Dep't of Correction v. Salinas

Petitioner proved that respondent engaged in conduct unbecoming of a member of service and failed to efficiently perform his duties by violating Department of Correction rules regarding sick leave. Penalty of termination of employment recommended. REPORT AND RECOMMENDATION Petitioner, the Department of Correction (“DOC” or “the Department”), brought this disciplinary proceeding pursuant to section 75 of the Civil Service Law against respondent, Correction Officer Investigator Roberto Salinas. The petition charges respondent with violating Department rules by engaging in conduct unbecoming of a member of service and failing to efficiently perform his duties on six occasions from December 2019 to May 2022. Specifically, the Department charged that respondent, on December 30 and 31, 2019 (charge 1); January 4 and 5, 2021 (charge 2); May 6, 2021 (charge 3); June 17 and 18, 2021 (charge 4); and May 9 and 10, 2022 (charge 6): (a) utilized sick leave while on vacation and out of the City, (b) failed to obtain permission to leave the city while using sick leave, (c) structured his use of sick leave around non-working days in violation of Departmental rules, (d) failed to provide documentation of his alleged illnesses upon his usage of sick leave, and, (e) failed to obtain approval to use sick leave in place of annual leave (ALJ Ex. 1). In addition, charge 6 alleges that respondent failed to remain confined to his residence when required to do so; and as to charges 1-4, which would otherwise be time-barred, the petition charges a violation of Penal Law section 195.00, official misconduct, a class A misdemeanor (Id.). Charge 5, which differs in substance from charges 1, 2, 3, 4, and 6, accuses respondent of conduct unbecoming a member of service and failure to efficiently perform his duties in that, between January 6 and 13, 2022, he left the City while out on sick leave, failed to obtain permission from the Department to do so, and falsely reported to the Department’s Health Management Division (“HMD”) that he was home when in fact he was in Puerto Rico (Id.). Respondent denies all charges (Id.). At a trial held by videoconference before me on February 20 and 21, 2024, petitioner presented documentary evidence and the testimony of four witnesses: Deputy Commissioner and Chief Compliance and Privacy Officer of the Department of Investigation (“DOI”) Philip Hung; Timekeeper Supervisor of the DOC CityTime Management Unit (“CTMU”) Baldat Persaud; former Deputy Inspector General of DOI Richard Askin; and Rebecca Chasan, an employee of DOI. Respondent testified on his own behalf and presented documentary evidence. Respondent insisted that he never falsely called out sick and that his timesheets accurately reflected when he was sick (Tr. 227). He also alleged that some of the charges were time-barred. For the reasons set forth below, I find that charges 2, 3, and 6 of inefficient performance and conduct unbecoming a member of service should be sustained in part and dismissed in part and charge 5 should be sustained in its entirety. I find that the Department failed to meet its burden of proof as to charges 1 and 4. BACKGROUND Investigation Philip Hung, Deputy Commissioner (“DC”) and Chief Compliance Officer at DOI, testified that his investigation of respondent began in October 2022 when the Department of Investigation received an anonymous allegation that respondent was abusing sick leave to extend his vacations (Tr. 19, 49; Resp. Ex. D¹). Shortly after, in December 2022, DOI received a press inquiry from The New York Times concerning sick leave abuse allegations against DOC employees who were assigned to DOI (Tr. 18). DC Hung defined sick leave abuse as “generally when somebody uses sick leave when they’re not actually sick” but “also when somebody uses sick leave in a manner that violates…the policies, procedures and protocols that govern its use” (Tr. 19-20). During the investigation, DC Hung reviewed records from the DOC Health Management Division including respondent’s HMD file and time sheets, read respondent’s work emails from the days surrounding some of the dates in question, pulled the call logs from respondent’s DOI-issued cell phone, and spoke to respondent’s supervisor, Deputy Inspector General Richard Askin (Tr. 36, 55-56). Once DOI began its investigation, respondent was “grounded,” or notified that he should stop any investigations work (Tr. 98, 231). On January 6, 2023, upon learning that he was grounded, respondent asked his then-supervisor, Richard Askin, if they could speak privately (Tr. 98; Pet. Ex. 7). Mr. Askin was directed to memorialize that brief conversation (Tr. 116), which he did that day (Tr. 101, Pet. Ex. 7). He gave the memo to DC Hung and then-Inspector General of DOI Whitney Ferguson as directed (Tr. 102).² That memo contains clear admissions by respondent to sick leave abuse. According to the memo, respondent asked Mr. Askin if he was grounded because of “the HMD issue and the forthcoming New York Times article” (Pet. Ex. 7). Askin indicated that he believed so (Id.). The memo then goes on to say: Without prompting, Salinas asked specifically if this was related to his use of sick time and the fact that he frequently travels to Puerto Rico. I indicated that it probably was related to that in part. Salinas went on to explain that over the course of his entire career, both here at DOC and in the Puerto Rican State Police, he often used his sick leave to extend his annual leave time, and that, “everybody does that.” Salinas explained that when you call HMD to call out sick, the HMD operator reminds you if you are over the allotted number of sick days before being “chronic.” He said, “if HMD tells me I gotta stay in the house, I do that.” But he went on to say that everyone is allowed their allotted amount of sick time and that he does occasionally intersperse his sick days with his annual days in order to extend his leave (Pet. Ex. 7) (emphasis added). Twice during this brief conversation, respondent admitted that he uses sick time to extend his annual leave. Moreover, he admitted that he does so carefully, to avoid violating rules on remaining at home that apply to employees in chronic absent status. This admission by respondent makes clear that his pattern of repeatedly using a day or two of sick leave combined with annual leave and/or comp time is not a coincidence but is part of a practice of using sick leave to give himself extra time off from work. On January 25, 2023, DC Hung interviewed respondent in the presence of respondent’s counsel and Rebecca Chasan, a DOI employee who took notes (Tr. 23, 64, 185; Pet. Ex. 3).