Dep t of Sanitation v. Norris OATH Index No. 2352/08 (Aug. 11, 2008), aff d, NYC Civ. Serv. Comm n Item No. CD-08-63- SA (Dec. 12, 2008), aff d sub nom. Norris v. Burges, Index No. 401420/09 (Sup. Ct. N.Y. Co. June 26, 2012), appended Petitioner demonstrated that respondent sanitation worker solicited money from two homeowners to collect bulk material. ALJ recommended that respondent s employment be terminated. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF SANITATION Petitioner - against - JASON NORRIS Respondent REPORT AND RECOMMENDATION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, the Department of Sanitation, pursuant to section 16-106 of the Administrative Code. Respondent, sanitation worker Jason Norris is charged with soliciting money from two homeowners to pick up bulk items in violation of section 4.3 of the Department s Code of Conduct which provides: Employees shall not solicit, give, agree to accept, or accept any benefit, money, or anything of value in connection with their actions or duties as an employee.... (ALJ Ex. 1). A hearing was conducted before me on June 18, and 19, and July 1, and 2, 2008. Petitioner presented the homeowners Mr. Smith and Ms. Thomas, three department witnesses, documentary evidence, and tape recorded statements of the home owners and sanitation workers involved. Respondent presented his partner, his shop steward, and testified on his own behalf. Respondent denied the charges and claimed that the homeowners offered him money to take improper bulk material and that when he refused, they made false complaints to the Department. I find that petitioner demonstrated that respondent solicited money from the two homeowners to collect bulk materials and recommend that his employment be terminated.
-2- ANALYSIS The following facts were not in dispute. Respondent is a sanitation worker in Brooklyn section 185 assigned to various routes and duties depending on staffing needs and seniority. On Saturday, August 5, 2006, respondent was assigned to trash collection on route 3 for the 6:00 a.m. to 2:00 p.m. tour. Respondent was designated the driver and his partner, then-probationary employee Tariff Kinard, the loader. The men switched loading and driving functions every two blocks. This was the first time respondent and Kinard had worked together and neither man had worked route 3, a split route. This case arises from two complaints about respondent from homeowners on route 3 who lived on East 55 th Street between Avenues L and M. Department orders prohibit sanitation workers from collecting construction material generated by a contractor for a fee or from servicing a residential stop which contains construction debris in excess of six bags, bundles, boxes, or cans (Tr. 216-18, 248). See also Department General Order 2001-19 (Dec. 24, 2001). Mr. Smith testified that he purchased his house on East 55 th Street in March 2006 and that it was in disrepair (Tr. 173). He was renovating the house with the help of his sons and had been storing the construction debris in his garage (Tr. 180, 401). On August 5, 2006, Mr. Smith placed on the curb for collection household garbage and bulk items including wood, an iron board, and sheet rock (Tr. 177-79). When he heard the sanitation truck coming down the street, he got his sons out of bed and went downstairs (Tr. 180). Mr. Smith saw that the truck had skipped his stop, including the household garbage. He approached the truck several houses down and asked the sanitation worker, who was loading trash, why he had skipped his house. 1 Respondent stated that there was too much material for pick-up (Tr. 181-82). Concerned that the garbage would remain in front of his house, Mr. Smith offered respondent $20.00, who stated That s not going to do it. Mr. Smith then offered $40.00, and respondent stated, That is not enough still. You ve got to do better than that. Mr. Smith asked whether he had to pay $50.00 or $100.00 and respondent said he had to take care of his partner. At that point Mr. Smith got upset because he did not want to pay that kind of money. At the suggestion of his neighbor, who had been watching, Mr. Smith called 311 to report the incident (Tr. 183-85, 431-36). 1 At the hearing Mr. Smith could not identify respondent as the sanitation worker he spoke to (Tr. 187) but there was no dispute that respondent was the individual involved in the conversation.
