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Dep’t of Sanitation v. Rizzo

OATH Index No. 1423/06 (Sept. 26, 2006)

Sanitation supervisor charged with various failures to perform supervisory duties. ALJ sustains 15 of the 21 charges and recommends penalty of 71 days’ suspension.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF SANITATION

Petitioner

- against -

MICHAEL RIZZO

Respondent

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REPORT AND RECOMMENDATION

JOHN B. SPOONER, Administrative Law Judge

This disciplinary proceeding was referred to me pursuant to section 16-106 of the Administrative Code by petitioner, the Department of Sanitation. Respondent Michael Rizzo, a sanitation supervisor, is charged with failure to complete various tasks, and other miscellaneous rule violations.

A hearing on the charges was conducted before me on June 2 and 30 and July 7, 2006. Petitioner called a deputy chief, five superintendents, and two fellow supervisors. Respondent testified himself, denying most of the misconduct.

For the reasons provided below, I find that 15 of the charges should be sustained and recommend that respondent be suspended for 71 days.

ANALYSIS

In most of the 21 charges, petitioner alleges that respondent failed to perform his duties with regard to a variety of assignments, including completion of time records, data entry regarding truck allocations, collection route records, issuance of parking stickers, reports of uncollected garbage, and inadequate supervision of workers.[1] In addition, respondent is charged with being absent without leave, being insubordinate, and improperly requesting the police to remove license plates. Respondent was assigned as a supervisor to the Manhattan 8 district from 2002 to September 2005. Since September 2005, he has been assigned to the Brooklyn North 2 Garage.

The focus of much of the hearing was thus not whether respondent made the mistakes alleged but whether the individual mistakes rose to the level of misconduct and warranted a disciplinary penalty. In order to sanction civil service employees for misconduct under Civil Service Law section 75, or in this case, the Administrative Code, there must be some showing of fault on the employee's part, either that he acted intentionally (see Reisig 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 negligently (see McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951, 425 N.Y.S.2d 61, 62 (1979)). Mere errors of judgment, lacking in willful intent and not so unreasonable as to be considered negligence, are not a basis for finding misconduct. See Ryan v. New York State Liquor Auth., 273 A.D. 576, 79 N.Y.S.2d 827, 832 (3d Dep't 1948); Dep't of Correction v. Messina, OATH Index No. 738/92 (July 9, 1992). Petitioner must prove that respondent intentionally violated a procedural rule or was careless in his duties in some respect in order to sustain its charges. As to allegations of negligence, the degree of carelessness must be more than de minimus, since minor and inconsequential errors do not rise to the level of misconduct. See Dep't of Sanitation v. Frank, OATH Index No. 465/03, at 8 (Feb. 28, 2003); Dep't of Sanitation v. Williams, OATH Index No. 386/03, at 19 (May 29, 2003).

As discussed below, I found that all but six of the negligent performance charges rose to the level of misconduct.

Timebook Errors (F1167104, F116715, F116716, and F107126)

Four charges allege that respondent made various errors in completing the garage timebook, a handwritten record of the hours worked by the garage employees. The first three of these charges concern record-keeping errors which came to light during an audit performed in April 2005 by Superintendent Rocco Mascioli of the Department Field Investigation-Audit Team (FIAT). The fourth charge alleges similar errors discovered a month after the audit by a deputy chief.

Superintendent Mascioli testified as to the results of an audit he conducted in April 2005 of the Manhattan 8 district. In a detailed report (Pet. Ex. 11) and in three summary memos (Pet. Exs. 8-10) he pointed out various discrepancies and errors which he discovered in respondent’s record-keeping, particularly with regard to the garage timebook. For the pay periods ending December 18, 2004, and January 15, February 12, and March 12, 2005, leave balances, accruals, and usages were not completed or were incorrect and various boxes were not properly “dashed out.” The errors included incorrect symbols for some work and leave hours and incorrect addition. Entries had been made in pencil instead of pen (see Pet. Ex. 8). The FIAT audit also discovered that respondent had failed to set up a folder for the 2005 printouts, instead placing the 2005 printouts in a 2004 folder (Tr. 73). In all, the superintendent found some 338 errors made by respondent which required payment adjustments (Tr. 110, 114).

