Dep't of Sanitation v. Rivera OATH Index No. 2056/09 (June 4, 2009), aff d in part, rev d in part, Comm r Decision (June 22, 2009), appended

Transcription

1 Dep't of Sanitation v. Rivera OATH Index No. 2056/09 (June 4, 2009), aff d in part, rev d in part, Comm r Decision (June 22, 2009), appended Respondent charged with borrowing a sanitation truck for personal use without authorization and accepting trade waste. Department only met its burden with respect to the unauthorized use of the sanitation truck. Trade waste charge dismissed. 30-day suspension without pay recommended. Commissioner found respondent violated DSNY Code of Conduct rules 3.2, 4.5, 4.9, 5.5, 6.1, 6.2 and Charter section 2604(b)(2) and he imposed penalty of termination. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF SANITATION Petitioner - against - RAFAEL RIVERA Respondent REPORT AND RECOMMENDATION KARA J. MILLER, Administrative Law Judge This is a disciplinary proceeding referred by petitioner, the Department of Sanitation, pursuant to section of the New York City Administrative Code. The charges allege that respondent Rafael Rivera, a sanitation worker, borrowed a sanitation truck for personal use without permission and allowed trade waste to be disposed of in the truck on July 7, 2008 (ALJ Ex. 1). Following a hearing on the charges, I find that the Department sustained the charge of unauthorized use of the sanitation truck but failed to establish that respondent allowed trade waste to be disposed of in the truck. I recommend that respondent be suspended without pay for 30 days.

2 - 2 - ANAYLSIS Respondent was charged with violating the Department s Code of Conduct, in particular, failing to obey all Department rules, regulations and orders (rule 3.1); failing to return promptly to his assigned location after completing his work assignment (rule 3.2); stealing or attempting to steal a vehicle belonging to the Department (rule 4.5); engaging in criminal activity on Department property or while using a Department vehicle (rule 4.9); unauthorized use of a Department vehicle (rule 5.2); unauthorized use of fuel and lubricants for Department vehicles (rule 5.5); accepting, removing, or helping to remove trade waste (rule 6.1); and, authorizing or allowing trade waste to be disposed of in a Department vehicle (rule 6.2). In addition, respondent was charged with violating section 2604(b)(2) of the City Charter, which prohibits a public servant from engaging in any business or transaction which is in conflict with the proper discharge of his official duties, and violating section 2604(b)(3), which prohibits a public servant from using his position to obtain any financial gain or other private or personal advantage (ALJ Ex. 1). The facts are undisputed. At approximately 2:15 p.m. on July 7, 2008, Ignacio Azzara, the Queens West 3 garage supervisor, was conducting a facility check when he was surprised to see truck 25CN456 pulling out of the parking lot. At the time, Supervisor Azzara could not identify who had taken the truck because he was unable to see the driver. He returned to the garage office to make sure that one of the sanitation workers had not accidentally taken the wrong truck out to complete a route. Once Supervisor Azzara ascertained that the truck was not mistakenly switched with another, he immediately called his supervisor, Deputy Chief Anthony Pasquale, to report the missing truck. Deputy Chief Pasquale, in turn, called Operations. He was directed to have Supervisor Azzara call the police and write an Unusual Occurrence Report. After calling Supervisor Azzara back to give him his instructions, Deputy Chief Pasquale directed Supervisor Thomas Lee, who was assigned to Queens West 2 and was already working in the field, to search the vicinity around the garage to see if he could spot the truck in the area (Pet. Exs. 6, 7, 8; Tr , 69-71, 75, 97, ). Approximately 20 to 30 minutes later, Supervisor Lee saw the truck driving towards the garage. As the truck pulled into the lot, Supervisor Azzara noticed its arrival as well. Both he and Supervisor Lee arrived at the parking lot at the same time and saw respondent getting out of