-3- Respondent testified that he was walking from house to house collecting the garbage. When he got to the Smith residence, he observed a short can and a bag which he collected. He also saw acoustic tile, cement with chicken wire, a tar can, old toys, and magazines. He did not take the material because he did not know how it had been generated (Tr. 595). About three houses down, Mr. Smith approached respondent to ask why he did not take his garbage. Respondent told him he had construction material mixed in with garbage and could not collect it. Mr. Smith offered to have his sons put the material in the truck. Respondent advised that it was against Department rules. Mr. Smith then offered him $20.00 and respondent advised that he is not allowed to take any money from him. While respondent was speaking he waved his hands in a back and forth motion. Mr. Smith then offered respondent $40.00. Respondent said no, walked away, and continued servicing the block (Tr. 597). Deputy Chief Louis Lanni testified that on August 5, 2006, he was working with Superintendent Charles Burge. One of his duties was to monitor 311 complaints forwarded to the Department (Tr. 148-49). That morning a complaint filed by Mr. Smith came into 311 and was forwarded to him. According to the complaint, Mr. Smith provided a description of the sanitation worker servicing his house and complained that the worker was rude and inappropriate by not picking up his garbage today at 7:40 a.m. (Pet. Ex. 1e). Chief Lanni contacted Supervisor Terrance Winters to investigate the complaint (Tr. 150, 269). Supervisor Winters testified that when he went to Mr. Smith s house he observed that there was uncollected material (Tr. 271) and that the other houses on the same side of the street had been serviced (Tr. 275). Mr. Smith advised him that the sanitation worker did not take his garbage and that he approached the worker two or three houses down. When Mr. Smith asked about his garbage the worker said there was too much material and Mr. Smith offered to have his sons load the truck. Mr. Smith stated that the sanitation worker said, You have to do better than that. When Mr. Smith offered him $20.00 the worker said, You have to do better than that. He then offered $40.00 and the worker said to double it (Tr. 272). When Winters heard that there had been a discussion of money, he notified Chief Lanni and asked him to respond to investigate the matter (Tr. 272, 300). Chief Lanni testified that he asked Superintendent Burge, an investigator for the Field Investigative Audit Team, to accompany him (Tr. 153, 311). When Lanni and Burge arrived at
-4- the Smith house they observed material on the curb (Tr. 155) and Supervisor Winters waiting for them (Tr. 273). According to their inventory of the items, the material consisted of loose wood, paneling and acoustic tile, three rolls of tied up rugs, an empty tar can, a box of used floor tile, 11 bags of rug padding, and household garbage (Tr. 314; Pet. Ex. 1h). Superintendent Burge interviewed Mr. Smith (Tr. 157). He recorded the interview but did not capture the entire conversation on tape (Tr. 393-95). In the taped portion, Mr. Smith stated that the sanitation worker did not take any of his garbage. When he asked the sanitation worker why he did not take his garbage, the worker said there had been numerous complaints about the house. Mr. Smith offered to have his sons help load the truck and respondent stated, You have to do better than that. When Mr. Smith offered respondent $20.00, respondent repeated, You have to do better than that. Mr. Smith then offered $40.00, and respondent said something about his partner and Mr. Smith increased the offer to $50.00 and respondent said he had to double it. Mr. Smith offered to double $40.00, and respondent said, Okay. Mr. Smith did not pay respondent (Pet. Ex. 2). During the interview Superintendent Burge advised Mr. Smith that as a homeowner doing his own renovations he was allowed to put out six items of bulk material for collection. Superintendent Burge advised that he would send another truck to collect six pieces and that the rest would have to be put out for subsequent collections (Tr. 252, 316; Pet. Ex. 2). When the interview with Mr. Smith was concluded, Chief Lanni and Superintendent Burge left to buy lunch (Tr. 158, 319) and Supervisor Winters continued down East 55 th Street (Tr. 275). Near the end of the block (Tr. 283), Supervisor Winters noticed a house with a toilet bowl, some rolled up carpet, and other material in a cardboard box, even though that side of the street had been cleaned. He stopped to investigate (Tr. 276). There was a man in front who got the owner (Tr. 278). The owner, Ms. Thomas, came outside with a phone in her hand and appeared to be waiting to talk to someone. Supervisor Winters asked her if she had contractors working on her house and explained that she could only put out six bulk pieces for collection which had not been generated by a contractor. Ms. Thomas told him that a sanitation worker on the route said that he would take the material for $100.00. She advised that she was in the process of calling 311 to make a complaint and Supervisor Winters said that was unnecessary
