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Charges preferred by NEW YORK STATE DEPARTMENT OF LABOR Charging Party, -againstMICHAEL A. CUNNINGHAM, Respondent. FINDINGS AND RECOMMENDATION
Jeffrey M. Selchick, Esq. Hearing Officer
New York State Department of Labor Walter Greenberg, Labor Relations Representative Respondent Michael A. Cunningham Donohue, Sabo, Varley & Huttner, LLP Kenneth G. Varley, Esq., of Counsel The undersigned was designated by M. Patricia Smith, New York State Commissioner of Labor and head of the NYS Department of Labor, per Martin Dunbar, Deputy Commissioner for Administration, by letter dated May 11, 2009, to serve as Hearing Officer pursuant to the provisions of Section 75 of the Civil Service Law of the State of New York regarding Charges brought under that Section by the New York State Department of Labor (“State” or “DOL”) against Michael A. Cunningham (“Respondent”). (Hearing Officer Exhibit 1).
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 examine and cross-examine witnesses. The record was closed upon the receipt of posthearing briefs.
CHARGES DATED MARCH 25, 2009 In accordance with the provisions of Section 75 of the NYS Civil Service Law you are hereby charged with misconduct and/or incompetence as specified below: 1. You submitted or authorized the submission of a falsified time record for the period May 29, 2008 through June 11, 2008 in that: a. On June 3, 2008 your time record indicated that you were present for 6 hours. Your time record reflected an absence of 1.5 hours. However, you did not arrive at Building #12 until approximately 10:00 AM and departed at approximately 1:54 PM. This would have necessitated recording an aggregate absence of at least 3.5 hours based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule. On June 9, 2008, your time record indicated that you were present for 5.5 hours. Your time record reflected an absence of 2.0 hours. However, you did not arrive at Building #12 until approximately 9:05 AM. You departed work from Troy, New York, at approximately 12:25 PM. This would have necessitated recording an aggregate absence of at least 4.0 hours based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule.
On June 10, 2008, your time record indicated that you were present for 5.5 hours. Your time record reflected an absence of 2.0 hours. However, you did not arrive at Building #12 until approximately 10:10 AM and you departed at approximately 2:53 PM. This would have necessitated recording an aggregate absence of at least 2.75 hours based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule.
You submitted or authorized the submission of a falsified time record for the period June 12, 2008, through June 25, 2008, in that: a. On June 13, 2008, your time record indicated that you were present for 6.0 hours. Your time record reflected an absence of 1.5 hours. However, you did not arrive at Building #12 until approximately 9:15 AM and you departed at approximately 10:20 AM returning to Building #12 at approximately 11:10 AM and departing again at approximately 1:40 PM. This would have necessitated recording an aggregate absence of at least 3.5 hours based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule. On June 20, 2008 your time record indicated that you were present for 7.5 hours. However, you did not arrive at Building #12 until approximately 9:17 AM and then departed at approximately 2:41 PM. This would have necessitated recording an aggregate absence of at least 3.0 hours based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule. On June 25, 2008, you returned home from a field trip at approximately 12:47 PM. Your time record reflects that you were present for 7.5 hours. You did not charge the balance of the day as time off nor did you request an adjustment to your work schedule for the week or otherwise advise your supervisor, Andrew Adams of your absence.
On June 25, 2008, your time record indicated that you worked a full day when in fact you arrived home at approximately 12:47 PM and did not advise your supervisor that you would not be returning to the office or amending your schedule.
You submitted or authorized the submission of a falsified time record for the period June 26, 2008, through July 9, 2008, in that: a. On June 26, 2008, your time record indicated that you lucre present for 7.5 hours. However, you did not arrive at Building #12 until approximately 9:06 AM and you departed at approximately 3:23 PM. This would have necessitated recording an aggregate absence of at least 1.0 hours based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule. On June 27, 2008, your time record indicated that you were present for 5.5 hours. Your time record reflected an absence of 2.0 hours. However, you did not arrive at Building #12 until approximately 9:10 AM and you departed at approximately 1:22 PM. This would have necessitated recording an aggregate absence of at least 3.25 hour based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule.
You submitted or authorized the submission of a falsified time record for the period July 10, 2008, through July 23, 2008, in that your time record for July 17, 2008, indicated that you were present for 6.0 hours. Your time record reflected an absence of 1.5 hours. However, you departed work at a time that allowed you to arrive at 2494 Troy-Schenectady Road, Schenectady, New York by approximately 2:16 PM. This would have necessitated recording an aggregated absence of at least 2.5 hours based on either a 9:00 AM to 5:00 PM schedule or an 8:30 AM to 4:30 PM schedule. During the period April 1, 2008, through August 15, 2008, you regularly submitted time records that indicated that your schedule was 9:00 AM to 5:30 PM while you continued to work a basic schedule that was from 8:30 AM to 4:30 PM.
Your failure to change your work schedule constitutes insubordination. 6. 7. You approved falsified time records for your secretary, Lori-Jo Carroll for June 19, June 26, and July 17, 2008. You placed the Agency it jeopardy of having a complaint filed against it under the Fair Labor Standards Act in that you were aware of the fact that your secretary Lori-Jo Carroll worked hours beyond her regularly scheduled hours on June 23 and 24, 2008. However, you failed to have her record her exact hours of work which would have resulted in additional compensation for those dates. You submitted a falsified travel voucher for the period June 23 through June 25, 2008, in that you showed that you departed Syracuse, New York at 2:30 PM on June 25, 2008, when you actually departed at approximately 10:00 AM. Further you indicated that you arrived home at 5:00 PM when you actually arrived home at approximately 12:47 PM. Additionally you submitted for payment for a dinner on that voucher despite the fact that you were not entitled to a dinner reimbursement for June 25, 2008. You knowingly approved a falsified travel voucher for the period June 23 through June 25, 2008 for your secretary, LoriJo Carroll, in that her voucher showed that she arrived home at 4:45 PM when she actually arrived home at approximately 12:31 PM. Additionally, you approved payment for dinner on that voucher despite the fact that Ms. Carroll was not entitled to dinner for June 25, 2008. You knowingly approved a falsified time record for the period June 11 through June 25, 2008, for your secretary, Lori-Jo Carroll, in that her time record indicated that she worked a full day on June 25, 2008, when in fact she arrived home at approximately 12:31 PM. On August 13, 2008, you were untruthful in your interview with the staff of the State Inspector General when you stated that on June 25, 2008, you dropped Ms. Carroll off at approximately 5:00PM.
You were insubordinate it that on August 13, 2008, and on December 31, 2008, you were directed to have no contact with Department of Labor employees, vendors, and clients; yet on several occasions between August 13, 2008, and the date of this notice, you contacted Sherry Edwards, Assistant Director of OSOD. Specifically, you contacted Ms. Edwards by telephone on or about August 13, 17, September 16, and December 19, 2008. You also contacted Ms. Edwards on or about January 29, February 4, and March 5, 2009. Further, you were untruthful in your interrogation on March 4, 2008, when you stated that Debora O'Brien-Jordan, Director of Personnel, told you that you could contact agency staff. You are no longer a viable employee of the Department of Labor, in that your aggregate absence from work for the period April 1 through August 11, 2008, was between 24.6 and 28.9 percent of the available working time. This is demonstrated on the attached listing of your absences for the period.
