1
Dep’t of Education v. Halpin
OATH Index No. 818/07 (Aug. 9, 2007)
ALJ sustained charges that Supervisor of Carpenters committed misconduct by submitting false time records indicating that he worked the entire workday on 63 occasions, when in fact he left early. Charges were established using data from global positioning mechanism inserted in respondent’s Department-issued cell phone, which was held to be reliable circumstantial proof of respondent’s whereabouts. ALJ recommended termination.
______
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF EDUCATION
Petitioner
- against -
JOHN HALPIN
Respondent
______
REPORT AND RECOMMENDATION
TYNIA D. RICHARD, Administrative Law Judge
This disciplinary proceeding was referred to this tribunal by petitioner, the Department of Education (“the Department”), pursuant to section 75 of the Civil Service Law. Respondent John Halpin, Supervisor of Carpenters, is charged with 83 separate instances of leaving work before the end of the workday and submitting false timekeeping information.[1] Respondent denies the charges.
The hearing was held before me on March 15, 16, 19 and April 10, 2007. At respondent’s request, the parties submitted written briefs in summation of the evidence on May 24, 2007, at which time the record was closed. Petitioner presented the testimony of Timothy George, Eric Weinbaum, Angelo Landriscina, and Vincent Radziul. Respondent, who testified on his own behalf, presented the testimony of Patrick Markham, James Finnerty, Cornelius Lucid, Paul Augustyn, and Bruce Cook.
Based on the evidence adduced at trial, I find that petitioner established the misconduct charged and recommend the penalty of termination.
ANALYSIS
Respondent is charged with two specifications of misconduct: leaving early from work on 83 separate occasions from March 2, 2006 to August 9, 2006, and submitting false information that he worked a full day on those dates (ALJ Ex. 1).[2]
As a Supervisor of Carpenters, respondent supervises six to nine carpenters who maintain and repair the Department’s school facilities in Regional Operations Center 6 (“ROC 6”) in Manhattan. Respondent supervises the carpenters’ completion of assignments from start to finish and visits multiple sites during the day. His duties include providing his crew with access to the buildings they are assigned and transporting their work materials to the site. Respondent’s work hours are 8:00 a.m. to 3:30 p.m., including a half hour for lunch. He may not use flextime.
In April 2005, the Department issued respondent a cell phone to use in connection with his assigned duties (Pet. Ex. 1). The cell phone is outfitted with a Global Positioning System (“GPS”) that allows the Department to track his whereabouts. According to the Department, the GPS is intended to improve efficiency by enabling the Department to locate personnel and reassign them when necessary. It is not clear whether the Department’s use of this technology for purposes of surveillance and discipline was discussed with the supervisors at the time the phones were distributed.
Eric Weinbaum is a Regional Facilities Planner with the Department (Tr. 228-30). He testified that the Department started investigating respondent after Vincent Radziul, a Supervisor of Mechanics, reported noticing that respondent was not present at the jobs listed on his itinerary and that respondent’s time cards were unusual in that they appeared to be stamped by the same time clock at the end of each day. Since respondent’s duties placed him in different locations each day, it would be expected that the time clock punches would be dissimilar. He brought his suspicion to Timothy George, the Regional Facilities Manager, and they looked at the GPS data to confirm respondent’s whereabouts. Mr. Weinbaum said the GPS data showed that respondent was leaving work before the end of his workday on most days of the week and that respondent was traveling in the direction of his home in Levittown, Long Island, by 1:30 or 2:00 on most afternoons (Tr. 230-31).
Vincent Radziul testified that, in May 2006, he approached Weinbaum and Angelo Landriscina, a Supervisor of Mechanics, with his suspicions that respondent’s time cards appeared unusual (Tr. 207, 258-59). Although it was common for most punches on a supervisor’s time card to vary, he found that most of the afternoon punches on respondent’s time card were of the same type size and color, even though his movement sheets indicated he was clocking out from different locations. The morning punches, he noted, were varied. The tribunal made the same observations. He said that he had visited schools where respondent was supposed to have ended the day, according to respondent’s own itinerary, and respondent was not there.
