Using a Global Positioning System device to gather evidence of employee misconduct

Using a Global Positioning System device to gather evidence of employee misconduct
2013 NY Slip Op 04838, Court of Appeals

The Department, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile. Citing People v Weaver (12 NY3d 433) and United States v Jones(132 S Ct 945, the Court of Appeals ruled that the State's action was a search within the meaning of the State and Federal Constitutions but that under the relevant facts in this case “did not require a warrant.”

The court, however, then proclaimed that “on the facts of this case such surveillance was  unreasonable”

Addressing the lawful used of a GPS, the court noted that the employee’s Department initiated an investigation concerning the individual’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. As a result the employee was served with certain disciplinary charges, found guilty and was suspended without pay for two months.

However, a second investigation was initiated when the Department referred the employee’s efforts to avoid surveillance to the Office of the State Inspector General. The Inspector General's investigation resulted in a second disciplinary proceeding, which resulted in this litigation.

According to the decision, the Inspector General's investigator attach a GPS device to the employee's car without his knowledge while the car was parked in a lot near the Department’s offices. Ultimately GPS devices recorded all of the car's movements for a month, including evenings, weekends and several days when the employee was on vacation. Subsequently the Inspector General’s investigators initiated surveillance of an apartment building the employee was suspected of visiting during working hours, subpoenaed E-Z Pass records and interviewed the employee and his secretary.

The resulted in the Department filing new charges against employee. The hearing officer found the employee guilty of 11 of the charges, eight of which were supported by evidence obtained through the use of a GPS device in whole or in part. The appointing authority adopted the hearing officer’s findings and recommendation and terminated the employee.

In explaining its ruling, the Court of Appeals said:

1. The attachment by law enforcement officers of a GPS device to the automobile of a criminal suspect, and the use of that device to track the suspect's movements, was a search subject to constitutional limitations.

2. The search in this case was a search within the meaning of Article I, §12 of the New York Constitution and the Fourth Amendment

3. The search in this case was within the "workplace" exception to the warrant requirement recognized in O'Connor v Ortega (480 US 709) and Matter of Caruso v Ward (72 NY2d 432).

The court noted that O'Connor involved the warrantless search by a public employer of the office of an employee suspected of misconduct. The United States Supreme Court upheld the search.

Subsequently the Court of Appeals had made it clear that it would follow O'Connor in deciding the constitutionality of searches conducted by public employers, whether for "noninvestigatory, work-related purposes" or for "investigations of work-related misconduct," under the New York as well as the Federal Constitution in its decision in Caruso.

Significantly, the employee did not challenge the existence of a workplace exception to the warrant requirement, but argued that it is inapplicable because the object of the search in this case was the employee's personal car. Accordingly, the employee contended that the court should “confine the exception to ‘the workplace itself, or . . . workplace-issued property that can be seen as an extension of the workplace.’" 

The Court of Appeals rejected this contention “at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.”

The bottom line: the Court of Appeals conclude that “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search [and the] Inspector General did not violate the State or Federal Constitution by failing to seek a warrant before attaching a GPS device to [the employee's] car.”

That said, the court then explained that “While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search.” According, the court ruled that the State has failed to demonstrate that this search was reasonable.

Use of GPS device, said the court, was conditioned on the employer first making a reasonable effort to avoid tracking the employee using a GPS device outside of business hours. Its failure to do so will result in the search, as a whole, being considered unreasonable.

Accordingly the court said that what is required in this instance is the suppression of the GPS evidence. 

However, the suppression of evidence obtained using a GPS device in this case did not to preclude the employer from disciplining the employee since only four of the 11 charges for which the employee was found guilty depended on GPS evidence. Accordingly only dismissal of those four charges was required.

The court then said that as to the others, the GPS evidence was either substantially duplicated by other records in evidence or was wholly irrelevant. Thus, whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor.

Accordingly, the Court of Appeals reversed the Appellate Division’s ruling and said that “charges one, two, three and six against [the employee are] dismissed, and matter remitted to the Appellate Division with directions to remand to the Commissioner of Labor for redetermination of the penalty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

Good faith test for job abolishment

Good faith test for job abolishment

Christian v Casey, 76 AD 835

Former employees of the City of Yonkers lost their jobs when the City planned to close it jail under its fiscal program.

The jail was never actually closed, however. It continued in operation with a reduced staff, with police officers performing some of the duties of the former employees that served in the titles of jailer or matron. When the employees sued, the Court held that municipal corporation may in good faith abolish civil service positions for reasons of economy.

The assignment of police officers to the jail was held to be a good faith effort to consolidate the arrest procedures and not an attempt to replace the former employees with newly hired personnel.

The fact that some of the duties of the former employees were being performed by police officers serving in the jail was not viewed as bad faith by the Court as “the utilization of existing personnel to carry out those duties which remained after the abolishment of the positions in the wake of a financial emergency cannot amount to a lack of good faith.”

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA
2013 NY Slip Op 04411, Appellate Division, Third Department

A member of the college's faculty [MF] contended that various members of the faculty and the administration failed to follow the procedures set forth in the collective bargaining agreement [CBA] in considering him for promotion to his professional and economic detriment.

The Faculty Association filed a grievance on MF’s behalf but shortly thereafter decided withdraw its grievance. MR sued, alleging a breach of the CBA. Ultimately Supreme Court dismissed his petition, finding that MF “lacked standing” to bring the action and MF appealed that ruling to the Appellate Division.

MF argued that although he does not contend that the Faculty Association breached its duty of fair representation, he should have standing to pursue a common-law breach of contract action against his employer regarding the alleged violations of the promotion procedures.

