Dep t of Environmental Protection v. Donas OATH Index No. 781/09 (Feb. 13, 2009), aff d, NYC Civ. Serv. Comm n Item No, CD SA (Nov.

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1 Dep t of Environmental Protection v. Donas OATH Index No. 781/09 (Feb. 13, 2009), aff d, NYC Civ. Serv. Comm n Item No, CD SA (Nov. 12, 2009) Respondent used Department s in violation of agency guidelines. ALJ recommended that respondent be reprimanded. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF ENVIRONMENTAL PROTECTION Petitioner - against - HARRY DONAS Respondent REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, the Department of Environmental Protection ( DEP or Department ), pursuant to section 75 of the Civil Service Law. Respondent Harry Donas, an assistant chemical engineer and a Chapter President for his union, is charged with violating guidelines for agency on June 23 and July 18, 2008 (ALJ Ex. 1). A hearing was conducted on January 28, Petitioner presented documentary evidence and two witnesses: a senior technician from the office of technology, and Denise Dyce, the Director of Labor Relations. Respondent denied the charges, presented documentary evidence, and testified on his own behalf. I find petitioner demonstrated that respondent used DEP s in violation of agency guidelines on June 23, 2008, but that it failed to demonstrate such a violation occurred on July 18, I recommend that respondent be reprimanded. ANALYSIS Petitioner alleges that two of respondent s s violated the Department s policy against using the agency to further union activity. When an employee logs on to a Department computer, the employee must agree to use it for authorized purposes only (Pet. Ex.

2 -2-1). The Department s intranet page, also known as Pipeline, states that, The Flexible Use Policy governs the limited personal use of office and technology by DEP employees (Pet. Exs. 2, 3). Pipeline has a link to the Information Security Manual which states, The facility is for business purposes only. The address allocated to an employee should not be used for personal purposes (Pet. Ex. 3). Pipeline also has a link to the Flexible Use Policy (Pet. Ex. 5), which provides that unless prohibited by another applicable agency policy, employees are granted limited personal use of the under certain conditions (Pet. Ex. 6). Ms. Dyce testified that in November 2007 she learned there was an upcoming union election involving District Council 37 s Local 375. She was contacted by an employee/union member who asked whether it was permissible to use [the agency] for elections (Tr. 19). Ms. Dyce advised the employee verbally and by that use of the agency for union elections was prohibited (Tr. 20). Ms. Dyce testified that while there is no specific rule in the written policies referring to union elections, the rule was derived from the rule against lobbying as set forth in the Flexible Use Policy (Tr , 45). Respondent acknowledged he was aware Ms. Dyce had stated that the agency was not to be used for campaign purposes or campaign activity (Tr. 79, 123). On December 12, 2007, DEP s general counsel sent an agency-wide stating that is to be used for business purposes and summarizing the usage policy (Pet. Ex. 4). The did not mention anything about the union or lobbying. On March 13, 2008, Ms. Dyce sent an to three employees who were also union members from Chapter 32, including Steve Awad, stating: As I have repeatedly indicated to you all, the DEP system is not to be used to further union activity. I am therefore instructing you all once more by asking you to advise your members of this and to be mindful of the Agency s reasonable use policy. Please note that continued disregard for the Agency policies may eventually lead to disciplinary redress against those employees found to be violating the policy. (Pet. Ex. 7). Ms. Dyce testified that she sent this regarding this union activity, or electioneering in response to something [she] had received again, that [Local] 375 had sent out (Tr. 22). Respondent testified that at the time, Chapter 32 was involved in a contentious