³ DC Hung summarized the investigation in a January 25, 2023 memo, updated on February 9, 2023, to include information from respondent’s paper time sheets that were provided to DOI after respondent’s interview (Pet. Ex. 3). Baldat Persaud, a timekeeping supervisor with DOC’s CTMU Timekeeping Unit, testified at trial about respondent’s timekeeping records, and he authenticated respondent’s CityTime Timesheets and Leave Request Reports (Tr. 122, 124; Pet. Exs. 2, 3). According to Mr. Persaud, the timekeeping unit tracks employees’ time and enters information into the Department’s system (Tr. 124). Mr. Persaud explained that DOC employees stationed at another agency, as respondent was, fill out paper time sheets (Tr. 129). Those paper time sheets are approved by a supervisor and forwarded to a timekeeper to enter the information into the CityTime system (Id.). Mr. Persaud testified that Saturday and Sunday were respondent’s pass days, meaning that those were his regular days off and that his work week was Monday through Friday (Tr. 130). He also testified that DOC employees have unlimited sick leave but a limited number of annual leave days and comp⁴ days (Tr. 134). When employees leave the department, they are paid for unused comp time and annual leave but not for any unused sick leave (Tr. 141). According to the evidence at trial, respondent appears to have used approximately 29 days of annual leave and 13 days of comp time in 2020, 24 days of annual leave and 21 days of comp time in 2021, and 25 days of annual leave and 13 days of comp time in 2022 (Pet. Ex. 2). Respondent’s timekeeping records in evidence show that, without exception, every day on which he took sick leave from December 30, 2019, to January 15, 2024, fell next to a weekend or a vacation day (Pet. Ex. 2). DC Hung testified that, on the occasions at issue, respondent initially submitted some of these requests as vacation time (Tr. 36). Hung reviewed respondent’s HMD file, and it contained no documentation or approval for conversion of annual leave to sick leave (Tr. 36). To DC Hung’s knowledge, no email or request was ever made to convert approved vacation days to sick leave (Tr. 36). The only medical documentation of any kind in the HMD file was respondent’s positive COVID test result from January 2022 (Tr. 36-37). DC Hung acknowledged that he did not know if respondent was sick on the dates when he used sick leave (Tr. 72). According to DC Hung’s investigation memo, respondent stated that he prepared paper timesheets and submitted them to Captain Awais Ghauri, except that, when he had COVID, he gave his timesheets to Captain Ali Fayad (Pet. Ex. 3 at 1). He does not sign the paper timesheets he prepares, and he does not know how the information from the paper time sheets is entered into the Citytime system (Pet. Ex. 3). Respondent testified at trial and described his background, as well as a medical condition from which he purportedly suffers. He came to New York from Puerto Rico in 2014 to pursue employment with the New York City Department of Correction (Tr. 196-97; Pet. Ex. 3 at 10). He graduated from the academy in 2015 and spent two and a half years as a correction officer at the Otis Bantum Correctional Center on Rikers Island (Tr. 197). After that, respondent moved to the DOC Investigation Division for about a year (Id.), at which point, he applied for an assignment at DOC as an investigator with DOI (Tr. 198). He was interviewed and hired for that position by then-DOI Inspector General Whitney Ferguson and then-DOI Deputy Inspector General Richard Askin in late 2017 (Tr. 97, 198; Pet. Ex. 3 at 10). On December 4, 2017, respondent signed forms acknowledging that he read and understood various DOI policies and procedures, including the DOI Code of Conduct (Pet. Ex. 3 at 10). Prior to working for DOC, respondent was a state police officer in Puerto Rico for approximately 15 years but left after shifts in the Puerto Rican economy reduced his expected future compensation and retirement benefits (Tr. 199-201). Respondent has three children who live and attend school in Puerto Rico, a daughter and son who are both in college and a 16-year-old son with unspecified special needs. His older son is employed in addition to attending school and is married with a son of his own (Tr. 200). Respondent travels to Puerto Rico frequently to see his children, a practice of which his superiors were well aware (Tr. 202-03), and considers Puerto Rico as well as New York to be his home (Tr. 221). Respondent testified that he never wanted to be an absent father and that “till [sic] today, my children can never say I missed a graduation. I never missed an important moment in their lives. Because I always went to see them” (Tr. 235-36). According to respondent, he always sent emails to his superiors letting them know when he was going to be away (Tr. 203). Respondent’s work assignments with DOI related to sensitive and confidential investigations in areas including prison contraband, the Conflicts of Interest Board, and inmate deaths. During the relevant periods, respondent’s work hours were 1 p.m. to 9 p.m. (Pet. Ex. 3) and his supervisors included Dana Roth, Whitney Ferguson, and Richard Askin (Tr. 68, 82, 97, 202). With respect to his duties as an investigator, respondent’s strong performance is undisputed. He was recognized for outstanding work in a DOI press release and for his work during the COVID pandemic (Tr. 204-05). Richard Askin testified at trial that he was “satisfied with his work as an investigator” (Tr. 109) and was “very happy with Roberto” (Tr. 117). ANALYSIS To prevail, petitioner must prove “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), adopted, Comm’r Dec. (Nov. 2, 2007), aff’d, NYC Civ. Serv. Comm’n Item No. CD 08-33-SA (May 30, 2008). Petitioner has the “burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.” Prince, Richardson on Evidence, §3-206 (Lexis 2008). In assessing witness credibility, “relevant factors include demeanor, consistency of a witness’s testimony, supporting evidence, witness motivation, bias or prejudice, and the