-10-
Dep't of Environmental Protection v. Hewlett
OATH Index No. 644/07 (Mar. 9, 2007)
Charges should be dismissed where evidence establishes that petitioner condoned practice and where respondent had no control over incorrect conclusions drawn in newspaper report.
______
NEW YORK CITY OFFICE OF
-10-
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Petitioner
- against -
RONALD HEWLETT
Respondent
______
REPORT AND RECOMMENDATION
DONNA R. MERRIS, Administrative Law Judge
This employee disciplinary proceeding was referred by the Department of Environmental Protection ("Department" or "DEP") pursuant to section 75 of the Civil Service Law. Respondent, Ronald Hewlett, a maintenance crew supervisor in the City's watershed district, is charged with misconduct in three specifications. Petitioner alleges that respondent submitted weekly inspection reports with substantive portions of the reports having been photocopied prior to completing the inspections of two reservoir dams (ALJ Ex. 1).
A hearing was conducted before me on January 17, 2007. Petitioner presented three witnesses and relevant documentary evidence. Respondent testified on his own behalf.
For the reasons stated below, I find that the allegations have not been sustained by a preponderance of the credible evidence and should, therefore, be dismissed.
ANALYSIS
These charges arose out of a practice respondent engaged in from August 2004 through June 2005 involving the submission of dam inspection reports to his supervisor. The facts are not in dispute.
Some reservoirs that supply water to New York City are located north of the city and are referred to as the "upstate system." Management of the system is divided; the reservoirs and their associated facilities located west of the Hudson River are known as "West of Hudson" and those reservoirs located east of the Hudson River are known as "East of Hudson" (Tr. 8). In each section of the reservoir system, a section engineer is responsible for the maintenance of two reservoirs. Respondent, during 2004 and 2005 was a supervisor in the "Roundout" and "Never Sink" section located in the area West of Hudson (Tr. 28). Respondent supervised approximately six watershed maintainers who were primarily charged with upkeep of the buildings and the dams along the reservoirs. In addition, some maintainers worked on the highways, some were water treatment operators and others performed clerical work. Respondent's crew was charged with mowing city land around the dams, mowing the dams and with highway maintenance in the vicinity of the Never Sink Dam and the Merriman Dam (Tr. 9, 29, 49).
In 2002, the Department instituted an inspection program for the various dams which is known as the "weekly inspection checklist." Respondent's supervisor, Russell Betters, assigned the inspection task to respondent because his crew was responsible for the maintenance of the two dams and the mowing of the area around the dams. Generally, respondent was physically present at the dam sites two or three days per week (Tr. 30). A form was provided on which the person inspecting the dam was to record information as to: weather and temperature conditions; reservoir elevation; and various conditions observed such as wet spots or wet areas along the embankment of the dam or other signs of distress or developing maintenance problems (Tr. 11-12; Pet. Exs. 1, 2). Mr. Betters reviewed the form with respondent and explained that the information to be recorded was basically any observation made by respondent during his weekly inspection (Tr. 30). A printed guideline entitled, "Dam Inspection and Maintenance" was provided which described conditions to look for along the dams (Pet. Ex. 4). An outside consultant also analyzed the condition of the dams and issued a report or reports which were provided to respondent. Respondent accompanied the State Department of Environmental Conservation on one annual dam inspection (Tr. 31).
-10-
Respondent understood that he was to inspect the two dams, Never Sink and Merriman, and answer the questions on the checklist on a weekly basis. Respondent did inspect each dam, after which he would return to the office and complete the forms. As there were certain items on the checklist for each dam that did not change from week to week, respondent photocopied those sections of the report in order to save time. The reports accurately reflected the observations made by respondent on a weekly basis (Tr. 50-52).