3 - 3 - the truck. Supervisor Azzara approached respondent and questioned him about taking the truck. Respondent stated that he had just borrowed the truck to run some errands. Both Supervisors Azzara and Lee had contacted Deputy Chief Pasquale when they saw the truck return and he met them in the parking lot. When he arrived they looked in the back of the truck and saw construction debris, such as flooring material, wood, cardboard, and a barricade in the hopper. Deputy Chief Pasquale took photographs of the materials in the hopper and instructed Supervisor Azzara to secure the truck. Respondent denied taking the materials and told them that he did not know how the construction debris got into the truck because he had only borrowed it to run errands (Pet. Exs. 4, 6, 7, 8, 9; Tr , 26-27, 29, 75-79, , 110, , 130, ). Deputy Chief Pasquale called Operations to update them and was instructed to suspend respondent for using the truck without authorization. The truck was secured and the following day, July 8, 2008, it was taken to Brooklyn to be dumped and have the contents examined. Chief Pasquale met Superintendent Burge from the Field Inspection Audit Team (FIAT) at the garage and observed the inspection of the materials from the truck. The contents of the truck weighed approximately one and a half tons and included 19 sheets of plywood, large cardboard boxes, a plastic barricade stanchion, 31 black bags containing broken concrete, styrofoam insulation, paper floor covering, empty concrete bags, a wood palette, two five-gallon pails, and loose wood flooring (Pet. Exs. 5, 9, 10; Tr , , , 137). Respondent acknowledged taking the truck to conduct some personal errands but denied taking trade waste. He testified that he lives in Long Island City and normally drives to work. Respondent, however, had recently purchased a new car and the temporary registration expired on July 7, 2008, the date of this incident. He was concerned about being stopped by the police and losing his license for driving with an expired registration. One of his job requirements is having a valid driver s license. As a result, that morning he took the bus to work and reported on time for his 6:00 a.m. to 2:00 p.m. tour. He was assigned to do collections on truck 25CU203 and was partnered with R. Torres. They worked through their break and lunch. Respondent and his partner completed their route, picking up tons of trash. They arrived at the dump at 10:54 a.m. and departed the dump at 11:13 a.m. to return to the garage. They arrived at the garage at 11:30 a.m. Mr. Torres parked the truck while respondent returned the equipment (Pet. Ex. 2; Resp. Ex. C; Tr ).

4 - 4 - Respondent, along with some of his co-workers, ordered Chinese food to be delivered to the garage. He finished lunch around 1:00 p.m. and then sat around the garage until his tour was over. Respondent testified that he signed out at approximately 1:50 p.m. and went to the parking lot to borrow the first available truck that he saw, which happened to be 25CN456. Respondent needed to run a few errands and since he did not have his car, he thought it would not be too much of a problem to use one of the trucks. Respondent knew that other sanitation workers had borrowed trucks in the past to run personal errands, so he thought this would be okay. He was hoping to return with the truck before anyone noticed it was gone (Resp. Ex. C; Tr ). Respondent testified that he drove from the garage to a storage unit facility in Long Island City to pay a past due bill. Afterwards, he stopped at a nearby ATM machine at a Sovereign Bank to make a withdrawal because he used all of his cash to pay the storage unit bill. Respondent then proceeded to drive the truck to Caribbean Auto Sales in Elmhurst, where he had recently purchased his car. He wanted to find out why it was taking so long to get his new registration. Respondent testified that he had to wait awhile while they checked on its status. After making some telephone calls they informed him that the registration would be ready in three days. He left the dealership and returned to the garage approximately 40 minutes after borrowing the truck. Respondent maintained that he did not make any other stops along the way (Resp. Exs. E, F, G; Tr. 157, , 166). When asked why he did not run his errands while he was out on his route, respondent stated that he did not want to bother his partner. It did not occur to him to drop his partner off at the garage after finishing the route and use the truck while he was still on duty. Respondent further testified that he did not ask his co-workers to give him a ride in their cars after work because he has asked in the past and they have said no (Tr. 178). Respondent readily acknowledged that borrowing a Department truck to run personal errands was a terrible lapse in judgment. He testified that it was a stupid, retarded thing to do and that he does not know what he was thinking (Tr. 180). When he took the truck he did not ask permission and was hoping to return to the garage before anyone noticed that the truck was missing. Unfortunately for him, this was not the case. Supervisor Azzara happened to be standing near the entrance to the garage when he observed the truck pulling out of the lot. The garage supervisor was conducting a facility check at the time and was on his way to the parking