The fourth charge alleges timebook errors on three dates in May 2005. As to this charge, Deputy Chief Albert Durrell testified that, in May 2005, he noted five errors in a timebook prepared by respondent, including use of whiteout, an incorrect code of “shrank,” an improper symbol of ¾ instead of the number of hours worked, and the code “XWP/X” instead of “X” for worked without pay (Tr. 161-63, 167). Deputy Chief Durrell spoke with respondent and asked him if he needed timebook retraining (Tr. 173).

Petitioner also presented evidence that respondent’s supervisors spoke to him about his timebook errors prior to the charged dates and urged him to seek help. Superintendent O’Donnell testified that he spoke with respondent around February 2005 about getting help in filling out the timebook from another supervisor. Respondent never sought help from this supervisor (Tr. 49). In February 2005, the superintendent also spoke with respondent and asked him whether he wanted retraining in filling out the timebook.

Superintendent O’Donnell also recommended in a February 14, 2005 memo (Pet. Ex. 7) to the borough superintendent that respondent be retrained (Tr. 50). On March 30, 2005, Superintendent O’Donnell and Deputy Chief Light spoke with respondent about improving his timebook and payroll procedures, field supervision, collection calls, and administrative skills in filling out DS350’s (Pet. Ex. 14; Tr. 149). Superintendent Thomas Hughes testified that in April or May 2005 he and Deputy Chief Durrell had a conference with respondent about how to improve his timebook entries and performance of other supervisory responsibilities (Tr. 217).

Respondent testified that he made the errors noted by his supervisors (Tr. 381, 392). In his defense, respondent stated that he had been assigned as a rotating officer for the 4:00 p.m. to 12:00 a.m. shift, where supervisors are not required to make timebook entries (Tr. 399). He stated that he requested help in timebook procedures but that no help had been offered. He also stated that he had never been scheduled for training. He recalled sitting with Supervisor Phelps, but felt uncomfortable bringing his own paperwork into the supervisor’s small office. He recently received a day of training with Supervisor Mascioli and another supervisor. He insisted that he learned more from this training than he had from the much longer training he had received after becoming a supervisor and seemed confident he would now be able to accurately complete the timebook (Tr. 379-80).

As to the errors discovered in the Mascioli audit, there can be little question that the number of errors was significant and not de minimus. Department supervisors are given special responsibilities with regard to maintaining critical Department records, as embodied in Department rule 8.6 which provides that “supervisory personnel shall be responsible and held accountable for following the proper procedures and complying with Department Orders, Rules and Regulations on the preparation and maintenance of Department files, records, reports and forms.” According to the supervisor, respondent’s errors resulted in pay adjustments for 19 different workers. The total payroll adjustments were $2,404 in underpayments for workers who were owed additional salary and $12,481 in overpayments for workers who had been overpaid and needed to have deductions made from future paychecks. He indicated that this was more errors in the timebook than he generally finds in audits (Tr. 137). Superintendent O’Donnell recalled getting complaints from the union about payroll underpayments to workers being supervised by respondent. He referred these complaints to respondent, who said that he was “on top of it” (Tr. 75).

Based upon testimony of the supervisors and respondent’s own admissions, I find that respondent made all of the errors alleged. I further find that these errors constituted misconduct and recommend that the first three charges be sustained.