degree to which a witness’s testimony comports with common sense and human experience.” Dep’t of Correction v. McNeill, OATH Index No. 265/22 at 8 (Feb. 22, 2022), adopted, Comm’r Dec. (June 16, 2022) (citations omitted). For the most part, I found petitioner’s witnesses to be credible. Richard Askin’s testimony at trial, made more than a year after his conversation with respondent, was sympathetic to respondent. Mr. Askin answered the questions posed to him but was not pressed about respondent’s admissions highlighted above and did not mention them in his testimony (Tr. 96-118). He recalled that he hired and supervised respondent (Tr. 97), valued his work (Tr. 117), and had not detected any issues with respondent’s use of sick leave and availability for work (Tr. 109-11). Contrary to respondent’s representation at his DOI interview, Mr. Askin testified that he signed respondent’s timesheets before they were submitted (Tr. 107). Mr. Askin appears to have had little interest in harming respondent, either at trial or when he wrote the January 6, 2022, memo; in fact, he concluded his testimony at trial by saying “I think it’s a shame that we find ourselves in this proceeding” (Tr. 117). It was not clear listening to the testimony if he meant it is a shame that respondent engaged in sick leave abuse or it is a shame that the Department is bringing charges against an otherwise effective officer. Either way, it was clear that Mr. Askin did not relish testifying to any misconduct by respondent. I found respondent less credible, as key parts of his testimony were vague and unsupported. For example, respondent described a “bad habit” where he grinds his teeth uncontrollably, particularly in times of stress (Tr. 207). His tooth grinding provokes migraine headaches that at times prevent him from functioning, to which he ascribes some of his undocumented sick leave (Tr. 207-08). He testified that he has been to a doctor or hospital, where he was given intravenous medication and put in a dark room to sleep (Tr. 208). He also testified that he has seen dentists about his condition but believes there is nothing they can do other than give him painkillers or a mouth guard (Tr. 207-08). In an attempt to support this testimony, respondent provided documentation from dental offices in Suffolk County, New York (Resp. Exs. E, F, G). This documentation does not consist of medical records but merely one-page forms with hand-written dates confirming respondent’s office visits on September 11, 2019, and February 14, 2020, for dental appointments; December 7, 2020, “for extractions”; and January 16, 2020, “for Exam & xrays” (Id.). One of these forms is undated and the other two are dated January 9 and 10, 2024, after respondent was charged in this case (Id.). None of these dates of service corresponds with the dates specified in the charges in this case. These documents do not corroborate respondent’s testimony. Further, respondent’s testimony regarding approval of his time sheets contradicted the testimony of his direct supervisor, Mr. Askin, and of Mr. Persaud, who testified that a supervisor, not a colleague, signs off on paper time sheets like those used by respondent. Finally, respondent testified that he was in the city on January 6, 2021; and his time sheets indicate that he was at work on January 5, 2021, for his usual 1:00 p.m. to 9:00 p.m. shift. But records for his DOI-issued cell phone demonstrate that he was in Puerto Rico beginning in the early evening of January 5, 2021. The number of inconsistencies, together with respondent’s manner while testifying, throw his credibility into question. CHARGES The specific charges are addressed as follows: Charges 1, 2, 3, 4, and 6 As set forth above, the allegations in charges 1, 2, 3, 4, and 6 are nearly identical claims involving different dates. Accordingly, they will be addressed together where possible and individually where necessary. The leave and work status for the dates charged and the surrounding days are summarized in a chart, appended as attachment A. Charges 1, 2, 3, 4, and 6 allege that respondent structured his usage of sick leave around non-working days, in violation of Departmental rules. Those allegations need not be considered because petitioner did not identify what rule or directive prohibits the use of sick time proximate to annual leave or comp time. Department rules only consider the timing of sick leave in relation to other non-working days as a factor in deciding appeals of “chronic absent” classifications or in deciding whether to bring a disciplinary or termination action against an employee for rule violations (Dep’t of Correction Directive (“Dir.”) 2258R-A(III)(B)(2)(a)(iii), (III)(F)(3)). This tribunal has held that a pattern of calling in sick around pass days (that is, days off) can help to support an inference that respondent was feigning illness when calling in sick to work. Dep’t of Correction v. Duncan, OATH Index No 873/02 & 1428/02 at 5 (Oct. 21, 2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD 03-88-SA (Sept. 29, 2003). However, there is no stand-alone prohibition under Departmental rules to taking a sick day before or after another day off. See Dep’t of Correction v. Crossman, OATH Index No. 396/24 (Jan. 25, 2024). Petitioner also alleged in charges 1, 2, 3, 4, and 6 that respondent failed to provide documentation of his alleged illness upon his usage of sick leave. Directive 2262R⁵, Sick Leave Regulations for Members of the Uniformed Force, requires that “[f]or absences of more than two (2) days, medical documentation shall be submitted to the Health Management Division upon the member’s return to duty and/or as ordered” (Dir. 2262R(III)(A)(5)). Because respondent limited his use of sick leave to only one or two days as to charges 1, 2, 3, 4, and 6, the documentation requirement did not apply to him.