| Matter of Cunningham v New York State Dept. of Labor |
| 2011 NY Slip Op 08529 [89 AD3d 1347] |
| November 23, 2011 |
| Appellate Division, Third Department |
| In the Matter of Michael A. Cunningham, Petitioner, v New York StateDepartment of Labor, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the Commissioner of Laborwhich found petitioner guilty of misconduct and terminated his employment.
Petitioner, a state employee since 1980, was respondent's Director of Staff and OrganizationalDevelopment for nearly 20 years. In the last 10 years, he had been disciplined on several occasions forvarious workplace misconduct. In 2008, respondent suspected that petitioner was engaging in a patternof taking unauthorized absences from work as well as falsifying time records. Respondent had aninvestigator attempt to tail petitioner when he left his office during work hours in April 2008, but theeffort was thwarted when petitioner realized he was being followed. Thereafter, respondent referred thematter to the Office of the Inspector General (hereinafter OIG).
During June and July 2008, OIG conducted an investigation that included, among other things,obtaining via subpoena petitioner's E-Z Pass records and placing a global positioning system(hereinafter GPS) device on petitioner's vehicle on June 3, 2008 when it was parked in a parking lotnear his work place. The GPS device was removed and it was replaced with another [*2]GPS device on June 11, 2008. This procedure was repeated again onJune 20, 2008, and that last GPS—which stopped recording information on July 3,2008—was removed on July 8, 2008. OIG used data extracted from the GPS devices for a30-day period (June 3 to July 3, 2008)[FN1] as part of the evidence for its report concluding that petitioner had engaged in a pattern of submittingfraudulent time records. During the relevant time periods, petitioner allegedly had reported falseinformation about hours worked on many days and submitted false vouchers related to travel with hisvehicle.
Respondent served petitioner with a notice of discipline pursuant to Civil Service Law § 75alleging 13 specifications of misconduct including, among other things, falsifying time records and travelvouchers for himself and his secretary. Petitioner moved to suppress the evidence obtained using GPSdevices and the Hearing Officer denied the motion. Following a hearing, the Hearing Officer foundample proof to sustain 11 of the 13 charges and recommended a penalty of termination of employment.The Commissioner of Labor adopted the findings and recommendation. This CPLR article 78proceeding ensued.
Initially, we consider respondent's contention that it is not necessary to address the merits of theadmissibility at the administrative hearing of the GPS evidence because there was adequate other proofon all of the sustained charges. "Compliance with the technical rules of evidence is not required in ahearing pursuant to Civil Service Law § 75 and, unless the admission of evidence will violate thefundamentals of a fair hearing, even the erroneous reception of evidence is an insufficient basis forannulment of a determination that is on the entire record, supported by substantial evidence" (Matter of Gardner v Niskayuna Cent. SchoolDist., 42 AD3d 633, 636 [2007], lv denied 9 NY3d 813 [2007] [internal quotationmarks and citations omitted]; see Matter ofMoro v Mills, 70 AD3d 1269, 1270-1271 [2010]). Petitioner acknowledges that GPSevidence was not considered in sustaining charge 4 (false time record for July 10 to July 23, 2008),charge 5 (insubordinate for not working hours directed) and charge 12 (insubordinate for contactingcoworker after suspension and not being truthful to director of personnel). Further, review of the recordas well as the Hearing Officer's recitation of relevant proof for charges 8, 9 and 10 (falsified travelvouchers and time record regarding June 25, 2008 travel from Syracuse to Albany) and charge 11(untruthful statement to investigator) reveals ample independent support for these charges, including theE-Z Pass records. Although there was some non-GPS proof as to the remaining sustained charges (1,2, 3 and 6), it is apparent that the GPS evidence was significant as to each of these charges. Hence, theuse of GPS proof as to these four charges would be unduly prejudicial if, as petitioner contends, itsadmission was improper (cf. Matter of Wojewodzic v O'Neill, 295 AD2d 670, 672 [2002]).