3 -3- election where agency was being used to send global s to members involving fake addresses, impersonating the local president and all these issues (Tr. 83, 122). In March 2008, respondent was elected as the Chapter 8 President after an election which dragged on and was contentious. As Chapter President, respondent is the link between approximately 611 Chapter members and Local 375. Respondent works at DEP s Lefrak facility, where most of the Chapter members are located. Respondent testified that Mr. Awad was the former Chapter 8 President who had been transferred and was now in another Chapter. Mr. Awad had been in the opponent s camp during respondent s election (Tr , 82). On June 23, 2008, respondent received an from Mr. Awad sent at 10:29 a.m. with the subject chapter 8 and chapter 32. Mr. Awad raised a question about certain Chapter 8 members being moved to vote a second time in the upcoming Chapter 32 election in violation of the union s constitution. Mr. Awad made reference to respondent authorizing the action and asked whether Chapter 8 members knew about it (Pet. Ex. 7). Respondent testified that since there were no recipients listed on the , he assumed that it was sent as a global to possibly hundreds of members using bcc. The caused a commotion and a number of members asked him about it (Tr ; Pet. Ex. 8). Respondent testified that at the time, Chapter 32 was engaged in a re-run election and there was a lot of bickering (Tr. 82). At 10:54 a.m. respondent replied and copied seven other union officers. He asked Mr. Awad to identify specific instances where members had been moved so he could look into it. He stated that if members were moved it was to correct the dishonest actions of the retired Chapter President who had the audacity to manipulate the Chapter lists while shamelessly campaigning for Mr. Awad. Respondent concluded by saying that even though Mr. Awad was no longer a Chapter 8 member, he would gladly respond to his concerns (Pet. Ex. 7). Respondent testified that he was not campaigning, that he sent the because Mr. Awad was attacking his presidency, and that his response was polite (Tr ). At 11:55 a.m. Mr. Awad replied to respondent and accused him of cooking a list (Pet. Ex. 7). Respondent testified that he ignored this second attack by Mr. Awad (Tr. 80). At 2:03 p.m. Mr. Awad sent a lengthy , without any recipients listed, setting forth alleged election violations (Pet. Ex. 7). Respondent was not copied on the and at 2:53 p.m., the Vice President of Chapter 8 forwarded it to respondent with a copy to Mr. Awad with a

4 -4- comment about the retired President. According to respondent, Mr. Awad s created quite a stir among the members (Tr ; Pet. Ex. 7; Resp. Ex. A). At 4:38 p.m. respondent forwarded the entire stream to Ms. Dyce along with a copy of her March 13, 2008, . He listed the subject as Repeated Violations of DEP E- mail Policy by Steve Awad. Respondent stated that Mr. Awad was sending s that were global and of a campaign nature. He asked Ms. Dyce to look into the violation of DEP policy and asked what action, if any, would be taken for this disruption to the work day (Pet. Ex. 7) (emphasis in original). Ms. Dyce wrote back that the matter will be looked into (Pet. Ex. 8). Respondent stated that the reason he sent the stream to Ms. Dyce was because Mr. Awad was electioneering in direct contravention to her (Tr. 85). Ms. Dyce forwarded the stream to her supervisor and the disciplinary counsel. She recommended that disciplinary action be taken (Pet. Ex. 9). Ms. Dyce testified that three people were brought up on charges relating to this matter (Tr , 37). Respondent claimed that he was the only person brought up on charges. 1 Respondent testified that he was never counseled that his use of the was improper. Moreover, he alleged that is regularly used for non-business matters including notices about union meetings, pension advice, political statements, and charitable and cultural events. Respondent submitted into evidence s from other individuals which he alleged demonstrated these non-business uses of the agency s (Resp. Ex. B). Respondent testified that Ms. Dyce s claim that his use of the was improper, was a complete departure from the practice that had been followed in the past (Tr , ). Respondent testified that he has disseminated union information to his members via e- mail with the knowledge and consent of Ms. Dyce and the Department. When he became Chapter President, he contacted MIS and spoke to them about getting a bigger mailbox so that he could send global notices to members about Chapter meetings (Tr. 124). On July 1, 2008, he ed Ms. Dyce asking whether a review session for a civil service exam would be excused time. Ms. Dyce replied yes and asked if any other members would be attending. Respondent 1 It is well-settled that selective prosecution claims do not lie in administrative proceedings, but must instead be submitted to a court in a CPLR article 78 proceeding. See, Taxi and Limousine Comm n v. Rana, OATH Index No. 1396/96, at 3 (July 19, 1996) (citing DiMaggio v. Brown, 19 N.Y.2d 283, 292 (1967)).