-5- since he could handle it. Supervisor Winters called Superintendent Lanni to advise him that he had another situation where a sanitation worker had requested money (Tr. 161, 279-80, 298). At the hearing Ms. Thomas testified that she had purchased the house in July 2006 and had moved in on July 31, 2006 (Tr. 29, 61). As part of the contract of the sale, a contractor replaced the bathroom tiles and bathtub. A friend replaced the toilet bowl (Tr. 32, 62-63, 65). In addition, a carpet company installed carpet in three rooms and left the old carpet tied in cut-up bundles (Tr. 35, 67). Ms. Thomas was unfamiliar with the Department s rules regarding debris removal and this was the first day she put garbage out for collection (Tr. 76). She placed household garbage, cardboard for recycling, a toilet bowl, and some of the rolled-up carpeting on the curb for pick-up. A box of used tiles, a bathtub, additional rolled carpet, some wood, and a bathroom organizer were in the driveway along the side of the house. When she heard the sanitation truck coming, Ms. Thomas went outside to speak to the sanitation worker in order to find out what he would take (Tr. 31-35, 88-89, 99, 114-15). At the time there were people working on her house, including her son (Tr. 36, 92). According to Ms. Thomas, respondent took the household garbage and picked through the cardboard recycling. Respondent told her that he could not take the recycling (Tr. 105). She asked respondent how much he could take (Tr. 109). When she showed respondent the carpet, he told her that it would cost $100.00. She offered him $20.00 and respondent replied that it was $100.00. Ms. Thomas refused and respondent left without taking the carpet (Tr. 38, 111-12, 118-19). Respondent returned several minutes later and asked if she was interested in getting rid of the stuff for $100.00. When she said no, respondent drove off (Tr. 39, 125-26). Ms. Thomas called 311 on her cell phone but did not speak to anyone. A Department supervisor came to her house and she told him that a sanitation worker had asked for $100.00 to take the carpet and that he refused her offer of $20.00. Several minutes later other men from the Department came and she repeated the story (Tr. 39-43, 127-28). They explained that it was the responsibility of the contractors to take away the construction debris and how much garbage she could put out (Tr. 44-45, 129-31). Respondent testified that when he got to Ms. Thomas s house, he observed three garbage cans with lids, which he opened. He put the can with household garbage into the truck along with a book shelf. The other cans had recycling. He took a cardboard box from the can with bottles and placed it with the newspapers. He told Ms. Thomas that it was not a recycling day
-6- and that she would have to take it back. Ms. Thomas asked him about the rest of the material. Respondent told her he could not take it because it was construction material, and that the men working on her house should take it. Ms. Thomas said that the workers were not going to take it. Respondent again told her he could not take the material. Ms. Thomas went into her house upset and he continued with the route. When respondent was getting ready to leave, Ms. Thomas offered him $20.00 to take the material. Respondent refused, saying there were contractors working on her house. When respondent came back around to complete the other side of the block, Ms. Thomas crossed the street and asked if he would take the material now. He repeated that he could not and she walked away angry (Tr. 598-99). When Chief Lanni and Superintendent Burge arrived at Ms. Thomas s house they observed a toilet bowl and cardboard on the curb and a bathtub, rugs, and tile along the side of the house. People were working on the house (Tr. 162, 322). Superintendent Burge taped the interview with Ms. Thomas. In the interview Ms. Thomas stated that she had contractors working on her house. When she asked respondent how much material could he take, he asked her for $100.00. When she said she only had $20.00, respondent stated This is not $20.00, this is $100.00. Respondent took the pail of garbage, told her that the cardboard was recycling, and left. The truck came back and respondent asked her if she was interested in getting rid of the stuff and she said not for $100.00 (Pet. Ex. 2). Superintendent Burge explained the rules regarding the collection of construction debris and recycling (Tr. 324, 490-93; Pet. Ex. 2). Following the Thomas interview, Chief Lanni and Superintendent Burge returned to the garage. During the sanitation workers 10:30 to 11:00 a.m. lunch break, Superintendent Burge separately interviewed respondent and his partner in the presence of their shop stewards (Tr. 331-32, 538). The interviews were tape recorded. In the interview Mr. Kinard advised that he was the driver and that respondent was the loader that serviced the two homes on East 55 th Street. Mr. Kinard stated that there was a lot of material outside the Smith house, that respondent waved him on to the next stop without picking up any material, and that he saw the homeowner speaking to respondent several houses down. They skipped another stop and Mr. Kinard did not see respondent speaking to a female homeowner. He did not hear the conversation between respondent and the male homeowner, which was very brief. He also observed that respondent waved his hands to say like no, no
