Dep t of Citywide Admin. Services v. Done

Transcription

1 Dep t of Citywide Admin. Services v. Done OATH Index No. 1119/02 (April 3, 2002) OATH Index No. 1119/02, mem. dec. (Apr. 22, 2003), appended, rev'd, NYC Civ. Serv. Comm'n Item No. CD04-26-R (May 19, 2004),appended. Report and recommendation, April 3, 2002 Summary: 1. In a default proceeding, evidence was presented that a high pressure plant tender filled out time records indicating that he was working at both the Department and at a hospital during overlapping times. Finding that one or both of these entries were false, the administrative law judge sustained the charges of false time entries as both violations of the Department Code of Conduct and also, if proven in a court of competent jurisdiction, of various criminal statutes. 2. The only appropriate penalty for falsification of time records was found to be termination. 3. On appeal, the Civil Service Commission vacated the default and directed that respondent be permitted to proceed with his election for the grievance process instead of a section 75 hearing. JOHN B. SPOONER, Administrative Law Judge This is a disciplinary proceeding referred by the petitioner, the Department of Citywide Administrative Services, pursuant to section 75 of the Civil Service Law. The charges allege that respondent Jose Done, a high pressure plant tender, falsified his time-sheets on 29 days from September 1999 through May At the hearing held before me on March 13, 2002, petitioner appeared but respondent did not. After confirming that the charges and the notice of hearing were properly served on respondent, the hearing went forward in the form of an inquest. Petitioner presented respondent s time records, as well as the testimony of a timekeeper, an investigator and a supervisor. For the reasons provided below, I find that the evidence is sufficient to prove most of the charges and recommend that respondent be terminated. ANALYSIS In 1999 and 2000, respondent worked as a plant tender for two different employers, the Department and Brooklyn Hospital Center. According to Department time records (Pet. Exs. 2, 3 and 4), and respondent s supervisor, Joseph DiDesidero, respondent worked for the Department at One Centre Street as a plant tender. His regular work hours were 7 a.m. to 3 p.m., although he also regularly worked overtime. His duties included assisting engineers in maintaining, operating, and repairing mechanical equipment, such as air conditioners, fans, and pumps. During the same period, respondent was also employed at Brooklyn Hospital Center doing similar work, working from 3:30 p.m. until 11:30 p.m. or from 11:30 p.m. until 7:30 a.m.

2 Pursuant to an investigation by the Inspector General s office, Investigator Christine Carl reviewed respondent s time sheets from the Department and the log books from Brooklyn Hospital. After comparing the two sets of records, she prepared a chart indicating that, on 29 dates from September 1999 to May 2000, respondent reported to be working at the Department and at Brooklyn Hospital at overlapping times (see Ex. A attached to Pet. Ex. 1). On some days, the overlap consisted of 7:00 a.m., when respondent s shift at the Department began, until 7:30 a.m., when his shift at the hospital ended. On other days, the overlap ran from 3:30 p.m., when respondent signed in at Brooklyn Hospital, through 4:00 p.m., 5:00 p.m., or 7:00 p.m., when he reported that he was working overtime for the Department. On at least two days, the overlap consisted of virtually his entire 7:00 a.m. to 3:00 p.m. shift at the Department. According to timekeeper Anna Marie Novak, respondent was paid by the Department for 33 hours of overlapping time, at $19.19 per hour. On July 12, 2001, Investigator Carl interviewed respondent, and commemorated this interview in a written report (Pet. Ex. 6). When asked whether his Department time records were completed accurately, he replied, I assume. When shown the September 18 and 19, 1999, Department time sheets and the hospital log books, which show that he worked from 7 a.m. to 3 p.m. at both locations simultaneously, respondent stated that he was at the Department and that someone else probably worked overtime for him at the hospital, even though the hospital records indicated that respondent was actually working as a replacement for someone else. When asked about the 7:00 a.m. to 7:30 a.m. overlap when the Department and hospital time records indicate he was also working concurrently at both locations, respondent explained that his hospital relief comes early and respondent paid him for the extra time. The inconsistent time records, corroborated by respondent s own admissions, support a finding that respondent was falsifying his attendance, either at the Department or at the hospital or perhaps at both. This falsification of time records constitutes an egregious violation of Department rules. See Department Code of Conduct VI (5) (employees shall accurately record their respective work hours ), (6) (employees shall not be absent from assigned work locations without authorization), (13) (employees shall not conduct themselves in a manner prejudicial to good order and discipline or engage in conduct prohibited by law ), and (20) (employees shall not knowingly make any false entry upon or alter any City record). As alleged by petitioner, the act of intentionally falsifying time records in order to receive over $500 of salary also established the prima facie elements of the crimes of falsifying business records in the first and second degrees, Penal Law and , offering a false instrument for filing in the first and second degrees, Penal Law and , petit larceny, Penal Law , and grand larceny in the fourth degree, Penal Law Thus, if proven in a court of competent jurisdiction, respondent could be convicted of these six crimes. This issue is not purely academic, since it removes any possible defense involving the failure to serve the charges within the 18-month period required by Civil Service Law section 75(4). See Dep t of Correction v. McFarland, OATH Index No. 650/92 at 2-8 (Aug. 24, 1992 ); Transit Authority v. Morgillo, OATH Index No. 1288/90 (Mar. 20, 1991); Police Department v. Pao, OATH Index No. 219/89 (Dec. 1, 1989); Board of Education v. Arena, OATH Index No. 437/82 (Dec. 2, 1982). It seems doubtful, however, that respondent s false entries on his time sheets also comprise tampering with public records in the first and second degree, Penal Law and , as

