Dep t of Environmental Protection v. Licari OATH Index No. 1685/07 (June 5, 2007)

Transcription

1 Dep t of Environmental Protection v. Licari OATH Index No. 1685/07 (June 5, 2007) Respondent did not appear at the hearing because he is currently incarcerated for arson, insurance fraud and larceny. During his shift, he left work to burn down his house for the purpose of collecting the insurance money. In addition, he lied to a Department police officer to obtain access to the Croton Lake Gatehouse for an unknown purpose, falsified his time records, was absent without authorization and installed and operated vending machines on Department property without permission for his own personal gain. Judge recommended termination. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF ENVIRONMENTAL PROTECTION Petitioner - against - RANDAL LICARI Respondent REPORT AND RECOMMENDATION KARA J. MILLER, Administrative Law Judge This is a disciplinary proceeding referred by petitioner, the Department of Environmental Protection, pursuant to section 75 of the Civil Service Law. Respondent Randal Licari, a watershed maintainer, is charged with being insubordinate; committing arson by burning down his own house, while on duty; using the Department's premises without authorization; installing and operating vending machines on Department property for personal gain; making a false statement to a Department police officer; falsifying his time records; and being absent without authorization (ALJ Ex. 1). A hearing on the charges 1 was scheduled to be conducted before me on April 20, Upon respondent s failure to appear, proper proof of service of the charges and notice of the 1 Petitioner's application to withdraw without prejudice charge I, specification 1, alleging insubordination on April 10, 2005, was granted.

2 -2- hearing was submitted (Pet. Exs. 1, 2). Respondent, a Connecticut resident, is currently incarcerated in the MacDougall-Walker Correctional Institution, in Suffield, Connecticut, following his conviction for arson, larceny, insurance fraud and conspiracy. The Department served the notice of hearing and statement of charges by registered mail addressed to respondent at the correctional facility and included his inmate number. Recognizing the obligation of the correctional institution to deliver mail to inmates, petitioner's service of the charges by registered mail at the prison where respondent is housed, was service "reasonably calculated" to apprise respondent of the nature and pendency of the proceeding and satisfies due process. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657 (1950). See Dusenbery v. United States, 534 U.S. 161, 122 S. Ct. 694 (2002) (service of forfeiture notice by certified mail to the federal prison where claimant was incarcerated satisfied due process); Admin. for Children's Services v. Palaez, OATH Index No. 876/04, at 2 (May 19, 2004) (service of the charges and notice of hearing by certified mail correctly addressed to respondent at the correctional facility, including his prisoner identification number, satisfied due process); Dep't of Sanitation v. Mejia, OATH Index No. 317/03, at 2 (Oct. 4, 2002) (papers in a civil judicial proceeding served on a state prisoner by delivery to an officer of the correctional facility where the prisoner is incarcerated, together with obligation of facility to deliver the papers to the respondent was service reasonably calculated to apprise respondent of the proceeding). Petitoner's proof of service of the charges and notice of hearing on respondent at the correctional facility established the jurisdictional prerequisite for finding respondent in default and an inquest hearing was held in his absence. See Palaez, OATH Index No. 876/04, at 3; Dep't of General Services v. Lertola, OATH Index No. 328/89 (May 18, 1989). For the reasons set forth below, I find respondent guilty of all of the charges and recommend that he be terminated. ANALYSIS On December 16, 2002, respondent was assigned to work a double shift, from 3:30 p.m. to 7:30 a.m., at the Croton Lake Gatehouse Water Supply Facility. Sometime during his second shift respondent left work, returned home, and deliberately set his house on fire. He thereafter, returned to work to complete his shift, until he received a telephone call notifying him that his house burnt down. Since respondent was only one of two employees working the overnight tour, no one was aware that he had left the work site. Respondent subsequently collected $350,000 in