5 - 5 - lot to search for a missing Daily Performance Record (DS-350), which coincidentally belonged to the truck that respondent happened to take to do his errands (Pet. Ex. 1; Tr , ). Although respondent admitted to taking the truck without permission to run personal errands, he denied picking up trade waste. While it seems perhaps a bit coincidental that trade waste was discovered in the back of the truck that respondent just happened to have borrowed after work hours, the Department s case against respondent is circumstantial. No one observed respondent pick up the trade waste and the investigation never determined where the materials came from. Circumstantial evidence is defined as "evidence of a collateral fact that is, of a fact other than a fact in issue, from which, either alone or with other collateral facts, the fact in issue may be inferred." Dep't of Sanitation v. Ivy, OATH Index No. 2376/00 at 17 (May 3, 2001), aff'd, NYC Civ. Serv. Comm'n Item No. CD SA (Mar. 22, 2002) (citing Dep t of Transportation v. Mascia, OATH Index No. 403/85 at 17 (May 30, 1986). In order to establish a fact in issue by circumstantial evidence, the inference sought to be drawn must be based on proven facts. The inference must be reasonably taken from the proven collateral facts. See Dep t of Sanitation v. Connors, OATH Index No. 417/05 at 6 (June 1, 2005); See also Transit Auth. v. Dugger, OATH Index No. 794/91 (May 14, 1991). It is unnecessary for the Department to disprove all other possible explanations or inferences in order to sustain its case. It is only necessary to show that the inference drawn is the only one that is fair and reasonable. Dep t of Sanitation v. Guastafeste, OATH Index No. 658/00 at 16 (May 1, 2000), aff d, 282 A.D. 2d 398 (1st Dep t 2001); see also Markel v. Spencer, 5 A.D.2d 400 (4th Dep't 1958), aff'd, 5 N.Y. 2d 958 (1959); Ridings v. Vaccarello, 55 A.D.2d 650 (2nd Dep't 1976). Respondent presented several alternative theories as to how the construction debris ended up inside the hopper of the truck that he had borrowed. First, respondent posited that the crew assigned to the truck earlier that day picked up the materials after going to the dump, but prior to returning to the garage. The usual practice after sanitation workers return to the garage from the dump is to hand in their DS-350 card to the garage supervisor or his clerk. The clerk will then write down on the card the time that the truck was returned to the garage. On occasion a DS-350 card may not be handed in until the end of the tour because it was either misplaced or a sanitation worker forgot to submit it. In those situations, the clerk will ask what time the truck