Michael Cunningham-Absences April 1, 2008 – August 11, 2008
APRIL Date 4/1/2008 4/8/2008 4/10/2008 4/11/2008 4/14/2008 4/15/2008 4/21/3008 4/22/2008 4/23/2008 4/24/2008 4/29/2008 4/30/2008 MAY Date 5/1/2008 5/2/2008 5/8/2008 5/9/2008 5/14/2008 5/16/2008 5/19/2008 5/19/2008 5/30/2008 Day Tuesday Tuesday Thursday Friday Monday Tuesday Monday Tuesday Wednesday Thursday Tuesday Wednesday Hours 1.5 0 4.5 7.5 7.5 7.5 1 1.5 3.5 3 0 1
(Hearing Officer Exhibit 2)
Charged To Annual Sick AWO AWO AWO Annual Annual AWO AWO Annual
Day Thursday Friday Thursday Friday Wednesday Friday Monday Monday Friday
Hours 0 3.5 7.5 3 1.5 7.5 1.5 0.5 1
Charged To Personal AWO AWO Annual AWO Annual Personal AWO
JUNE Date 6/2/2008 6/3/2008 6/5/2008 6/9/2008 6/10/2008 6/12/2008 6/13/2008 6/17/2008 6/18/2008 6/19/2008 6/20/2008 6/25/2008 6/26/2008 6/27/2008 6/30/2008 JULY Date 7/1/2008 7/2/2008 7/3/2008 7/72008 7/11/2008 7/15/2008 7/16/2008 7/17/2008 7/18/2008 7/21/2008 7/24/2008 7/25/2008 7/28/2008
Day Monday Tuesday Thursday Monday Tuesday Thursday Friday Tuesday Wednesday Thursday Friday Wednesday Thursday Friday Monday Day Tuesday Wednesday Thursday Monday Friday Tuesday Wednesday Thursday Friday Monday Thursday Friday Monday
Hours 1.5 1.5 2 2 2 2 1.5 1.5 1.5 7.5 0 0 0 2 7.5 Hours 7.5 7.5 7.5 1.5 1 1 1.5 1.5 7.5 7.5 3 3 7.5 Hours 2.5 3 0.75 1.5 7.5 2 171.75
Charged To AWO Annual AWO AWO AWO Annual Annual Annual Annual AWO
Unrecorded 2 2 0.75 2
Total 3.5 4 2.75 3.5
3 1.75/4.25 1 Annual Annual Charged To Annual Annual Annual Annual Sick Sick Sick Sick Annual Sick Annual Annual Sick Charged To Sick Annual Annual Annual VRWS Sick Unrecorded
3 1.75/4.25 1
AUGUST Date Day 8/1/2008 Friday 8/5/2008 Tuesday 8/6/2008 Wednesday 8/7/2008 Thursday 8/8/2008 Friday 8/11/2008 Monday Total
Total Available Work Hours for (93 days) 697.5 hours Percentage of absence 24.6% - 28.9% # of Occasions Total Absences: Full day Partial day Tuesday 2 9 14 41 Total Recorded Hours 105 66.75 171.75 Total Unrecorded Hours 0 27.5/30 27.5/30 Friday 4 9
Total Hours 105 94.25/96.75 199.25/201.75
Monday Full 4 Partial 6
Wednesday 1 7
Thursday 3 9
BACKGROUND FACTS Respondent for the time period relevant to the Charges was Director of the Staff and Organizational Development in the Department of Labor (DOL), a position he has held since 1988. To understand the scope of the evidence underlying the alleged Charges, it is useful to note that, at the DOL’s request, the New York State Office of State Inspector General (OSIG) began to conduct an investigation of Respondent in April of 2008. This investigation included attaching a GPS device to Respondent’s personal vehicle and issuing an ex parte subpoena upon the Port Authority of New York and New Jersey for E-Z Pass records for Respondent’s personal vehicle. (State Exhibit 25). By
decision dated March 3, 2010 (Hearing Officer Exhibit 5), the Hearing Officer, for the reasons stated therein, ruled that the DOL had the legal right to attach the GPS devices and the legal right to subpoena E-Z Pass records. The Hearing Officer will make specific findings concerning the allegations in the Charges after stating the parties’ positions with regard thereto. Moreover, the Hearing Officer would note that all evidence contained in the record has been taken into account and analyzed. Not every contention about the
evidence raised by the parties is specifically addressed herein, but central findings and the Hearing Officer’s rationale in support thereof are fully set forth.
POSITION OF THE STATE As to Charges 1 through 4, the State contends that the record shows that these Charges have been established for the dates alleged. It notes that the DOL Employee Handbook requires employees to begin work on time and remain at the work location until the end of the workday and to keep accurate attendance records. Focusing on Charge 1(a), according to the State, even if one accepts Respondent’s contention that he arrived to work at approximately 9:00 a.m. and giving him time to travel from his work station to his vehicle, the most Respondent would have been at work would have been from 9:00 a.m. until 1:50 p.m., for a total of 4 hours and 50 minutes, and assuming that he did not take lunch breaks, he should have recorded an absence of 2.45 hours. Noting that the GPS device was on Respondent’s car, the State claims that he left his appointment off site at approximately 3:30 p.m., which would have enabled him to return to his office and finish the workday. The State observes that “instead he went home, arriving there at approximately 3:44 p.m., well before the end of his workday.” The State claims that Respondent thus falsified his time records for the date in question. As to Charge 1(b), which is the June 9, 2008, date, the State notes that Respondent departed a DOL worksite in Troy at approximately 12:25 p.m., having arrived to work at approximately 9:05 a.m., and did not return to any DOL worksite, instead traveling to an address in Clifton Park, New York at
approximately 1:50 p.m. from which he did not depart until approximately 3:13 p.m., and thereafter arriving at his residence at approximately 3:35 p.m. The State’s analysis, which it states does not deduct for time to get to his car on arrival or to his car on departure, nor for a 30 minute lunch break, shows that he spent 3 hours and 20 minutes at work. By claiming he was present for 5.5 hours, Respondent failed to report over 2 hours of absence. The State rejects Respondent’s contention that he was not at Clifton Park because, for Respondent not to have been at Clifton Park, someone would have been required to have taken the GPS device from Respondent’s vehicle, drive to Clifton Park, travel a path to Respondent’s home, and then reinstall the GPS device on his vehicle. Further, Respondent’s contention that he was not at Clifton Park, the State claims, should be measured by his statement on crossexamination that he was friends with and had visited a DOL employee who lives in Clifton Park. As to Charge 1(c), the date of June 10, 2008, the State observes that the GPS data shows that Respondent was at work for less than 4.75 hours and yet he submitted attendance records stating that he was present for 5.5 hours. Again, the State maintains, Respondent falsified his time records. Charge 2(a), the State notes, concerns the June 13, 2008, GPS data. The State observes that this evidence shows that Respondent was at work for less than 3.5 hours and should have recorded 4.0 hours of absence but
recorded only 1.5 hours of absence. Charge 2(b) reflects evidence based on the GPS data that Respondent departed work at 2:41 p.m. and thus he should have charged 3.0 hours of absence instead of submitting a time record that showed no absence. Charge 2(c), according to the State, concerns
Respondent’s claim that he was present for work for 7.5 hours when the GPS data, for June 25, 2008, reflects that he departed Syracuse at approximately 10:06 a.m. and arrived home at approximately 12:47 p.m. On this date, the State notes, Respondent did not contact his supervisor to seek permission to change his work schedule nor did he reflect any altered or shortened work schedule, on his time sheet. Turning to Charge 3(a), the State claims that the GPS data shows Respondent being at work between 6.25 and 6.5 hours and then charging the State for 7.5 hours. Respondent’s falsification of time records, the State
contends, also can be seen in the evidence underlying Charge 3(b). The State notes that the GPS information disclosed that Respondent did not arrive at work until approximately 9:10 a.m. and left at 1:22 p.m., arriving at his home at approximately 3:19 p.m. The State observes that these times would have The State notes that in his
required at least 3.25 hours of absence.
interrogation Respondent stated that on that date he went to the Motor Vehicle Office yet during his testimony he stated he went to look at space to conduct future training sessions. Viewing how long Respondent’s automobile was on
South Pearl Street in downtown Albany, approximately a mile from the site Respondent claimed to look at for training, the State observes that Respondent’s initial explanation in his interrogation that he went to the Motor Vehicle Office would be far more plausible. It is also clear; the State concludes most importantly, that Respondent did not fully charge the time he was away from work. Charge 4, the State notes, was supported by evidence in the form of observations made by OSIG personnel that Respondent arrived at Ms. Carroll’s apartment at approximately 2:26 p.m., which would have required him leaving the work location shortly before 2:00 p.m., consistent with Respondent’s travels from the worksite to Ms. Carroll’s address on three dates in June. According to the State, Respondent charge of sick leave of 1.5 hours was false, since his time away from work would have been, depending upon when he arrived at work, either 3.0 or 2.5 hours. Additionally, the State claims that Respondent improperly charged his absence to sick leave even though he was not sick. The State notes that sick leave is not properly charged by an employee to assist a co-worker with the administration of medications, which Respondent claims to have been doing at his secretary’s residence. As to Charge 5, the State identifies a counseling memo of May 12, 2008, wherein Mr. Adams directed Respondent to work a 9:00 a.m. to 5:00 p.m. schedule, though in his interrogation Respondent stated that he generally
worked from 8:30 a.m. to 4:30 p.m.
The State maintains that, when
Respondent was generally working the 8:30 a.m. to 4:30 p.m. schedule, he still reflected a schedule of 9:00 a.m. to 5:00 p.m. to conceal the fact that he was not working the assigned schedule, and also to give him “cover” to arrive at work later based on the 8:30 a.m. to 4:30 p.m. schedule. In sum, Respondent’s conduct, the State argues, was insubordinate. As to Charge 6, the State notes that on June 19, 2008, Respondent, while off work on personal sick leave, arrived at Ms. Carroll’s residence at approximately 2:42 p.m. Ms. Carroll’s records for the date in question, the
State notes, reflect that a full schedule of 7.5 hours though Respondent would have had to have known when he approved Ms. Carroll’s time record that she did not work that length of time. The same situation, the State claims, applies to the dates of June 26, 2008 and July 17, 2008 as regards to Respondent’s approval of Ms. Carroll’s time records. The State identifies GA Manual Section 0695.2 that obligates supervisors to be certain that “attendance is properly recorded.” Respondent approved Ms. Carroll's time records even though he knew they had false times and hours of work reported thereon. This too is serious misconduct on the part of a high-ranking managerial employee. As to Charge 7, which involves June 25, 2008, when Respondent and Ms. Carroll returned from State business in Syracuse, the State notes that Ms. Carroll’s time record reflects a normal workday even though Respondent admits
that she was dropped off at her residence at approximately 12:30 p.m. Respondent’s explanation that he made “an executive decision” based on Ms. Carroll’s work on previous days in Syracuse, the State notes, flies in the face of GA Manual Section 0691 that requires overtime to be paid at time and one half. The State claims that Respondent “cannot be absolved of responsibility he had to insure that Ms. Carroll was appropriately compensated for the extra hours he alleges that she worked.” Further, Respondent testified, the State notes, that he was aware that adjustments in a work schedule required supervisory approval but he ignored that requirement, and also approved the falsified time records submitted by Ms. Carroll and a falsified travel voucher in which she reflected a full days work on June 25, 2008. This conduct of Respondent,
according to the State, exposed the State to a possible claim under the Fair Labor Standards Act or State law had Ms. Carroll pressed a claim for overtime. Charge 8, the State notes, which again deals with June 25, 2008, is supported by evidence that Respondent’s travel voucher reflected a departure from Syracuse at 2:30 p.m. and a return to his residence at 5:00 p.m. To the contrary, the GPS information shows that Respondent left Syracuse at approximately 10:00 a.m. and arrived home at approximately 12:47 p.m. This evidence, the State notes, is also supported by E-Z Pass statements for Respondent’s vehicle. Further, the State notes that Respondent improperly The State concludes that, “[w]hether
sought $35.00 for a food allowance.
