Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?

Police may not use GPS device to track suspects without a court order - is a court order required to acquire and use GPS evidence in an administrative disciplinary action?

United States v. Jones, Certiorari To The United States Court of Appeals for The District of Columbia Circuit. No. 10–1259

The U.S. Supreme Court has unanimously ruled that “The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”

The Court said that the government violated the Fourth Amendment, which protects individuals from unreasonable searches, when it afixed a global positioning [GPS] device to Antoine Jones’s car and tracked his movements continuously for a month. The Court rejected the argument advanced by the Government that Jones had no “reason­able expectation of privacy.”

Justice Scalia delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, joined. Justices Sotomayor filed a concurring opinion, as did Justice Alito, in which Justices Ginsburg, Breyer, and Kagan joined.

Earlier New York’s highest court, the Court of Appeals, ruled that the warrantless installation of a GPS device to track an individual suspected of criminal activity was barred by New York State’s Constitution [see People v Weaver, 12 NY3d 433,].

The Weaver 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 reasoned 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 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.”

A number administrative disciplinary actions taken against employees were initiated as a result of information obtained using global positioning equipment installed in the employer’s vehicle or in the employee's employer-issued cell phone.

The decisions in Jones and in Weaver case may have an impact on the future use of such GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

Among the unresolved questions:

1. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications would also serve as a basis for filing a criminal complaint against the employee?

2. Will a court order be required to obtain GPS evidence for use in an administrative disciplinary action if the administrative charges and specifications could not be a basis for filing a criminal complaint against the employee?

For the present, however, the following appears to control with respect to the use of GPS evidence in an administrative disciplinary action.

1. 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, PERB’s Administrative Law Judge dismissed a charge alleging that the County violated the Taylor Law 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]

2. In Cunningham v New York State Dept. of Labor, 88 AD3d 1347 the court held that evidence obtained using a global positioning device [GPS] was permitted in administrative disciplinary hearing.

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

The Appellate Division noted that in a case decided after Office of the Inspector General [OIG] had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder 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.”

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth." As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The Appellate Division decided that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the court ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division concluded that neither OIG nor Department of Labor had acted unreasonably.

3. In Halpin v Klein, 62 AD3d 403, the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the GPS installed in his Department-issued cell phone.

The Weaver decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2009/2009_03762.htm

The Cunningham decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm

The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm

The Jones decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job

Videotape admitted as evidence in a disciplinary hearing alleging fighting on the job

NYC Dept. of Homeless Services v Murray, OATH Index #2149/11

A dispute at the entrance of a homeless shelter led to disciplinary charges being filed against a New York City Department of Homeless Services employee.

The employee, a special officer who was stationed at the shelter’s security screening checkpoint, got into a physical altercation with her partner, another special officer, in view of clients.

A videotape showed that the officer and her partner exchanging words. The officer threw latex gloves at her partner, who threw a punch at her. The Officer than charged her partner, and had to be restrained by a third officer.

OATH Administrative Law Judge Kevin F. Casey found that the officer’s use of offensive language in front of clients and co-workers was misconduct. He also found the fight to be misconduct because it could have been avoided, but that the provocation did mitigate the penalty he would have otherwise recommended.

Noting that “[f]ighting with a colleague at the workplace is misconduct, even if there is provocation.” ALJ Casey said that “workplace fight between colleagues is misconduct by both employees regardless of who starts the fight, as long as both parties demonstrated a willingness to participate.”

As to a participants claim of “self-defense, self-defense can justify participation in a fight only if the employee had no reasonable means to avoid the altercation said the ALJ.

Judge Casey, sustaining two of the charges filed against the officer, recommended a 30-day suspension without pay as the penalty to be imposed.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2149.pdf

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

Kalyanaram v New York Inst. of Tech., 2012 NY Slip Op 00309, Appellate Division, First Department

The Appellate Division rejected a party to the arbitration assertion that disputes concerning the performance of the remedy provisions of the arbitration award should be determined by the arbitrator as being without merit in this instance.