6 - 6 - returned and enter the time stated or a sanitation worker may even fill in the time himself and submit it. The dump is approximately 10 to 15 minutes away from the garage. If a sanitation worker decided to use a truck to run personal errands or even to pick up trade waste after going to the dump, he could easily hand in the DS-350 card at the end of the tour to conceal his late arrival back to the garage. It is not possible to see the parking lot from the office. Unless the clerk or the supervisor had happened to actually see the truck pull in because they were standing near the garage entrance, there would be no way to verify the truck s actual arrival time at the garage (Tr , 82, 91-92, ). On the day in question, truck 25CN456 was assigned to sanitation workers J. Rivera and Morales. They arrived at the dump at 10:53 a.m. and departed at 11:11 a.m. According to the DS-350 card, they returned to the garage at 11:21 a.m. The DS-350 card, however, had never been handed in to the clerk and no one noticed that it was missing until the end of the tour. As a consequence, Supervisor Azzara was searching for the card when he observed respondent driving the truck out of the lot. If the truck had returned to the garage after 11:21 a.m., the time that was noted on the DS-350 card, no one would have been the wiser (Pet. Ex. 1; Tr , 72, 74-75, ). Respondent also theorized that a contractor or other civilian may have pulled up along side the truck and thrown the materials inside, while it was parked and unattended during one of respondent s errands. By throwing the construction debris in the Department truck, the contractor would avoid having to pay a dump fee to dispose of the materials (Tr , 122). In support of this theory, respondent submitted several photographs of contractors loading materials into the back of unattended trucks (Resp. Ex. B). This theory was further given credence by some of the Department s witnesses acknowledging that this occasionally happens (Tr , 121). Finally, respondent suggested that someone may have trespassed on Department property and thrown the materials in the truck. Although this theory seems remote, the truck parking lot is neither locked nor guarded (Resp. Exs. A, D; Tr ). Moreover, it cannot be seen from the supervisor s office and at least one of the Department s witnesses admitted to hearing that this has occurred in the past (Tr. 95, 121). Of respondent s three theories, the first is really the only feasible possibility in this particular situation. During the investigation, it was determined that the truck that respondent

7 - 7 - had borrowed held 1.45 tons of refuse. Although no one testified to the capacity of the hopper, the list of items found in the truck is far more extensive than what was photographed in the hopper. As such, someone must have cycled the hopper to sweep the materials into the body of the truck. If someone had surreptitiously tossed construction debris into the hopper either on the street or in the parking lot the hopper would most likely not have been cycled (Pet. Ex. 3, 4). While it is reasonable to infer that respondent picked up the trade waste, it is equally reasonable to infer that the sanitation workers, who had used the truck earlier that day, picked it up after going to the dump and conveniently misplaced their DS-350 card to hide the fact that they returned to the garage late. Either scenario is equally probable. Therefore, the Department s allegation that respondent took the construction debris while borrowing the truck is not the only fair and reasonable inference to be drawn from the proven facts. In a disciplinary proceeding, petitioner bears the burden of proof by a preponderance of the credible evidence. Foran v. Murphy, 73 Misc. 2d 486 (Sup. Ct. N.Y. Co. 1973); Antinore v. State, 79 Misc. 2d 8, 12 (Sup. Ct. Monroe Co. 1974), rev'd on other grounds, 49 A.D.2d 6 (4th Dep't 1975), aff'd, 40 N.Y.2d 921 (1976); Osoba v. Bd. of Education, NYC. Civ. Serv. Comm'n Item No. CD (Nov. 19, 1992). The resolution of a trade waste charge depends upon whether the quantum of the evidence sufficiently meets petitioner's burden of establishing that it was more likely than not that respondent picked up commercial waste. Bazemore v. Friday, 478 U.S. 385, (1986). The Department s evidence does not adequately establish that it was more likely than not that respondent picked up trade waste. No one witnessed respondent taking the construction debris and the Department did not establish the origin of the materials. It is also of some note that the DS-350 card was missing for the very truck that respondent had borrowed and there is no way to verify when the prior crew actually returned the truck to the garage. Moreover, respondent provided credible evidence to establish his whereabouts for the approximately 40-minute time period that the truck was missing. Respondent submitted an account invoice from Access Self Storage on Review Avenue in Long Island City, which indicates that a payment was made at 2:03 p.m. on July 7, 2008 (Resp. Ex. F). Although respondent was unable to submit the ATM receipt for his withdrawal, he submitted a computer printout of his checking account with the Municipal Credit Union which reflects that a withdrawal was made from a Sovereign Bank in Long Island City on July 7, 2008 (Resp. Ex. G).

