Triborough Bridge and Tunnel Auth. v. Walsh OATH Index No. 153/04 (Jan. 23, 2004)

Transcription

1 Triborough Bridge and Tunnel Auth. v. Walsh OATH Index No. 153/04 (Jan. 23, 2004) Petitioner charged respondent, a bridge and tunnel officer, with toll shortages on his toll lane on two occasions. The evidence established that respondent negligently incurred toll shortages of $1, and $ ALJ recommended that respondent be suspended for 30 days. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY Petitioner - against - BRYAN WALSH Respondent REPORT AND RECOMMENDATION ROSEMARIE MALDONADO, Administrative Law Judge This is a disciplinary proceeding referred by the petitioner, the Triborough Bridge and Tunnel Authority, pursuant to section 75 of the Civil Service Law. The charges allege that respondent Bryan Walsh failed to fulfill his obligations as a bridge and tunnel officer by making two cash deposits which fell short of the money he collected at a Whitestone Bridge toll lane. Specifically, respondent submitted a toll shortage of $21.20 on April 26, 2002, and $1, on November 2, A hearing was held before me on November 25, Both parties were represented by counsel. The Authority presented the testimony of two Departmental employees. Respondent testified on his own behalf. After evaluating the testimony and documentary evidence presented by the parties, and assessing the demeanor and credibility of witnesses, this tribunal finds that respondent engaged in the charged misconduct. ANALYSIS It is undisputed that Authority records clearly indicate that on November 2, 2002, respondent reported collecting $1,459 in tolls at the Whitestone Bridge. Upon receipt and inspection of

2 -2- respondent's deposit bag and deposit form, the Randalls Island Processing Center discovered that only $376 had been handed in. This constituted a toll shortage of $1,083 for the day (Tr ; Pet. Ex. 2). On April 26, 2002, respondent reported collecting $6, in tolls, but only $6, was accounted for by auditors at the Processing Center. This constituted a shortage of $21.20 (Pet. Ex. 1). The shortages attributed to respondent were deducted from his paychecks (Tr. 35). Respondent did not ask for audit reviews or otherwise contest the shortages (Tr. 43). Respondent does not dispute that he is responsible for the April 26 and November 2, 2002 shortages. At the hearing respondent conceded that he "must have failed to put" all the bills he collected "in the bag." He further explained, "I left them or dropped them, I don't know" (Tr. 50). Moreover, as set forth by respondent's counsel during closing arguments, chain of custody is not contested: Mr. O Keefe's testimony is that there was a chain of custody that was in effect here, and we don't question that. It does not appear as if there was any chicanery that took place in the money counting room. We have admitted, through the testimony of Officer Walsh that the discrepancy arose presumably sometime after he had actually counted the larger bills, but prior to the time that those bills were actually entered into the deposit bag that was given to the money counting room (Tr. 59). Respondent's defense is that his "sloppiness" or "simple negligence" does not constitute sanctionable misconduct. I disagree. Although mere errors in judgment may not be grounds for a finding of misconduct, it is well established that civil service employees may be sanctioned when the charged acts were intentional, negligent or careless. See Reisig v. Kirby, 62 Misc.2d 632, 635, 309 N.Y.S.2d 55, 58 (Sup. Ct. Suffolk Co. 1968), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969); McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951, 425 N.Y.S.2d 61, 62 (1979). Authority Rules and Regulations section 113 imposes an affirmative and unequivocal duty on all bridge and tunnel officers "to safeguard toll collections." Authority regulations also prohibit " incompetence" and "neglect of duty" in the collection of tolls. Authority Rules and Regulations sec In this case, respondent's deposit bag was missing an alarming $1,083 the largest shortage for any officer that year. According to the record, between the time respondent counted the money, bundled it by denominations and secured his deposit bag, the entire batches of $100 bills and