Petitioner’s proof indicated that the five alleged errors on the May 2005 timebook were more technical than substantive and had no serious consequences. The use of the term “shrank” instead of a box around the equipment code, of the wrong acronym for working without pay, and of a fraction rather than the number of hours were apparently violations of the accepted practice. However, Deputy Chief Durrell’s testimony indicated that all three of these entries were likely to be understood and correctly interpreted by the other supervisors. While none of petitioner’s witnesses explained the rationale for prohibiting supervisors from using white-out to make corrections, it would appear logical that white-out, like pencil, is banned due to the risk that workers might alter the time records after a supervisor completes the data entry and thereby receive pay to which they were not entitled. Nonetheless, respondent’s use of white-out on the timebook here did not result in any worker being paid an incorrect salary. I had no doubt that respondent used the white-out for the sole reason that he wished to make his timebook entries as legible as possible and ensure that all salaries paid corresponded with the salaries due. Thus, as I understand it, none of the five irregular entries by respondent, even if they had gone uncorrected, would have resulted in incorrect paychecks being issued. Also there was general evidence that various supervisors spoke with respondent about improving his entries in the timebook, there was no mention that any of these five issues were raised during those discussions prior to May 2005.

I therefore conclude that the five May 2005 timebook irregularities are de minimus and recommend that this charge be dismissed.

Permitting Crews to Return without Capacity Loads (F116707)

This charge alleges that, on April 5, 2005, respondent improperly signed two trucks out before they were full. As explained by Superintendent O’Donnell, the garage records (two of the 350’s and the dump receipts (Pet. Exs. 4 and 5) and the computer collection data (Pet. Ex. 6) for April 5, 2005, reflected that three tons of garbage were left uncollected for respondent’s section. The garage rule was that, where any of the collection routes in a given section remained not cleaned, supervisors should send crews who have completed their routes prior to 1:55 p.m. to assist in cleaning the other routes (Tr. 32-33). Even though the workers on truck number CU097 finished their route by 12:00 p.m., respondent did not order the crew to assist in collecting on other incomplete routes as required (Tr. 34-36). Similarly, truck number CU102 finished its route at 12:00 p.m. with less than a full load and was sent to the garage rather than to be dumped or assist on another route (Tr. 36-37). Respondent’s section reported 3 tons of garbage left out for the day.

Respondent denied that the initials on the DS 350 and dump receipt (Pet. Ex. 4) were his, although he admitted that he was the section supervisor for the crews on two trucks (Tr. 401).

At trial, counsel for respondent challenged this allegation on the grounds that the written charge did not give adequate notice as to the nature of the misconduct. The complaint, written by Superintendent O’Donnell stated,

On Tuesday 4-5-05 you were assigned to Section 83. You are responsible for collection crews to get capacity loads. Two of your trucks did not.

25CU-097 – 7.51 tons

25CN-102 – 10.46 tons

You signed trucks out at 12:10 there were 3 tons left out.

Although the wording of this allegation might be confusing to a layman unfamiliar to the rules regarding a supervisor’s responsibilities, I had no doubt that the allegation sufficiently explained the nature of the violation to respondent insofar as it pointed out that the two trucks were “signed out” even though three tons remained to be collected in other parts of the section. The fact that respondent did not dispute that he was aware of the rule regarding when trucks must be deployed to assist on other routes, convinced me that he understood that Superintendent O’Donnell was asserting that this rule had been violated.

As to the issue of who signed the DS 350’s and dump receipts, there is no support for respondent’s assertion that the signature, which appears to be the initials “MAR,” was not either his or authorized by him. He admitted that he was the section supervisor responsible for both of these trucks and would logically have been the only person authorized to approve the crews’ return to the garage. Nor did respondent deny authorizing the two crews to return. I find that this charge should be sustained.

Radio Log Errors (F107142)

This charge alleges that, on May 20, 2005, while assigned as the garage supervisor, respondent failed to sign a garage log of radios issued to supervisory staff. Superintendent Hughes recalled that he inspected the radio log (Pet. Ex. 22) and noted two lines on which respondent failed to indicate that a radio had been turned in. These omissions were discovered during an audit of the garage records, which also found that similar omissions were discovered for five other supervisors. Three of these supervisors were evidently new, and therefore the superintendent did not write disciplinary complaints against them (Tr. 290-292).