8 - 8 - Respondent also provided a letter from Caribbean Auto Sales on Queens Boulevard in Elmhurst, which states that respondent was at the dealership from 2:15 to 2:30 p.m. on July 7, 2008 (Resp. Ex. E). Although the Department s advocate aptly noted that the letter is somewhat confusing, I nonetheless credit this document and attribute the confusion to poor drafting skills. While it would have been better to produce the ATM receipt and a more artfully drafted letter from the car dealership, respondent s evidence sufficiently supports his testimony and the timeframe that the truck was missing from the garage. Finally and most importantly, I found respondent to be a credible witness. What struck me about respondent was his complete lack of guile. His actions were imprudent, but he was neither calculating nor malicious. He simply acted without thinking. It is readily apparent that upon hindsight, respondent realized that what he had done showed a lack of judgment and foresight. The Department s witnesses acknowledged that, although it is against Department rules, sanitation workers have been known to run personal errands while in a Department vehicle while doing their routes. Respondent took it a step further, believing that it would be less egregious to use the truck after work hours than during his tour. Regardless of his thought process, in the end, respondent did violate Department rules by borrowing the truck without authorization to conduct personal errands. Accordingly, petitioner has met its burden of establishing that respondent used a Department vehicle without authorization on July 7, 2008, in violation of rule 3.1 (failing to obey all Department rules, regulations and orders) and rule 5.2 (using a Department vehicle without authorization). In addition, respondent s unauthorized use of the truck to run his personal errands for 40 minutes violated section 2604(b)(3) of the City Charter (using his position as a public servant for personal advantage). The Department failed, however, to establish by a preponderance of the credible evidence that respondent accepted trade waste. The remaining charges should be dismissed either due to the Department s inability to substantiate a trade waste violation or its failure to present evidence in support of the other charges.

9 - 9 - FINDINGS AND CONCLUSIONS 1. The Department established that respondent violated rule 3.1 by failing to obey all Department rules, regulations and orders on July 7, The Department failed to establish that respondent failed to return promptly to his assigned location after completing his work assignment on July 7, 2008, in violation of rule The Department failed to establish that respondent stole or attempted to steal a Department vehicle on July 7, 2008, in violation of rule The Department failed to establish that respondent engaged in criminal activity on Department property or while using a Department vehicle on July 7, 2008, in violation of rule The Department established that respondent violated rule 5.2 by using a Department vehicle without authorization on July 7, The Department failed to establish that respondent used fuel and lubricants for Department vehicles without authorization on July 7, 2008, in violation of rule The Department failed to establish that respondent accepted, removed, or helped remove trade waste on July 7, 2008, in violation of rule The Department failed to establish that respondent authorized or allowed trade waste to be disposed of in a Department vehicle on July 7, 2008, in violation of rule The Department failed to establish that respondent engaged in any business or transaction which is in conflict with the proper discharge of his official duties on July 7, 2008, in violation of section 2604(b)(2) of the City Charter. 10. The Department established that respondent violated section 2604(b)(3) of the City Charter by using his position to obtain a private or personal advantage on July 7, 2008.