⁶ Respondent also contends that the first four charges are untimely. Petitioner served the amended charges on June 22, 2023, more than two years after the events alleged in charges 1, 2, 3, and 4 and well beyond the 18 month statute of limitations set forth in Civil Service Law §75(4). By alleging that respondent violated a provision of the Penal Law, petitioner seeks to invoke the crimes exception to the Statute of Limitations. Section 75(4) of the Civil Service Law provides that the statute of limitations “shall not apply where…the misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.” Civ. Serv. Law §75(4) (Lexis 2024). To prove that the crimes exception applies, the Department must do more than simply allege conduct that would constitute a crime if true. It must establish every element of the alleged crime by a preponderance of the evidence. See Dep’t of Correction v. Blanc, OATH Index No. 2571/11 at 5 (Feb. 2, 2012), aff’d, NYC Civ. Serv. Comm’n Item No. CD 12-40-SA Aug. 10, 2012); Dep’t of Correction v. Melendez, OATH Index Nos. 237/05 & 240/05 at 2 (Aug. 25, 2005); Dep’t of Correction v. Battle, OATH Index No. 1052/02 at 7-9 (Nov. 12, 2002) (citing Aronsky v. Bd. of Education, 75 N.Y.2d 997, 1000 (1990)). The fact that respondent was never prosecuted for the crime does not prevent reliance on the crimes exception nor preclude a determination of guilt in a disciplinary proceeding. Blanc, OATH 2571/11 at 5-6 (citing Foran v. Murphy, 73 Misc. 2d 486, 488 (Sup. Ct. N.Y. Co. 1973)); see also Dep’t of Correction v. McFarland, OATH Index No. 650/92 at 4, n.2 (Aug. 24, 1992), aff’d sub. nom. McFarland v. Abate, 203 A.D.2d 190 (1st Dep’t 1994) (District Attorney’s decision not to prosecute does not preclude reliance upon the crimes exception). The Department has established by a preponderance of the credible evidence every element of the crime of official misconduct with respect to charges 2 and 3. Under New York Penal Law section 195.00, a public servant is guilty of official misconduct, a class A misdemeanor, when, “with intent to obtain a benefit:…[h]e knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.” Penal Law §195.00(2) (Lexis 2024). According to the Penal Law, “benefit” includes “any gain or advantage to the beneficiary.” Penal Law 10.00(17). This tribunal has found that the element of benefit is satisfied where a respondent derives even a modest financial benefit or personal convenience as the result of an unauthorized action taken in the course of his or her work. See, e.g., Health & Hospitals Corp. v. Yusupova, OATH Index No. 1124/16 at 3 (Mar 30, 2016), aff’d, HHC Pers. Rev. Bd. Dec. No. 172/16 (Oct. 14, 2016) (unauthorized testing by a hospital patient care associate on herself was a benefit under Penal Law §195.00); Dep’t of Sanitation v. Lowe, OATH Index No. 1499/06 at 7 (Sept. 22, 2006), adopted, Comm’r Dec. (Sept. 22, 2006) (“the intent to obtain a benefit may be inferred by respondent’s request for “lunch money” [in the form of a $25 gratuity] to accept the commercial waste for pick-up”). The crime of official misconduct also requires an intent to derive the benefit at issue, as well as knowledge that the official acts at issue are unauthorized. Penal Law §195.00; People v. Flanagan, 28 N.Y.3d 644, 656 (2017). Mere “inadvertence, incompetence, blunder, neglect, or dereliction of duty” will not suffice. Flanagan, 28 N.Y.3d at 656. Here, respondent had a duty as a correction officer to report to work for his scheduled hours, take leave from work only when permitted, to honestly report his time and leave usage, and to comply with Departmental rules and regulations. See Dep’t of Correction Rules 3.05.100, 3.10.030, 3.10.090, 3.20.030, 3.65.010. Among other things, respondent was only permitted to take sick days when he was actually sick. Dir. 2262R (III)(H). Department regulations also impose a duty upon respondent to comply with sick leave regulations. See Dir. 2262R (II)(C); Dir. 2258R-A. As discussed in further detail below, petitioner proved that on two occasions (charges 2 and 3), respondent knowingly failed to perform his duties regarding the reporting of sick time. Respondent benefitted by replacing his annual leave or comp time with sick leave. Respondent is entitled to unlimited sick leave but has a finite amount of annual leave and comp time (Tr. 134). Saving annual leave days by replacing them with sick leave days would allow respondent more time away from work than might be afforded to him by annual leave and comp time alone. Also, had respondent left the Department’s employment, he would have been compensated for unused annual leave or comp time balances but not for sick leave, making unused annual leave and comp time more valuable than unused sick leave (Tr. 141). Moreover, respondent, who testified that he travels to Puerto Rico frequently because his family is there, derives a clear and immediate benefit from stretching out his time with his family by using sick leave to supplement his annual leave and comp time. Respondent’s clear intent to derive a benefit from his conduct is established by his own statements to Richard Askin, where he repeatedly admitted to using sick leave to obtain additional vacation time, stating that “he often used his sick leave to extend his annual leave time” and “he does occasionally intersperse his sick days with his annual days in order to extend his leave.” There can be little question that respondent acted intentionally and for his own benefit in failing to follow Department regulations. Accordingly, the crimes exception to the 18-month statute of limitations applies to charges 1 through 4. The Department also alleges in charges 1, 2, 3, 4, and 6 that respondent used sick leave when he was on vacation and out of the City, that he failed to obtain permission from the Department to leave the City while using sick leave, and that he failed to obtain approval to use sick leave rather than annual leave. As to these allegations, the charges must be analyzed individually following a general statement of the applicable rules. Under Department rules, a member of service reporting sick from outside the City is required to send HMD an application for permission to be absent from the City while on sick report, postmarked no later than 48 hours after the initial sick report, that includes a written statement from the attending physician. Dir. 2262R (III)(B)(1)(d) (defining “the City” to “include[] the five (5) Boroughs of New York City and the six (6) counties in which uniformed personnel reside, i.e., Nassau, Suffolk, Westchester, Rockland, Orange, and Putnam”). When it is necessary for members of service who are out sick to leave the City for treatment or convalescence, they must apply for permission to do so. Dir. 2262R (III)(D). Anyone who leaves the City without authorization while on sick report is subject to disciplinary action. Id. Department rules also