Park at approximately 3:30 p.m.

There was reason to question Cook’s veracity. As a close associate and subordinate of respondent’s, Mr. Cook has an interest in providing testimony helpful to respondent’s case, particularly given the seriousness of the charges alleged. Thus, when Cook’s testimony contradicted the clear documentary evidence of respondent’s whereabouts on July 20, I assigned it little probative weight.

In addition, Mr. Radziul’s credibility suffered due to the following inconsistency. Petitioner introduced in evidence an undated memorandum by which Mr. Radziul reported to Eric Weinbaum and Timothy George about his surveillance visits on June 22, July 3, July 5, and July 19, 2007 (Pet. Ex. 13). Respondent introduced another memorandum from Mr. Radziul, which is identical to Petitioner’s Exhibit 13 except for an additional entry at the bottom of the page for July 20, 2006. That entry states as follows:

John Halpin was on the supervisor’s itinerary for M003, I went to the school to see if Mr. Halpin was there. When I arrived at M003 I observed the door open on Hudson Street and the door open on Grove Street. I entered the building and observed all the remaining exit doors bolted shut. I waited outside the school in a location that I had a clear view of both exits and Halpin never exited the building. The only person who exited the building was carpenter Bruce Cook. I entered the school and took a time clock punch at 3:45 p.m.

(Resp. Ex. F). Obviously, this version of the memo contradicts the document that petitioner put in evidence as well as Radziul’s testimony that he checked the exits and only one was unlocked. The existence of this second memo not only makes an issue of Mr. Radziul’s credibility but it also raises the question whether the initial memo was redacted by petitioner or by the witness to omit this paragraph to shore up its claim that respondent could not have exited the building from any other door. Petitioner pointed out that Radziul’s handwritten notes for July 20 also have two different entries, which contain the same contradiction (Pet. Ex. 12, at 1 & 3). Radziul made no effort to explain the existence of the contradictory statements (Tr. 312).

Irrespective of Radziul’s contradiction on the issue of how many doors were open, the July 20 GPS data indicates that respondent left Norfolk Street in Manhattan at 2:38 p.m., was on the Brooklyn-Queens Expressway at 2:48 p.m, and continued to points east in Queens and Long Island before arriving in Levittown at 4:48 p.m. Thus, despite questions about Mr. Radziul’s credibility on this point, I find no reason to disturb my finding that respondent left work before the end of his scheduled workday without authorization on June 22, July 19, and July 20, 2006, and falsely reported that he worked the entire workday on those dates, as I find the GPS evidence sufficient to establish the charges.

Standard Operating Procedures

To establish Department policy and rules regarding timekeeping, Eric Weinbaum identified two memos as Standard Operating Procedures that were in place during the period March 2006 to August 2006; these policies, he said, existed at least since 2000 when he became Regional Supervisor (Tr. 249; Pet. Exs. 7 & 9). The protocols indicate, for example, that the “reverse of the [time] card should record [the worker’s] itinerary, in proper and correct sequence with work orders and locations” and that the “only approved clock for recording time” is the time clock in the General Office of the building of the work assignment (Tr. 239-41; Pet. Ex. 7). Employees must be authorized to leave work early. The Department had no unofficial custom or practice in which employees who arrived at work early could leave work before the official end of the workday (Tr. 243). Mr. Weinbaum said that he held staff meetings where such topics were discussed.

Mr. Weinbaum identified a memo entitled “falsification of time records” which stated that several workers had been fired for falsifying time records and reminded employees of the rules and cautioned them to maintain accurate time records (Pet. Ex. 9). He said that he had distributed these memos to his supervisees, including respondent, over the years since 2000 and that respondent was responsible for distributing them to his employees (Tr. 247-48). He stated that all employees were given these memos six months to a year earlier (Tr. 246). He explained that the memos were undated because they were templates, and that copies were periodically handed out and given a current date when distributed.

Mr. Radziul testified that he gave these Standard Operating Procedures to respondent in January 2006, and instructed him to distribute them to his crew (Tr. 276-77; Pet. Exs. 7 & 9). Mr. Lucid denied ever receiving such a packet in 2006 and denied ever seeing the memos (Tr. 353-54), though he noted that he receives memos and each payday receives one or two (Tr. 358). Mr. Cook denied ever seeing the memos (Pet. Exs. 7 & 9), although he agreed that they reflected the standard operating procedures for timekeeping (Tr. 375).