10 10 RECOMMENDATION Upon making the above findings and conclusions, I requested and reviewed a copy of respondent's personnel abstract in order to make an appropriate penalty recommendation. Respondent was appointed as a sanitation worker on September 13, During his five-year tenure with the Department respondent has been disciplined on only one occasion. On September 2, 2008, respondent received a reprimand for failing to provide documentation for an emergency leave request. Respondent has been found guilty of using a Department vehicle without authorization. As such, he has violated rules 3.1 and 5.1 of the Department's rules of conduct, subjecting himself to penalties under the Administrative Code. The Administrative Code provides for the following penalties for each substantiated complaint: "forfeiting or withholding pay for a specified time, not exceeding thirty days;... suspension, without pay during such suspension, for a period not exceeding thirty days; or... dismissal from the force." Administrative Code (a) (Lexis 2009). Respondent was also charged with and found to have violated section 2604(b)(3) of Chapter 68 of the City Charter, which prohibits a public servant from using his position to obtain any financial gain or other private or personal advantage. Respondent used his position as a sanitation worker to gain access to the Department s truck for his own personal advantage. A violation of section 2604(b)(3) of the Charter may result in a fine of up to $10,000. Section 2606(b) indicates, however, that such a fine may be imposed only upon a determination by the Conflicts of Interest Board. Since the Conflicts of Interest Board did not initiate this proceeding nor make a determination, the imposition of a fine under its rules is not permitted. Respondent had been suspended for 30-days immediately following this incident. The Department requested that respondent be terminated if all of the charges were sustained. The more serious charge of accepting trade waste, however, has not been adequately established. Instead, respondent has been found guilty of unauthorized use of a Department vehicle after work hours for roughly a 40-minute period. In prior cases involving the unauthorized use of a City vehicle for personal use, the vehicle was either used excessively, during work hours or was involved in a car accident. Although these cases are not precisely on point, they are useful in assessing an appropriate penalty in this case.

11 11 In Department of Education v. Matos, OATH Index No. 214/04 (Feb. 13, 2004), modified on penalty, Chancellor s Dec. (Apr. 2, 2004), aff d, NYC Civ. Serv. Comm n Item No. CD05-17-SA (Apr. 15, 2005), respondent laborer used a Department vehicle on multiple occasions during work hours to conduct personal errands, such as going home to walk his dog, going to the bank, visiting relatives, and driving into lower Manhattan from the Bronx to conduct business with an insurance agency. On one occasion, after walking his dog, Mr. Matos stayed at home for six hours until it was time to clock out. Although Mr. Matos was not charged with unauthorized use of a Department vehicle, he was charged and found guilty of leaving the workplace without authorization, submitting false time records, and taking an extended break and lunch hour. The judge recommended that Mr. Matos be suspended for 60 days without pay. The Department s Chancellor modified the penalty recommendation and terminated the respondent. The Chancellor s decision was upheld on appeal to the Civil Service Commission. In Human Resources Administration v. Allen, OATH Index No. 212/06 (June 28, 2006), a captain in the agency s Office of Security Services was found guilty of misusing an agency van by logging excessive mileage on it while using it for personal travel both during and after work hours. A review of Mr. Allen s daily route sheets over a four-month period indicated that he used the City vehicle for personal travel in excess of 400 miles. Moreover, while off duty, Mr. Allen had gotten into an accident in the agency van. In addition to unauthorized use of the City vehicle, Mr. Allen was found guilty of falsifying official documents, submitting a false affidavit, failing to submit Daily Route Sheets, insubordination, and sexual harassment of three women. The judge recommended that respondent be terminated from his position with the agency. In the Office of the Chief Medical Examiner v. Fuseyamore, OATH Index No. 295/88, (Aug. 25, 1988), respondent motor vehicle operator was assigned to a weekend shift during which he used a City vehicle for personal use, logging in 300 unaccounted-for miles. Mr. Fuseyamore was consequently found guilty of using the vehicle for his own personal use, submitting false records, and being absent from his assigned work location on two occasions. The judge recommended that respondent be terminated. Finally, in Department of Housing Preservation and Development v. Thomas, OATH Index No. 1175/99 (June 10, 1999), a multiple dwelling specialist was granted permission to take a Department vehicle home over the weekend to facilitate his assignment to conduct a field