According to Department procedures, respondent is required to punch in and out using a time clock on each workday. Standard Operating Procedures require him to punch his own time card and keep the card with him at all times (Tr. 195). Since he does not have a stationary work location, he is to punch in upon arrival at his first assignment for the day, and he must punch out at his final assignment for the day (Tr. 41). He is required to use the time clock in the school’s general office, as opposed to any other location in the school (Tr. 195). After punching his time card in the morning, respondent is responsible for listing each of the school facilities that he visits during the day on the back of his time card, along with the amount of time spent at each location.
Supervisors are required to submit a daily itinerary, which identifies the locations he intends to visit the following day (Tr. 273-74). Supervisors must also complete a “Supervisor’s Site Visit sheet” (hereinafter “Site Sheet”), which details the order of his visits, the time spent there, the services performed and the materials delivered or needed (Pet. Ex. 4; Tr. 31, 134, 226). The Site Sheets are to be filled out contemporaneously with a visit, specifically noting the time of arrival and departure, and faxed to a clerical worker to input into the database. They should be consistent with the information written on the back of the time card (Tr. 31, 242). Their purpose is to measure productivity by showing what the supervisor did that day (Tr. 226). It is also a budgetary tool that tracks not only the work a supervisor performs from day to day but also contains work order numbers that are used to ensure that a school is charged the proper amount against allocated funds (Tr. 45).
Petitioner noted that the information that respondent submitted on his time cards, Site Sheets and itineraries often differed. This information also varied from respondent’s actual movements according to the GPS data.
For example, respondent reported on his Site Sheet that, on March 2, he spent more than seven hours at P.S. 42 (“M042”), but his time card indicated he was there only a half hour (Pet. Exs. 2 & 4). His time card indicated his last stop of the day was M044 where he spent six hours (Tr. 31-32). According to Mr. George, P.S. 44 is located on the Upper West Side of Manhattan, and the GPS data showed no readings on the Upper West Side that day. The GPS showed respondent stationary in the area of 53 Hester Street from 8:48 a.m. to 1:58 p.m.; by 2:49 p.m., he was on Glen Cove Road in Old Westbury, Long Island and he was in Levittown by 4:30 p.m. (Pet. Ex. 2).
On March 6, the GPS data shows respondent in Long Island City, at the Department’s Queens Area Office (“QAO”) all day until 2:40 p.m. (Pet. Ex. 2; Tr. 35-36).[3] The data shows movement thereafter until 5:00 p.m. when he arrived in Levittown. Respondent’s time card and Site Sheet state that he spent six hours at the QAO but then visited M134, on the Lower East Side of Manhattan (Pet. Exs. 3 & 4). There was no indication in the GPS data that respondent entered Manhattan that day.
On March 7, respondent reported ending his day at M044, on the Upper West Side, but the GPS data shows respondent leaving 249 6th Avenue (near a school located on the Lower West Side of Manhattan) at 2:20 p.m. and then mobile until 4:22 p.m. when he arrived in Levittown (Tr. 47).
These examples of incorrect entries become more significant when combined with the GPS data. Respondent admitted that his entries were frequently incorrect but blamed it on the frenetic pace of his work and the unreasonable demand on his time.
Petitioner contends that the GPS data illustrates a clear pattern of respondent leaving work before 3:30 p.m. each day, traveling eastward to Long Island, and arriving at home in Levittown many days at or before his quitting time, 3:30 p.m. The data does follow a pattern, as is set forth in the chart below.
