December 13, 2010

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010

An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.

New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.

The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.

In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.

In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].

However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*

The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”

Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.

Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.

The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.

The Court of Appeals ruled that:

1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.

2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.

The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.

The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “

Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.

This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.

In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.

When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”

Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.

* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.

** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.

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