Petitioner argues that the GPS devices placed on his car without a warrant[FN2]constituted [*3]an illegal search and seizure under the NY Constitutionand that all data related thereto should have been excluded from evidence at the administrative hearing.In a case decided after OIG had concluded its investigation of petitioner, the majority in the Court ofAppeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in theabsence of exigent circumstances, the installation and use of a GPS device to monitor an individual'swhereabouts requires a warrant supported by probable cause" (People v Weaver, 12 NY3d 433, 447 [2009]). Although the GPSevidence gathered in this proceeding would have likely been excluded from a criminal trial underWeaver, the standard for using or excluding evidence at administrative proceedings is notcontrolled by criminal law (see Matter of Boyd v Constantine, 81 NY2d 189, 195 [1993];Matter of Stedronsky v Sobol, 175 AD2d 373, 375 [1991], lv denied 78 NY2d 864[1991]; Matter of Gibson v Koehler, 165 AD2d 768, 769 [1990]; see also I.N.S. vLopez-Mendoza, 468 US 1032, 1041-1042 [1984]; McCormick on Evidence § 173,Supp to Notes [6th ed] [observing that most courts do not apply the exclusionary rule to variousadministrative proceedings including employee disciplinary matters]).
A search conducted by a public employer investigating work-related misconduct of one of itsemployees is judged by the standard of reasonableness under all the circumstances, both as to theinception and scope of the intrusion (see Matter of Caruso v Ward, 72 NY2d 432, 437[1988]; see also O'Connor v Ortega, 480 US 709, 725-726 [1987]). Closely related, buttypically applied when the search was conducted by an entity other than the administrative bodyseeking to use the evidence in a disciplinary proceeding, is the exclusionary rule in the noncriminalcontext; such rule is applied by "balancing the deterrent effect of exclusion against its detrimental impacton the process of determining the truth" (Matter of Moro v Mills, 70 AD3d 1269, 1270 [2010]; see Matter ofBoyd v Constantine, 81 NY2d at 195). In noncriminal proceedings, the clarity of the law at thetime the governmental official acts can be pertinent to the reasonableness of the action and the deterrenteffect (see Burka v New York City Tr. Auth., 747 F Supp 214, 220 [SD NY 1990]; seealso I.N.S. v Lopez-Mendoza, 468 US at 1060 [White, J., dissenting] [urging that exclusionaryrule be applied in deportation proceedings "when evidence has been obtained by deliberateviolations of the Fourth Amendment or by conduct a reasonably competent officer wouldknow is contrary to the Constitution" (emphasis added)]).
Here, respondent did not conduct the investigation in which the GPS was used, but it did refer thematter to OIG for the purpose of an investigation. Under such facts, the reasonableness test appearsapplicable.[FN3]It is undisputed that respondent had reasonable grounds at the inception of the use of the GPS tosupport individual misconduct by petitioner. At the time of the current investigation by OIG, an earlierdisciplinary action involving petitioner was pending regarding false time records, and respondent'sinvestigation had revealed reasonable suspicion of a continuation of such conduct. Respondent clearlyhad a responsibility to curtail the suspected ongoing abuse of work time not only to preserve itsintegrity, but also to protect taxpayers' monies.
With regard to the scope of use of GPS devices, the most serious charges against [*4]petitioner involved an ongoing pattern of abuse of work time, andtraditional methods—such as tailing petitioner—had been tried and had been thwarted.Petitioner used his personal vehicle during working hours for some of the suspected abuse of his statejob. He could hardly have been surprised to be under investigation in light of his recent past, as well ashis ongoing problems at work. The GPS devices were not constantly monitored and, in fact, there is noindication that such a capability existed for the devices that were used.[FN4]They were retrieved and information relevant to petitioner's location during work hours was extracted.To establish a pattern of serious misconduct (i.e., repeatedly submitting false time records and not amere isolated incident), it was necessary to obtain pertinent and credible information over a period oftime. Obtaining such information for one month was not unreasonable in the context of a noncriminalproceeding involving a high-level state employee with a history of discipline problems who had recentlythwarted efforts to follow him in his nonwork-related ventures during work hours. Given the facts andcircumstances at the time of the investigation, we are unpersuaded that OIG or respondent actedunreasonably.[FN5]
Rose and Egan Jr., JJ., concur.
