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Cunningham 2. Section 75 Award. DOL. Discharge

Cunningham 2. Section 75 Award. DOL. Discharge

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Published by Celeste Katz

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Published by: Celeste Katz on Dec 06, 2010
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12/06/2010

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STATE OF NEW YORKCIVIL SERVICE LAW SECTION 75In the Matter of the Civil Service LawSection 75 Disciplinary Charges preferred byNEW YORK STATE
FINDINGS
 DEPARTMENT OF LABORCharging Party,
AND
 -against-
RECOMMENDATION
 MICHAEL A. CUNNINGHAM,Respondent.BEFORE: Jeffrey M. Selchick, Esq.Hearing Officer APPEARANCES:New York State Department of Labor Walter Greenberg, Labor Relations RepresentativeRespondent Michael A. CunninghamDonohue, Sabo, Varley & Huttner, LLPKenneth G. Varley, Esq., of CounselThe undersigned was designated by M. Patricia Smith, New York StateCommissioner of Labor and head of the NYS Department of Labor, per MartinDunbar, Deputy Commissioner for Administration, by letter dated May 11, 2009,to serve as Hearing Officer pursuant to the provisions of Section 75 of the CivilService Law of the State of New York regarding Charges brought under thatSection by the New York State Department of Labor (“State” or “DOL”) againstMichael A. Cunningham (“Respondent”). (Hearing Officer Exhibit 1).
 
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Hearings were held in Albany, New York on January 14, February 3,March 9, April 27 and April 29, 2010. The parties were accorded a full and fair hearing, including the right to present oral and written evidence and to examineand cross-examine witnesses. The record was closed upon the receipt of post-hearing briefs.
CHARGESDATED MARCH 25, 2009
 In accordance with the provisions of Section 75 of the NYSCivil Service Law you are hereby charged with misconduct and/or incompetence as specified below:1. You submitted or authorized the submission of a falsifiedtime record for the period May 29, 2008 through June 11,2008 in that:a. On June 3, 2008 your time record indicated that youwere present for 6 hours. Your time record reflected anabsence of 1.5 hours. However, you did not arrive atBuilding #12 until approximately 10:00 AM anddeparted at approximately 1:54 PM. This would havenecessitated recording an aggregate absence of atleast 3.5 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.b. On June 9, 2008, your time record indicated that youwere present for 5.5 hours. Your time record reflectedan absence of 2.0 hours. However, you did not arriveat Building #12 until approximately 9:05 AM. Youdeparted work from Troy, New York, at approximately12:25 PM. This would have necessitated recording anaggregate absence of at least 4.0 hours based oneither a 9:00 AM to 5:00 PM schedule or an 8:30 AM to4:30 PM schedule.
 
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c. On June 10, 2008, your time record indicated that youwere present for 5.5 hours. Your time record reflectedan absence of 2.0 hours. However, you did not arriveat Building #12 until approximately 10:10 AM and youdeparted at approximately 2:53 PM. This would havenecessitated recording an aggregate absence of atleast 2.75 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.2. You submitted or authorized the submission of a falsifiedtime record for the period June 12, 2008, through June 25,2008, in that:a. On June 13, 2008, your time record indicated that youwere present for 6.0 hours. Your time record reflectedan absence of 1.5 hours. However, you did not arriveat Building #12 until approximately 9:15 AM and youdeparted at approximately 10:20 AM returning toBuilding #12 at approximately 11:10 AM and departingagain at approximately 1:40 PM. This would havenecessitated recording an aggregate absence of atleast 3.5 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.b. On June 20, 2008 your time record indicated that youwere present for 7.5 hours. However, you did not arriveat Building #12 until approximately 9:17 AM and thendeparted at approximately 2:41 PM. This would havenecessitated recording an aggregate absence of at least3.0 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.c. On June 25, 2008, you returned home from a field trip atapproximately 12:47 PM. Your time record reflects thatyou were present for 7.5 hours. You did not charge thebalance of the day as time off nor did you request anadjustment to your work schedule for the week or otherwise advise your supervisor, Andrew Adams of your absence.

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