3 charged in specifications 6 and 7. Despite the disjunctive language indicating that this penal statute prohibits making a false entry, it is illogical to conclude that all false entries constitute tampering. Rather, this statute seems intended to prohibit acts of fraudulent alteration of an otherwise accurate public record. Respondent s time sheets were false as of the time he made the original entry and, as it were, created the record. For this reason, I find that there is insufficient evidence to establish the prima facie elements of Penal Law sections and and recommend that specifications 6 and 7 be dismissed. FINDINGS AND CONCLUSIONS 1. Specifications 1 through 3 should be sustained in that, from September 1999 through May 2000, respondent falsely submitted timekeeping records indicating that he was working as a plan tender during overlapping times at both the Department of Citywide Administrative Services and at Brooklyn Hospital Center, in violation of Department Code of Conduct VI (5), (6), (13), and (20). 2. Specifications 4 through 5 and 8 through 11 should be sustained in that respondent s false time entries would also, if proven in a court of competent jurisdiction, constitute the crimes of falsifying business records in the first and second degrees, Penal Law and , offering a false instrument for filing in the first and second degrees, Penal Law and , petit larceny, Penal Law , and grand larceny in the fourth degree, Penal Law Specifications 6 and 7 should be dismissed in that there was insufficient proof that respondent s actions established the prima facie elements of tampering with public records in the first and second degree, Penal Law and RECOMMENDATION Generally, employees like respondent who falsify their time records in order to obtain salary for time they did not work have been terminated. See, e.g., Health and Hospitals Corp. (Harlem Hospital) v. Mills, OATH Index No. 581/96 (Jan. 4, 1996) (hospital employee terminated for falsely making time entries of working at two different hospitals for overlapping times); Dep t of Housing Preservation & Development v. Bomani, OATH Index No. 1077/91 (Aug. 9, 1991) (inspector of 9 years dismissed for falsifying inspection reports); Dep t of Consumer Affairs v. Zakzouk, OATH Index No. 219/90 (Dec. 21, 1989), aff'd, NYC Civ. Serv. Comm'n Item No. CD (Oct. 25, 1990) (inspector of 8 years dismissed for falsifying time entries); Dep t of Housing Preservation & Development v. Emanuele, OATH Index No. 101/85 (Apr. 23, 1985) (inspector of 6 years dismissed for falsifying attendance sheets and expense vouchers). Respondent was appointed to the Department in However, even this twelve-year tenure cannot mitigate the penalty in this case. Respondent s falsification of his timekeeping records, clearly done

