Cunningham 2. Section 75 Award. DOL. Discharge

8/8/2019 Cunningham 2. Section 75 Award. DOL. Discharge

1/60

STATE OF NEW YORKCIVIL SERVICE LAW SECTION 75

In the Matter of the Civil Service Law

Section 75 Disciplinary Charges preferred by

NEW YORK STATE FINDINGSDEPARTMENT OF LABOR

Charging Party, AND

-against- RECOMMENDATION

MICHAEL A. CUNNINGHAM,Respondent.

BEFORE: Jeffrey M. Selchick, Esq.Hearing Officer

APPEARANCES:

New York State Department of LaborWalter Greenberg, Labor Relations Representative

Respondent Michael A. CunninghamDonohue, Sabo, Varley & Huttner, LLPKenneth 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).


2/60

2

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 post-

hearing briefs.

CHARGES

DATED MARCH 25, 2009

In accordance with the provisions of Section 75 of the NYSCivil Service Law you are hereby charged with misconduct and/orincompetence as specified below:

1. You submitted or authorized the submission of a falsifiedtime record for the period May 29, 2008 through June 11,2008 in that:

a. On June 3, 2008 your time record indicated that youwere present for 6 hours. Your time record reflected anabsence of 1.5 hours. However, you did not arrive atBuilding #12 until approximately 10:00 AM anddeparted at approximately 1:54 PM. This would havenecessitated recording an aggregate absence of atleast 3.5 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.

b. On June 9, 2008, your time record indicated that youwere present for 5.5 hours. Your time record reflectedan absence of 2.0 hours. However, you did not arriveat Building #12 until approximately 9:05 AM. Youdeparted work from Troy, New York, at approximately12:25 PM. This would have necessitated recording anaggregate absence of at least 4.0 hours based oneither a 9:00 AM to 5:00 PM schedule or an 8:30 AM to4:30 PM schedule.


3/60

3

c. On June 10, 2008, your time record indicated that youwere present for 5.5 hours. Your time record reflectedan absence of 2.0 hours. However, you did not arriveat Building #12 until approximately 10:10 AM and you

departed at approximately 2:53 PM. This would havenecessitated recording an aggregate absence of atleast 2.75 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.

2. You submitted or authorized the submission of a falsifiedtime record for the period June 12, 2008, through June 25,2008, in that:

a. On June 13, 2008, your time record indicated that you

were present for 6.0 hours. Your time record reflectedan absence of 1.5 hours. However, you did not arriveat Building #12 until approximately 9:15 AM and youdeparted at approximately 10:20 AM returning toBuilding #12 at approximately 11:10 AM and departingagain at approximately 1:40 PM. This would havenecessitated recording an aggregate absence of atleast 3.5 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.

b. On June 20, 2008 your time record indicated that youwere present for 7.5 hours. However, you did not arriveat Building #12 until approximately 9:17 AM and thendeparted at approximately 2:41 PM. This would havenecessitated recording an aggregate absence of at least3.0 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.

c. On June 25, 2008, you returned home from a field trip atapproximately 12:47 PM. Your time record reflects thatyou were present for 7.5 hours. You did not charge thebalance of the day as time off nor did you request anadjustment to your work schedule for the week orotherwise advise your supervisor, Andrew Adams ofyour absence.


4/60

4

d. On June 25, 2008, your time record indicated that youworked a full day when in fact you arrived home atapproximately 12:47 PM and did not advise yoursupervisor that you would not be returning to the office

or amending your schedule.

3. You submitted or authorized the submission of a falsified timerecord for the period June 26, 2008, through July 9, 2008, inthat:

a. On June 26, 2008, your time record indicated that youlucre present for 7.5 hours. However, you did not arriveat Building #12 until approximately 9:06 AM and youdeparted at approximately 3:23 PM. This would have

necessitated recording an aggregate absence of at least1.0 hours based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.

b. On June 27, 2008, your time record indicated that youwere present for 5.5 hours. Your time record reflectedan absence of 2.0 hours. However, you did not arrive atBuilding #12 until approximately 9:10 AM and youdeparted at approximately 1:22 PM. This would havenecessitated recording an aggregate absence of at least

3.25 hour based on either a 9:00 AM to 5:00 PMschedule or an 8:30 AM to 4:30 PM schedule.