provide that a “member of service who becomes ill on vacation, to the extent that would normally incapacitate them for duty, may report sick by communicating with the H.M.D. Sick Desk” (Dir. 2262R (III)(C)). An employee in that situation is permitted to apply to the Commissioner to have annual leave restored due to illness, but the application must include satisfactory evidence of the illness and it requires high-level approvals. Dir. 2262R (III)(C) (“When a member who has reported sick while on vacation returns to duty, they may make an application to the Commissioner, through channels, to have vacation time lost restored due to illness while on vacation. Such application shall contain evidence satisfactory to the Commissioner, or designee, of such illness and will be endorsed by the Commanding Officer of the facility or division concerned and the Commanding Officer of H.M.D. with a statement as to the action recommended.”). It is clear from the record that respondent made none of these applications to the Commissioner, HMD, or any designee with respect to any of the charged dates. DC Hung reviewed respondent’s HMD and time and leave records and testified that he found nothing other than evidence of telephone contact with HMD and documentation regarding respondent’s positive COVID test in January 2022 (Tr. 36-37). Respondent presented no evidence to counteract that testimony. Charge 1: December 30 and 31, 2019 Respondent used sick leave for a respiratory issue on Monday, December 30, and Tuesday, December 31, 2019; used annual leave on January 1 and 2, 2020; and used comp time on Friday, January 3, and Monday, January 6, 2020 (Pet. Exs. 1, 2; Tr. 130). Respondent stated in his DOI interview that he probably went to Puerto Rico but did not recall specifically (Pet. Exs. 2, 3, 8). He also did not recall being sick or calling in sick (Pet. Ex. 3, 8). According to Ms. Chasan’s handwritten interview notes, respondent stated that he typically goes to Puerto Rico for about ten days around the holidays, with “second Xmas 1/8 or 1/9″ (Pet. Ex. 8). Despite the ample evidence that respondent often travels to Puerto Rico to spend time with his family, there was no specific proof in the record that he left the City on this particular occasion. Moreover, to prove that respondent failed to follow the required procedures for converting annual leave to sick leave, there would need to be evidence that December 30 and 31, 2019, were approved annual leave days in the first place. The evidence at trial did not support a finding that respondent had made a request for annual leave or that any request for annual leave had been approved. Accordingly, charge one should be dismissed. Charge 2: January 4 and 5, 2021 On December 22, 2020, respondent sent an email to DOC EEO Officer Amy Young stating “I will be out of town for the holidays my last day of work will be December 25, and I will be returning to work January 12, 2021″ (Pet. Ex. 3 at 8, 77). He wrote a similar email to Dana Roth, one of his supervisors, on December 23, 2020, with subject line “RE: Vacation/time off”, informing her “I will be travelling for the holidays 12/26 returning January 11, 2021. Happy Holidays to all” (Pet. Ex. 3 at 78). According to respondent’s timesheets, from Monday, December 28, 2020, through Friday, January 1, 2021, he was out on annual leave (Pet. Exs. 1, 3). He used sick leave on Monday and Tuesday, January 4 and 5, 2021, and compensatory time on Wednesday, January 6, 2021 (Tr. 132; Pet. Exs. 1, 3). He worked on Thursday and Friday, January 7 and 8 (Id.). Charge 2 should be sustained as to respondent’s failure to obtain approval to use sick leave rather than annual leave. The two emails that respondent sent confirm that he planned to be on vacation for more than two weeks. It is reasonable to infer from respondent’s email to his supervisor that his annual leave had been approved. See Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892) (an inference that an action was in fact taken may be based on a declaration of the intention to carry out the action). If respondent had not requested and been granted permission to take a two-week vacation, it would have been odd indeed for him to email his supervisor and a co-worker about that vacation three days before his departure. Accordingly, I infer from these emails that respondent had been previously approved for vacation. Yet respondent ultimately charged part of his vacation — January 4 and 5, 2021 — to sick leave, without going through the required approval process for converting annual leave to sick leave (Pet. Ex. 1). His file and HMD and time keeping records showed no evidence that he submitted an application to convert his annual leave to sick leave or provided any documentation of his illness. Respondent would have been able to accomplish this swap of sick days for annual leave without the proper approvals because of the time keeping system used by his unit at DOI. As he, Mr. Persaud, and Mr. Askin testified, respondent filled out hand-written time sheets that were later entered into the computerized timekeeping system by other DOC employees. Respondent testified at trial to at least one alteration to a hand-written timesheet prior to its submission substituting sick leave days for annual leave days (Tr. 222), and he testified that he always left his timesheets pre-prepared when he went on vacation. It is a reasonable inference that he was able, undetected, to swap sick leave for previously approved annual leave without approvals by altering the hand-written time sheets before they were submitted to the timekeeper who ultimately entered the data. At a minimum, respondent violated Department rules when, becoming genuinely ill on vacation, he converted his annual leave to sick leave without submitting the appropriate application. However, given his admissions to Mr. Askin and his unvarying pattern of attaching sick leave days to other days off, it is more likely that he planned ahead to charge part of his vacation to sick leave without in fact being ill and did so without following the procedures for switching approved annual leave to sick leave. As with charge 1, there is extensive evidence that respondent traveled frequently to Puerto Rico, but there is no specific evidence that he was out of the City on January 4 and 5, 2021. Accordingly, petitioner has not met its burden as to the