deliberately or abrogation of his responsibilities, Mr. Cunningham submitted a falsified travel voucher relative to his own travel for the period June 23, – 25 2008 and approved a falsified voucher for his secretary … for the same period of time.” Based on the evidence supporting Charges 7 and 8, the State contends, Charges 9 and 10 have been established. The State contends that Charge 11 has been established because Respondent’s statement to the OSIG staff on August 13, 2008, that he returned from Syracuse on June 25, 2008, to Ms. Carroll’s apartment at approximately 5:00 p.m., was not truthful. Turning to Charge 12, the State observes that in August and December 2008, Respondent’s Pre-Suspension Notice and Notice of Suspension, as well as a Reassignment to Home, all contained language that prevented him from contacting Department of Labor employees and customers, but Respondent nevertheless violated the directives when he contacted employee Sherry Edwards on a number of dates between August 2008 and March, 2009. Respondent, the State notes, could have followed a procedure to obtain approval to contact Ms. Edwards and if there was any rescission of the order from Ms. O’Brien, the rescission would not have occurred in time to allow Respondent’s first four contacts with Ms. Edwards. As to Charge 13, the State claims that Respondent’s absences for the period April 1 though August 11, 2008, were “excessive by anyone’s standards.” According to the State, a review of Respondent’s use of leave
accruals during the period “represents a classic pattern of time of abuse.” Respondent, the State contends, was engaged in “an ongoing pattern of using time as earned.” The State claims, “it is reasonable to assume that his failure to accurately account for his whereabouts and his falsification of time records is a regular practice.” The State argues that “State disciplinary arbitrators” have reached the conclusion “that even if each and every absence is appropriate and approved there comes a point when the employee’s aggregate absenteeism renders that employee no longer viable and liable to be dismissed.” In setting forth its position, the State rejects all assertions raised by Respondent in the form of defense. If, as Respondent contended, he went to Ms. Carroll’s apartment to assist in the administration of medication, the State questions why his vehicle was at her residence for over 19 hours between June 8, 2008 and June 9, 2008. It is not credible, the State contends, that
Respondent was at the apartment to administer medicine, as seen in the implausible responses Respondent gave as to the claim that the medicine had to be taken out of the refrigerator an hour before administration and the further fact that Respondent did not know the name of the medicine involved. The State notes that Respondent did not produce Ms. Carroll as a witness to support his claims about his alleged "need" to be at her apartment. The State contends that any attempt by Respondent to connect his disciplinary difficulties with a conspiracy triggered by his complaints that he
made to and about Mary Hines, who was Deputy Commissioner of Administration of DOL in a previous administration, is unsupported by any evidence. It notes that the current Deputy Commissioner of Administration,
Martin Dunbar, offered testimony that neither Respondent’s supervisor Mr. Adams, nor anyone else, has “exhibited or expressed any personal animus toward Mr. Cunningham.” As to Respondent’s claim that his computer records were lost when they were backed up in the summer of 2008, the State notes a total lack of evidence that any such loss could be connected to the instant Charges. The fact that Respondent’s son in June 2008 worked in the same building as his wife, the State maintains, does not support any claim that on any of the dates involved in June 2008 Respondent’s son was in control of Respondent’s vehicle. The State also notes that Respondent did not produce any witnesses that would have supported any claim that he transferred control of his vehicle to his son on any occasion. As to Respondent’s testimony about a “medical condition” that was related to his work, the State maintains the record shows that the condition began in 2004, which was long before Mr. Adams became Respondent’s Supervisor and, in any event, the State claims, it does not have any “bearing on whether or not he committed the infractions with which he is charged.”
The State also contends that Respondent’s efforts in claiming that the GPS data was not accurate, upon close examination, were not availing. Further, the State points to the testimony of James Carroll in which he stated that the initial placement of the GPS was done in a manner consistent with the manufacturer’s recommended procedures. The State notes that Respondent produced Mr. Adams as a witness in an apparent effort to show disparate treatment. A review of the testimony of Mr. Adams and other evidence in the record, according to the State, only establishes that “Mr. Cunningham has been treated in a manner consistent with the way in which DOL treats employees under similar circumstances and there has been no disparate or invidious treatment of Mr. Cunningham.” Finally, the State puts forth that the termination penalty is highly appropriate. Despite Respondent’s knowledge of the record keeping
requirements set forth in the Department’s Employee Handbook, Respondent, the State contends, “regularly submitted falsified time records as specified in the instant Charges” and, as well, “has a history of such behavior.” Further, the record shows that Respondent did not follow Department policy, based on his testimony that he completed his time records at the end of the pay period and not daily as required, and that he gave his secretary his password to submit time record despite DOL policy that passwords should not be given to another person. Respondent’s misconduct, the State observes, extended to improperly
approving Ms. Carroll’s inaccurate or false time records.
According to the
State, Respondent “cheated the State out of approximately 880 dollars during the period June 3 through July 3, 2008, which covered 23 business days” and “[i]f annualized this amounts to approximately 10,600 dollars.” The State also identifies Respondent’s insubordinate conduct in justifying his termination. Respondent’s pattern of absences for the period April 1
through August 11, 2008, the State also claims, establishes that Respondent cannot be considered a reliable employee. Respondent’s performance evaluations, the State observes, “reveal that he was regularly instructed in areas of need for improvement” and Respondent “is not an employee who, over the long term, can claim excellence.” The State acknowledges the concept of progressive discipline but emphasizes that “[i]n this case we have an employee with three concluded disciplines in the record” and “[m]ore importantly, we have a high ranking and well-paid employee who flouts his employer’s work rules, who engages in insubordinate behavior, takes excessive amounts of time off from work and who has knowingly submitted falsified records on numerous occasions.” As the
State views it, Respondent has engaged in a “gross pattern of misconduct” that justifies his termination.
POSITION OF THE RESPONDENT Respondent contends that no DOL employee was called as a witness who gave any evidence against Respondent concerning his whereabouts on any of the dates set forth in the Charges. The Charges, the Respondent
argues, should be rejected to the extent they are based on the GPS readings. Various Charges against him, Respondent notes, rely entirely on the GPS evidence, including all Specifications in Charge 1, Specifications (a) and (b) in Charge 2, and Specifications (a) and (b) in Charge 3. Further, Respondent observes that the Charges concerning June 25, 2008, rely on part on GPS readings. The GPS evidence, according to Respondent, must be considered “insufficient” to sustain the State’s burden of proof for these Charges. In claiming that the GPS readings cannot sustain the Charges, the Respondent maintains that there is no proof that the GPS devices placed on Respondent’s car were “tested” and were accurate. The Respondent claims that the State made no attempt initially to establish any reliability for the GPS evidence, instead relying only on the fact that the devices were attached to Respondent’s car and that Investigator Carroll utilized software supplied by the GPS devices to prepare reports showing the alleged movement of the vehicle. “Serious issues,” Respondent puts forth, exist as to the reliability of the GPS evidence. Thus, Respondent claims that Investigator Carroll did not know the condition of the GPS device when it was removed from Respondent’s car. The
user guide for the GPS device, the Respondent observes, contained no information that the 2010 version of the instructions placed in evidence applied to the devices placed on Respondent’s car in 2008. According to Respondent, though the instructions state that a device placed outside the vehicle should be put in a waterproof case or similar environment, Respondent contends that when the device was first placed on his car it was not so protected and no proof exists that the use of duct tape can be considered sufficient to protect the device from moisture. Nor does any evidence exist, Respondent claims, that the other devices placed on his vehicle were protected, given the fact that Investigator Carroll had no involvement in placing these devices. Respondent also identifies a “concern” regarding the manner in which the device was placed, since on page 15 of the instruction manual it states that it is “least effective” to place the device under the seat or under the vehicle yet, when the device was placed on Respondent’s car, it was placed underneath the vehicle. No proof can be found, according to Respondent, that any
“independent verification” of the active function in the GPS device was made. Nor, Respondent puts forth, was there any evidence as to where the GPS devices were placed on the other occasions, but since they were placed outside the vehicle it is reasonable to assume they were placed in the same location underneath the vehicle, and again, no indication can be found that any attempt was made to independently verify the accuracy of the other devices.