3 -3- insurance money. He would have gotten away with his devious scheme, until his daughter, who also works for the Department, was accused of stealing a laptop computer in 2004 (Pet. Exs. 4, 5; Tr ). During the investigation of the computer theft, respondent's daughter denied stealing the computer, blaming her father instead. In addition to attributing the computer theft to her father, she divulged that he had burnt his house down two years earlier to collect the insurance money. Michael Carroll, Deputy Inspector General for the Department's Inspector General's office, testified that an investigation of the matter confirmed the details provided by respondent's daughter. Respondent's house was destroyed by a fire in 2002 and a week prior to the fire, respondent rented a five foot by 15 foot storage space in Newton Connecticut, which he used to store those possessions that he did not want destroyed in the fire. Based on this information, a search warrant for respondent's new house was issued (Pet. Ex. 5; Tr ). On February 14, 2005, Inspector Carroll, along with the Trumble, Connecticut police department, executed the search warrant while respondent was working the 4:00 p.m. to midnight shift at the Kensington Reservoir. They arrived at respondent's home at 9:00 p.m., and respondent's wife let them in. She called respondent at work to let him know that the police were searching their home. Respondent, in turn, told his supervisor that he had a family emergency and had to leave work early. A detective who had been assigned to respondent's work location for the evening, radioed Inspector Carroll that respondent left the work site. Inspector Carroll testified that they were expecting respondent to show up at his house, but he never did (Tr ). Instead, respondent left the Kensington Reservoir and drove to the Croton Lake Gatehouse. After discovering that the facility was locked, he asked Department police officers to let him in. He fabricated a story that he was assigned to paint the Gatehouse and that the materials he needed were locked inside. The officers gave respondent a key and he let himself in. The Croton Lake Gatehouse was actually closed that day and no Department personnel were assigned to work there. After lending the key to respondent, the police officer communicated with Inspector Carroll, who informed him that respondent was not authorized to be at the gatehouse and that they should not have let him in. The officers drove to the gatehouse to determine what respondent was doing. When they arrived, they observed that respondent had pulled his car inside the gatehouse. During the half hour he had spent unsupervised, he apparently loaded the vehicle with whatever he was hiding inside. When the officers appeared,

4 -4- respondent pulled out of the gatehouse and sped away. Before they could react and follow him, respondent had driven off. He was driving so fast the officers were unable to catch up with him. Since respondent had successfully eluded the officers, the Department was unable to determine why he was at the gatehouse and what, if anything, he removed from the location (Tr ). Following a jury trial, respondent was convicted of arson in the first degree, larceny in the first degree, insurance fraud and conspiracy. He was sentenced to 33 years in prison suspended after serving 18 years followed by five years of probation (Pet. Ex. 3). The Department consequently brought a number of disciplinary charges against respondent. Respondent was charged with leaving work on December 16, 2002, to drive home and commit arson and conspiracy. Pursuant to the doctrine of collateral estoppel, respondent's guilty plea conclusively establishes the underlying facts of the criminal charge of arson and conspiracy. See S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938 (1973); Meades v. Spinnato, 138 A.D.2d 579, 526 N.Y.S.2d 161 (2d Dep't 1988); School Construction Auth. v. Davis, OATH Index No. 1582/06 (June 21, 2006); Dep't of Buildings v. Vazquez, OATH Index No. 601/03 (Jan. 29, 2003). As such, respondent is guilty of the charged misconduct of committing arson and conspiracy. In conjunction with the arson charge, respondent is charged with making false entries on agency time records. Respondent was scheduled to work a double shift on December 15-16, For the first tour, he signed in at 3:30 p.m. and signed out at 11:30 p.m. on December 15. He signed in for the second tour at 11:30 p.m. on December 15, and signed out at 3:30 a.m. on December 16, after receiving the telephone call from the authorities about his house burning down. Respondent, however, did not remain at the work site during the hours listed on the time sheets, but instead left work during his second shift to burn down his house. Since his alibi during the fire was him working at the Croton Lake Gatehouse, he did not indicate his absence during the second shift on his time sheet (Pet. Ex. 10; Tr. 9-10). Accordingly, I find respondent guilty of falsifying Department time records. Also, in relation to these events, respondent was charged with making false statements to a Department police officer in order to obtain a key to the Croton Lake Gatehouse and the unauthorized use of the gatehouse by entering Department property without permission on February 14, Petitioner credibly established these charges by a preponderance of the

5 -5- evidence. Accordingly, respondent is found guilty of both charges in relation to the events at the Croton Lake Gatehouse on that date. Respondent was further charged with a separate incident for the unauthorized installation and operation of two vending machines on Department property for over ten years. Respondent appeared at work one day and installed a soda machine and a candy machine outside the Croton Lake Gatehouse. His supervisors mistakenly assumed that respondent had been directed to install the machines by someone in the Department. During the course of Inspector Carroll's investigation, he interviewed Carl Picha, a former District Engineer. Mr. Picha informed Inspector Carroll that a short time after the machines had been installed, he learned that respondent owned the machines. He raised his concerns with the foreman at the gatehouse, but the machines were never removed. For approximately a decade, respondent stocked the machines and collected the money without obtaining permission to do so (Pet. Ex. 6; Tr ). The machines were ultimately removed from the gatehouse on March 4, Inspector Carroll testified that the machines were opened and the contents were inventoried. He removed $63.65 from the soda machine and $41.50 from the candy machine. While removing the contents of the candy machine, Investigator Carroll also discovered six doctors' notes hidden inside the machine. Some of the notes had "whited out" dates and patient names, ready to be filled in and photocopied, while others were photocopied blanks. I find respondent guilty of the unauthorized operation of two vending machines on Department property from 1996 until 2005 based on petitioner's credible, undisputed evidence (Pet. Ex. 7; Tr ). Finally, respondent was charged with being absent without authorization. In support of this charge, petitioner submitted affidavits from Myrtle Harding, Supervisor of Time and Leave Evaluations, Robert McHale, Director of Payroll Services and Elizabeth Simmons, Director of Management Services & Budget, Bureau of Water Supply, who are familiar with respondent's attendance records (Pet. Exs. 8, 9, 11). The affidavits were supplemented by a copy of respondent's time records from January 1, 2006 to April 30, 2006 (Pet. Ex. 10). The evidence established that respondent was on worker's compensation leave from February 3, 2006 to February 2, 2007, and never returned to work following his worker's compensation leave. Respondent has been absent without leave from February 2, 2007, to present. Under Civil Service Law section 75, in order for an employer to establish misconduct, there must be some showing of fault on the part of the employee. The conduct must be shown to