3 -3- $20 bills were missing. Based upon petitioner's evidence of its extensive security measures and auditing procedures and upon respondent's failure to dispute his own responsibility or offer an explanation for the missing money, I find that the shortages were caused by respondent's neglect. Triborough Bridge and Transit Auth. v. Ferrer, OATH Index No. 835/03 (Apr. 22, 2003); Triborough Bridge and Tunnel Auth. v. Davi, OATH Index No. 339/01 (June 18, 2001). Accordingly, the Charge should be sustained. FINDINGS AND CONCLUSIONS Petitioner established, by a preponderance of the credible evidence, that respondent negligently incurred $21.20 in shortages in toll receipts on April 26, 2002, and $1, in shortages in toll receipts on November 2, 2002 in violation of the Rules and Regulations governing Bridge and Tunnel Operating Forces, Section 1, paragraphs 113, 148 and 168. RECOMMENDATION Upon making the above findings and conclusions, I obtained respondent's prior disciplinary history. Respondent was appointed to his position as a bridge and tunnel officer on April 3, He has no prior disciplinary history. The Authority argues that given the large amount of money lost on November 2, 2002, a 45- day suspension is the appropriate penalty in this case. Respondent argues that a less severe penalty is warranted because respondent suffered a significant monetary loss when he repaid the shortages out of his salary. I agree with the Authority that respondent's negligence cannot be condoned. Collecting and safeguarding toll collections are at the heart of respondent's job responsibilities. These are serious duties which must be undertaken with the utmost of care. Respondent's failure to secure close to three-fourths of the proceeds collected on a single day is a serious dereliction of duty. Moreover, satisfying a contractual obligation to reimburse the Authority for his shortage does not absolve respondent's accountability under section 75.

4 -4- Although respondent's short tenure with the Authority does not provide a basis for mitigation, his clean record does. Accordingly, I recommend that respondent be suspended without pay for 30 days. January 23, 2004 Rosemarie Maldonado Administrative Law Judge SUBMITTED TO: MICHAEL C. ASCHER President APPEARANCES: BERNADINE M. KOCH, ESQ. Attorney for the Petitioner JONATHAN FACTOR, ESQ. Attorney for Respondent MICHAEL C. ASCHER, President TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY After a complete review of the record and the enclosed Report and Recommendation of Administrative Law Judge Rosemarie Maldonado, duly designated to conduct a disciplinary hearing on the charges and specifications dated July 7, 2003, as well as the comments from your attorney set out in his letter dated February 12, 2004, I make the following determination. I concur with Judge Maldonado's findings and recommended penalty of a thirty (30) day suspension for the reason set forth below. In this matter Judge Maldonado found that you were guilty of the following: You negligently incurred toll shortages in the amounts of $1, on November 2, 2002, and $21.20 on April 26, 2002.

5 -5- I agree with Judge Maldonado that this is a serious dereliction of duty that cannot be condoned. As Judge Maldonado stated: "Collecting and safeguarding toll collections are at the heart of respondent's job responsibilities. These are serious duties which must be undertaken with the utmost of care. Respondent's failure to secure close to three-fourths of the proceeds collected on a single day is a serious dereliction of duty." I do not agree with your attorney's claim that the punishment for this misconduct should be "significantly mitigated" because your pay has already been reduced by the amount of the shortages. As Judge Maldonado stated "satisfying a contractual obligation to reimburse the Authority for his shortage does not absolve respondent's accountability under section 75." Similarly, your attorney's reference to Judge Spooner's Report and Recommendation in the Cicero case is also unpersuasive. I did not agree with Judge Spooner's opinion that the respondent was penalized when he repaid the Authority in the amount of the shortages. For this and other reasons, Mr. Cicero was terminated from his position at the Authority. The Appellate Division of the State of New York, First Department, subsequently upheld his termination. In view of the foregoing I do not agree with your attorney that the recommended penalty of a 30 day suspension is "overly harsh and inappropriate." You had an affirmative and unequivocal duty to safeguard toll collections and as Judge Maldonado found, you had an "alarming" $1, shortage, "the largest shortage for any officer that year." In fact, the shortage was literally three times larger than any shortage incurred by any officer at this agency during the same period of time. Furthermore, I am deeply concerned by your inability to explain what happened to your funds. To incur a shortage of a few dollars is understandable. To have over one thousand dollars missing from your collection bag with no reasonable explanation given is incomprehensible. It is a violation of the trust that this agency places in you to secure the revenues for which you are responsible. Accordingly, I hereby find that you should be suspended for thirty (30) days as recommended by Judge Maldonado. Under the provisions of Section 75 of the Civil Service Law, you are entitled to appeal from this determination by application either to the Civil Service Commission or to a court in accordance with the provisions of Article 78 of the Civil Practice Law and Rules. If you elect to appeal to the Commission, such appeal must be filed in writing within twenty (20) days of receipt of this determination. A decision of the Commission is final and conclusive. MICHAEL C. ASCHER, President, Triborough Bridge and Tunnel Authority