4. You submitted or authorized the submission of a falsifiedtime record for the period July 10, 2008, through July 23,2008, in that your time record for July 17, 2008, indicated thatyou were present for 6.0 hours. Your time record reflectedan absence of 1.5 hours. However, you departed work at atime that allowed you to arrive at 2494 Troy-SchenectadyRoad, Schenectady, New York by approximately 2:16 PM.This would have necessitated recording an aggregatedabsence of at least 2.5 hours based on either a 9:00 AM to5:00 PM schedule or an 8:30 AM to 4:30 PM schedule.

5. During the period April 1, 2008, through August 15, 2008, youregularly submitted time records that indicated that yourschedule was 9:00 AM to 5:30 PM while you continued towork a basic schedule that was from 8:30 AM to 4:30 PM.


5/60

5

Your failure to change your work schedule constitutesinsubordination.

6. You approved falsified time records for your secretary, Lori-Jo

Carroll for June 19, June 26, and July 17, 2008.

7. You placed the Agency it jeopardy of having a complaint filedagainst it under the Fair Labor Standards Act in that you wereaware of the fact that your secretary Lori-Jo Carroll workedhours beyond her regularly scheduled hours on June 23 and24, 2008. However, you failed to have her record her exacthours of work which would have resulted in additionalcompensation for those dates.

8. You submitted a falsified travel voucher for the period June 23through June 25, 2008, in that you showed that you departedSyracuse, New York at 2:30 PM on June 25, 2008, when youactually departed at approximately 10:00 AM. Further youindicated that you arrived home at 5:00 PM when you actuallyarrived home at approximately 12:47 PM. Additionally yousubmitted for payment for a dinner on that voucher despite thefact that you were not entitled to a dinner reimbursement forJune 25, 2008.

9. You knowingly approved a falsified travel voucher for theperiod June 23 through June 25, 2008 for your secretary, Lori-Jo Carroll, in that her voucher showed that she arrived homeat 4:45 PM when she actually arrived home at approximately12:31 PM. Additionally, you approved payment for dinner onthat voucher despite the fact that Ms. Carroll was not entitledto dinner for June 25, 2008.

10. You knowingly approved a falsified time record for the periodJune 11 through June 25, 2008, for your secretary, Lori-JoCarroll, in that her time record indicated that she worked a fullday on June 25, 2008, when in fact she arrived home atapproximately 12:31 PM.

11. On August 13, 2008, you were untruthful in your interview withthe staff of the State Inspector General when you stated thaton June 25, 2008, you dropped Ms. Carroll off atapproximately 5:00PM.


6/60

6

12. You were insubordinate it that on August 13, 2008, and onDecember 31, 2008, you were directed to have no contactwith Department of Labor employees, vendors, and clients; yeton several occasions between August 13, 2008, and the date

of this notice, you contacted Sherry Edwards, AssistantDirector of OSOD. Specifically, you contacted Ms. Edwardsby telephone on or about August 13, 17, September 16, andDecember 19, 2008. You also contacted Ms. Edwards on orabout 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 ofPersonnel, told you that you could contact agency staff.

13. You are no longer a viable employee of the Department of

Labor, in that your aggregate absence from work for theperiod April 1 through August 11, 2008, was between 24.6and 28.9 percent of the available working time. This isdemonstrated on the attached listing of your absences for theperiod.

Michael Cunningham-AbsencesApril 1, 2008 August 11, 2008 (Hearing Officer Exhibit 2)

APRILDate Day Hours Charged To Unrecorded Total

4/1/2008 Tuesday 1.5 Annual4/8/2008 Tuesday 0 6.5 6.54/10/2008 Thursday 4.5 Sick4/11/2008 Friday 7.5 AWO4/14/2008 Monday 7.5 AWO4/15/2008 Tuesday 7.5 AWO4/21/3008 Monday 1 Annual4/22/2008 Tuesday 1.5 Annual4/23/2008 Wednesday 3.5 AWO4/24/2008 Thursday 3 AWO 0.5 3.54/29/2008 Tuesday 0 3.5 3.54/30/2008 Wednesday 1 Annual