4 in order to obtain salary to which he was not entitled, is an egregious breach of the public trust and is incompatible with continued public service. His failure to appear at the hearing is a further indication of his irresponsibility. The only appropriate penalty for this misconduct is termination, and I so recommend. P R E S E N T: JOHN B. SPOONER, Administrative Law Judge T O: MARTHA K. HIRST, Commissioner, Department of Citywide Administrative Services A P P E A R A N C E S: PHILIP J. BIBLA, Attorney for Petitioner No Appearance by Respondent Memorandum Decision, April 23, 2003 Summary: Respondent, who was terminated following a default hearing, brought motion to vacate the default, claiming that he had elected to proceed pursuant to the contract grievance procedure and therefore the default hearing was held in error. The administrative law judge denied the motion on the grounds that OATH lacked jurisdiction to vacate the decision. On appeal, the Civil Service Commission vacated the default and directed that respondent be permitted to proceed with his election for the grievance process instead of a section 75 hearing. JOHN B. SPOONER, Administrative Law Judge Respondent Jose Done, by his attorney, moves to vacate a default in a disciplinary proceeding brought by the petitioner Department of Citywide Administrative Services ("DCAS"), and "to remove this case from the OATH calendar" in light of respondent's purported pursuit of a grievance under the contractual grievance procedure. At the disciplinary hearing held before me on March 13, 2002, respondent was declared in default based upon petitioner's evidence of proper service of the petition and notice of hearing. On April 3, 2002, I issued a report and recommendation to the Commissioner, finding that respondent had submitted false time records on multiple occasions during the period from September 1999 through May 2000 and recommending that he be terminated from his position as a plant tender. Dep't of Citywide Administrative Services v. Done, OATH Index No. 1119/02 (Apr. 3, 2002). By letter dated April 12, 2002, the Department adopted the findings in the report and recommendation and terminated respondent. 1 1 Res pon den t appea led the C omm issio ner's decision to the New York City Civil Service Commission. On March 13, 2003, the Civil Service Commission issued an opinion dismissing the appeal based on its precedent that no appeal lies from a default hearing. However, the Commission granted appellant/respondent 30 days from the date of the decision to move the appropriate tribunal to vacate the default. See NYC Civ. Ser. Comm'n Item No. CD (Mar. 13, 2003).

5 By letter dated March 26, 2003, counsel for respondent moved before this tribunal to vacate the default and to remove the matter from OATH's calendar on the ground that respondent had timely elected to proceed by the contract grievance procedure. In support of the application, counsel submitted an affidavit from Patrick Mitchell, Staff Representative in the Blue Collar Division of District Council 37, AFSCME, AFL-CIO. In the affidavit, Mr. Mitchell states that he verbally informed Michael Slutsky, Director of Labor Relations, on February 21, 2002, that respondent elected to waive his right to a hearing at OATH pursuant to section 75 of the Civil Service Law, and opted instead to proceed pursuant to the grievance arbitration procedure provided in the collective bargaining agreement (Mitchell Affidavit, Ex. B). Mr. Mitchell stated that he confirmed this decision by letter to Mr. Slutsky dated February 25, Mr. Mitchell asserted that Mr. Slutsky had contacted him on March 25, 2002 and told Mr. Mitchell that Mr. Slutsky had made a mistake, that he had failed to inform the Office of Disciplinary Proceedings that respondent had elected the grievance procedure and that he had lost the February 25, 2002 letter from Mr. Mitchell. Mr. Mitchell claimed that he then re-faxed the letter to Mr. Slutsky at the later's request. Mr. Slutsky also told Mr. Mitchell that, after Mr. Slutsky's error, an OATH hearing was conducted in respondent's absence on March 13, Petitioner opposed the application to vacate the default, arguing that this tribunal properly found respondent had defaulted at the March 13, 2003 hearing and that, in fact, Mr. Mitchell's statements concerning his interactions with Mr. Slutsky were untrue. In an affidavit, Mr. Slutsky denied Mr. Mitchell's claim that Mr. Mitchell had verbally notified Mr. Slutsky of respondent's grievance election at the close of the conference. Mr. Slutsky also denied receiving any fax from Mr. Mitchell on or about February 25, 2003, and insisted that he first saw Mr. Mitchell's letter on March 25, 2002, when Mr. Mitchell had called Mr. Slutsky to inquire about the status of respondent's disciplinary case. Regarding respondent's application to vacate the default, this tribunal lacks authority to grant such relief. Pursuant to OATH Rules of Practice section 1-52, any post-trial motion after issuance of a report and recommendation by an administrative law judge "shall be addressed to the deciding authority." 48 RCNY 1-52 (CIS CD-ROM 2003). Thus, any motion following the decision of the Commissioner of DCAS should properly be before the Commissioner and not this tribunal. See Human Resources Admin. v. Ferrer, OATH Index No. 1862/00 (June 21, 2001); Dep't of Correction v. Spencer, OATH Index No. 1387/97 (Oct. 27, 1997) (application to reconsider penalty denied since application was made after the report and recommendation was issued and should have been made to the agency head). Finally, respondent's application to remove the matter from the OATH calendar is denied as moot, since the matter was removed from the OATH calendar upon the issuance of my report in April 2002 and is no longer pending. Therefore, respondent's motion is hereby denied in all respects. P R E S E N T: JOHN B. SPOONER, Administrative Law Judge