The Respondent further argues that no evidence can be found that the information from the three GPS devices was properly retrieved. No explanation can be found, according to Respondent, concerning how the CDs were handled on which the information was downloaded. Significantly, Respondent claims, there is also evidence that the GPS readings for June 7, June 8, June 9, June 10, and June 11 were not accurate. It must also be noted, Respondent asserts, that a GPS device can track the location of a vehicle but not a person, and Respondent points to his testimony that his son occasionally used the car during the period of time GPS devices were on the car. Respondent claims that it is the State’s ultimate position that the Hearing Officer should “assume” the accuracy of the GPS readings, which would require an assumption that they were properly operated and calibrated, properly placed on Respondent’s car, properly protected against the elements, that the software was properly installed, and that the steps taken to download data to CDs were undertaken correctly. Further, the Respondent argues, the Hearing Officer
would have to assume that the CDs were properly handled and protected and the Hearing Officer would have to “ignore” that the information placed Respondent’s car at locations where Respondent denied ever having been and where no independent evidence exists that Respondent was present at said locations.
Focusing on the specifics of the dates set forth in the Charges, Respondent notes that, the GPS evidence for June 3, 2008 shows the time when the device was activated and not the time Respondent arrived to work. Accordingly, Respondent maintains, there is no evidence capable of supporting a charge for late arrival. Respondent also claims that the record evidence is that he left work at approximately 2:00 p.m. to see a physician and thus should be given credit for a half-hour of lunch time. If one assumes the Respondent arrived at 9:00 a.m., Respondent claims, that would give him 5.5 hours. Respondent further maintains that, though the record may indicate that he should have charged 2 hours instead of 1.5, this difference must be considered a “minor discrepancy” that could be “easily explained as an oversight by Mr. Cunningham.” As to June 9, 2008, Respondent notes this is the date his car was allegedly in Clifton Park for two hours, but the record contains his denial that he was in Clifton Park for that period of time. Respondent maintains that there is no “independent evidence” that would confirm that he was in Clifton Park for two hours. sustained. As to June 10, 2008, Respondent claims the record contains no evidence that his “practice” of working at home and proceeding directly to a morning meeting was not proper. Thus, Respondent points to his testimony that by
Hence, Respondent argues that this Charge has not been
following his “practice” he charged the accurate amount of time on this date. Regarding June 13, 2008, Respondent asserts that there is no independent verification of the GPS reading that would place his vehicle at Valley Road, and Respondent states that he testified he is not familiar with Valley Road. There is an absence of competent proof, Respondent concludes, that he should have charged 3 hours of absence as opposed to 1.5 hours. Concerning June 20, 2008, Respondent claims that the State offered no explanation as to why he was allegedly at New Karner Road or the significance of traveling to Valley road. The record shows, according to Respondent, that he was at the work site for 5 to 5.5 hours, and June 20, 2008, was also a date when Respondent assisted Ms. Carroll in taking her medication. Respondent also points to his testimony that it was his practice to charge such time to annual leave and “at any particular occasion he did not it was an oversight rather than an intentional action.” As to June 26, 2008, Respondent observes that the GPS evidence shows that he was present on campus for 6 hours and 16 minutes and arrived home at 6:29 p.m. This allows Respondent to claim that the State’s position must be based on the claim that none of the time between 3:30 p.m. and 6:30 p.m. related to work-related activity, “and there is simply no proof to support that proposition.”
As to June 27, 2008, the Respondent claims the Charge turns on his whereabouts on the morning and he contends that “[a]t best there is a discrepancy between what Mr. Cunningham charged and what he should have charged of approximately 1.25 hours.” As to the date of July 17, 2008, which is set forth in Charge 4, Respondent claims that it is the only charge in which the State has offered “eye witness testimony” in the form of the observation offered by Mr. Masters that he saw Respondent arrive at Ms. Carroll’s residence at approximately 2:16 p.m. and he and that a fellow investigator ended their surveillance at 3:30 p.m. Respondent notes that he charged 1.5 hours of absence that day, and asserts that the State’s contention that he should have charged at least 2.5 hours is based on the “assumption” that Respondent did not return to work after the surveillance ended at 3:30 p.m. In Respondent’s estimation, there is no proof to support this “assumption” and the amount of time he charged would appear to be accurate. Respondent also maintains that there is no evidence to sustain the charges of insubordination set forth in Charges 5 and 12. As to Charge 5, in which it is alleged that Respondent did not change his work schedule in accordance with the May 12, 2008, memorandum from his supervisor, Mr. Adams, Respondent claims “there is simply no proof on this record that Mr. Cunningham deliberately ignored a directive to work a regular work schedule of
9 to 5 and therefore he intentionally violated a lawful order.” Regarding Charge 12 and alleged contact with Sherry Edwards, the Respondent asserts initially that there has been no showing there was any rule of the DOL that would permit it to issue a directive that an employee can be prohibited from having contact with other DOL employees. Respondent claims the testimony of Mr. Gillipsie shows that the directive would extend only to the 30 day period Respondent was suspended under the December 3, 2008, Notice of Suspension. The only contact Respondent had with Ms. Edwards during this period, according to Respondent, was a call to her on her cell phone stating that he would be returning to work. This call, at most, Respondent claims, “was a technical violation of a Notice of Suspension” and not accompanied by any evidence that any harm occurred, and therefore no discipline should be issued. Concerning the Charges relating to the alleged falsified travel voucher for the trip to Syracuse on June 23, through June 25, 2008, and the alleged incorrect travel voucher for Respondent’s secretary, Ms. Carroll, during the same time, Respondent claims the Charges are predicated on two assertions that are inaccurate. One such assertion is that the vouchers did not accurately report departure and arrival times for the trip from Syracuse to Albany. The second inaccuracy, Respondent notes, was that they included a request for dinner on June 25, 2008.
Respondent notes his testimony that, as to the trip to Syracuse, both he and Ms. Carroll worked extended hours on the first two days of the conference and that the “custom and practice” in the Department was to allow managerial and confidential employees “informal compensatory time under such
circumstances.” Respondent claims that Mr. Adams did not allow him compensatory time as he did with other DOL employees. Further Respondent states that, when he and Ms. Carroll returned to Albany at approximately 1:00 p.m. on June 25, 2008, they were both “tried” and he allowed Ms. Carroll to take the afternoon off, and gave himself the afternoon off. The travel vouchers, Respondent notes, were prepared by his secretary and, to the extent he signed the vouchers containing erroneous information, this must be considered an oversight “with no intent to mislead.” Concerning meals, Respondent claims that he did not intend to be reimbursed for any meals, since it was practice not to seek reimbursement. There is no evidence, according to Respondent, that the travel vouchers were intentionally prepared in an inaccurate fashion or that they were an attempt to seek compensation to which Respondent and his secretary were not entitled. Only a request for a meal would have involved excessive compensation, Respondent notes, and such a request was made in error and at most, amounts to an oversight.
As to the Charge that Respondent was not truthful in an August 13, 2008, interview with the staff of the State Inspector General when he stated that he dropped off Ms. Carroll at approximately 5:00 p.m. on June 25, 2008, Respondent claims that the interview was conducted without notice to him, and during the interview he experienced a panic attack. The Interview Summary from OIG, according to Respondent, shows that a CD was prepared of the interview but not offered into evidence. The Interview Summary was not
established to be accurate, according to Respondent, and the individuals conducting the interview were not called as witnesses. There is no basis,
Respondent claims, “to establish specifically” what he stated and thus the Charge is not support by competent proof. As to the claim in Charge 12 that the Respondent was not truthful in his March 4, 2009, interrogation concerning a conversation he had with Ms. O’Brien-Jordan, Director of Personnel, the evidence shows at most, Respondent claims, that he may have been mistaken about the rescission of an order that he should not contact employees. In view of this fact, Respondent contends, there is not sufficient proof to support the Charge. As to Charges 9 and 10, concerning allegations of misconduct because of Ms. Carroll’s time sheet, Respondent states that she would have prepared her own time sheet and there is no evidence that, when he approved the time sheets as her supervisor, he was aware they were not accurate. Concerning
Charge 6 and Ms. Carroll’s absences on June 19, 26, and July 17, 2008, Respondent notes that the June 19 and 26 Charges are apparently based on GPS records, and that no proof exists that Ms. Carroll was in fact at her apartment on the dates and times set forth. As to July 17, 2008, Respondent notes that no surveillance was conducted of Ms. Carroll on that date. As to the assertion that he may have exposed the Department to a possible FLSA claim, Respondent notes that no claim by Ms. Carroll was ever made and there is no indication of any harm to the DOL. As to Charge 13, the “excessive absences” allegation for the period of time April 1, 2008 to August 11, 2008, the Respondent notes that the instances of “unrecorded time” are connected to a prior Section 75 Charge that has been resolved or are included in the current Charges. Respondent argues that it is not appropriate to charge him “with specific instances of misconduct, some of which have already been resolved, and then also including the same occasion in a general allegation that Mr. Cunningham has ‘excessive’ absences.” Further, the Respondent maintains that if the State claims his termination should be based on “’excessive’ properly charged absent time,” it is “required to do more than simply calculate the number of hours that Mr. Cunningham was absent in a three-month period.” No evidence was offered, the Respondent puts forth, that he was not able to perform the duties of his position during the period of time or that any “adverse impact” was experienced by the Department.