12 12 inspection on a Monday holiday. On Sunday of that weekend, respondent used the Department car without authorization and was involved in a car accident in which he was injured and the car was damaged. Indeed, the cost of repairing the vehicle exceeded the car s value. Respondent was found guilty of using a Department vehicle for personal use, failing to operate the vehicle with due care, and excessive lateness. The judge recommended termination because respondent had previously been charged with operating a City vehicle for personal use while his driver s license was suspended six years earlier. Rather than go to trial on the prior charge, respondent entered into a settlement with the Department and paid a $5,000 fine, the equivalent of a 44 work day suspension. The respondents in all four cases used a City vehicle for personal use, but in doing so drove them repeatedly and excessively. In three of the cases, the respondents used the vehicle during work hours thereby diverting their time away from their assigned duties. In Thomas, the respondent drove the vehicle while off duty when he totaled the car in an accident. It is also of some note that he had previously been found guilty of a similar violation. Finally, all of the respondents in the above cases were found guilty of multiple violations, including submission of fraudulent official documents, and in Allen specifically of sexual harassment. In this case, respondent has never used a Department vehicle for personal use before. Moreover, while he borrowed the truck on this one occasion, he did not drive it excessively. Respondent used it for approximately 40 minutes to run three errands and returned the vehicle in the same condition that he took it. Moreover, respondent reported to work on time that day, completed his route, returned to the garage from the dump in a timely manner and stayed in the garage until he signed out. He was accountable for the entire length of his tour. Ironically, respondent used the vehicle after work hours in a misguided effort to not interfere with completing his work for the day. Furthermore, respondent was found guilty of only one act of misconduct. Clearly, respondent showed a tremendous lack of judgment and should never have borrowed the truck without authorization to conduct personal business. Based on the mitigating factors already enumerated, respondent s lack of calculation, his remorse, and his credible testimony that he has learned his lesson, a penalty short of termination should be imposed. Although I regard the borrowing of a sanitation truck for personal use to be serious misconduct, I

13 13 am constrained by the penalty parameters set forth in the Administrative Code. Termination is inappropriate under the circumstances. Accordingly, I recommend that respondent be suspended without pay for 30 days. June 4, 2009 SUBMITTED TO: Kara J. Miller Administrative Law Judge JOHN J. DOHERTY Commissioner APPEARANCES: DANIEL HAGEVIK, ESQ. Attorney for Petitioner KIRSCHNER & COHEN, P.C. Attorneys for Respondent BY: ALLEN COHEN, ESQ.

14 NYC Department of Sanitation Comm r Decision, June 22, In the Matter of DEPARTMENT OF SANITATION Petitioner - against - RAFAEL RIVERA Respondent JOHN J. DOHERTY, Commissioner DECISION A copy of the June 4, 2009 Report and Recommendation submitted by OATH Administrative Law Judge (ALJ) Kara J. Miller was forwarded to this office following a disciplinary proceeding pursuant to Section of the Administrative Code. After reviewing the evidence, hearing transcript and report and recommendation, I agree with the specific findings that the Department has met its burden of demonstrating that Sanitation Worker Rafael Rivera violated DSNY Code of Conduct Ru1es 3.1 and 5.2 and Section 2604 (b)(3) of the City Charter. However, I find the proposed penalty of a 30 day suspension without pay to be inappropriate. At the time of the incident, Respondent had been a DSNY employee for nearly four (4) years. Respondent knew all the proper procedures regarding the use and assignment of DSNY vehicles and chose to deliberately ignore them. Respondent knew that it is DSNY policy and practice that the whereabouts of every DSNY vehicle be accounted for at all times. Every assignment and movement of a DSNY vehicle requires and results in mu1tiple written records. In this case, Respondent's taking and use of the DSNY truck resulted in 1) the entire on-duty DSNY chain of command being alerted and made aware of the missing truck, and 2) NYPD being contacted and informed of a missing DSNY truck. If Respondent had not returned with the truck at the time he did, the next steps taken would have included informing the Mayor's Office of Emergency Management and the US Department of Homeland Security. The unauthorized taking and use of a DSNY truck is an incredibly serious security issue and potentia11egal liability issue. Therefore, I find the appropriate penalty for the violations of just DSNY Code of Conduct Rules 3.1 and 5.2 and Section 2604 (b)(3) of the City Charter is Termination of Respondent's employment. Additionally, after reviewing the evidence, hearing transcript and report and recommendation, I find that the agency met its burden of demonstrating that respondent violated DSNY Code of Conduct Rules 3.2, 4.5, 4.9, 5.5, 6.1, 6.2 and section 2604 (b)(2) of the City