-7- (Pet. Ex. 2). The Department did not file a disciplinary complaint against Mr. Kinard. On direct-examination Mr. Kinard reviewed his taped statement but did not provide any independent testimony concerning the day in question (Tr. 553-60). During the interview respondent confirmed that he was the loader on East 55 th Street. When asked what happened at Mr. Smith s house, respondent stated that he took the household garbage and continued to pick-up garbage at the next house. Three houses down, the homeowner asked why he did not take his garbage and respondent replied that it contained mixed material and that he was not allowed to collect construction debris. The homeowner said he would put the material on the truck and respondent advised that was not allowed. The homeowner then offered money and respondent advised that he was not taking anything from him and continued working. With regard to Ms. Thomas s house, respondent stated that she had six or seven loads of carpet, a toilet bowl, and a bathtub. He took the household garbage. When the truck was moving, the woman asked him why he did not take the rest. Respondent told her he could not take construction material and she replied that the contractor would not take it. He repeated that he could not take it and he continued with his route. Respondent denied that Ms. Thomas mentioned giving him $20.00 or that she said anything about money (Pet. Ex. 2). There was no dispute that there was excessive construction debris and/or contractor generated materials at the two residential locations. Respondent was not charged with collecting inappropriate construction debris nor was he charged with failing to collect appropriate household garbage (Tr. 522). It was also undisputed that both homeowners offered to pay respondent to collect their bulk materials. Respondent was not charged with failing to report a gratuity as required by Department rules and regulations. Instead, respondent was charged with soliciting money from the homeowners in order to collect bulk material. Since the record demonstrates that respondent engaged in a conversation with two homeowners during which he asked them for money, the charges should be sustained. 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). Where the facts are disputed, as they are here, resolution depends on an assessment of the witnesses relative credibility. In making credibility determinations, this tribunal has often considered witness demeanor, consistency of a witness testimony, supporting
-8- or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness testimony comports with common sense and human experience. Dep t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD 98-101-A (Sept. 9, 1998). I found the homeowners to be credible witnesses. Neither homeowner had a motive to lie. The homeowners did not know respondent (Tr. 607) and both expressed concern that their testimony could result in respondent losing his job. They took off time from work and testified that their presence at the hearing was causing a hardship but that they felt respondent s conduct should not be condoned (Thomas: Tr. 45, 96; Smith: Tr. 197-200). While they were unable to recall the events from two years ago perfectly and provided somewhat different versions from their taped interviews, both complaining witnesses gave consistent and convincing statements that respondent solicited money from them. Mr. Smith was clear that respondent attempted to have him increase the initial offer of $20.00 to $80.00 or $100.00. Ms. Thomas was adamant that respondent solicited a gratuity of $100.00 and refused her counteroffer of $20.00. The chances that two homeowners who did not know each other (Thomas: Tr. 145; Smith: Tr. 194) would concoct similar complaints about a sanitation worker seems highly unlikely. I also did not find respondent s testimony credible. First, respondent had a motive to lie in order to avoid a finding of misconduct. Second, respondent s credibility was undermined by significant inconsistencies in the record and his testimony did not comport with common sense. Respondent claimed that he collected household garbage from Mr. Smith. However, respondent s partner stated in his initial interview that respondent did not pick up any material from the Smith stop. Mr. Smith also testified that no household garbage was collected, and when the Department inventoried the material on the curb household garbage was present. Moreover, respondent testified that Ms. Thomas offered him $20.00 to take the bulk material. However, during his initial interview, respondent denied that Ms. Thomas offered him any money or that there was any discussion of money whatsoever. It also seemed highly unlikely that a sanitation worker would not mention to his partner the unusual occurrence of two homeowners on the same block offering the same amount of money to take bulk material (Tr. 575-76). Respondent s explanation that he was trying to shield a probationary employee from possible disciplinary action was not believable (Tr. 605-06). This was an ideal opportunity to talk to Mr. Kinard about how to handle a gratuity