Spain, J.P. (dissenting). Respectfully, we dissent. In our view, the global positioning system(hereinafter GPS) evidence submitted against petitioner was obtained by an unconstitutional search and,therefore, the charges sustained by virtue of that evidence must be reversed. However, as the majority[*5]recognizes, charges 4, 5, 8, 9, 10, 11 and 12 are supported byindependent evidence, thus we would remit for the imposition of a penalty based solely on thosesustainable charges.
Here, the search conducted on behalf of respondent had to be reasonable not only atinception—conceded here—but also in scope (see Matter of Delaraba v NassauCounty Police Dept., 83 NY2d 367, 374 [1994]). A search by a public employer "is permissiblein scope when the means adopted are reasonably related to the objectives of the search and are notexcessively intrusive given the nature of the misconduct" (Morris v Port Auth. of N.Y. & N.J.,290 AD2d 22, 28 [2002]). We wholly agree—given petitioner's past misconduct and thedifficulty in obtaining evidence by traditional methods—that the use of a GPS device waswarranted at inception. In our view, however, the scope of its use was so broad and intrusive as to defya finding of reasonableness. Respondent's valid interest in petitioner's whereabouts extended only to thehours of his workday, yet the device placed on petitioner's personal vehicle collected data 24 hours aday, seven days a week. Petitioner's movements were tracked for over a month, including during aweek-long family vacation. Further, because we feel that deterring this type of intrusive conductoutweighs the detrimental impact on the process of determining the truth—especially given thatnon-GPS evidence was amassed against petitioner sufficient to sustain other, multiplecharges—the evidence should have been suppressed at his hearing (see Matter of Boyd vConstantine, 81 NY2d 189, 195 [1993]).
Finally, to the extent that the majority suggests that this Court's interpretation of constitutional law atthe time the search here was conducted supports or justifies the intrusive nature of this investigation, wecannot agree. In determining that the unfettered use of GPS devices "to pry into the details of people'sdaily lives is not consistent with the values at the core of our State Constitution's prohibition againstunreasonable searches" (People vWeaver, 12 NY3d 433, 446 [2009]), the Court of Appeals did not create a new law, butarticulated the constitutional protection to which petitioner was entitled.
Garry, J., concurs. Adjudged that the determination is confirmed, without costs, and petitiondismissed.
Footnote 1: The devices ostensibly were notsending information to OIG and were not constantly monitored, but instead they recorded and storedinformation that could be downloaded from a device once it was retrieved.
Footnote 2: An administrative agency does nothave the power to apply for an ex parte warrant absent a clear statutory grant of such authority (seeMatter of Shankman v Axelrod, 73 NY2d 203, 206 [1989]). OIG's powers are set forth inExecutive Law § 54.
Footnote 3: In any event, both thereasonableness and exclusionary tests are satisfied by respondent in this case and, moreover, we notethat some aspects of the broad analysis of reasonableness under all of the circumstances can implicateconsideration of factors weighed in the exclusionary test.
Footnote 4: We note that at the inception of theuse of a GPS on petitioner's car on June 3, 2008, the weight of authority pointed in the direction thatuse of a GPS was not a Fourth Amendment violation even in the criminal law context (see e.g. People v Weaver, 12 NY3d433, 452 [2009, Read, J., dissenting]), and two days after the device was first placed, the majorityof this Court held—in a criminal case (where more rigid standards pertain) involving a broaderuse of a GPS device than here—that neither the US Constitution nor the NY Constitution hadbeen violated (People v Weaver, 52AD3d 138 [2008], revd 12 NY2d 433 [2009]). Our holding, although later reversed bythe Court of Appeals under the NY Constitution, was, at the time, the only appellate court authority inthis state on this type of use of a GPS device in a criminal case (id. at 141). The United StatesSupreme Court recently granted certiorari in a case involving the use of a GPS device in a criminal case(United States v Jones, 564 US —, 131 S Ct 3064 [2011]).
Footnote 5: We also note that, under thesecircumstances, there is not a meaningful deterrent effect in excluding the GPS evidence used byrespondent. In fact, on cross-examination by petitioner's counsel, an investigator from OIG indicatedthat currently (i.e., after the Court of Appeals' decision in Weaver) different standards existwithin OIG for GPS use.