6 -6- be willful or intentional, Reising v. Kirby, 62 Misc.2d 632, 635, 309 N.Y.S.2d 55, 58 (Sup. Ct. Suffolk Co. 1968), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969), or the product of negligence or carelessness, McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951, 425 N.Y.S.2d 61, 62 (1979). See also Dep't of Sanitation v. Edgar, OATH Index No. 2228/01 (Dec. 3, 2001). In a number of cases where employees have been charged with an unauthorized absence due to incarceration on criminal matters, sufficient fault has been found to justify sanctioning the employees, despite the involuntary nature of their absence where the employees pled guilty or were convicted of the underlying criminal acts for which they were incarcerated. The theory is that one is deemed responsible for the natural consequences of one's intended acts, including, in this context, incarceration and enforced absence from work as a result of one's voluntary and intentional commission of a crime. Mejia, OATH Index No. 317/03, at 4. See Health & Hospitals Corp.(Coney Island Hospital) v. Clanton, OATH Index No. 2169/01 (Feb. 26, 2002) (incarceration is not a defense to an AWOL charge where it is the direct result of an employee's own voluntary criminal acts as evidenced by his criminal plea); Dep't of Sanitation v. Watson, OATH Index No. 656/96 (Oct. 23, 1995) (involuntary incarceration is no defense to AWOL charge where employee pled guilty to underlying criminal acts). Simply stated, if an employee commits a crime for which he is jailed, thereby rendering him unable to appear at work, the fact that his absence is involuntary is not a bar to discipline. Mejia, at 5. Accordingly, I find respondent guilty of a continuous absence without official leave since February 2, FINDINGS AND CONCLUSIONS 1. Respondent was properly served with the charges and notice of hearing. 2. On December 16, 2002, respondent left his assigned work location to commit arson by burning down his house. 3. On February 14, 2005, respondent made false statements to a Department police officer to obtain a key to the Croton Lake Gatehouse. 4. On February 14, 2005, respondent entered and used the Croton Lake Gatehouse without authorization.

7 -7-5. Respondent installed and operated vending machines on Department property without authorization from 1996 through On December 16, 2002, respondent falsified his time records. 7. Respondent has been continuously absent without authorization from February 2, 2007 through present. RECOMMENDATION Upon making the above findings and conclusions, I requested and reviewed a copy of respondent's personnel abstract in order to make an appropriate penalty recommendation. Respondent was appointed on November 3, 1980, as a Water Plant Operator. His title was reclassified as Watershed Maintainer on June 20, During his 25-year tenure with the Department he was never formally disciplined. Petitioner has requested that respondent be terminated, a penalty which is warranted under the circumstances. The City of New York has a longstanding policy that employees convicted of a crime of moral turpitude shall be terminated "absent compelling mitigating circumstances." Mayor's Executive Order No. 16 5(c) (July 26, 1978); Human Resources Admin. v. Torres, OATH Index No. 432/05, at 3 (Mar. 7, 2005); Maldarelli v. Doherty, 2007 N.Y. Slip Op. 4407, 2007 N.Y. App. Div. Lexis 6356 (1 st Dep't 2007). Respondent has been convicted of arson and insurance fraud, both of which are crimes of moral turpitude. The only appropriate penalty in light of the devious and criminal nature of respondent's misconduct is termination, and I so recommend. June 5, 2007 Kara J. Miller Administrative Law Judge

8 -8- SUBMITTED TO: EMILY LLOYD Commissioner APPEARANCES: CLAUDETTE ESPANOL, ESQ. Attorney for Petitioner No Appearance for Respondent.