The State should have utilized the provisions of Section 72 of the Civil Service Law, according to Respondent, for any claims that he had “excessive sick time” or was not able to perform his job “for medical reasons.” Finally, Respondent claims that his discharge cannot be considered justifiable. He asserts that he has almost 30 years of overall State service and has been employed for 20 years by DOL and yet the allegations herein “arose only after Ms. Cunningham had sued the Department of Labor and filed EEOC complaints against DOL and its officers.” There has been no attempt,
according to the Respondent, to counsel him “or impose progressive discipline in an attempt to correct what DOL perceives as Mr. Cunningham’s shortcomings as far as time and attendance are concerned.” Respondent contends that “[i]t is clear that he has been singled out for extraordinary treatment such as GPS surveillance, which no other DOL employee has been subject to.” According to Respondent, the decision to terminate him was undertaken “in the context of both a lawsuit against DOL by Mr. Cunningham and complaints by Mr. Cunningham against his immediate supervisor Andrew Adams.” The DOL, the Respondent argues, “could have dealt with Mr. Cunningham’s alleged time and attendance problems in ways that fall far short of terminating this long-term employee.”
FINDINGS Initially, the Hearing Officer would note the State’s burden of proof to establish the Charges by a preponderance of the evidence. Of even greater importance is the fact that in the course of conducting this administrative hearing, the Hearing Officer is guided by Section 75.2 of the CSL, which specifically provides, in the last sentence of that section, that "Compliance with technical rules of evidence shall not be required." As stated by the New York Court of Appeals in Sowa v. Looney, 23 N.Y.2d 329, "[g]enerally, all relevant material and reliable evidence which will contribute to an informed result should be admissible in disciplinary proceedings for there is a public interest in ascertaining the truth of charges brought against public employees." To this Hearing Officer, in the final analysis, the question for admissibility of evidence must be based on whether the evidence is material and reliable. In an earlier Determination on Motion, dated March 3, 2010 (Hearing Officer Exhibit 5), regarding the GPS evidence, this Hearing Officer held that such evidence was material and reliable, and therefore admissible in this proceeding. Additionally, after further hearing, it is the view of the Hearing
Officer that such evidence, along with the EZ Pass records, was sufficient to establish substantial evidence regarding Respondent's whereabouts on the dates and times specified in the instant Charges. In that regard, the State has satisfied the required burden of proof as required by law.
Before analyzing the specific Charges, the Hearing Officer would state his initial finding that the record contains sufficient evidence to fulfill the State’s burden that, in place during the relevant period of time, were rules and policies of the DOL, about which Respondent was aware, that required Respondent to “begin work on time, observe designated times for lunch and remain at your work location engaged in work activities until the end of your workday.” (DOL Employee Handbook; State Exhibit 6, p. 20). Further, Respondent was
“required to maintain an accurate record” concerning his “daily attendance at work.” (Id.) He was also advised that the “time and attendance record is a legal document” and that his “approval of your time record at the close of each pay period certifies that the information contained in the record is accurate.” (Id., 20-21). In express terms, Respondent was warned that “[f]alse entries are a serious infraction and will result in disciplinary action.” (Id., 21). Finally, this portion of the Employee Handbook states that as a “supervisor” Respondent was “responsible for ensuring the accuracy of time records for employees under your supervision.” (Id.). Additionally, GA Manual Section 0695.1 requires that supervisors ensure that “attendance is properly recorded” and that “overtime eligible employees” cannot “work beyond 40 hours without cost compensation at time and a half.” (State Exhibits 6 [p.21], 10).
The foregoing relevant work rules are sufficient to establish that the State fulfilled it’s obligation to provide Respondent with notice of the expected behavior which Respondent failed to comply with and resulted in the misconduct charged in Charges 1-4 and 6-10. The Hearing Officer also would note, as to the work rules regarding accuracy of time records, that the expected behavior set forth in these rules are such that Respondent, in addition to written policies, can be charged with knowledge of the expectations by virtue of what any reasonable employee in his position would know. Put differently, any
reasonable person in Respondent’s position would know that the time records must be accurate and cannot be falsified. Charges 5 and 12 allege insubordination, and it is axiomatic that every employee is deemed in any employment situation to be on notice that lawful directives issued to the employee must be followed. An employee can also be reasonably charged with knowledge that failure to follow lawful directives is in fact insubordination and a serious offense. Charge 11 and part of Charge 12 alleged the making of untruthful statements to NYS investigators. Respondent can also reasonably be deemed to have been on notice and to be aware that as a public employee he had a duty to be truthful, and that a violation of that duty would carry serious consequences. Charge 13 alleges excessive absenteeism and the record shows that Respondent was specifically warned on May 12, 2007 that his use of sick leave was excessive (State Exhibit 17) and the
Employee Handbook also served as a warning that his “record of attendance, prompt reporting to work and prudent use of sick leave credits will have a bearing on your future with the department.” (State Exhibit 6, p. 20). Before proceeding to analyze the specific Charges, the Hearing Officer would also reiterate his findings set forth in his “Determination on Motion” (Hearing Officer Exhibit 5) that the State had the legal right to attach a GPS device to Respondent’s personal vehicle under the circumstances presented and had the further legal right to subpoena Respondent’s E-Z Pass records without court order. Moreover, the Hearing Officer has ruled that the GPS data in the record (See State Exhibits 25, 30) is admissible. Close consideration of the testimony of James Carroll regarding the GPS data allows the Hearing Officer to conclude that the GPS data in the evidence is entitled to full weight. (203-292). That is to say, Mr. Carroll’s expertise regarding GPS data, his
explanation of how the GPS devices work, and how the information is downloaded from the GPS devices, coupled with the absence of any evidence that would call into question the accuracy of the GPS data in this case, supports the Hearing Officer’s decision to give it full weight.1
The Hearing Officer is mindful of Respondent’s contentions that he was not at various locations as indicated in the GPS data, but Respondent’s general and specific failure to testify credibly allows the Hearing Officer to conclude that Respondent has not refuted the accuracy of the GPS data.
Charge 1 – Falsified Time Records For Period May 29, 2008 Through June 11, 2008 Three dates form the basis of this Charge: June 3, 2008; June 9, 2008; and June 10, 2008. For the date of June 3, 2008, the evidence shows that Respondent charged 1.5 hours to annual leave. (State Exhibit 20). On this date, the GPS device was placed on Respondent’s car at approximately 10:11 a.m., and it shows him leaving the worksite at 1:54 p.m., arriving at a medical office in Guilderland from where he departed at 3:12 p.m. (State Exhibits 25, 30). (Id.).
Respondent arrived at his residence at approximately 3:39 p.m.
Assuming that Respondent arrived to work at 9:00 a.m. as he should have, and took no lunch, his time at work was approximately 4 hours and 50 minutes and his absence was therefore over 2 hours, not the 1.5 hours he claimed. Respondent testified he had no specific recollection as to June 3, 20082. (347). Because there is no credible basis to believe that Respondent’s inaccuracies were inadvertent, the Hearing Officer concludes that for this date of June 3, 2008 the State established that Respondent falsified his time records. The second date, June 9, 2008, shows that Respondent charged 2 hours to authorized leave without pay. (State Exhibit 20). The evidence from the GPS data (State Exhibits 25, 30) discloses that Respondent arrived at the
References are to pages in the hearing transcript.