5 -5- told her that he would send an to his members with the minutes of our recent chapter meeting and ask if anyone would be attending the review class. Ms. Dyce had no objection to his use of the agency for these purposes (Tr , 104; Resp. Exs. C, D). Respondent testified that one weekend in June there was a scheduled electrical shut-off where Chapter 8 members were working and the temperature reached 95 degrees. This was followed by a labor-management meeting. Respondent testified that management reneged on the agreements and in July several members approached him and complained that they did not have air-conditioning on the weekends. Pursuant to the applicable contract provision, members can leave an hour early if the temperature reaches a certain point. When his members raised concerns about the upcoming weekend, which was going to be very hot, he reached out to Ms. Dyce (Tr , 114). On Thursday, July 17, 2008, at 1:23 p.m., respondent sent an to Ms. Dyce with copies to five people, regarding Heat Days Weekends w/o AC at Lefrak. Respondent stated that pursuant to the Citywide Contract and past practice, employees working in facilities without air conditioning from July 1 until Labor Day are entitled to depart one hour early on days which the inside air temperatures [sic] reaches 85 degrees. Respondent advised that there were Chapter 8 members who work on weekends and that he had been advised the air conditioning was not operational. Since his members had already suffered through a heat wave weekend in early June during the power outage, he intended to inform members that they have a right to leave one hour early which is an Excused Leave Heat Day (Pet. Ex. 12). At 2:38 p.m. Ms. Dyce responded and stated that she did not believe it was advisable for respondent to inform his members to not show up or leave work based on their own assessment without obtaining consent from management, because it may expose them to discipline. She asked respondent to provide her with the names of the individuals affected and their work locations. Ms. Dyce advised that once she obtained this information, the agency would follow-up and explore appropriate actions (Pet. Ex. 12). Respondent testified that he was pretty upset that Ms. Dyce wildly accuse[d] [him] of telling [his] members not to show up for work. Ten minutes later he called Ms. Dyce but was told by her secretary that she was in a meeting, which he thought peculiar because she had just ed him. He was unsure whether he left a message (Tr ).

6 -6- At 3:44 p.m. respondent ed Ms. Dyce and stated, I BELIEVE THAT DEP IS IN VIOLATION OF THE CITYWIDE CONTRACT. In addition, respondent stated that failing to show-up to work was not the issue but rather early release due to high temperatures. Respondent stated that something objective, like a thermometer, can measure the temperature, rather than individual perception. Respondent also stated that he was concerned with those individuals who work on the 6 th floor LR who work Sundays at Lefrak because there was a heat-wave expected. The failure to provide early release may jeopardize the health of [his] members. But they would prefer instead to have AC, and work their scheduled hours. Respondent requested that this issue be resolved as quickly as possible so that affected members can be notified before the weekend. Respondent ended by stating that he contacted Ms. Dyce in the first place in order to go through the proper channels, and obtain Management s position on the issue (Pet. Ex. 12) (emphasis in original). Respondent testified that he did not know the names of the individuals affected but provided her with the area in question. He never heard from Ms. Dyce again about the matter (Tr. 91). At 4:16 p.m. Ms. Dyce forwarded the stream to the Director of Facilities at Lefrak, who advised that they have scientists who take temperatures and humidity on a regular basis (Pet. Ex. 12). At 4:22 p.m., the Director sent another to Ms. Dyce stating that there was a supplemental air conditioning unit in the location which would be on. She noted that no one was scheduled to work past noon on Sunday (Pet. Ex. 13). Ms. Dyce testified that the issue had come up before, that management was familiar with the problem (Tr. 51), and that they took the appropriate action by the end of the day to resolve it (Tr. 53). Ms. Dyce testified that she did not receive a message that respondent called and that she did not contact him again about the issue (Tr. 59). Respondent testified that he wanted to give Ms. Dyce at least 24 hours to respond but that he was concerned about getting the matter resolved before the weekend (Tr. 92). On Friday, July 18, 2008, at 2:48 p.m. respondent sent an to the members scheduled to work that weekend with copies to Ms. Dyce, the Deputy Commissioner for Human Resources, the Director of the Lefrak facility, and other union officers regarding Chapter 8 Members who work on Sundays at Lefrak. Respondent stated that pursuant to the Citywide Contract, members who have completed one year of service are entitled to a shortened work day when working without air