Respondent denied receiving these memoranda from Radziul or anyone else (Tr. 438). He stated that such documents were distributed only to new hires and he had no new hires in 2006. I found this testimony unworthy of belief.

I should note that, in spite of his denial that he received these particular memos, respondent made no claim that he was unaware of his obligation to submit truthful timekeeping entries. Thus, his claim that he did not receive the memos is not meaningful. See notice discussion, below.

Notice and Progressive Discipline

Respondent complained that he was blind sided by these charges because the issue of his timekeeping was never raised with him before charges were being prepared. Respondent believes that being disciplined without prior warning violates the doctrine of progressive discipline (Tr. 437). The Department first met with respondent to discuss his timekeeping when they presented him with the findings of its investigation on August 15, 2006 (Tr. 133, 147-48). The first written notice he received that the Department believed he was leaving work early was given to him after that meeting (Tr. 434; Pet. Ex. 8). Prior to the August 15th meeting, he had never been told there was a problem with his leaving early, or with his time and attendance; he further claimed that he had never been written up for time and attendance problems (Tr. 432). According to petitioner’s witnesses, respondent admitted at the August 15th meeting that he may have left work early on a few occasions. At trial, respondent denied making any such admission and stated that, in the 1980s, carpenters were sometimes allowed by their supervisors to leave early at the end of a hard day’s work (Tr. 433). But he had never left early as a supervisor.

Although Mr. Radziul first grew suspicious of respondent’s movements in May 2006, he candidly admitted that respondent was never counseled about his timekeeping, because the Department wanted to build a case against him before tipping him off (Tr. 279-80). He did say, however, that he had spoken several times to respondent about his failure to start his day at the locations listed on his itinerary (Tr. 273-74). He documented one such conversation in his notes, dated May 15, 2006 (Pet. Ex. 12).

Supervisor of Carpenters Patrick Markham testified that the Department traditionally uses a system of progressive discipline, which includes a series of incremental steps to address violations of work rules (Tr. 332). For a first instance, he would verbally counsel an employee. For a second instance, he would have a discussion with the employee and the Supervisor of Mechanics. The next time, the Department may take disciplinary action and follow up with a letter. The time after that, an area manager may get involved and suspension would be discussed. The question is whether the Department’s different course of conducting discipline in this instance violated respondent’s rights. I have no basis for finding that it did. See Dep't of Sanitation v. Yovino, OATH Index No. 1209/96 (Oct. 9, 1996), rev'd in part on other grounds, NYC Civ. Serv. Comm'n Item No. CD 97-109-O (Dec. 4, 1997) (defense of selective prosecution is not a defense to misconduct and is available only if allegedly predicated on constitutionally suspect criteria, and only upon judicial review of an adverse administrative determination). Respondent has presented no rule requiring the Department to provide him with warning of its concern about his timekeeping before investigating him. So long as respondent is aware that false timekeeping is violative of the rules (a fact that he never denied), he is expected to truthfully report his time. He cannot find excuse or mitigation of his false timekeeping by the Department’s decision not to issue early warnings about their suspicions.

In employee disciplinary cases, fundamental fairness generally requires that notice be given that a particular action is proscribed before an employee is disciplined for that action. See Dep't of Correction v. Baysmore, OATH Index No. 393/81, at 8-9 (Feb. 9, 1982) (officer may not be held accountable for non-compliance with institutional order of which he never had notice). An employee is chargeable with notice of his employer's rules if made known to him or made generally accessible in a manner reasonably calculated to provide notice. See Quinn v. Brooklyn Heights RR. Co., 91 A.D. 489, 86 N.Y.S. 883 (2d Dep’t 1904) (book of alleged rules was properly excluded from evidence where it was prepared after the accident and contained rules that were not in the original lost book that was prepared before the accident). The only exception to this proposition of law involves conduct that is clearly wrong, i.e., well known, commonly accepted standards of reasonable discipline and proper conduct. Baysmore, OATH 393/81, at 7 (citing In re Ross Gear & Tool Co., 35 Lab. Arb. Rep. (BNA) 293, 295-96 (1960)). The notice to which respondent was entitled was notice that false timekeeping was disciplinable misconduct, and I find that as a supervisor he was on notice by the Department’s policies which were made generally accessible to him in a manner reasonably calculated to provide notice. Moreover, I find that even if such memos had not existed, respondent would be charged with the generally accepted principle that employees must submit truthful time cards and may be paid only for the hours that they actually worked. See Petties v. New York State Dep't of Mental Retardation and Developmental Disabilities, 93 A.D.2d 960, 961, 463 N.Y.S.2d 284, 286 (3d Dep't 1983) (egregiously vexing activity need not be specifically proscribed by a rule or regulation to be actionable as misconduct). Respondent’s filing for hours that he did not work and acceptance of payment for those hours unambiguously violated the Department’s rules.