MAYDate Day Hours Charged To Unrecorded Total5/1/2008 Thursday 0 3.5 3.55/2/2008 Friday 3.5 Personal5/8/2008 Thursday 7.5 AWO5/9/2008 Friday 3 AWO5/14/2008 Wednesday 1.5 Annual5/16/2008 Friday 7.5 AWO5/19/2008 Monday 1.5 Annual5/19/2008 Monday 0.5 Personal5/30/2008 Friday 1 AWO


7/60

7

JUNEDate Day Hours Charged To Unrecorded Total6/2/2008 Monday 1.5 AWO6/3/2008 Tuesday 1.5 Annual 2 3.56/5/2008 Thursday 2 AWO

6/9/2008 Monday 2 AWO 2 46/10/2008 Tuesday 2 AWO 0.75 2.756/12/2008 Thursday 2 Annual6/13/2008 Friday 1.5 Annual 2 3.56/17/2008 Tuesday 1.5 Annual6/18/2008 Wednesday 1.5 Annual6/19/2008 Thursday 7.5 AWO6/20/2008 Friday 0 3 36/25/2008 Wednesday 0 1.75/4.25 1.75/4.256/26/2008 Thursday 0 1 16/27/2008 Friday 2 Annual6/30/2008 Monday 7.5 Annual

JULYDate Day Hours Charged To Unrecorded Total7/1/2008 Tuesday 7.5 Annual7/2/2008 Wednesday 7.5 Annual7/3/2008 Thursday 7.5 Annual7/72008 Monday 1.5 Annual7/11/2008 Friday 1 Sick7/15/2008 Tuesday 1 Sick7/16/2008 Wednesday 1.5 Sick7/17/2008 Thursday 1.5 Sick 1 2.57/18/2008 Friday 7.5 Annual7/21/2008 Monday 7.5 Sick7/24/2008 Thursday 3 Annual7/25/2008 Friday 3 Annual

7/28/2008 Monday 7.5 Sick

AUGUSTDate Day Hours Charged To Unrecorded Total8/1/2008 Friday 2.5 Sick8/5/2008 Tuesday 3 Annual8/6/2008 Wednesday 0.75 Annual8/7/2008 Thursday 1.5 Annual8/8/2008 Friday 7.5 VRWS8/11/2008 Monday 2 Sick

Total 171.75

Total Available Work Hours for (93 days) 697.5 hours

Percentage of absence 24.6% - 28.9%

# of Total TotalOccasions Recorded Unrecorded

Hours Hours Total HoursTotal Absences: Full day 14 105 0 105

Partial day 41 66.75 27.5/30 94.25/96.75171.75 27.5/30 199.25/201.75

Monday Tuesday Wednesday Thursday FridayFull 4 2 1 3 4Partial 6 9 7 9 9


8/60

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 DOLs 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 Respondents personal vehicle and issuing an ex

parte subpoena upon the Port Authority of New York and New Jersey for E-Z

Pass records for Respondents 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 Officers rationale in support thereof are fully set forth.


9/60

9

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 Respondents 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 Respondents 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


10/60

10

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

States 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

Respondents 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 Respondents vehicle, drive to

Clifton Park, travel a path to Respondents home, and then reinstall the GPS

device on his vehicle. Further, Respondents contention that he was not at

Clifton Park, the State claims, should be measured by his statement on cross-

examination 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


11/60

11

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

Respondents 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. Respondents 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

required at least 3.25 hours of absence. The State notes that in his

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 Respondents automobile was on


12/60

12

South Pearl Street in downtown Albany, approximately a mile from the site

Respondent claimed to look at for training, the State observes that

Respondents 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. Carrolls

apartment at approximately 2:26 p.m., which would have required him leaving

the work location shortly before 2:00 p.m., consistent with Respondents travels

from the worksite to Ms. Carrolls 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 secretarys 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


13/60

13

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, Respondents

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. Carrolls residence at

approximately 2:42 p.m. Ms. Carrolls 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. Carrolls 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 Respondents

approval of Ms. Carrolls 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.