GPS DATADate / Time at Last identifiable location in Manhattan / Movement shown by longitude, latitude / Time at First identifiable location in LongIsland / Time of Arrival in Levittown / Citation to the record
March 2
/ 1:58 pm53 Hester Street / 2:08 -- 2:37 pm / 2:49 pm
Glen Cove Road / 4:30 pm / Tr. 31-32
March 6 / 2:40 pm
Long IslandCity, Queens Area Office (QAO) / 2:46 – 4:48 pm / 5:00 pm / Tr. 35
March 7 / 2:20 pm
249 6th Avenue / 2:29 – 4:10 pm / 4:22 pm / Tr. 47
March 8 / 1:31 pm
East 8th Street / 1:41 – 2:20 pm / 2:40 pm / Tr. 49
March 9 / 1:35 pm
West 75th Street / 1:58 -- 4:08 pm / 4:27 pm / Tr. 49-50
March 10 / 2:40 pm
53 Hester Street / 3:01 – 3:29 pm / 3:42 pm
Long Island Expwy / 4:21 pm / Tr. 52
March 13 / 2:25 pm
53 Hester Street / 2:37 – 3:27 pm / 3:54 pm / Tr. 52-53
March 15 / 1:48 pm
102 Clinton St. / 2:29 pm
Westbury, L.I. / 3:18 pm / Tr. 59
March 16 / 2:38 pm
East 22nd Street / 2:45 – 3:37 pm / 3:58 pm / Tr. 61
March 17 / 2:30 pm
East 22nd Street / 2:38 – 4:20 pm / 4:30 pm / Tr. 62
March 20 / 2:20 pm
53 Hester Street / 2:49 – 4:01 pm / 4:20 pm / Tr. 62-63
March 23 / 1:03 pm
QAO / 1:23 – 2:28 pm / 2:38 pm / Tr. 70
March 27 / 2:18 pm
East 8th Street
(near M064) / 2:28 – 4:00 pm / 4:51 pm / Tr. 77-78
March 28 / 12:58 pm
West 18th Street
(near M440) / 2:36 – 3:31 pm / 3:50 pm / Tr. 78
March 29 / 1:19 pm
7th Avenue
(near M641) / 1:27 – 1:47 pm / 2:38 pm / Tr. 78-79
March 30 / 12:30 pm
QAO / 1:13 – 3:32 pm / 3:54 pm / Tr. 79
April 3 / 2:35 pm
West 52nd Street
(near M535) / 2:55 – 3:49 pm / 4:09 pm / Tr. 81-82
4:30
April 4 / 2:28 pm
QAO / 2:46 – 4:17 pm / 4:27 pm / Tr. 82
April 5 / 1:14 pm
East 13th Street / 2:08 pm
Westbury, L.I. / 3:23 pm / Tr. 83
April 6 / 2:17 pm
East 35th Street / 3:07 pm
Wantagh State Pkwy / 3:27 pm / Tr. 84
April 12 / 2:30 pm
Varick Street
(near M615) / 3:26 pm
Mineola Avenue / 4:16 pm / Tr. 86
April 13 / 1:59 pm
QAO / 2:29 pm
Old Westbury / 4:08 pm / Tr. 87
April 14 / 2:17 pm
3rd Avenue
(near M167) / 3:36 pm
East Meadow / 4:06 pm / Tr. 88
April l7 / 1:24 pm
QAO / 2:44 pm
Hicksville / 3:24 pm / Tr. 88-90
April 19 / 2:01 pm
Spring Street / 2:21 pm
I-495 / 3:01 pm / Tr. 90-91
April 20 / 1:51 pm
Kenmare Street
(near M615) / 2:51 pm
East Meadow / 3:13 pm / Tr. 91
April 24 / 12:58 pm
3rd Avenue / 1:59 pm
Westbury / 2:11 pm / Tr. 91-92
April 25 / 2:04 pm
East 63rd Street / 2:34 pm
Long Island Expwy / 2:53 pm / Tr. 92
April 26 / 1:55 pm
11th Avenue
(near M615) / 3:15 pm
Northern St. Pkwy / 3:33 pm / Tr. 93
April 27 / 2:34 pm
East 54th Street / 3:23 pm
Northern St. Pkwy / 3:54 pm / Tr. 93
April 28 / 2:04 pm
East 60th Street / 3:23 pm
Northern St. Pkwy / 3:53 pm / Tr. 94
May 1 / 2:36 pm
53 Hester Street
(near M042) / 3:48 pm
Wantagh St. Pkwy / 4:09 pm / Tr. 95
May 2 / 2:04 pm
53 Hester Street
(near M042) / 2:54 pm