Respondent also argued that use of the GPS data was unfair, because employees were not told that the data could be used for purposes of discipline (Tr. 445). The receipt signed by respondent at the time his GPS cell phone was issued to him does not mention that disciplinary action could result from the tracking of his movements (Pet. Ex. 1). Mr. George was unable to confirm that respondent, or any other employee, was given notice that the GPS could be used in a disciplinary proceeding (Tr. 172-74). Carpenter James Finnerty testified that Mr. Radziul told him that GPS would never be used for tracking employees for purposes of discipline (Tr. 339). To the extent that use of this data does not violate respondent’s privacy interests, as discussed below, respondent cannot object to the method by which the Department proves his misconduct. The Department is not expected to notify its employees of all the methods it may possibly use to uncover their misconduct.[7]

Privacy

Respondent initially suggested that employees were forced to use the Department’s cell phones with the GPS tracking, but petitioner credibly established that employees were given the option to reject those phones. Respondent testified that at the time that he received his phone, he was told that he had to take one, but he conceded that there were supervisors who did not take a GPS phone and instead used their own phones (Tr. 443-44). Supervisor Patrick Markham also acknowledged that some supervisors used their personal cell phones, without GPS (Tr. 333). Mr. George testified that the supervisors could only get a Department-issued phone if they accepted the GPS, but respondent could have refused the Department-issued phone and used his own, as did other supervisors (Tr. 175). Respondent admitted he took the phone because he liked the walkie-talkie and other functions it has. Respondent stated, however, that he understands what the GPS technology does, but he did not know that his car was being “tracked” by it (Tr. 445). I found this claim to lack credibility.

Respondent argued that the GPS violated employee privacy, because it collects data from 7:00 a.m. to 6:00 p.m. (Tr. 81, 105), thus capturing their movements during hours when they are not at work, including holidays, despite Department representations that off-hours movements would not be tracked (Pet. Ex. 1). The Department claimed that employees were not being tracked during off hours, although the data clearly shows that their movements are being captured and maintained in the GPS database, as was demonstrated in the records of respondent’s movements.

Nevertheless, I found no violation of a legitimate privacy interest here. The matter of workplace searches was addressed by the U.S. Supreme Court in O'Connor et al. v. Ortega, 480 U.S. 709, 107 S. Ct. 1492 (1987), which held that searches by government employers of the workplace and private property of their employees are subject to the restraints of the Fourth Amendment, but that Fourth Amendment rights are implicated only if the conduct of government officials infringes on an “expectation of privacy that society is prepared to consider reasonable.” 480 U.S. at 715, 107 S. Ct. at 1496. Given the variety of work environments in the public sector, the question whether an employee has a reasonable expectation of privacy should be addressed on a case-by-case basis. The Court noted that an employee may have a greater expectation of privacy in personal property that happens to be in the workplace (e.g., a briefcase) than in work-related items generally within the employer's control (e.g., an office, desk, or file cabinet). The expectation of privacy may be affected by actual office practice and procedure or by legitimate regulation. 480 U.S. at 717, 107 S. Ct. at 1497.

The first question is whether respondent held a “reasonable expectation of privacy” in his movements during work hours, particularly once assigned a Department-issued cell phone with GPS. I find that he did not. The undisputed intent of issuing the cell phone with GPS was for the Department to be able to determine the whereabouts of its supervisors in the field. Although he may not have anticipated that the data would be used for disciplinary purposes, respondent cannot claim to be surprised that his employer was tracking his movements with the GPS mechanism. That is, “[s]ome government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.” 480 U.S. at 718, 107 S. Ct. at 1498. Even if respondent had a reasonable expectation of privacy, which I find he did not, he would also have to establish that the scope and manner of the search was unreasonable.