When respondent completed the weekly inspection checklist, he gave a copy of the report to Mr. Betters (Tr. 51). Mr. Betters reviewed the form to see if any conditions had changed from the previous inspection. If he had any questions, Mr. Betters would discuss them with respondent. Mr. Betters then initialed the form and passed it along to his supervisor, Paul Rush, who was succeeded by Tina Johnstone (Tr. 32). Mr. Betters did notice, over time, that the same observations were made each week and assumed that the conditions had not changed (Tr. 32-33). In January 2005, Ms. Johnstone began to receive the weekly inspection checklists from Mr. Betters. She would initial the documents and send them on to be filed (Tr. 12-13).
In June 2005, Ms. Johnstone's supervisor asked her to examine the file of inspection reports in order to make sure that the inspections were satisfactory. This review was ordered because a non-New York City reservoir in the area, Swinging Bridge Reservoir, had developed a large sink hole and had to be drained. If a sink hole condition is not addressed, it is possible that the dam will fail and the water will spill out causing enormous damage to the surrounding area. When Ms. Johnstone reviewed respondent's reports, she noticed that they were photocopies, not originals. She instructed Mr. Betters to ensure that the practice stopped and required that the original handwritten copies of the inspection forms be handed in for filing. All subsequent submissions were originals (Tr. 14-15; Tr. 51).
In November 2005, a local Hudson Valley newspaper, the Times Herald-Record, made a FOIL request to the Department to review the inspection forms for the various dams. Following its review of respondent's reports, the Times Herald-Record published an article on January 27, 2006 entitled, "Phony Dam Reports: Doubts raised on safety of NYC dams here" (Pet. Ex. 3). The conclusion, according to the investigative report and based on the reporter's assumption that the paperwork was photocopied, was that the inspector "faked" reports on local dams (Pet. Ex. 3). The local state senator was subsequently quoted in the newspaper as being worried about conditions at the dams and questioned the credibility of the agency. In addition, Senators Schumer and Clinton called for an investigation (Pet. Ex. 3, January 18, 2006 article).
The City Department of Investigation ("DOI") collected the respondent's reports and spoke to Paul Rush, Tina Johnstone, Russell Betters and respondent. In the course of their research, DOI reviewed a consulting engineering report of detailed inspections of the Neversink and Merriman Dams conducted between November 1998 and May 2000. The conclusion as to both dams was that they were, generally, in good condition. Respondent, according to the interview notes, explained to DOI that he photocopied the substantive answers on the checklist form because the conditions noted had not changed (Tr. 44; Pet. Ex. 5). Respondent did not receive any negative feedback about the reports from his supervisors so he concluded that his supervisors were aware of the photocopying practice (Pet. Ex. 5, p. 13). DOI concluded that, while the reports may have failed to record all of respondent's observations of the conditions he observed during the weekly inspections, the reports did not contain any false entries. In addition, the conclusion was that there was no evidence that respondent omitted to make any true entries in the reports, such as developing structural deficiencies in the dams (Pet. Ex. 5, p. 16).
Petitioner has charged respondent with violating rules E.6 and E.12 of the agency's Uniform Code of Discipline. Specifically, the allegations are that respondent engaged in conduct prejudicial to the good order and discipline of the agency by submitting weekly inspection reports with substantive portions pre-photocopied which brought discredit upon the agency and with misconduct because respondent knew the reports were intended to be completed contemporaneously with his inspections. In addition, petitioner alleges that respondent neglected his duty by failing to complete the checklist form contemporaneously with his inspections of the dams because of the pre-photocopied substantive portions of the forms he submitted (ALJ Ex. 1).
Rule E.6 provides that, "employees shall not conduct themselves in a manner prejudicial to good order and discipline." By definition, conduct which "[tends] to bring discredit upon the City or the Agency" could violate the rule. Rule E.12 provides that, "employees shall not neglect their assigned duty or duties." Dep't Uniform Code of Discipline, D.5, E.6, E.12.