-9- and construction debris. It was undisputed that sanitation workers are frequently offered gratuities by homeowners. Both Superintendent Burge and Shop Steward Linnen testified that in order to avoid a problem, it is prudent to immediately make a note on the DS 350 card and notify a supervisor as soon as possible (Burge Tr. 349-50; Linnen Tr. 541-42). While it is possible that respondent did not have an opportunity to mention the two incidents to a supervisor prior to his interview, he did not make any notations on his DS 350 card (Pet. Exs. 1a-b). Respondent s argument that the homeowners were motivated to file false complaints against him in order to have their garbage picked up by the Department was unpersuasive (Tr. 647). First, Mr. Smith testified that he called 311 at the urging of his neighbor who told him to do so upon learning of the solicitation. It was not until after he learned from Superintendent Burge that the Department would send another truck to his house that Mr. Smith was happy and wanted to put out more bulk materials for collection (Tr. 446). In the case of Ms. Thomas, it was apparent that she had no knowledge how the Department collected garbage. I agree with petitioner s counsel that it was the respondent s audacity of rejecting the homeowners offers of $20.00 and his demand for more money which prompted them to complain. FINDING AND CONCLUSION On August 5, 2006, respondent solicited money to pick up bulk items from two homeowners. RECOMMENDATION Upon making this finding, I obtained and reviewed an abstract of respondent s work history for purposes of recommending an appropriate penalty. Respondent was hired by the Department on March 22, 2004, and has only one written reprimand from January 25, 2008, for failure to perform his assigned duties, failure to wear an authorized uniform, and failure to submit sick leave documentation. The Department seeks respondent s termination. This is consistent with prior precedent involving the acceptance of gratuities by City employees. See Dep t of Environmental Protection v. Subject, OATH Index No. 534/08 (Mar. 17, 2008) (termination recommended for 11-year employee with no disciplinary history for accepting a gratuity on one occasion); Dep t of
-10- Environmental Protection v. Barnwell, OATH Index No. 177/07 (Sept. 18, 2006) (termination recommended for 10-year employee with a minimal disciplinary record for soliciting a bribe in exchange for not issuing a water violation on three occasions); Dep t of Sanitation v. Kempf, OATH Index No. 998/03 (Oct. 22, 2003) (termination recommended despite respondent's unblemished 17-year record where respondent picked up debris from an open bed pick-up truck after soliciting and accepting a gratuity); Dep t of Sanitation v. Sanchez, OATH Index Nos. 992/03 and 997/03 (Mar. 19, 2003) (termination recommended for two 18-year veterans, one with no prior record and one with a minimal record, each of whom accepted $20 from an undercover detective to take debris from a pick-up truck); Dep t of Housing Preservation & Development v. Fox, OATH Index No. 1104/91 (Apr. 17, 1992) (termination recommended for a seven-year employee with an unblemished disciplinary history for soliciting and accepting bribes in exchange for awarding contracts to vendors). The purpose of barring the receipt of unlawful gratuities is to prohibit tipping a public servant because it undermines the integrity of governmental administration. Pesale v. Beekman, 81 A.D.2d 590, 437 N.Y.S.2d 448 (2d Dep t 1981), aff d, 54 N.Y.2d 707, 442 N.Y.S.2d 989 (1981). As stated by the Second Circuit, [t]he awarding of gifts thus related to an employee s official acts is an evil in itself... because it tends, subtly or otherwise, to bring about preferential treatment by Government officials or employees... for those who give gifts as distinguished from those who do not. United States v. Irwin, 354 F.2d 192, 196 (2d Cir. 1965); see also Dep t of Sanitation v. Marcus, OATH Index No. 1502/06, at 12-13 (Feb. 6, 2007), aff d, NYC Civ. Serv. Comm n Item No. CD07-68-SA (June 25, 2007). Soliciting a bribe or gratuity for the performance of one s duties is an act of corruption that cannot be tolerated. Such conduct leaves the public with a negative opinion of all City employees. As such, it necessitates a severe sanction, both to discipline the employee and to deter future similar conduct by other employees. Therefore, I recommend that respondent s employment with the Department be terminated. August 11, 2008 Alessandra F. Zorgniotti Administrative Law Judge
-11- SUBMITTED TO: JOHN J. DOHERTY Commissioner APPEARANCES: CARLTON LAING, ESQ. Attorney for Petitioner KIRSCHNER & COHEN Attorneys for Respondent BY: ALLEN COHEN, ESQ.
-12- NYC Civ. Serv. Comm n Decision, Item No. CD-08-63-SA THE CITY OF NEW YORK CIVIL SERVICE COMMISSION In the Matter of the Appeal of: JASON NORRIS Appellant -against- NYC DEPARTMENT OF SANITATION Respondent Pursuant to Section 76 of the New York State Civil Service Law SIMON P. GOURDINE, COMMISSIONER CHAIR NICHOLAS LAPORTE, COMMISSIONER JOSE MALDONADO, COMMISSIONER DAVID S. LANDE, COMMISSIONER RUDY WASHINGTON, COMMISSIONER NORMA LOPEZ DIRECTOR AND GENERAL COUNSEL ALINA GARCIA ASSISTANT DIRECTOR AND DEPUTY COUNSEL KEVIN SHEERIN, ESQ. REPRESENTIVE FOR APPELLANT CARLTON LAING, ESQ. REPRESENTATIVE FOR RESPONDENT APPELLANT PRESENT
-13- STATEMENT On Thursday, December 4, 2008 the City Civil Service Commission heard oral argument in the appeal of JASON NORRIS, Sanitation Worker, NYC Department of Sanitation, from a determination by the NYC Department of Sanitation, finding him guilty of charges of incompetency or misconduct and imposing a penalty of TERMINATION 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. NICHOLAS LAPORTE, Commissioner, Civil Service Commission RUDY WASHINGTON, Commissioner, Civil Service Commission JOSE MALDONADO, Commissioner, Civil Service Commission DAVID S. LANDE, Commissioner, Civil Service Commission December 12, 2008