The Appellate Division disagreed, holding that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract."

Although the court noted “Exceptions [to the general proposition] [1] include where the collective bargaining agreement grants an employee a right to sue directly or [2] where the union fails in its duty of fair representation,” it pointed out that MF acknowledged that he is not alleging that Faculty Association breached its duty of representation but that argued that under the CBA decisions related to promotions are excepted from the grievance procedure and, thus, he contends that he can pursue an action directly against college defendants.

Rejecting MF’s theory, the Appellate Division said that the ultimate decision granting a promotion is not subject to a grievance under the CBA in contrast to the “lengthy procedures” faculty members must follow over several years to become eligible for consideration of a promotion. Such procedures, said the court, “are set forth in the CBA and are not explicitly excepted from the grievance process.”

It is the purported failure to follow these promotion procedures that MF challenged and the CBA, said the court, “does not carve out a separate right regarding these procedures that can be enforced by an employee directly against defendants.”

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04411.htm

Disqualifying an individual for employment in the public service

Disqualifying an individual for employment in the public service

Ferrine v Bahou, 75 AD2d 669

§50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person for employment in the public service by the New York State Department of Civil Service, or the municipal commission or personnel officer having jurisdiction, be given to the individual, together with an opportunity to submit an explanation challenging such disqualification.

As the employee in this case, Ferrine, was not provided with an opportunity to submit facts in opposition to his disqualification, the Appellate Division sustained the Supreme Court’s ruling holding that his dismissal was unlawful and the appointing authority was required to reinstate the employee to the position with back salary.

Judge Casey, however, dissented, noting that the basis for Ferrine’s disqualification was that he was unable to meet the age requirements for appointment to the position and thus “The [municipal]  commission had not only a right but a duty to remove him.”

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Price v New York State & Local Employees' Retirement Sys., 2013 NY Slip Op 04405, Appellate Division, Third Department

An individual [Member] was employed in various positions by New York State public employers in 1968 until 1975 when he left public service. At no time during such period did Member join the New York State and Local Employees’ Retirement System [ERS] nor, according to the decision, was he advised that he was a “mandatory Tier 1 member” of ERS.

Member reentered New York State public employment in 1980 and joined ERS as a contributory Tier 3 member. In 1997, without notice to Member, ERS administratively granted him Tier 1 membership with service credit for the initial years he had worked (1968-1975). However, upon further review, ERS deemed that Member’s Tier 1 membership automatically terminated in 1975 for inactivity in accordance with the provisions of the Retirement and Social Security Law then in effect, thereby continuing him as a Tier III member of ERS.

Member subsequently applied for, and was approved for, reinstatement to Tier 1 pursuant to Retirement and Social Security Law §645.* He then requested a refund of the contributions he had made since 1980 as a Tier 3 member.

ERS denied his request indicating that “[Member] did not qualify for a refund under the … statute pursuant to which he was reinstated,” (see Retirement and Social Security Law §645[2]). Member then commenced an Article 78 proceeding challenging the Retirement System’s determination denying his request for a refund of the contributions he had made as a Tier 3 member prior to his reinstatement to Tier 1, a noncontributory tier, pursuant to Retirement and Social Security Law §645.

The Appellate Division sustained ERS’s determination, explaining that  “Under the unambiguous terms of [Retirement and Social Security Law §645(2)], ‘[a]ny contribution made to [ERS] pursuant to Article [14] or [15] of this Chapter by a member who rejoined his or her current system on or after [July 27, 1976] shall not be refunded.”" [Emphasis supplied by the Appellate Division.]

Where, as here, said the court, "the Comptroller's application and interpretation of the relevant statutes are not 'irrational, unreasonable or contrary to the statutory language,' the determination will be upheld.”

As to “procedural difficulties” experienced by Member, the court said that “erroneous advice by [Member’s] employer, misplacement [of him] by [ERS] in a contributory tier or [his] delayed reinstatement to a noncontributory tier ‘cannot estop the Comptroller from performing his duties and denying any reinstatement [or refund of contributions] that is contrary to the statutes.’"

The Appellate Division also addressed the various provisions set out in the Retirement and Social Security Law addressing “vesting” of a member's ERS benefits under certain conditions, none of which “conditions,” said the court, were applicable in Member’s situation.

* Retirement and Social Security Law §645, which was adopted in 1998, allows current members of ERS who had reentered public service to apply for reinstatement to their original Tier membership status under certain circumstances.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04405.htm

Correction officers locked up for compulsory overtime

Correction officers locked up for compulsory overtime

Cacace v Seniuk, 104 Misc.2d 560

While a somewhat novel way to have overtime work performed, Supreme Court, Nassau County, held that correction officers compelled to work overtime were not denied their constitutional rights.

Although locked up in the jail, as they were during normal working hours, and denied the ability to leave without permission, Supreme Court ruled that such action was within the power of management.

The fact that the employees had received overtime pay or compensatory time off, together with a view that such a procedure was a reasonable and necessary limitation on the correction officers, was enough to support for the Court to hold that correction officers were not entitled to injunctive or declaratory relief.

Indeed, said the court, “In the last analysis, it is doubtful whether it is within the competence of the judiciary to grant the injunctive relief requested in any event. The question of manpower and its deployment is essentially one of management prerogative solely within the discretion of the public employer.”

The Court also found that §161 of the Labor Law was not applicable to correction officers, explaining that a corrections officer is a “peace officer” and “clearly not an employee within the statutory definition, i.e., a “mechanic, workingman or laborer working for another for hire,” set out in §161.