remaining claims in charge 2. Charge 3: May 6, 2021 Petitioner alleges that respondent was out of the City on May 6, 2021, and that he failed to obtain permission from the Department to leave the City while utilizing sick leave. This charge should be sustained. The evidence showed that respondent worked from May 3-5, 2021. On Tuesday, May 4, 2021, respondent sent an email regarding his schedule where he states, “I will be away on vacation from this coming Thursday [May 6] till [sic] May 17.” (Pet. Ex. 3 at 71). On May 6, 2021, he called in sick for a dental issue, and on Friday, May 7, 2021, he used comp time (Pet. Exs. 1, 3). He was out the whole following week using a combination of annual leave and comp time (Pet. Ex. 1). At his interview with DC Hung, respondent stated that he likely went to Puerto Rico for Mother’s Day but did not recall how long he was away (Pet. Exs. 3, 8). He did not recall being sick on May 6 or calling in sick (Id.). Once again, the evidence showed that respondent took a planned vacation, as demonstrated by his email, and reduced the number of days charged to annual leave or comp time by taking a sick day without following the required procedure for converting annual leave to sick leave. The evidence further showed that, by his own admission, it was “likely” that he went to Puerto Rico, and he offered no evidence that he was actually sick or that he saw a dentist on May 6, 2021. Thus, he misused a sick day and failed to follow procedures for converting annual leave days to sick leave days. Although there is extensive evidence that respondent traveled frequently to Puerto Rico — and evidence that he was “away” and that he likely went to Puerto Rico for Mother’s Day (which was on May 9 in 2021) — there is no specific evidence that he was out of the City on Thursday, May 6, 2021, in particular. Accordingly, petitioner has not met its burden as to the remaining claims in charge 3. Charge 4: June 17 and 18, 2021 Petitioner alleges that respondent was out of town and failed to obtain authorization to change annual leave to sick leave for two days in June 2021. The evidence shows that respondent worked on June 16, 2021 (Pet. Exs. 1, 3). He used sick leave on Thursday, June 17, and Friday, June 18, 2021, for a dental issue (Pet. Exs. 1, 3). On June 22, 2021, respondent sent an email from his work account stating “Please excuse the late response I was away and just arrived today. I reviewed my emails and I received the phone records last Thursday” (Pet. Ex. 3 at 65). At his DOI interview, respondent stated that he did not recall sending the email, being away, being sick, or calling in sick (Pet. Ex. 3). Because there was no evidence that respondent was out of the City when he used sick leave on June 17 and 18, 2021, and there was no evidence that he had initially been approved for annual leave but had changed it to sick leave without proper approval, this charge should be dismissed. As with the prior three charges, although there is extensive evidence that respondent traveled frequently to Puerto Rico — and although he wrote in an email on June 22, 2021, that he “was away and just arrived [back to New York] today” — there is no specific evidence that he was out of the City on June 17 and 18, 2021. Accordingly, petitioner has not met its burden as to the remaining claims in charge 4. Charge 6: May 9 and 10, 2022 On May 2, 2022, respondent emailed Whitney Ferguson with subject line “Request for A/L,” stating “Good afternoon Whitney I am requesting A/L beginning 05/04 returning to work 05/11. Thank you” (Pet. Ex. 3 at 53). At his DOI interview, respondent stated that he took the time off to travel to Puerto Rico (Id. at 4). He also stated that he did not recall using comp time or specifically being off those days (Id.). He stated that he probably took the two days as sick days because it was likely he was returning from Puerto Rico so his tooth was likely hurting him from the flight (Pet. Exs. 3 at 4, 8 at 4). Timekeeping records show that respondent used sick leave for dental issues on Monday, May 9 and Tuesday, May 10, 2022 (Pet. Ex. 3). He worked on Wednesday, Thursday, and Friday. The prior week, he used comp time on Wednesday, May 4, Thursday, May 5, and Friday, May 6, 2022 (Id.). For this use of sick leave, HMD records reflect “MOS CALLING OUT DUE TO CODE 11″ on May 9, 2022, at 9:41 a.m. (Pet. Ex. 3 at 52). Code 11 indicates “Dental,” such as “Toothache, Tooth Extraction, Abscess” (Pet. Ex. 3 at 21; Tr. 43-44). The evidence at trial was insufficient to establish that respondent was out of the City or away from his residence on May 9 and 10, 2022. While respondent stated during his DOI interview that he took time off to travel to Puerto Rico, he also speculated that his use of sick leave was due to tooth pain precipitated by his flight home from Puerto Rico, which would imply that he was home by the time he fell ill. Because the evidence does not show that respondent was out of the City while using sick leave, the evidence also does not support the allegation that respondent failed to obtain permission to leave the City while utilizing sick leave or failed to remain confined to his residence. The only allegation in Charge Six where the petitioner met its burden is that respondent failed to obtain approval to utilize sick leave rather than annual leave. As evidenced by respondent’s email to Whitney Ferguson, one of his supervisors, he originally took the period from May 4 through May 10, 2022, as vacation. The dates of May 9 and 10, 2022, appear as sick leave on respondent’s time and leave records. As with Charges Two and Three, there is no evidence of any application by respondent to convert his annual leave for May 9 and 10, 2022, to sick leave. Charge 5 Charge Five alleges that respondent engaged in conduct unbecoming a member of service and failed to efficiently perform his duties for the period from January 6 to 13, 2022, in that he left the City while out on sick leave, failed to obtain permission from the Department to leave the City while utilizing sick leave, and falsely reported to the Health Management Division that he was home when in fact he was in Puerto Rico. This charge should be sustained. As stated above, leaving the City while out on sick leave is only permitted in limited circumstances. According to Directive 2262R-B, “[w]hen it is necessary for a member of