6 A P P E A R A N C E S: PHILIP J. BIBLA, Attorney for Petitioner STUART LICHTEN, Attorney for Respondent Civil Service Commission, May 19, 2004 STANLEY K. SCHLEIN, Chairman/Commissioner STATEMENT On Thursday, October 2, 2003, the City Civil Service Commission heard oral argument in the appeal of JOSE DONE, High Pressure Plant Tender, New York City Department of Citywide Administrative Services, from a determination by the New York City Department of Citywide Administrative Services, finding him guilty of charges of misconduct and imposing a penalty of DISMISSAL following an administrative hearing conducted pursuant to Civil Service Law Section 75. COMMISSIONERS' FINDINGS: JOSE DONE appeals from a determination of the Department of Citywide Administrative Services (DCAS) finding him guilty of misconduct and imposing a penalty of termination, based upon a default issued in the Office of Administrative Trials and Hearings (OATH) disciplinary proceedings conducted pursuant to Civil Service Law (CSL) 75. Appellant, a Heating Pressure Plant Tender, was found guilty of submitting false time records on multiple occasions during the period from September 1999 through May The disciplinary hearing was held on March 13, 2002 and appellant was declared in default based upon DCAS' evidence of proper service of the petition and notice of hearing to appellant and appellant's non-appearance. This Commission held a hearing on October 2, Appellant's Position Appellant argues that his disciplinary proceeding never should have been heard by OATH because he informed DCAS after his informal conference with the Director of Labor Relations, Michael Slutsky, on February 21, 2002 that he would proceed with the grievance proceedings and not a CSL 75 hearing. Patrick Mitchell, Staff Representative in the Blue Collar Division of District Council submitted an Affidavit stating that he informed Mr. Slutsky in person and by letter dated February 21, 2002 that appellant was waiving his Civil Service Law Section 75 hearing and would proceed to Step II of the contractual disciplinary process. Mr. Mitchell stated that he spoke to Mr. Slutsky on March 25, 2002 and he was informed by Mr. Slutsky that he failed to notify the Officer of Disciplinary Proceedings that appellant elected the grievance procedure and that Mr. Slutsky had lost the February 25, 2002 letter and thus, he faxed it to him again. However, the hearing at OATH had proceeded without appellant on March 13, In addition, appellant argues that neither he nor his attorney were contacted on the day of the OATH hearing.

7 DCAS' Position DCAS argues that appellant had been informed of his OATH hearing in a letter dated February 21, 2002 by Michael Slutsky. Mr. Slutsky stated that after the conference he found that appellant failed to controvert and rebut specifications in the charges and that he would recommend a penalty of dismissal. He also informed appellant that if appellant did not accept his recommendation within five workdays, a Section 75 hearing would proceed for March 13, In addition, Mr. Slutsky submitted an Affidavit denying his conversation with Mr. Mitchell and further stated that he was not informed of appellant's intention to proceed with the grievance procedure until March 25, 2002, which was 12 days after the OATH hearing, notwithstanding the letter sent to him. Decision The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. Appellant argues that he had informed DCAS within the five days time frame that he would proceed with the grievance procedure and that he was waiving his rights under the Section 75. DCAS argues that appellant never informed it that he was waiving his rights and that the OATH hearing proceeded accordingly to the letter dated February 21, In addition, DCAS states that appellant was informed of the hearing date of March 13, 2002 and that neither appellant nor his representative appeared at the hearing. DCAS acknowledges that it was aware of appellant's union representative and his attorney. In addition, we note that appellant appeared at the informal conference and was aware of the date of the OATH hearing if he chose not to waive his rights. However, we note that the affidavits of Mr. Slutsky and Mr. Mitchell contradict one another. Mr. Slutsky acknowledges "that I have no actual knowledge that Mr. Mitchell sent any notice to me on February 25, 2002 because no notice was received until March 25, 2002, after he had called my office on that date to inquire about Mr. Done's [appellant] disciplinary case." Moreover, Mr. Slutsky never states in his affidavit that he informed Mr. Mitchell that the OATH hearing had proceeded without appellant, but he indicates in his affidavit that "he forwarded the fax to the Office of Disciplinary Proceedings for their information," which would seem to indicate that Mr. Mitchell believed that appellant's option for a grievance proceeding may still be a viable option. We find that based on the facts presented, the contradicting affidavits, and appellant's appearance at his previous hearing, we are vacating the default judgment against appellant and direct that appellant be allowed to proceed with his election for the grievance process instead of a CSL 75 hearing. STANLEY K. SCHLEIN, Chairman/Commissioner, Civil Service Commission DAVID S. LANDE, Vice Chairman/Commissioner, Civil Service Commission NICHOLAS A. LAPORTE, Commissioner, Civil Service Commission