parking lot at his worksite at approximately 9:05 a.m., departed the worksite in Troy at approximately 12:25 p.m., and did not return to any Department worksite, instead going to an address in Clifton Park, New York where he arrived at approximately 1:05 p.m. and departed at approximately 3:13 p.m. (Id.). Respondent then returned to his residence at approximately 3:35 p.m. (Id.). If one does not take from Respondent the time to get from his car on arrival at work, or to his car on departure, or 30 minutes for a lunch break, he spent approximately 3.5 hours at work, and was not at work then for a total of approximately 4 hours. It is noted that Respondent also testified that other people during the period June 3, 2008 through July 3, 2008 utilized his car, specifically, his youngest son in the Empire State Plaza in downtown Albany. (349-351). The Hearing Officer specifically finds that, as to June 3, 2008, and all other dates set forth in the Charges that relate to the GPS evidence there is no indication or credible evidence that Respondent’s son was driving his automobile. Respondent, testified that he had never been to the address in Clifton Park, New York reflected in the GPS data. (353). Respondent insisted, when questioned by the Hearing Officer, that not only was he not in Clifton Park but “[t]he car wasn’t.” (413). Respondent was not able to offer any affirmative statement that he did not return to his residence, as reflected in the GPS data,
at approximately 3:35 p.m. Nor could he state that he returned to work on that date. Accordingly, Respondent falsified his time records by failing to record two hours of absence. In this regard, the Hearing Officer finds that his claim that he was not in Clifton Park (409-417) does not allow for the conclusion that he was not back at his residence at 3:13 p.m. Additionally, Respondent acknowledged having a longtime friend who lived in Clifton Park in the particular area where the GPS located his vehicle. (Id.; State Exhibit 26, p. 32; State Exhibit 34). Thus the Hearing Officer finds that Charge 1(b) has been established by the State. Charge 1(c) concerns June 10, 2008. On that date, Respondent’s time record shows that he charged 2 hours of absence to authorized leave without pay. (State Exhibit 20). The GPS evidence shows that Respondent arrived at a Department worksite in Troy at approximately 10:00 a.m. and returned to his worksite at Building 12 at approximately 12:20 p.m. (State Exhibits 25, 30). Further, this evidence shows that he departed the worksite at 2:53 p.m. and arrived home at 3:18 p.m. (Id.). Thus, Respondent’s time record reflects that he was not at work for a minimum of 2.75 hours, a period longer than what he charged. With no credible explanation for Respondent’s inaccuracy, the
Hearing Officer concludes that it has been established by a preponderance of the evidence.
Charge 2 - Falsified Time Records For Period June 12, 2008 Through June25, 2008. Four dates encompass the allegations in this Charge: June 13, 2008, June 20, 2008, June 25, 2008, and June 25, 2008. Charge 2(a) relates to a contention that Respondent failed to record “an aggregate absence of at least 3.5 hours.” The time record submitted by Respondent showed that he was present for 6.0 hours with 1.5 hours charged to absence to annual leave. (State Exhibit 20). The GPS data reflected Respondent arrived at Building 12 at his worksite at approximately 9:15 a.m., departed 10:20 a.m., to return at approximately 11:10 a.m. He then departed Building 12 at approximately 1:40 p.m. and arrived at his residence at approximately 2:18 p.m. (State Exhibits 25, 30). Accordingly, according to the GPS information, Respondent was at his work station for less than 3.5 hours and should have recorded 4.0 hours of absence on the date in question. Given the Hearing Officer’s finding that the GPS data is to be considered reliable and Respondent’s lack of any explanation as to why he undercharged his absence on the date in question, the Hearing Officer finds that this aspect of Charge 2 has been established. Respondent’s claim that he was not on Valley Road in Schenectady at 10:37 a.m., in the Hearing Officer’s estimation, does not provide an adequate explanation, per the reliable GPS data, why Respondent, arrived at his residence at 2:18 p.m., thus establishing the essence of the Charge.
Charge 2(b) refers to June 20, 2008, for which date Respondent’s time record reflects he was present for 7.5 hours. (State Exhibit 20). The GPS information shows that Respondent arrived at Building 12 at his worksite at approximately 9:17 a.m., and departed at approximately 2:41 p.m. (State Exhibits 25, 30). The GPS data shows that Respondent then arrived at an address in Latham, New York at approximately 2:53 p.m. and that he left this address at approximately 3:02 p.m. and arrived at his residence at approximately 4:23 p.m. It is noted that the address in Latham was the
residence of Respondent’s secretary at the time, Ms. Carroll. (360). According to Respondent, when asked on cross-examination, he went to his secretary’s residence “[o]n Thursdays mostly, sometimes on a Friday, to help administer medication for her multiple sclerosis.” (361). Respondent stated that it was his “regular practice” to “charge … to the annual leave code” his time spent in administering the medication. (Id). On the date in question, Respondent
attributed his failure to so record the time as “an oversight.” (Id.). The Hearing Officer would state his finding that Respondent’s testimony, generally, lacked credibility, and on this particular point under consideration, his testimony bordered on the nonsensical. Respondent’s failure to charge the
time at his secretary’s residence was for the simple fact that he sought to “steal” the time from the State while he was at her residence. The Hearing Officer, not for a minute, believes Respondent’s claim that he was at his secretary’s
residence to administer medication. The entire explanation offered, regarding Respondent's relationship with Ms. Carroll generally, and his providing her with "injections" belies belief and would not be accepted by even the most gullible, naive or innocent among us. This Hearing Officer, serving as a neutral
arbitrator and hearing officer for now over 28 years, is neither gullible, naive or innocent, but has substantial experience in assessing truth. And truth has not been provided herein by Respondent. The Hearing Officer therefore finds that Respondent falsified his time record for this date and this aspect of Charge 2 has been established. Charge 2(c) and 2(d) both relate to June 25, 2008. The record shows that Respondent was in Syracuse from June 23 to June 25, 2008 for a conference. (370-373). Respondent’s secretary at the time, Ms. Carroll, rode with him in his car to and from Syracuse. (376). The Respondent’s time record for June 25, 2008 reflects a working day of 7.5 hours. (State Exhibit 20). The GPS data shows Respondent leaving Syracuse at approximately 10:06 a.m. and arriving at his residence at 12:47 p.m. (State Exhibits 25, 30). According to Respondent’s testimony, when he arrived back in Albany he did not report to the office because he “was tired” and “felt that I put in more time then necessary, just like other managers, I felt I should have had the flexibility of taking that time.” (378). Respondent stated there was an “informal agreement … practiced throughout the Department” for “people who are not
eligible for overtime.” (378). Respondent, when questioned by the Hearing Officer as to whether people “flex their schedules”, replied “yes.” (380). He stated that “[t]hey get permission … if they work extra hours, had to come in on a Saturday or something special, then the supervisor would take that into account and say we’ll do this an informal agreement.” (Id.). Respondent was then asked by the Hearing Officer if this was done “[w]ith the approval of the supervisor?”, to which Respondent replied “yes.” (380-381). But to the
contrary, Respondent also testified that he did not have his supervisor’s approval for the date in question. (Id.). It is abundantly clear to the Hearing Officer that the Respondent had no permission “informally” or otherwise, as for example per policy, to work less than a full day, as evidenced by his arrival at his residence at 12:49 p.m. and charge the State for a full day. Rather, Respondent returned to Albany early from his trip to Syracuse and decided to take the rest of the day off---at State expense. This represents no less than theft of time and is misconduct of the highest form for a public employee. Respondent thus “falsified” his time record for that date and Charges 2(c) and (d) have been established by the State.
Charge 3 – Falsified Time Records For Period June 26, 2008 Through July 9, 2008. Two dates are set forth in this Charge: June 26, 2008 and June 27, 2008. In Charge 3(a), it is alleged that Respondent, though charging for a full day of 7.5 hours, should have listed an absence of at least 1.0 hours. For that date, Respondent’s time record shows him being present for a full day of work of 7.5 hours (State Exhibit 20). The GPS information for that date shows that
Respondent arrived at Building 12 at the worksite at approximately 9:06 a.m. and departed at approximately 3:23 p.m., arriving home at approximately 4:06 p.m. (State Exhibits 25, 30). It is clear that if one does not take into account the time for Respondent to get from his vehicle when arriving at work and when leaving work, he was present at work between 6.25 and 6.5 hours. Accordingly, Respondent was not in a position to charge for a full day of work, and with no explanation in the record as to why he did, the conclusion is inevitable that he falsified his time record for this date. Charge 3(b) indicates that Respondent’s time records show that he was present for 5.5 hours of work, with 2 hours charged to annual leave. (State Exhibit 20). The GPS information for the date shows Respondent arriving at Building 12 at his work location at 9:10 a.m. and departing at approximately 1:22 p.m. and arriving home at approximately 3:19 p.m. (State Exhibits 25, 30). The GPS data includes the notation that Respondent was on South Pearl Street
in Albany for approximately 43 minutes between approximately 1:56 p.m. to approximately 2:40 p.m. For this period of time on South Pearl Street,
Respondent stated during his interrogation by OISG (State Exhibit 26, p. 48) that he went to the Motor Vehicle Office on South Pearl Street on the date in question, though in his testimony at the hearing he stated he went to The Egg to look for space for a training institute. (370-372). The Hearing Officer, based on his many years of living in the Albany, New York area, including living blocks away from the sites in question, takes arbitral/judicial notice of the fact that the Egg is some one mile from South Pearl Street and it would have been impossible for Respondent to do his business at the Motor Vehicle Office and then walk to the Egg and walk back to South Pearl Street in the time period at issue. Instead, the Hearing Officer finds that Respondent was at the Motor Vehicle Officer for the period of time in question while at South Pearl Street. Based on this finding, it is clear that Respondent falsified his time record by charging only 2.0 hours to annual leave when his absence exceeded 3 hours. Charge 3(b) has been established.
