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Friday, December 20, 2013

Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location


Appointing authority supplements the penalty recommended by the hearing officer to include the employee’s reassignment to another work location
OATH Index No.1571/13

A sanitation worker was charged and found guilty of accepting a $40 gratuity from undercover investigators in exchange for disposing of approximately 12 black garbage bags containing trade waste.

While OATH Administrative Law Judge Faye Lewis found that the Department did not prove that the worker knew the bags contained construction debris, she held that he knew or should have known the bags did not likely contain household garbage. Thus, the worker violated the agency's trade waste directive by disposing of more than six bags of construction debris without supervisory approval.

Although “Termination has often been the penalty for trade waste violations, particularly when there is proof that a worker has accepted a gratuity” in so doing, Judge Lewis noted that in recent cases involving similar facts the appointing authority imposed a lesser penalty on employees found guilty of “trade waste violations.” Citing OATH Index No. 469/11, Judge Lewis said that although the OATH ALJ considering the matter recommended the termination of the employment of a long-term sanitation worker found to have accepted a gratuity in return for picking up yard debris in violation of the trade waste order, the appointing authority rejected the penalty recommended and instead decided that a 30-day suspension without pay, the loss of 80 vacation hours and a reassignment* to another word location as the penalty should be imposed.

Finding that in this instance the employee’s partner played the dominant role in the transaction and the employee played only a secondary role, Judge Lewis recommended imposing a penalty of a 30-day suspension without pay.

The Commissioner adopted Judge Lewis’ recommendation of a 30-day suspension without pay but modified it imposing an additional penalty -- reassigning the employee from his current  work location to another location for 5 years.

* Although judicial and quasi-judicial decisions occasionally uses the term "transfers" to describe the type of personnel change involved here, a "change of work station," the employee’s “change of location” was, in fact, a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority -- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise. See, for example, 4 NYCRR 1.2(b), which applies to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.

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