In determining whether the search was reasonable, we look to the context within which it took place and “balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” 480 U.S. at 719, 107 S. Ct. at 1498-99. Where a search is conducted by a public employer, the tribunal must balance “the invasion of the employees’ legitimate expectations of privacy against the government's need for supervision, control, and the efficient operation of the workplace.” 480 U.S. at 719-20, 107 S. Ct. at 1499.

I find that this search – using GPS data to track respondent’s movements during work hours -- was reasonably related in scope to the circumstances that justified interference in the first place and, thus, that it was reasonable in its inception and as conducted and did not intrude upon respondent’s Fourth Amendment rights.

While petitioner also maintained records of respondent’s movements after work hours, those were not used to establish misconduct in this proceeding.

Respondent’s Case

Respondent is a 21-year employee of the Department (Tr. 381). He has worked as a Supervisor of Carpenters for over 17 years. He described his recent tenure with the Department as chaotic and marked by inefficiencies that he blamed on a “floundering” pilot program launched by the Department to improve productivity (Tr. 383-84). According to respondent, as a result of this program, he became responsible for additional work that tripled the number of schools that he has to visit and doubled his paperwork (Tr. 387). He said the pilot program also made him responsible for handling untimely and unordered supplies and resulted in 30 new work-related calls each day from management, co-workers, trades people or his crew (Tr. 386, 389, 393).[8]

The carpenters whom respondent supervises, Finnerty, Lucid, Augustyn, and Cook all testified favorably for him. They testified that they relied on him to supply them with the tools and materials to do their work because job assignments may easily come to a halt without the proper materials (Tr. 341-42, 349-50, 362-63, 371-72). Despite the fact that they do not see him often, they say he is generally available by phone. They call him by phone when they need materials and he always responds promptly, within minutes. They said it was not unusual to see him working before 8:00 a.m.

Respondent said that his onerous schedule and extra duties led him to be at work as early as 6:00 a.m., for which he often did not receive overtime pay. But he said he could not have gotten his job done otherwise (Tr. 421-22). He also said he often started work early to get the materials on the job before the crew arrived at 8:00 a.m. (Tr. 464). He said he almost always started work before punching in. According to him, there was no carpenter’s supervisor who did more hands-on work than he did, and he had been complimented previously about his ability to get his job done by the supervisors who testified against him (Tr. 396-97).

Respondent pointed out that the GPS data shows that he was in Manhattan near school facilities between 6:00 a.m. and 7:00 a.m. on many days, which suggests that he started his workday before official hours (Tr. 157-68). The data supports his claim, indicating that respondent was in Manhattan or near a school building or the Queens Area Office at the following dates and times:

|Early Arrivals |

|Date |Time in Manhattan or at QAO |

|April 14 |7:48 am |

|April 17 |8:25 am |

|April 19 |7:05 am |

|April 20 |7:07 am |

|April 24 |7:03 am |

|April 25 |7:01 am |

|April 26 |7:01 am |

|April 27 |7:01 am |

|April 28 |7:00 am |

|May 1 |7:16 am |

|May 2 |7:14 am |

|May 3 |7:54 am |

|May 4 |7:14 am |

|May 5 |7:02 am |

|May 8 |7:26 am |

|May 9 |7:02 am |

|May 10 |7:02 am |

|May 11 |7:02 am |

|May 12 |6:02 am |

|May 15 |6:48 am |

|May 16 |6:04 am |

|May 17 |6:18 am |

|May 18 |6:15 am |

|May 24 |7:11 am |

|May 26 |6:02 am |

|May 30 |6:03 am |

|May 31 |6:02 am |

|June 1 |6:26 am |

|June 2 |6:37 am |

|June 5 |6:02 am |

|June 6 |6:02 am |

|June 7 |6:38 am |

|June 8 |6:02 am |

|June 12 |6:18 am |

|June 14 |6:02 am |

|June 15 |6:01 am |

|June 19 |6:03 am |

|June 21 |6:01 am |

|June 22 |6:04 am |

|July 5 |6:47 am |

|July 7 |7:01 am |

|July 10 |6:02 am |

|July 12 |6:01 am |

|July 14 |6:01 am |

|July 17 |6:17 am |

|July 18 |7:27 am |

|July 19 |6:03 am |

|July 20 |6:05 am |

|July 24 |6:15 am |

|July 25 |6:05 am |

|July 26 |7:28 am |

|July 27 |6:05 am |

|July 28 |6:05 am |

|July 31 |6:38 am |

|August 1 |6:52 am |

|August 3 |6:16 am |

|August 4 |6:03 am |

|August 7 |6:41 am |

|August 8 |6:17 am |

|August 9 |6:37 am |

(Pet. Ex. 2).