service who is on sick report to leave the City for treatment or convalescence, they shall transmit to the Commanding Officer of H.M.D. an application for permission to leave the City while on sick report. The Commanding Officer of H.M.D. shall process this application in accordance with the appropriate provisions prescribed in Section III.C [Sick While On Vacation].” (Dir. 2262R-B (III)(D). Leaving the City without application and permission is prohibited, and “[d]isciplinary action shall be taken against any member of the uniformed force who leaves the City without authorization while on sick report.” (Id.) Here, Department time records show that respondent worked on January 3, 4, and 5, 2022. He used sick leave on Thursday, January 6, and Friday, January 7 (Pet. Exs. 1, 3). The following week, he used sick leave Monday through Thursday, January 10, 11, 12, and 13, 2022 (Pet. Exs. 1, 3). He used comp time on January 14, 2022 (Pet. Exs. 1, 3). HMD records indicate that respondent called in sick for six days because he tested positive for COVID; specifically, HMD records state that on January 6, 2022, at 11:31 a.m., respondent was “CALLING OUT DUE TO CODE 19 AND TESTED POSITIVE WITH COVID 19. MOS [member of service] WAS NOTIFIED TO EMAIL DOCUMENTATION” to a specific email address (Pet. Ex. 3 at 58). The same HMD record states that on January 13, 2022, at 20:57 “MOS COVID 19 CLEARED AS PER MEDICAL [illegible].” Id. Code 19 indicates “Flu/Cold” such as “Virus (fever, Cough, Sore Throat, Body Aches, Drowsiness, Headache, chills, Fatigue)” (capitalization as in original) (Pet. Ex. 3 at 21; Tr. 43-44). Respondent’s email communications provide additional details. On December 24, 2021, he sent an email from his work account to Dana Roth cc’ing Ali Fayad and Reginald Barometre “requesting A/L from December 27 returning to work January 11. Thank you and happy holidays to everyone” (Pet. Ex. 3 at 59). He sent another email from his work account on January 17, 2022, telling the addressee “My kids arrived to NY on the 25th so it was the best Christmas gift I could ever wish for then we got sick with COVID. But no worries, it wasn’t a serious cold we got through it…Today is my first day back so I’ve been going through my emails.” (Pet. Ex. 3 at 60). According to DC Hung’s testimony, respondent said that he had requested annual leave on or about the end of December 2021 through January 10, 2022 (Tr. 34-35). According to the investigation memo, respondent stated in his interview that he was in Puerto Rico from January 7 to January 10 (Pet. Ex. 3 at 5, Pet. Ex. 8 at 5). Respondent testified at trial that after receiving his COVID diagnosis, he notified Captain Ali Fayad (Tr. 221). Respondent identified Captain Fayad as a colleague who, because of his rank, is “over” him, though not in his supervisory structure (Tr. 221). According to respondent, he made a phone call to alert his co-workers that he had COVID “because they might want to get a PCR test” and spoke to Captain Fayad (Tr. 221). Respondent testified that Captain Fayad told him to call HMD to switch his status to “sick leave” because he had been approved previously for annual leave by Dana Roth (Tr. 222). Captain Fayad changed respondent’s timesheets for him to reflect use of sick leave rather than annual leave (Tr. 222). Respondent stated that “we always left our timesheets pre-prepared when we went on vacation. That way they could always submit it that [sic] we’re on vacation with ALs [abbreviation for time charged to annual leave]” (Tr. 222). Respondent testified that he was at home in Long Island when he reported to HMD that he was sick with COVID (Tr. 222-23). HMD Records show that respondent called in to report his COVID diagnosis on January 6 (Pet. Ex. 3 at 58). His time and leave records show he was working on January 5 (Pet. Ex. 3 at 56). Respondent gave an explanation at trial regarding his travel to Puerto Rico while sick with COVID, though he offered no travel records to support his testimony. Specifically, he testified that his children traveled to New York from Puerto Rico on December 25 (Tr. 219). They were accompanied on the trip by some trusted friends of his ex-wife (Id). He testified that his children are not experienced travelers, and he and his ex-wife are very protective of their children, no matter their age (Id.) They are not permitted by their parents to fly alone (Id). His two younger children do not speak English (Tr. 224). Once the children had arrived in New York on December 25, respondent testified that his young son appeared to be sick. Respondent and his daughter then came down with the same symptoms (Tr. 220). They took COVID PCR tests, which came back positive (Id). Nonetheless, the children needed to return to school, so they flew to Puerto Rico together (Id). Once in Puerto Rico, respondent remained until he felt better to travel again (Tr. 220, 224). Telephone records from respondent’s DOI-issued cell phone document nine incoming telephone calls to the DOI cell phone while it was in Puerto Rico (Pet. Ex. 3 at 61; Tr. 41-43). The earliest call was at 6:44 p.m. on January 5, 2022, and the latest was at 3:19 p.m. on January 10, 2022 (Tr. 40-43; Pet. Ex. 3 at 61). The fact that respondent’s DOI issued work phone showed up in Puerto Rico on January 5 is notable, because the Citytime records from that date show that respondent was working on that date from 1:00 p.m. to 9:15 p.m.⁷ (Pet. Ex. 3 at 56). Respondent testified that when he recovered from COVID, he flew back to New York and went to GMDC (a DOC facility on Rikers Island), where he was given a COVID test (Tr. 226). He received a negative result through the mail, sent the result to a colleague at DOI, and, a day later, was cleared to return to work (Tr. 226) The overwhelming evidence shows that respondent left the City while on sick leave. His testimony confirms that he left the City to travel to Puerto Rico in January 2022 after he and his children were diagnosed with COVID in New York (Tr. 220-21, 244-45). Department records demonstrate that respondent took sick leave on Friday and Saturday, January 6 and 7, as well as Monday through Thursday, January 10, 11, 12, and 13 (Pet. Ex. 3 at 55-57). Cell phone records for respondent’s DOI-issued cell phone, which respondent testified he had with him (Tr. 225), show that respondent was in Puerto Rico from January 5 through