Westbury / 3:04 pm / Tr. 96
May 3 / 2:35 pm
Irving Place
(near M475) / 3:34 pm
Northern St. Pkwy, Westbury / 3:58 pm / Tr. 97
May 4 / 2:44 pm
53 Hester Street / 3:56 pm
Northern St. Pkwy,
Westbury / 4:16 pm
May 5 / 2:27 pm
QAO / 3:27 pm
Grand Central Pkwy, Little Neck / 3:54 pm / Tr. 97
May 8 / 2:35 pm
Delancey Street / 3:26 pm
Westbury / 4:15 pm / Tr. 98
May 9 / 2:36 pm
Orchard Street / 3:26 pm
Mineola Ave., Carle Pl. / 3:46 pm / Tr. 98
May 10
/ 2:54 pm1st Avenue / 3:34 pm
Grand Central Pkwy / 4:14 pm / Tr. 99
May 11 / 2:27 pm
53 Hester Street
(near M042) / 3:31 pm / Tr. 99
May 12 / 3:08 pm
1st Avenue / 4:09 pm
East Meadow / 4:41 pm / Tr. 100
May 15 / 2:52 pm
QAO / 3:28 pm
Northern St. Pkwy,
Old Westbury / 3:47 pm / Tr. 100
May 16 / 3:06 pm
3rd Avenue / 3:50 pm
Grand Cent. Pkwy,
Bellerose, L. I. / No arrival in Levittown by 5:00 p.m. / Tr. 101
May 17 / 2:01 pm
52 Hester Street
(near M042) / 2:53 pm
Northern St. Pkwy,
Great Neck, L. I. / 3:16 pm / Tr. 101
May 18 / 1:24 pm
West 50th Street / 2:41 pm
Old Westbury / 3:03 pm / Tr. 102
May 24 / 2:20 pm
53 Hester Street
(near M042) / 3:04 pm
Old Country Road,
Westbury, Long Island / 3:14 pm / Tr. 102
May 26 / 2:07 pm
Norfolk Street / 3:37 pm / Tr. 103
May 30 / 2:43 pm
York Avenue
(near M034) / 3:29 pm
East Meadow, L. I. / 4:00 pm / Tr. 106
May 31 / 2:07 pm
Forsyth Street / 3:14 pm / Tr. 107
June 1 / 1:46 pm
QAO / 2:19 pm
Grand Cent. Pkwy,
Little Neck, L. I. / 3:13 pm / Tr. 107-08
June 2 / 2:07 pm
West 18th Street
(near M440) / 3:13 pm
Grand Cent. Pkwy,
Bellerose, L.I. / 3:46 pm / Tr. 108
June 5 / 1:47 pm
QAO / 2:51 pm
Westbury, L.I. / 3:05 pm / Tr. 109
June 6 / 1:25 pm
East 11th Street
(near M060) / 2:41 pm
Wantagh St. Pkwy,
East Meadow, L.I. / 2:51 pm / Tr. 113
June 7 / 2:42 pm
East River Drive / 3:47 pm
Northern St. Pkwy,
Westbury, L.I. / 4:12 pm
June 8 / 2:30 pm
East 58th Street / 3:30 pm
Westbury, L.I. / 3:40 pm / Tr. 113
June 12 / 1:25 pm
QAO / 1:59 pm
Wantagh St. Pkwy,
Westbury, L.I. / 2:19 pm / Tr. 114
June 14 / 2:32 pm
Park Avenue
(near M620) / 3:15 pm
Grand Cent. Pkwy,
Little Neck, L.I. / 3:40 pm / Tr. 115
June 15 / 1:59 pm
East 8th Street / 2:45 pm
East Meadow, L.I. / 2:54 pm
June 19 / 2:29 pm
Kenmare Street / 3:15 pm
Mineola Avenue / 3:48 pm / Tr. 116
June 21 / 2:34 pm
East 10th Street
(near M034) / 3:17 pm
Wantagh St. Pkwy,
East Meadow, L.I. / 3:37 pm / Tr. 116
June 22 / 12:36 pm
QAO / 1:27 pm
Wantagh Avenue,
Wantagh, L.I. / 1:40 pm / Tr. 116
July 5 / 2:34 pm
QAO / 3:16 pm / Tr. 121
July 7 / 2:54 pm
East 52nd Street / 3:26 pm
Glen Cove Road,
Old Westbury, L.I. / No arrival in Levittown by 6 p.m. / Tr. 121
July 10 / 1:17 pm
53 Hester Street
(near M042) / 2:01 pm
Northern St. Pkwy,
Westbury, L.I. / 2:21 pm / Tr. 121
July 12 / 1:30 pm
Holland Tunnel / 2:10 pm
Glen Cove Road,