7 -7- conditioning from July 1 until Labor Day. He further stated that the provision was written ambiguously but past practice has been to allow affected workers to depart one hour early. He wrote that as of this , and despite the prediction of very hot, humid weather this weekend, Management has failed to respond to or clarify this situation. He stated he was recommending to each affected employee to request to their Supervisors that the workers be allowed to depart one hour early if the threshold temperature is reached. He advised that members must obtain Supervisor s permission and that if the supervisor refuses the request they may not leave early unless there are health and/or safety concerns. The union would then grieve the issue, and/or submit complaints to the Federal Monitor and other appropriate agencies (Pet. Ex. 10). Respondent was subsequently brought up on charges alleging that the June 23 and July 28 s violated agency policy on use. I note that there is an inconsistency between the Flexible Use Policy allowing employees to use for limited personal use and the other written policies stating that is for business use only. In any event, at issue here is not the limited use policy but rather whether respondent violated a separate rule embodied in the March 13 Dyce and therefore, engaged in misconduct. In a disciplinary proceeding, the Department has the burden of proving its case by a fair preponderance of the credible evidence. Dep t of Correction v. Hall, OATH Index No. 400/08 at 2 (Oct. 18, 2007), aff d, NYC Civ. Serv. Comm n Item No. CD8-33-SA (May 30, 2008). In order to sanction civil service employees for misconduct, there must be some showing of fault on the employee s part, either that he acted intentionally or negligently. Mere errors of judgment, lacking in willful intent and not so unreasonable as to be considered negligence, are not a basis for finding misconduct. Dep t of Sanitation v. Banton, OATH Index No. 336/07, at 3 (Dec. 1, 2006). In order to sustain a finding that respondent was negligent, petitioner must show that he failed to employ reasonable care - the care which the law s reasonably prudent man should use under the circumstances of a particular case. McLean v. Triboro Coach Corp., 302 N.Y. 49, 51 (1950). The degree of carelessness must be more than de minimus, since minor and inconsequential errors do not rise to the level of misconduct. Banton, OATH 336/07 at 3. The first issue raised by the facts is how to interpret the breadth and scope of the March 13 Dyce . It was undisputed that during an election in November 2007, Ms. Dyce advised

8 -8- a union official that use of agency for union elections was prohibited. In March 2008 the union was engaged in another election and agency was being used in violation of that policy. Therefore, Ms. Dyce re-issued her directive and wrote three union officials that the DEP system is not to be used to further union activity and asked that this message be disseminated to the membership. Respondent admitted that he was aware of the rule. Respondent s testimony that he understood it to prohibit the use of agency for campaign purposes or campaign activities is consistent with Ms. Dyce s testimony that the rule was intended for union elections and electioneering. This interpretation is also consistent with the proof that Ms. Dyce did not object to respondent using for union matters unrelated to an election. It was undisputed that in July 2008, respondent, with Ms. Dyce s consent, sent members an agency about excused leave for a civil service exam class with minutes of a recent union meeting attached. Ms. Dyce s testimony that at some point she advised unnamed union officials that they may use the agency s internet to communicate union business to members personal accounts (Tr , 69) was insufficient to demonstrate that respondent was on notice that the March 2008 rule had application beyond union elections. Accordingly, I find that respondent knowingly violated agency policy on June 23, Respondent acknowledged that the sent by Mr. Awad was of a campaign nature (Pet. Ex. 7). Instead of ignoring the or forwarding it immediately to Ms. Dyce, respondent replied with copies to other union officials and discussed issues related to an upcoming union election. Contrary to respondent s claim, this does not fall under the Flexible Use Policy because there was another applicable agency policy prohibiting this type of . Even if respondent s was a polite response to an attack on his character and was not a direct campaign communication, respondent was still using agency to write about election matters, which is exactly what the policy was intended to prohibit. Almost half an hour elapsed between the two s and, therefore, it cannot be said that this was a spontaneous response. Finally, the fact that respondent brought the matter to Ms. Dyce s attention so that Mr. Awad could be brought up on disciplinary charges does not negate that he also violated the rule. Therefore, a finding of misconduct should be sustained. On the other hand, I find petitioner failed to demonstrate that respondent knowingly or negligently violated agency policy on July 28, Unlike the June 23 which involved

