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Wednesday, July 13, 2011

Investigation of an anonymous “phone tip” by the appointing authority


Investigation of an anonymous “phone tip” by the appointing authority
Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v New York State Pub. Empl. Relations Bd., 35 A.D.3d 1005

One of the issues considered in resolving an appeal from PERB’s dismissal of an improper practice charge alleging retaliation for participation in “protected union activities” involved the employer’s investigation of an “anonymous tip” concerning an employee.

Frank Williams, a union local president, was employed at the State University of New York Purchase [SUNY]. A “vocal and active president, filing many grievances on behalf of union members,” Williams contended (1) his reassignment from the evening and weekend shift to a weekday shift and (2) SUNY’s investigation of the status of his driver's license after receiving an anonymous tip constitute improper practices within the meaning of the Taylor Law (Civil Service Law § 209-a [a], [c]). Williams contended that these acts were in retaliation for his participation in protected union activities.

Ultimately PERB dismissed the improper practice charge.

CSEA appealed and the Appellate Division said “Substantial evidence supports [PERB’s] finding that SUNY's reassignment of Williams was unrelated to his union activities, and was instead in furtherance of SUNY's operating needs”

As to SUNY's investigation of Williams' driver's license, when SUNY received an “anonymous phone tip that Williams did not have a valid driver's license,” it ran a search in a statewide database. The court said that it was reasonable for SUNY to verify that Williams was a licensed driver, as he drove his vehicle onto campus for each shift and employees in his department had access to state vehicles, even if he personally never drove one.

Affirming PERB’s dismissal of the improper practice charge, the Appellate Division noted that SUNY’s investigation revealed that Williams did not possess a New York driver's license but was licensed in Rhode Island, despite having lived in New York State for over 30 years.

As this decision demonstrates, anonymous allegation may pose a serious problem for the administrator. The allegations may be false, made as a result of malice or may simply be a mistake on the part of the accuser. Nevertheless, it is necessary for the administrator to assume the charges are valid and undertake an investigation of the matter.

Such an investigation probably need not be as intensive as would be the case were the allegations made by a supervisor in the normal course of business or by a known party. However, the administrator should satisfy himself or herself that there is no substance to the allegation. If the investigation reveals that there is some substance to the allegations, and if true would constitute misconduct, further action should be taken by the administrator.

Anonymous communications that allege improper conduct by an employee place the appointing authority on the horns of a dilemma. If the employer ignores the communication, it may later develop that there was some substance to the allegation, and the employer will be exposed to criticism (or liability) for failing to act “on the information.” On the other hand, if the appointing authority confronts the employee, relying solely on the information it received anonymously, it may be criticized for taking adverse action against the employee based on such information alone. Such was the situation that faced the appointing authority after it received an anonymous letter alleging that one it its firefighters, Scott Wilson, was using illegal drugs.

Wilson v City of White Plains, 95 NY2d 783, sets out the standard applied by the Court of Appeals when it considered the actions taken by White Plains based on its receiving anonymous information alleging Wilson was using illegal drugs.

White Plains ordered Wison to submit to blood and urine. Ultimately disciplinary charges were filed against Wilson. A hearing officer found Wilson guilty of six charges of misconduct. The Commissioner of Public Safety adopted the findings and recommendations of the hearing officer and dismissed Wilson from his position. Wilson appealed his termination and persuaded the Appellate Division that his removal was arbitrary. In annulling Wilson’s dismissal the Appellate Division said that “in directing [Wilson] to submit to blood and urine tests, the fire department officials “relied upon an unsubstantiated and anonymous letter” and that there “was no objective evidence which would have suggested that the [firefighter] was abusing alcohol or drugs.”

The Court of Appeals disagreed and reversed the Appellate Division’s determination.

According to the high court, in addition to its receiving an “anonymous letter” concerning Wilson’s alleged use of drugs, “the City presented evidence of Wilson’s physical manifestations of substance abuse the day he was tested, long record of excessive absences, prior substance abuse problems, reputation for showing up at work under the influence, as well as his understanding that he could be tested if he showed any signs of recurring substance abuse.”

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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