Petitioner argues that respondent's submission of photocopies containing the same information as to the condition of the dams week after week was an exercise of poor judgment that brought discredit to the Department through the negative newspaper articles and the call by local and statewide politicians for greater oversight of the Department's care of the upstate facilities. In addition, petitioner argues that respondent exhibited a certain consciousness of guilt by handing in only photocopies instead of the originals that he completed with the sections that he did complete each week entered with blue ink in contrast to the appearance of the photocopied sections of the form which appeared in black ink. Respondent never sought permission to photocopy the forms with the information already recorded, thus, petitioner argues, he presented photocopies for review to obscure the fact that he was not re-writing the information each week on the checklist form. As to the neglect of duty claim, petitioner argues that, by not properly submitting an original report that was completed each week, respondent neglected his duty (Tr. 61-63).
Respondent argues that the reports reflected work actually performed by respondent in that he did inspect the dams each week and that the reports accurately reflected what respondent observed during his inspections. Respondent's supervisor was regularly reviewing the reports and, until June 2005, never told respondent that his method was wrong or that his actions were a form of misconduct. As soon as it was pointed out to respondent that he should submit original forms with original notations following each weekly inspection, respondent conformed to the instruction. Respondent argues, then, that the supervisor condoned and acquiesced to the process. Respondent concluded that the practice was acceptable so long as the reports accurately reflected what he observed at the dams. According to respondent's argument, the newspaper articles cannot transform work performance that was deemed not to be misconduct for many months into disciplinary action. This is especially true, respondent argues, because of the evidence of the supervisors condoning the week to week reports. Finally, when respondent was told to stop the photocopying practice, he immediately complied with the instruction.[1]
Pursuant to the legal doctrine of waiver and condonation, an agency may not lead an employee into believing that his/her conduct will not be considered in violation of a rule and then reverse its policy and seek to have the employee disciplined. See Fahey v. Kennedy, 230 A.D.156, 159, 243 N.Y.S. 396, 400 (3d Dep't 1930); Law Dep't v. Coachman, OATH Index No. 1370/00 (June 13, 2000), aff'd, NYC Civ. Serv. Comm'n Item No. CD01-13-SA (Apr. 11, 2001); Dep't of Parks and Recreation v. Wilson, OATH Index No. 398/91, at 3-4 (May 3, 1991); Dep't of Housing Preservation and Development v. Chambart, OATH Index No. 380/84, at 15 (Feb. 22, 1985). For waiver and condonation to apply as a defense to misconduct, respondent must show that the behavior alleged to be misconduct was a regular practice known to and accepted by his supervisor. See Dep't of Correction v. Heredia, OATH Index No. 1070/91, at 12 (Aug. 23, 1991). Respondent bears the burden of proving this affirmative defense. Health & Hospitals Corp. (Bellevue Hospital) v. Olosunde, OATH Index No. 262/05 (June 15, 2005); Dep't of Correction v. Calligaro, OATH Index No. 925/95 (Apr. 25, 1995).
Should respondent establish a prima facie defense of condonation and waiver, the burden shifts to petitioner to rebut the defense. Here, petitioner would need to establish that respondent was not only trained in the completion of the checklist form, but that he was either instructed to complete the form as he was making his inspection or that he was instructed to stop using photocopies and, specifically, to stop using the photocopied portions of the checklist form. In addition, petitioner would have to establish that petitioner was instructed to stop using the photocopied portions of the form and that he failed to comply with the instruction.
The evidence is uncontroverted that, from August 2004 through June 2005, respondent submitted the forms as described. His immediate supervisor, Russell Betters, did not correct the practice nor did he suggest to respondent that the submissions were less than satisfactory. Moreover, the district supervisors, Paul Rush and Tina Johnstone, did not question the inspection reports during the relevant time period. When it came to her attention in 2005 that the copies she received were photocopies, not originals, Ms. Johnstone instructed that future submissions should be originals. The evidence does not support a finding that Ms. Johnstone questioned the validity of the information on the photocopies nor did she question whether or not the inspections had been made. Indeed, the evidence is that respondent did complete the inspections weekly and that the information provided on the forms was accurate. The entries did not change because conditions at the two dams did not change during the relevant period (Tr. 24, 44; Tr. 38, Betters: nothing major changed during the time period). Following the order to submit original pages, respondent complied without question.