Although respondent said that he often reported for duty early because of his workload, he conceded that he was obligated to complete his workday at 3:30 p.m. no matter what time he clocked in, and that working from 7:00 a.m. to 2:30 p.m. would not be permissible without prior approval (Tr. 216). It is undisputed that respondent was never authorized to leave early on the days that he started work early, and employees are not allowed to change their designated hours (Tr. 194). Such a schedule would not be permissible also because respondent supervises six carpenters whose hours correspond to the normal 8:00 to 3:30 schedule; thus, he could never expect to regularly leave work any earlier (Tr. 215, 243).

Respondent understood the timekeeping rules, although he admittedly did not follow them to the letter. For example, he conceded that he does not fill out the work locations his time cards contemporaneously, he said, because he does not have the time (Tr. 401-04). He thought nothing of his poor recordkeeping, explaining that “at the end of the day you just want to get the heck out of there” (Tr. 459). He also is required to make a daily computer entry for his itinerary, which lists the work that he and his nine crew members will be doing that day along with work locations (Tr. 407). He turns in his itinerary each day to an administrative assistant, who he said fills it out for him but sometimes makes mistakes. He said he often updates or changes his itinerary after it is due (Tr. 408). He also said that he sometimes fills out the Site Sheets retroactively from memory rather than completing them contemporaneously as he moves from school to school (Tr. 134).[9] Mr. Landriscina testified that workers may be reprimanded for failing to document their movements accurately on Departmental forms (Tr. 218).

Respondent insisted that he clocked out at the times stated on his time sheets (Tr. 413-19). He said he clocks out wherever he is at the end of the day, which may change due to last minute requests or instructions from managers or school principals. He also explained that the last location on the back of his time card may not be the location where he punched out, because errors are sometimes made, and sometimes he makes so many moves that he does not have enough room to write them all down (Tr. 420-21).

While respondent viewed himself as dedicated to his job (noting that he worked overtime without compensation and extolling his efficiency), he diminished the virtue of being accountable to his superiors by timely and accurate reporting of his work assignments, even though he could be sanctioned for it (Tr. 218). I found his explanation of the Department’s inefficiency versus his own work ethic to be exaggerated and affected. He called it “harassment” to require that he sign his time card right after punching it (Tr. 475). Respondent was generous in attributing responsibility to others – to his wife for taking his car and phone, to the Department for a failed and inefficient pilot program, and to his administrative assistant for making clerical errors on his reports – but short on taking responsibility. When pressed about why his time cards, Site Sheets and itineraries were consistently inconsistent with his actual movements, respondent minimized the importance of proper reporting, stating that “Our primary function is still what we are hired to do, which is to be trades people” (Tr. 508). In actuality, his primary function is as a manager or supervisor of trades people. As a manager, he should have a heightened awareness of the importance of accurate recordkeeping. Instead, I found his rationalizations thinly veiled excuses for poor recordkeeping that was designed to mask the fact that he was not where he was supposed to be during work hours.

In sum, I found respondent’s excuses lacking in credibility and find no basis for a defense to the charges sustained herein.

FINDINGS AND CONCLUSIONS

1. Petitioner established that respondent committed misconduct by leaving work early, without authorization, on 63 days during the period April 5 to August 9, 2006.

2. Petitioner established that respondent committed misconduct by falsifying his time cards to indicate that he worked a full workday on the above-referenced 63 days.

RECOMMENDATION

Upon making the above findings and conclusions, I obtained and reviewed a copy of respondent's disciplinary file as provided to me by the agency. Mr. Halpin has been employed by the Department of Education for more than 21 years. His prior discipline consists of a two-day suspension for being away from his assigned work location on two occasions in 1998. In 1992, respondent was suspended from being able to operate official vehicles until he could produce a valid driver’s license.