The court explained that “Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514),” the arbitrator is functus officio, “without power to amend or modify the final award.”

Functus officio means "having performed his office." Where, as here, there has been a final judicial determination concerning the matter, the arbitrator no longer has jurisdiction.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00309.htm

Application seeking the removal of a school official must give the official notice of the application being filed

Application seeking the removal of a school official must give the official notice of the application being filed

Application of Donald B. Oglesby regarding an election, and application for the removal of Superintendent Lisa Wiles, board members Karin Osterhoudt and Phillip Mattracion, and teachers Denise Moore, James Pidel and Ann Beukelman, Commissioner of Education Decision #16,311

The Commissioner viewed Donald B. Oglesby’s applications as challenging an election to select members of the school board and to remove the school superintendent and certain board members and teachers from their respective positions.

As to the application for removal of the school officials and teachers, the Commissioner said that it must be denied because the notice of petition is defective.  

Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, Oglesby failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.”

Further, the Commissioner rejected Oglesby’s application to remove certain teachers from their positions, indicating that tenured teachers are school district employees, not school officers, and are thus not subject to removal under Education Law §306.

Other technical and substantive issues addressed by the Commissioner in considering Oglesby’s application included:

Verification of the application: §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified; Oglesby’s reply was not verified in violation of §275.5 and not considered by the Commissioner.

The Commissioner declining to consider material submitted in unsworn documents from Oglesby, noting that additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner.

The failure of Oglesby to serve the named individuals in his application with copies of tape recordings or video tapes that were “were alleged to be attached as exhibits to the petition” as otherwise required by §275.8(a) of the Commissioner’s regulations -- a “copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . .” 

As to newspaper articles submitted by Oglesby, the Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”

The Commissioner rejected school districts claim that certain of the act complained of were untimely. The Commissioner held that it would be “unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election” complaint. In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election [citations omitted].

Finally, the Commissioner said that to the extent that Oglesby raised claims that do not arise under the Education Law, such as defamation and slander, he lacked lack jurisdiction over such claims.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16311.html

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits
Matter of Brunner v Bertoni, 2012 NY Slip Op 00167, Appellate Division, Third Department

A police officer sustained serious injuries in an off-duty motorcycle accident. Upon his return to work with the Village of Endicott Police Department, he undertook mandatory firearms training that involved repeatedly firing his sidearm with his left hand. He could not complete the training due to pain in his left thumb and, as a result, stopped working for eight months until learning how to shoot his weapon with his right hand.

The police officer had applied for benefits pursuant to General Municipal Law §207-c. His application was ultimately denied by the Mayor and the officer filed an Article 78 petition seeking a court order directing the Village to provide him with §207-c benefits.

The Appellate Division sustained the Supreme Court’s dismissal of the petition explaining that although "[p]reexisting non-work-related conditions [would] not bar recovery . . . [if the police officer’s] job duties were a direct cause of the disability," substantial evidence in the record amply supported the Mayor’s finding that “they were not a direct cause” in this instance.

General Municipal Law §207-c provides eligible law enforcement personnel with benefits, including full wages, in the event they are injured in the performance of their duties. Such individuals, however, must "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be entitled to such benefits.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00167.htm

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Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Source: Office of the Governor

In his 2012-2013 Executive Budget and Reform Plan, Governor Cuomo stated that in  2011-12 the State started the process of merging and consolidating State agencies to achieve efficiencies and reduce redundancies.

The Governor indicated that “This process continues ... with consolidations, ... resulting in better, streamlined services." 

Among the proposed mergers set out in the 2012-2013 proposed budget: merging the Department of Civil Service and the Governor’s Office of Employee Relations "to provide the State with a single entity responsible for a strategic approach to workforce management, including recruiting, training, promoting, and developing a best in class workforce for the people.”

The Governor's 2012-2013 Executive Budget and Reform Plan is posted on the Internet at:

http://publications.budget.ny.gov/eBudget1213/fy1213littlebook/BriefingBook.pdf

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department

A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.

The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.

Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”

* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00217.htm