Old Westbury, L.I. / 2:40 pm / Tr. 122
July 14 / 2:41 pm
East 52nd Street / 3:16 pm
Little Neck, L.I. / 4:11 pm / Tr. 122
July 17 / 1:16 pm
Murray Street
(near M089) / 2:41 pm
Mineola Avenue,
Carle Place, L.I. / No arrival in Levittown by 6 p.m. / Tr. 122
July 18 / 2:49 pm
East 61st Street / 3:30 pm
Southern St. Pkwy,
Wantagh, L.I. / 3:43 pm / Tr. 123
July 19 / 2:22 pm
QAO / 3:07 pm
Old Westbury, L.I. / 3:16 pm / Tr. 124
July 20 / 2:38 pm
Norfolk Street / 3:43 pm
East Meadow, L.I. / 4:48 pm / Tr. 124
July 24 / 3:07 pm
East 61st Street / 3:48 pm
East Meadow, L.I. / 4:03 pm / Tr. 125
July 25 / 1:16 pm
East 6th Street / 2:00 pm
Old Country Road,
Mineola, L.I. / 3:20 pm / Tr. 125
July 26 / 12:33 pm
West 26th Street / 2:56 pm
Northern St. Pkwy,
Great Neck, L.I. / 3:20 pm / Tr. 126
July 27 / 2:17 pm
Irving Place / 2:57 pm
Grand Cent. Pkwy,
Bellerose, L.I. / 3:20 pm / Tr. 126
July 28 / 2:56 pm
Lexington Ave. / 3:32 pm
Northern St. Pkwy,
New Hyde Park, L.I. / 3:56 pm / Tr. 127
July 31 / 1:39 pm
East 22nd Street
(near M040) / 2:15 pm
Long Island Expwy,
New Hyde Park, L.I. / 4:03 pm / Tr. 127
August 1 / 1:58 pm
East 22nd Street
(near M040) / 3:06 pm / Tr. 128
August 3 / 12:32 pm
East 22nd Street / 1:27 pm
Northern St. Pkwy,
Old Westbury, L.I. / 2:32 pm / Tr. 128
August 4
/ 1:39 pmDelancey Street / 2:33 pm
Westbury, L.I. / 2:45 pm / Tr. 129
August 7 / 2:04 pm
QAO / 3:32 pm / Tr. 129
August 8 / 1:38 pm
Lafayette Street / 2:41 pm
Hicksville, L.I. / 2:51 pm / Tr. 130
August 9 / 1:47 pm
QAO / 2:20 pm
Little Neck, L.I. / 2:41 pm / Tr. 130
The pattern that arises from the GPS evidence shows that on all of the above dates respondent left the vicinity of work locations in Manhattan or the Queens Area Office in Long IslandCity, Queens, before the end of his workday, 3:30 p.m. Upon leaving, he drove eastward and his routes were readily identifiable in the data: the Northern State Parkway, Grand Central Parkway, Long Island Expressway, Wantagh State Parkway, or the Brooklyn Queens Expressway (“BQE”) (Pet. Ex. 2). The trip took approximately an hour to an hour and a half from the time he left Manhattan to his arrival in Levittown, Long Island, where he lives (Tr. 472). Even respondent admitted that the earliest he could arrive home if he left work at 3:30 p.m. was 4:15 p.m., since the drive from the Queens Area Office takes approximately 45 minutes (Tr. 473). Thus, it can clearly be inferred from the evidence that respondent was leaving work and going home early, before the end of his scheduled workday, without authorization to do so. There was no reason to believe that respondent was making work-related stops in Queens or Long Island. Mr. George testified that respondent had no business purpose for being in Long Island (Tr. 131), nor did respondent claim that he had.