Charge 4 –Falsified Time Records For Period July 10, 2008 Through July 23, 2008. This Charge refers to the date of July 17, 2008. On that date,
Respondent’s time record for July 17, 2008 shows that he was present for 6.0 hours and sets forth a charge to personal sick leave of 1.5 hours. (State Exhibit 20). The State produced Jonathan Masters as a witness. Mr. Masters is an Investigative Counsel with OSIG and conducted surveillance of Respondent on July 17, 2008. (293). He testified that he arrived at a location at the Tall Oaks Apartment complex on Troy-Schenectady Road at approximately 2:16 p.m., and conducted his surveillance with Investigative Assistant Amorosa. (294). Mr. Masters testified that, shortly after his arrival at the location, a black BMW arrived bearing license plate number BLT-7348 (Id.). The individual who exited the BMW was identified by Mr. Masters as Respondent. (294-295). According to Mr. Masters, the Respondent entered the Tall Oaks Apartment complex. (295). Mr. Masters also testified that the surveillance was concluded at 3:30 p.m. and Respondent had not exited the apartment complex by that time. (298). Photographs were introduced into evidence of the BMW and the
Respondent entering the apartment building. (State Exhibits 31-A and 31-B). The surveillance location was Ms. Carroll’s residence. It is clear from the record evidence that Respondent did not work a full day and it is equally clear that he was not in a position to charge sick leave, as
he did, based on any asserted medical condition of Ms. Carroll. The record does not show when Respondent reported to work, though in his interrogation of March 4, 2008 he stated for the relevant period of time he generally worked between 8:30 a.m. and 4:30 p.m. (State Exhibit 26, p. 16). Allowing
Respondent that starting time and allowing travel time of 20 minutes between Building 12 and Ms. Carroll’s residence, consistent with OSIG Reports for June 5, 20, and 26, 2008, when Respondent traveled there (State Exhibits 25, 30), Respondent would have left work at approximately 2:00 p.m. If Respondent did not take a 30 minute lunch break, and assuming the starting time of 8:30 a.m., he worked no more than 5.5 hours. Accordingly, Respondent did not accurately reflect the amount of time he was away from work and, the record clearly shows, as noted, that he was not in a position to charge sick leave. Thus, the conclusion is appropriate that he falsified his time record for July 17, 2008 and Charge 4 has been established.
Charge 5 – For Period April 1, 2008 through August 15, 2008 Respondent Regularly Submitted Time Records Indicating His Schedule Was From 9:00 a.m. To 5:00 p.m. When He Continued To Work A Basic Schedule From 8:30 A.M. to 4:30 P.M. And Was Thus Insubordinate. In a counseling memorandum of May 12, 2008, Respondent’s Supervisor, Andrew Adams, directed Respondent to work a schedule from 9:00 a.m. to 5:00 p.m. (State Exhibit 17). Respondent, in his interrogation of March 4, 2009, stated that he generally worked 8:30 a.m. to 4:30 p.m. (State Exhibit 25, pp. 16, 26). Respondent’s testimony at the hearing was that he “worked various hours” and that “[s]ometimes 8:30 I would come in, sometimes 9 o’clock, just like my other colleagues.” (442). The Hearing Officer interjected and asked Respondent if he “flexed” his hours. (Id.). Respondent then stated that he “worked various hours,” when the Hearing Officer observed “[b]ut your supervisor didn’t approve the flex” and “told you nine to five, and you flexed them on your own.” (442-443). The Hearing Officer thus assessed that
Respondent “flexed” his hours as he saw fit. Respondent never fully addressed the question by stating “on occasion, I may arrive early.” (443). The Hearing Officer finds that this Charge has been sustained because it is most evident that Respondent failed to adhere to the directive issued by a supervisor that he work a 9:00 a.m. to 5:00 p.m. schedule.
Charge 6 - Approval of Falsified Time Records for Secretary Lori Jo Carroll for June 19, June 26, and July 17, 2008. Central to the Charge are Ms. Carroll’s time records, which for all three dates show her working from 8:00 a.m. to 4:00 p.m. for a full day. (State Exhibit 21). The record evidence shows, via the GPS information that Respondent arrived at Ms. Carroll’s residence at approximately 2:42 p.m. on June 19; at approximately 4:06 p.m. on June 26, 2008; and, as indicated above, at approximately 2:16 p.m. on July 17, 2008. (State Exhibits 25, 30; 293-296). While the Hearing Officer has wholly rejected Respondent’s claim that he visited Ms. Carroll’s apartment for the purpose of "administering medication", it is clear that Respondent would visit her residence to see her. Thus, the
Hearing Officer is able to conclude that Ms. Carroll did not work a full day on the dates in question and that Respondent knew this fact. Accordingly, the Hearing Officer is able to conclude for the three dates in question that Ms. Carroll’s time records, showing a full day of work, which Respondent approved, were “falsified.” Hence, Charge 6 has been sustained.
Charge 7 - Placing The Department In Jeopardy To Overtime Claims For Allowing Ms. Carroll To Work Beyond Her Regularly Scheduled Hours On June 23 And June 24, 2008. As seen above, these were two dates that Ms. Carroll was with Respondent for a conference in Syracuse. The essence of the State’s Charge is bottomed on Respondent’s claim that he gave Ms. Carroll credit for a full day of work on June 25, 2008, because she had worked beyond the number of required hours while at the conference. (See State Exhibit 26, p. 44). This reference to Respondent’s assertions allows the State to conclude that Ms. Carroll had a potential overtime claim against the State because Respondent, contrary to State policy, allowed her to work extra hours without compensation. The Hearing Officer finds a flaw in this analysis provided by the State because, as to this Charge, the State would have the Arbitrator accept Respondent’s credibility. Given the Hearing Officer’s finding that Respondent was generally not credible, he finds that there is no particular reason to credit his contention in this regard that Ms. Carroll worked extra hours. Therefore, the factual predicate for this Charge has not been established, and the Charge cannot be sustained.
Charge 8 - Falsified Travel Voucher For The Period June 23 Through June 25, 2008. The relevant facts regarding Respondent’s travel times for June 25, 2008, the date on which he returned from the conference in Syracuse, are set forth, supra, under Charge 2(c) and 2(d). This Charge focuses on Respondent’s
travel voucher, seeking reimbursement for expenses, and stating that he does “hereby certify that the above account and attached schedules are just, true and correct.” (State Exhibit 22). In keeping with the falsified time record for that day, as set forth above in Charges 2(c) and 2(d), Respondent’s voucher reflects a departure from Syracuse at 2:30 p.m. and a return to his residence at 5:00 p.m. when the GPS information and E-Z Pass information shows Respondent leaving Syracuse at approximately 10:00 a.m. and arriving home at approximately 12:47 p.m. (State Exhibits 25, 30). As part of his travel voucher, for the date in question, Respondent sought a $35.00 meal reimbursement. (State Exhibit 22). Respondent signed the voucher over the “payees
certification” on June 26, 2008. (Id.). It is clear that Respondent’s times are falsely stated on this official State voucher, and it is also clear that he was not entitled to the meal reimbursement. Respondent’s attempts to blame Ms. Carroll are not accepted by the Hearing Officer as credible. A quick perusal of the information on the form immediately above Respondent’s signature, coupled with his duty to ensure the accuracy of
the voucher, leaves no room to believe his testimony that seeks to blame Ms. Carroll because of physical shortcomings she was experiencing. This
explanation is wholly rejected by the Hearing Officer, and instead, finds that Respondent was well aware that the voucher was based on false information. During the hearing, the Hearing Officer noted, when Respondent sought to shift the blame to Ms. Carroll due to her physical difficulties, that Ms. Carroll, when one viewed her travel voucher (State Exhibit 23) for the departure date of June 23, 2008, left an allowance of 15 minutes between when Respondent left his residence and when he arrived at her residence. (See State Exhibit 22). As the Hearing Officer specifically noted, Ms. Carroll “was cognitive enough to allow fifteen minutes difference in time for you [Respondent] to pick her up and drop her off.” (385). This observation, of course, speaks to Respondent’s
inability to be forthright and speak to the truth, which permeates his entire testimony. As with his time sheet for the day in question, the travel voucher for June 25, 2008 was “falsified” and the Charge has been established.
Charge 9 - Approval Of Falsified Travel Voucher For Ms. Carroll For The Period June 23 Through June 25, 2008. The relevant facts under Charges 2(c), 2(d), and Charge 8 can be incorporated by reference, in that the times of Ms. Carroll’s travel from Syracuse to Albany on June 25, 2008 are incorrect as is her claim that she was entitled to $35.00 for meal reimbursement. Respondent’s certification signals that he “knowingly approved a falsified travel voucher”, since there is no other explanation in the record to support a different conclusion. Approval of a
falsified State voucher, particularly under the pattern set out herein by Respondent in relation to his overall false reporting and his relationship with Ms. Carroll, represents serious misconduct. This Charge is sustained.
Charge 10 - Approval Of A Falsified Time Record For The Period June 11 Through June 28, 2008 For Ms. Carroll. This Charge again relates to June 25, 2008. Ms. Carroll’s time record for June 25, 2008, shows her working a full day despite, as seen above in Charges 2(c), 2(d), 8, and 9, she was at her residence by 12:31 p.m. (State Exhibit 21; See State Exhibits 25, 30). For the same reasons the Hearing Officer rejected Respondent’s claim of “extra hours” and “flex schedules,” supra, for the date in question, he rejects any contention that there was any justification for Respondent approving this time record. In fact, Respondent knew it to be false, and the Charge has been established.