15 Charter and that the appropriate penalty, just for those violations, based on the severity of the misconduct is termination of Respondent's employment. Regarding the 3.2 charge, it appears that there is some confusion. Rule 3.2 states "Employees shall not conduct themselves in a manner prejudicial to good order and discipline or which tends to discredit the City or Department." This decision mistakenly references Rule 3.23 which states "employee must be present at their assigned work site, route, garage, section or other Departmental location during working hours unless authorized to leave by a supervisor." Obviously, Respondent's admitted misconduct is a violation of Rule 3.2. In regard to the conclusion that the Department failed to establish the 5.5 charge, ALJ Miller is clearly in error. The Rule 5.5 states "Employees shall use fuel and lubricants only for Department vehicles and equipment, and for Department purposes, and shall not waste them." Again, Respondent has admitted to taking a DSNY vehicle without authorization for his personal use. That is clearly not a Department purpose and Respondent's use of a multi-ton DSNY truck clearly resulted in the waste of DSNY fuel. Therefore, Respondent is guilty of violating Rule 5.5. Regarding the 4.5 charge, Respondent admitted to taking a DSNY owned truck without permission or the knowledge of any DSNY staff or supervisors. A review of any dictionary shows that Respondent's admitted actions fit the exact definition for the word steal. The fact that Respondent eventually returned the truck to the parking lot is ultimately meaningless. Therefore, Respondent is guilty of violating Rule 4.5. Regarding the 4.9 charge, as noted above respondent stole a DSNY truck that was parked on DSNY premises. Therefore, he engaged in a criminal activity while on departmental premises and thus has violated Ru1e 4.9. Additionally, Respondent was found guilty by ALJ Miller of violating Section 2604(b)(3) of the City Charter. Violations of that section of the City Charter are misdemeanors. Misdemeanors are crimes. Therefore, the 2604(b)(3) City Charter violation is also a Violation of Rule 4.9. Finally, I have found Respondent guilty of violating Section 2604(b)(2) of the City charter. This violation also satisfies a finding that Respondent violated Rule 4.9. Regarding the 6.1, 6.2 and Section 2604(b)(2) of the City Charter charges, I find that the Department met its burden proving those charges. Specifically, though not limited to the following, I find that ALJ Miller missed or did not give the proper weight to the following,: 1) that there is no evidence whatsoever that the DSNY truck 25CN456 ever left the premises of the QW3, parking lot between the time it was returned by the assigned day tour crew and the time that respondent took the truck; 2) that Respondent has admitted to and is the only person known to have taken the DSNY truck without permission; 3) the testimony of Supervisor Azzara regarding how when the Respondent signed out of work he was in civilian clothes, but when he was caught returning the truck, he was wearing his DSNY uniform. Notably, this testimony, and the inferences that could be made regarding Respondent s intentions and actions, was not addressed in the decision; 4) the issue of why Respondent, according to his own testimony, would take a DSNY truck from his work station in Woodside, Queens to perform errands, including two (2) errands in Long Island City, Queens, the neighborhood where he lives, and then eventually return the truck to the Woodside, Queens work location planning to take public

16 transportation back to Long Island City, Queens; and 5) the various problems, errors and inadequacies contained in the documents submitted by Respondent to explain his whereabouts from the time he took the truck until the time he was caught driving it back to the QW3 parking lot. Therefore, the recommendation of Kara Miller is rejected. Based on the severity of the misconduct, it is my decision that the appropriate penalty for the proved misconduct is termination. JOHN J. DOHERTY, Commissioner, NYC Department of Sanitation