Carrolls time record reflects a normal workday even though Respondent admits


14/60

14

that she was dropped off at her residence at approximately 12:30 p.m.

Respondents explanation that he made an executive decision based on Ms.

Carrolls 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 Respondents 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

Respondents vehicle. Further, the State notes that Respondent improperly

sought $35.00 for a food allowance. The State concludes that, [w]hether


15/60

15

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 Respondents statement to the OSIG

staff on August 13, 2008, that he returned from Syracuse on June 25, 2008, to

Ms. Carrolls apartment at approximately 5:00 p.m., was not truthful.

Turning to Charge 12, the State observes that in August and December

2008, Respondents 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. OBrien, the rescission would not have occurred in time to allow

Respondents first four contacts with Ms. Edwards.

As to Charge 13, the State claims that Respondents absences for the

period April 1 though August 11, 2008, were excessive by anyones

standards. According to the State, a review of Respondents use of leave


16/60

16

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 employees 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. Carrolls 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


17/60

17

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 Respondents supervisor Mr.

Adams, nor anyone else, has exhibited or expressed any personal animus

toward Mr. Cunningham. As to Respondents 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 Respondents 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 Respondents son was in control of Respondents

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 Respondents 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 Respondents

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.


18/60

18

The State also contends that Respondents 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

manufacturers 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 Respondents knowledge of the record keeping

requirements set forth in the Departments 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. Respondents misconduct, the State observes, extended to improperly


19/60

19

approving Ms. Carrolls 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 Respondents insubordinate conduct in justifying

his termination. Respondents 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. Respondents 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 employers 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.


20/60

20

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 States 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

Respondents 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

Respondents 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 Respondents car. The


21/60

21

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 Respondents 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 Respondents 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.


22/60

22

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 States 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 Respondents 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

Respondents car at locations where Respondent denied ever having been and

where no independent evidence exists that Respondent was present at said

locations.


23/60

23

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. Hence, Respondent argues that this Charge has not been

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


24/60

24

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 States 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.


25/60

25

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. Carrolls 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 States 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 Respondents 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


26/60

26

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 Respondents 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.


27/60

27

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.


28/60

28

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. OBrien-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. Carrolls 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


29/60

29

Charge 6 and Ms. Carrolls 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.


30/60

30

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. Cunninghams

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. Cunninghams alleged time and attendance problems in ways

that fall far short of terminating this long-term employee.


31/60

31

FINDINGS

Initially, the Hearing Officer would note the States 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.


32/60

32

Before analyzing the specific Charges, the Hearing Officer would state his

initial finding that the record contains sufficient evidence to fulfill the States

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).


33/60

33

The foregoing relevant work rules are sufficient to establish that the State

fulfilled its 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 Respondents 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


34/60

34

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 Respondents personal vehicle under the circumstances presented

and had the further legal right to subpoena Respondents 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. Carrolls 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 Officers decision to give it full weight.1

1The Hearing Officer is mindful of Respondents contentions that he was not atvarious locations as indicated in the GPS data, but Respondents general andspecific failure to testify credibly allows the Hearing Officer to conclude thatRespondent has not refuted the accuracy of the GPS data.


35/60

35

Charge 1 Falsified Time Records For Period May 29, 2008 ThroughJune 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 Respondents 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).

Respondent arrived at his residence at approximately 3:39 p.m. (Id.).

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 Respondents 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

2References are to pages in the hearing transcript.


36/60

36

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 Respondents 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 wasnt. (413). Respondent was not able to offer any affirmative

statement that he did not return to his residence, as reflected in the GPS data,


37/60

37

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, Respondents 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, Respondents 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 Respondents inaccuracy, the

Hearing Officer concludes that it has been established by a preponderance of

the evidence.


38/60

38

Charge 2 - Falsified Time Records For Period June 12, 2008 ThroughJune25, 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 Officers finding that the

GPS data is to be considered reliable and Respondents 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. Respondents

claim that he was not on Valley Road in Schenectady at 10:37 a.m., in the

Hearing Officers 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.