In this case, the Department has requested a penalty of termination. Respondent has been found guilty of the charges preferred against him, which include leaving work early, without authorization, and falsifying his time cards to make it appear as though he worked the entire workday. These charges are serious indeed.

Termination is the standard penalty for time theft and falsification of time records. See Office of the Comptroller v. Nieves, OATH Index No. 962/04 (Oct. 29, 2004) (termination for falsifying arrival time at work on 26 occasions for a total of 445 minutes, insubordination, making extended non-business related phone calls, and excessive lateness); Human Resources Admin. v. Williams, OATH Index No. 2155/01 (Oct. 18, 2001), aff'd, NYC Civ. Serv. Comm'n Item No. CD03-29-SA (Apr. 15, 2003) (termination recommended for falsely reporting time on 39 occasions during three-month period); Dep’t of Transportation v. Castellano, OATH Index No. 1176/01 (July 11, 2001), modified on penalty, Comm’r Decision (Oct. 5, 2001), aff’d, NYC Civ. Serv. Comm’n Item No. CD03-34-SA (Apr. 2, 2003) (laborer terminated for knowingly altering his time cards on five occasions to receive $600 in compensation); Dep’t of Citywide Admin. Services v. Done, OATH Index No. 1119/02 (Apr. 3, 2002); Human Resources Admin. v. Golden, OATH Index No. 2441/00 (Nov. 8, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-53-SA (July 27, 2001); Health and Hospitals Corp. v. Mills, OATH Index No. 581/96 (Jan. 4, 1996); Dep’t of Housing Preservation & Development v. Cobblah, OATH Index No. 744/95 (Mar. 10, 1995), aff’d, NYC Civ. Serv. Comm’n Item No. CD 96-8 (Jan. 29, 1996); Dep’t of Consumer Affairs v. Zakzouk, OATH Index No. 219/90 (Dec. 22, 1989); Dep’t of Housing Preservation & Development v. Emanuele, OATH Index No. 101/85 (Apr. 23, 1985). In Transit Auth. v. Caruso, OATH Index No. 685/92 (Jan. 28, 1993), the tribunal held that “falsification of time records involved moral turpitude, which has been held to warrant the most severe penalty available, even though small amounts of money are at issue.” Id. at 24 (citing Pell v. Bd. of Educ., 34 N.Y.2d 222, 234-35, 356 N.Y.S.2d 833, 842 (1974)).

Only in the rarest of circumstances is this standard not applied. See, e.g., Transit Auth. v. Patel, OATH Index No. 1946/01 (Jan. 10, 2002) (penalty for submission of a fraudulent medical note was mitigated to 60-day suspension by facts that respondent was under severe stress of serious illness, had engaged in no pattern of deception, admitted the falsification when confronted by his supervisor, and the conduct was unlikely to recur).

Although a lengthy tenure typically provides a basis for mitigating a penalty, this may not be the case where the misconduct involves deliberate acts of deception. See Pell, 34 N.Y.2d at 235, 356 N.Y.S.2d at 843 (deliberate acts involving dishonesty render mitigatory factors inapplicable); Golden, OATH 2441/00 (27-year employee terminated for falsifying his arrival time at work nine times during a three-month period and for 75 occasions of lateness during the year). In this case, respondent falsified his work hours on at least 63 occasions during a four-month period, conduct that is unquestionably deliberate and dishonest.

Respondent complains that he was entitled to a warning and opportunity to correct his behavior, but he was not. It is far more important that the Department have the ability to investigate the propriety of its employees’ actions, particularly inasmuch as it must have confidence in the integrity of its supervisors whose positions require them to be in the field on a continuous basis, supervising workers, and ordering large quantities of supplies. Respondent’s misconduct destroyed that confidence.

In addition, respondent’s demeanor at trial did not argue that he should be given a second chance. I found him less than candid and his testimony rife with excuses for his conduct. For example, he denied that he had ever been disciplined for time and attendance issues, but later admitted to a two-day suspension for running around a school track during work hours (Tr. 527). He justified his denial by insisting that the prior conduct was not the same as going home early. The Department’s impeachment of respondent’s prior statement proceeded as follows:

Q: Mr. Halpin, you testified previously that prior to this meeting that you had never been written up or disciplined in any way, shape or form concerning time and attendance.

A: Correct.

Q: Well, isn’t it a fact that you signed a stipulation and had a two-day suspension in regard to an issue with not being where you were supposed to be?