Accuracy and Reliability of the GPS data
Respondent disputed the accuracy of the data. He testified that Carpenter James Finnerty told him that Mr. Radziul told him that the GPS system the Department purchased was not functioning properly (Tr. 446-47). “They’re trying to get it to work the way it’s supposed to work, but it’s just not doing it.” He also testified that it was discovered during his suspension in September 2006, that the Department’s records had an incorrect IMEI number for his phone (Tr. 447-48; Resp. Ex. C). He asked the technician who discovered the error whether the wrong IMEI number could have any bearing on the GPS data, but he did not know. While on suspension, respondent researched Nextel’s website to determine whether the incorrect IMEI could have affected the data the Department was using against him, but he never got a clear answer to his question (Tr. 449). I found respondent’s hearsay speculation about the functioning of the GPS, clearly not disinterested testimony, insufficient to draw an inference that the system was malfunctioning or the output inaccurate. The Department argued that the change in serial number merely accounted for the inventorying of its GPS equipment and had no bearing on the GPS tracking (Petitioner’s Post-trial brief, at 7).
To support the accuracy of the data, petitioner pointed out that respondent worked overtime on March 24 and 31, 2006, and that the data showed that he was in Manhattan until 6:00 p.m. that day (Tr. 75-76, 80; Pet. Ex. 2). It also indicates that on April 10 and 18, May 19 and June 13 and 20 -- days that respondent called in sick -- respondent was in Levittown or on Long Island all day (Tr. 85, 90, 102, 114, 116; Pet. Ex. 2). Respondent did not dispute this data.
In general, GPS has been found to be reliable to the extent that the tribunal may take official notice of research amassed by the federal government in support of its accuracy. See OATH Rules of Practice, 48 RCNY 1-48 (LEXIS 2007). According to the federal National Space-Based Positioning, Navigation, and Timing Coordination Office, the Global Positioning System “is a U.S. space-based radionavigation system that provides reliable positioning, navigation, and timing services to civilian users on a continuous worldwide basis – freely available to all.
For anyone with a GPS receiver, the system will provide location and time. GPS provides accurate location and time information for an unlimited number of people . . . anywhere in the world.” See The basic civil GPS signal provides tracking to within 20 meters accuracy. See Thus, even without an expert, this tribunal has an independent basis upon which to find the GPS data reliable.
Respondent disputes that the GPS data establishes his whereabouts at 3:30 p.m. from March 2 to April 4, 2006, because the system produced only numerical data denoting longitude and latitude for those dates, rather than actual street locations (Tr. 154). Respondent also challenged Mr. George’s qualification to testify about the numerical data. Mr. George testified that the numbers represent the location of the cell phone according to the longitude and latitude of the cell phone’s signal (Tr. 36-37). He claimed that a sequential change in the numbers indicated that respondent was moving. He also said that he could tell when respondent was in motion, because the data would have a green color and the column entitled “speed” would contain a number, or he would see a series of different cell sites listed in succession (Tr. 151, 188).
Although George’s understanding of the data was somewhat limited, the inference that respondent was on his way home was a reasonable one to take away from the data, given the length of time between the last Manhattan address and the first Long Island address, which was typically an hour to an hour and a half later. This length of time was generally acknowledged as the expected length of travel time between the two points. Mr. George testified that travel time from Manhattan to Levittown was at least an hour but probably longer during rush hour traffic (Tr. 59-61). Radziul said it took him about an hour to travel to respondent’s home in Levittown from the Queens Area Office (Tr. 263). Respondent said that the drive home from the Queens Area Office took him approximately 45 minutes (Tr. 473). Nevertheless, in an abundance of caution, I decided to disregard the dates for which there was only numerical data because of the witness’ relatively limited knowledge of its meaning (Tr. 189).