Charge 11- Giving An Untruthful Statement In An August 13, 2008 Interview With The State Inspector General By Stating That On June 25, 2008 Ms. Carroll Was Dropped Off By Respondent At Approximately 5:00 P.M. Lest there be any doubt regarding Respondent’s lack of truth regarding the events of June 25, 2008, and for that matter, all other relevant points that call into question his credibility, this Charge discloses Respondent’s propensity to be other than truthful. Thus, in the August 13, 2008, interview, less than two months after June 25, 2008, Respondent “advised that he returned from the training in Syracuse on June 25, 2008 to Carroll’s apartment at approximately 5:00 p.m.” (State Exhibit 25). Further, Respondent “advised that Carroll
prepared that travel voucher and the 5:00 p.m. return time entered on the voucher is correct.” (Id.). In his interrogation on March 14, 2009, Respondent essentially acknowledged that his earlier comments given in August, 2008 was not true by agreeing that he left Syracuse on June 25, 2008 at approximately 10:00 a.m. (State Exhibit 26, p. 43). There is no doubt that Respondent made false statements in the August 13, 2008 interview, and this Charge has been established.
Charge 12 -Respondent Was Insubordinate When He Contacted Sherri Edwards On Various Dates Between August, 2008 And March, 2009 Despite Directives Of August 13, 2008 And December 3, 2008 That He Was Not To Have Any Contact With Department Of Labor Employees; And Also Was Not Truthful In The March 4, 2009 Interrogation When He Stated The Director Of Personnel Told Him He Could Contact Agency Staff. This Charge has two pieces: insubordination allegations and allegations of untruthfulness. Treating first the insubordination aspects, the record shows that Respondent received a Pre-Suspension Notice on August 21, 2008 (State Exhibit 24), which states in the second of its two paragraphs that Respondent was “barred from contacting Department of Labor employees and customers” and “in order to obtain access to conduct official business, he must first get prior written approval from the office.” (Id.). Additionally, the same language is
repeated in a December 3, 2008 Notice of Suspension. (State Exhibit 28). Ms. Edwards offered testimony and acknowledged that in 2008 she was Assistant Director in the Office of Staff and Organizational Development and Respondent was her supervisor. (112). According to Ms. Edwards, she became aware in August 2008 that Respondent had been directed not to contact Department employees. (113). She testified that Respondent contacted her on August 13, and 17, 2008, September 16, 2008, December 19, 2008, and January 29, 2009, February 4, 2009, and March 5, 2009. (115-120; State Exhibit 29).
Respondent acknowledged contacting Ms. Edwards though he was uncertain
as to the times. (476). Further, the record contains the testimony of Debora O’Brien-Jordan, Director of Personnel for the Department. (101). When asked if she ever told Respondent or any of his representatives “that he did not have to follow the direction to not have contact with agency employees”, the witness replied, “no, I did not.” (103). Thus, Respondent’s contacts with Ms. Edwards ran afoul of the directives and were not authorized via any authorized source in the Department, including the Director of Personnel. The insubordination
aspect of the Charge has been established. As to the untruthfulness allegation in the Charge, the testimony of Ms. O’Brien-Jordan, which the Hearing Officer accepts as entirely credible, puts to the lie Respondent’s claim in his interrogation of March 4, 2009 when he stated that Ms. O’Brien-Jordan told him he could direct agency staff. (State Exhibit 26, 50). Hence, this Charge has been established in its entirety by the State.
Charge 13 -Allegation That Respondent Is “No Longer A Viable Employee” Because Of His “Aggregate Absence From Work For The Period April 1 Through August 11, 2008.” The record shows that Respondent’s absences for the period of time set forth in this Charge are established by his time records. (State Exhibit 20). The testimony of David Gillespie, Work Force Program Manager 1 in the DOL, reflects that Respondent’s use of sick time, based on his lengthy period of employment, was in fact excessive. (41-44). While the record herein shows Respondent is not a “viable employee”, there is nevertheless no evidence to show that the lack of viability has been caused by absences per se. While the record herein shows Respondent to be guilty of substantial wrongdoing, the Hearing Officer finds that it does not permit the conclusion that his absences for the period set forth in the Charge, which must be the focus of the Hearing Officer’s inquiry, were so excessive as to support the Charge of lack of viability. Accordingly, the Hearing Officer concludes that this Charge cannot be sustained.
RESPONDENT’S ASSERTED DEFENSES The Hearing Officer has considered that Respondent’s position includes the assertion that he has been under a great deal of stress, with medical problems, and further that the Charges were a product of animus that had been directed toward him by various State officials. No credible evidence, the For example, the
Hearing Officer finds, supports any of these contentions.
record is entirely barren of medical evidence that would justify Respondent’s conduct, and his claims of unfair treatment rest solely on unfounded assumptions and speculation. Moreover, as seen above, the record is filled with competent and persuasive proof establishing grave misconduct on Respondent’s part. It would be pure folly to think that any of the Charges, including those that have been dismissed, were “trumped up” by the State. All that Respondent has offered is that he has been "stressed" by the travails of normal life and by the demands placed upon him by his employer. Nothing asserted by Respondent bears any relationship to unusual stress or problems that are not encountered by the average NYS employee. In fact, in the view of this Hearing Officer, the majority of stress suffered by Respondent has been the direct result of his failure to comply with the directives of DOL supervision, and his continuing theory that the State is obligated to endure such failures and continue his public employment as an entitlement due to his years of service. No such entitlement exists for any public employee who fails to perform as required.
PENALTY RECOMMENDATION The Hearing Officer has found Respondent guilty of the following Charges: Charge 1(a), (b), and (c) for submitting falsified time records on the three specified dates in the period May 29, 2008 through June 11, 2008; Charge 2(a), (b), (c) and (d), for submitting falsified time records for the three dates set forth in this Charge; Charge 3(a) and (b) for submitting falsified time records for the two dates set forth in the Charge; Charge 4 for submitting a falsified time record during the period July 10, 2008 through July 23, 2008 for the date set forth in the Charge; Charge 5 for insubordination by failing to follow a
supervisor’s directive as to his scheduled workday; Charge 6 for knowingly having approved falsified time records for his secretary for dates set forth in the Charge; Charge 8 for submitting a falsified travel voucher for the period June 23 through June 25, 2008; Charge 9 for knowingly having approved a falsified travel voucher for the period June 23 through June 25, 2008 for his secretary;
Charge 10 for knowingly having approved a falsified time record for the period June 11 through June 25, 2008 for his secretary; Charge 11 for being untruthful in an interview on August 13, 2008 with the State Inspector General; Charge 12 for being insubordinate in not following
Department directives and also by being untruthful in an interrogation of March 4, 2009.
The Hearing Officer takes note of his Findings and Recommendation of November 23, 2009 wherein the Hearing Officer found that Respondent was guilty on three different dates in April, 2008 for being absent from duty with authorization and of falsifying his official time and attendance records, and for two dates in April, 2008, for falsifying his official work calendar. The Hearing Officer recommended a penalty of a two (2) month suspension without pay. (State Exhibit 15). The Commissioner of the Department of Labor subsequently affirmed the Hearing Officer’s Findings and Penalty Recommendation. (State Exhibit 16). Respondent’s misconduct can be seen as part of a pattern of misconduct that began in April, 2008 reflected above. This pattern of misconduct shows an employee in a high enough ranking managerial position to be called a “position
of trust” who regularly violated the trust in an ongoing effort to steal time from the State. This description fairly fits Respondent’s misconduct, and it is difficult to imagine how the State would have any reasonable degree of confidence that Respondent would not continue to repeat some form of his misconduct in the future. In stating this conclusion, the Hearing Officer would observe that
Respondent has been entirely unwilling to accept any responsibility for his misconduct, preferring instead to seek to cover it up or shift the blame to others. Without any indication, and there is none, that Respondent is willing to accept responsibility, the Hearing Officer finds there is no prospect of rehabilitation. Nor, as noted above, are there any mitigating factors in the record that would call for a lesser penalty than termination. Put differently, the penalty of
termination sought by the State is proportionate to the grave misconduct set forth in the record and cannot be found to shock one’s sense of fairness. See Matter of Will v. Frontier Cen. School Dist. Bd. of Ed., 97 NY2d 690 (2002); McKinney v. Bennett, 31 Ad3d 860 (3rd Dept. 2006). Respectfully submitted, JEFFREY M. SELCHICK, ESQ. Hearing Officer Dated: August 16, 2010 Albany, New York
STATE OF NEW YORK ) COUNTY OF ALBANY ) ss: I, Jeffrey M. Selchick, Esq., do hereby affirm upon my oath as Hearing Officer that I am the individual described herein and who executed this Instrument, which are my Findings and Recommendation.
JEFFREY M. SELCHICK, ESQ. Hearing Officer Dated: August 16, 2010 Albany, New York