A: I was running around a school track, that’s not going home early. That’s not – I mean, you’re on a school track, that was a gross – and I wasn’t, I also had no progressive discipline on that either.

Q: That’s, you don’t consider that attendance that you were not where you were supposed to be is not attendance?

A: Where I’m supposed to be, I was running around a school track, I’m not hiding.

(Tr. 527-28). In addition to impeaching his truthfulness, this interchange revealed an absence of contrition for even past misconduct, which was consistent with respondent’s failure to take responsibility for his actions in this case. I found in respondent’s testimony no remorse for his actions nor did I have confidence that he would conform to the Department’s timekeeping requirements in the future. Finding no basis for mitigating his penalty, I recommend respondent’s termination.

TYNIA D. RICHARD

Administrative Law Judge

August 9, 2007

SUBMITTED TO:

JOEL I. KLEIN

Chancellor

APPEARANCES:

SUSAN JALOWSKI, ESQ.

Attorney for Petitioner

WOLIN & WOLIN

Attorneys for Respondent

BY: ALAN E. WOLIN, ESQ.

-----------------------

[1] Petitioner withdrew Specification 21, which included the date April 11, 2006 (Tr. 86).

[2] Petitioner’s second specification also alleges that respondent received payment for those days, but petitioner failed to put in evidence that payment was received. Although respondent did not deny receiving payment, it is petitioner’s burden to make its case establishing the allegation. Accordingly, this tribunal makes no finding with respect to whether payment was received.

[3] Mr. George testified that the Queens Area Office is located at 4436 Vernon Boulevard in Long Island City, Queens. The building occupies an entire city block and thus picks up several cell towers, including Route 125, Long Island City, 1183 Manhattan Avenue, and 88 Pearson Street (Tr. 73-74).

[4] The website continues as follows:

The GPS is made up of three parts: satellites orbiting the Earth; control and monitoring stations on Earth; and the GPS receivers owned by users. GPS satellites broadcast signals from space that are picked up and identified by GPS receivers. Each GPS receiver then provides three-dimensional location (latitude, longitude, and altitude) plus the time.

Individuals may purchase GPS handsets that are readily available through commercial retailers. Equipped with these GPS receivers, users can accurately locate where they are and easily navigate to where they want to go, whether walking, driving, flying, or boating. GPS has become a mainstay of transportation systems worldwide, providing navigation for aviation, ground, and maritime operations. Disaster relief and emergency services depend upon GPS for location and timing capabilities in their life-saving missions. Everyday activities such as banking, mobile phone operations, and even the control of power grids, are facilitated by the accurate timing provided by GPS. Farmers, surveyors, geologists and countless others perform their work more efficiently, safely, economically, and accurately using the free and open GPS signals.

[5] Radziul again drove to respondent’s home on July 5th to photograph him arriving home early (Tr. 267). Though he waited until 4:00 p.m., respondent did not arrive in that time (Pet. Exs. 12 & 13).

[6] The GPS data for July 19, 2006, was testified about but was not submitted to the tribunal.

[7] Incredibly, respondent also argued that petitioner has no authority to investigate the activities of its own employees because such activities are under the auspices of other investigative agencies, such as the Special Commissioner of Investigations and the Office of Special Investigations. In light of the decision of these agencies to decline investigation of the allegations, the Department conducted its own investigation. There is no support for the proposition that the Department had no authority to investigate allegations of time theft.

[8] Among respondent’s regular duties are speaking with school principals and custodians to schedule access to their facilities, checking on his crew and coordinating the flow of work so it is constant, ordering materials by computer, writing orders for lumber and carpentry work to be done, and completing paperwork such as timecards, accident reports, and carfare reimbursements for his crew.

[9] In addition, in June 2006, according to respondent, Mr. Radziul told him to resubmit a number of his Site Sheets from March and April because they were missing; respondent stated that he had previously sent them in (Tr. 405). He reconstructed the sheets from memory and from information in his itineraries; he did not have the timecards to refer to (Tr. 406). While this might explain why his Site Sheets so frequently differed from his time cards and the GPS data, it would not explain why his time cards so differ from the GPS. Regarding the inconsistencies in his Site Sheets, respondent attributed them to failure of memory and the fact that he is a carpenter, not a record keeper.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download