9 -9- an election matter, the July 18 had nothing to do with union elections but rather with a heat day, a matter which concerned labor and management. While it is understandable that the Department objected to respondent using agency to tell members about their rights under the applicable contract and that the union would grieve if it was violated, as discussed above, there is no evidence that the rule was written to prohibit non-election communications. Therefore, a finding of misconduct cannot be sustained and this charge should be dismissed. FINDINGS AND CONCLUSIONS 1. Petitioner demonstrated that on June 23, 2008, respondent violated guidelines for agency Petitioner failed to demonstrate that on July 18, 2008, respondent violated guidelines for agency . RECOMMENDATION Upon making these findings, I obtained and reviewed an abstract of respondent s work history for purposes of recommending an appropriate penalty. Mr. Donas has been employed by the Department as an engineer since 1987, he has no prior disciplinary history, and his overall rating for the past three years has been outstanding. The Department advocate asked that Mr. Donas be suspended for two days, presumably one day for each violation. I find that the loss of any time would be excessive and disproportionate to the misconduct which involved a short, restrained to a small group of people written in response to a personal attack. In light of Mr. Donas s long tenure, his lack of disciplinary history, the nature of the misconduct, and the context in which it arose, I recommend that he be given a reprimand. February 13, 2009 Alessandra F. Zorgniotti Administrative Law Judge

10 -10- SUBMITTED TO: STEVEN W. LAWITTS Acting Commissioner APPEARANCES: CARLA LOWENHEIM, ESQ. Attorney for Petitioner MITCHEL B. CRANER, ESQ. Attorney for Respondent

11 -11- NYC Civ. Serv. Comm n Decision, Item No. CD SA THE CITY OF NEW YORK CIVIL SERVICE COMMISSION In the Matter of the Appeal of: HARRY DONAS Appellant -against- NYC DEPARTMENT OF ENVIRONMENTAL PROTECTION Respondent Pursuant to Section 76 of the New York State Civil Service Law SIMON P. GOURDINE, COMMISSIONER CHAIR NICHOLAS A. LAPORTE, COMMISSIONER JOSE MALDONADO, COMMISSIONER RUDY WASHINGTON, COMMISSIONER NANCY G. CHAFFETZ, COMMISSIONER ALINA A. GARCIA DEPUTY GENERAL COUNSEL MITCHEL B. CRANER, ESQ. REPRESENTATIVE FOR APPELLANT CARLA LOWENHEIM, ESQ. REPRESENTATIVE FOR RESPONDENT STATEMENT

12 -12- On Thursday, September 10, 2009, the City Civil Service Commission heard oral argument in the appeal of HARRY DONAS, an Assistant Chemical Engineer for the Department of Environmental Protection, from a determination by the Department of Environmental Protection, finding him guilty of charges of misconduct and imposing a penalty of reprimand following an administrative hearing conducted pursuant to Civil Service Law Section 75. COMMISSIONERS' FINDINGS: After a careful review of the testimony adduced at the departmental hearing and based on the record in this case, the Civil Service Commission finds no reversible error and affirms the decision and penalty imposed by the New York City Department of Sanitation. SIMON P. GOURDINE, Commissioner, Civil Service Commission Chairman NICHOLAS LAPORTE, Commissioner, Civil Service Commission Vice Chairman RUDY WASHINGTON, Commissioner, Civil Service Commission JOSE MALDONADO, Commissioner, Civil Service Commission NANCY G. CHAFFETZ, COMMISSIONER November 12, 2009