39/60

39

Charge 2(b) refers to June 20, 2008, for which date Respondents 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 Respondents secretary at the time, Ms. Carroll. (360). According

to Respondent, when asked on cross-examination, he went to his secretarys

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 Respondents testimony,

generally, lacked credibility, and on this particular point under consideration, his

testimony bordered on the nonsensical. Respondents failure to charge the

time at his secretarys 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 Respondents claim that he was at his secretarys


40/60

40

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). Respondents secretary at the time, Ms. Carroll, rode

with him in his car to and from Syracuse. (376). The Respondents 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 Respondents 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


41/60

41

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 well 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 supervisors

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.


42/60

42

Charge 3 Falsified Time Records For Period June 26, 2008 Through July9, 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,

Respondents 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 Respondents 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


43/60

43

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.


44/60

44

Charge 4 Falsified Time Records For Period July 10, 2008 Through July23, 2008.

This Charge refers to the date of July 17, 2008. On that date,

Respondents 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. Carrolls 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


45/60

45

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. Carrolls 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.


46/60

46

Charge 5 For Period April 1, 2008 through August 15, 2008 RespondentRegularly Submitted Time Records Indicating His ScheduleWas From 9:00 a.m. To 5:00 p.m. When He Continued To WorkA Basic Schedule From 8:30 A.M. to 4:30 P.M. And Was Thus

Insubordinate.

In a counseling memorandum of May 12, 2008, Respondents 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).

Respondents testimony at the hearing was that he worked various

hours and that [s]ometimes 8:30 I would come in, sometimes 9 oclock, 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 didnt 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.


47/60

47

Charge 6 - Approval of Falsified Time Records for Secretary Lori JoCarroll for June 19, June 26, and July 17, 2008.

Central to the Charge are Ms. Carrolls 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. Carrolls 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 Respondents claim that he

visited Ms. Carrolls 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. Carrolls time

records, showing a full day of work, which Respondent approved, were

falsified. Hence, Charge 6 has been sustained.


48/60

48

Charge 7 - Placing The Department In Jeopardy To Overtime Claims ForAllowing Ms. Carroll To Work Beyond Her Regularly ScheduledHours 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 States Charge

is bottomed on Respondents 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 Respondents 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 Respondents

credibility. Given the Hearing Officers 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.


49/60

49

Charge 8 - Falsified Travel Voucher For The Period June 23 Through June25, 2008.

The relevant facts regarding Respondents 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 Respondents

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), Respondents 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 Respondents times are falsely stated on this official State

voucher, and it is also clear that he was not entitled to the meal reimbursement.

Respondents 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 Respondents signature, coupled with his duty to ensure the accuracy of


50/60

50

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 Respondents

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.


51/60

51

Charge 9 - Approval Of Falsified Travel Voucher For Ms. Carroll For ThePeriod 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. Carrolls 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. Respondents 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. Carrolls 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

Respondents 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.


52/60

52

Charge 11- Giving An Untruthful Statement In An August 13, 2008Interview With The State Inspector General By Stating That OnJune 25, 2008 Ms. Carroll Was Dropped Off By Respondent AtApproximately 5:00 P.M.

Lest there be any doubt regarding Respondents 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 Respondents 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 Carrolls 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.


53/60

53

Charge 12 - Respondent Was Insubordinate When He Contacted SherriEdwards 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 March4, 2009 Interrogation When He Stated The Director OfPersonnel 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


54/60

54

as to the times. (476). Further, the record contains the testimony of Debora

OBrien-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, Respondents 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.

OBrien-Jordan, which the Hearing Officer accepts as entirely credible, puts to

the lie Respondents claim in his interrogation of March 4, 2009 when he stated

that Ms. OBrien-Jordan told him he could direct agency staff. (State Exhibit 26,

50). Hence, this Charge has been established in its entirety by the State.


55/60

55

Charge 13 - Allegation That Respondent Is No Longer A Viable EmployeeBecause Of His Aggregate Absence From Work For ThePeriod April 1 Through August 11, 2008.

The record shows that Respondents 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 Respondents 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

Officers inquiry, were so excessive as to

Documents

Cunningham 2. Section 75 Award. DOL. Discharge