January 10, with the earliest call received in Puerto Rico coming in at 6:44 p.m. on January 5 and the latest at 3:19 p.m. on January 10, 2022 (Pet. Ex. 3 at 61). Respondent failed to obtain the necessary permission to leave the City while on sick leave or to convert annual leave to sick leave. Although he telephoned a colleague, Captain Fayad, to inform him of the COVID diagnosis, he did not make an application to leave the City in the form required by Departmental directive. Captain Fayad, while higher ranking in the Department than respondent, was not respondent’s supervisor. Finally, the preponderance of the evidence is that respondent falsely reported to the Health Management Division that he was home when in fact he was in Puerto Rico. HMD records show respondent calling in on January 6, 2022, at 11:31 a.m. to inform them that he was COVID-positive (Pet. Ex. 3 at 58). Respondent testified that when he called HMD about being sick with COVID, he was in his Long Island, New York home (Tr. 222-23). Yet respondent’s DOI-issued cell phone tells another story: credible telephone records show that respondent was already in Puerto Rico on January 6, 2022, when he called HMD. FINDINGS AND CONCLUSIONS 1. Petitioner proved that respondent engaged in conduct unbecoming a member of service and inefficiently performed his duties by failing on three occasions to follow procedures for converting approved annual leave to sick time, as alleged in charges 2, 3, and 6. 2. Petitioner proved that respondent engaged in conduct unbecoming a member of service and inefficiently performed his duties by leaving the City while on sick leave without permission and by falsely claiming to HMD that he was at home while sick when he was in fact out of the City in Puerto Rico, as alleged in charge 5. 3. Petitioner failed to prove various other charges. RECOMMENDATION Upon making these findings, I requested and received a summary of respondent’s personnel history from the Department. Respondent has been with the Department since October 2014 and has no formal disciplinary history. Given respondent’s demonstrated misconduct, the Department’s requested penalty of termination of respondent’s employment is appropriate. This is true despite respondent’s ten years at the Department, his lack of a disciplinary record, and evidence of his strong job performance. This tribunal has found termination to be the appropriate penalty in cases involving dishonesty and abuse of sick leave, even for respondents with no disciplinary history. See, e.g., Crossman, OATH 396/24; Dep’t of Correction v. Auguste, OATH Index No. 2770/08 (Apr. 17, 2009) adopted, Comm’r Dec. (May 7, 2009); see also Dep’t of Finance v. Jimenez, OATH Index No. 3663/23 (Mar. 19, 2024) (recommending termination of employment for a deputy sheriff for stealing contraband from the Department’s evidence locker despite eight years of service and no prior disciplinary history). Department Directive 2262R, Sick Leave Regulations for Members of the Uniformed Force, is explicit that certain sick leave rule violations, particularly those involving fraud or dishonesty, may lead to termination. Dir. 2262R(III)(A)(6), (B)(2), (E)(13), (F)(3), (G)(2), (4), (H)(3). Here, respondent’s repeated sick leave rule violations were accompanied by his stated long-term scheme to stretch his vacation time with sick leave. While the misconduct in charge 5 alone justifies a recommendation of termination given the blatant disregard for Department rules in that instance, the total number of proven incidents of misconduct here — four occasions involving 11 sick days over a year and a half — is consistent with this tribunal’s previous recommendations of termination. See Dep’t of Correction v. Auguste, OATH 2770/08 at 33 (noting that three or fewer violations of sick leave rules has resulted in termination). More importantly, respondent’s disregard for Department sick-leave rules and his admission to repeatedly misusing sick leave to extend his vacations is especially repugnant given his assignment to the Department of Investigation. See Dep’t of Correction v. Blackett, OATH Index No. 274/21 at 21 (July 13, 2021), adopted, Comm’r Dec. (Sept. 23, 2021) (false statements by a correction officer investigator an aggravating factor “because respondent should be acutely aware of the importance of accurate reporting as a member of the Investigation Division”); Jimenez, OATH. 3663/23 at 33 (holding that respondent’s theft in the workplace was “particularly egregious given that he is entrusted with significant law enforcement responsibilities as a deputy sheriff”). Respondent was simultaneously investigating other members of service for misconduct while for years breaking departmental rules himself with the intent to pad his own vacation time by misusing sick leave. To respond to this conduct with anything less than termination risks trivializing or minimizing its significance and blunting the deterrent effect of this case on current and future uniformed investigators. See Matter of Bolt v. New York City Department of Education, 30 N.Y.3d 1065, 1071-72 (2018). Uniformed personnel serving in a public safety role, entrusted with highly confidential information and investigations of potentially criminal matters must be held to a high standard of integrity. Accordingly, I recommend that respondent be terminated from his employment as a correction officer. Dated: May 17, 2024 In the Matter of the Appeal of Roberto Salinas Appellant v. Department of Correction, Respondent; 2024-0308 DECISION ROBERTO SALINAS (“Appellant”) appealed from a determination of the Department of Correction (“DOC”) finding Appellant guilty of incompetency and/or misconduct and imposing a penalty of termination following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Civil Service Commission (“Commission”) requested written arguments from the parties on August 2, 2024. Appellant’s brief was received on July 2, 2024, when he filed his appeal. DOC’s brief was received on August 15, 2024, and Appellant’s reply brief was received on September 9, 2024. The Commission has reviewed the record below, which we incorporate by reference into this decision, as well as arguments submitted on appeal, and finds that there is sufficient evidence to support the final determination and that the penalty imposed is appropriate. Therefore, the final decision and penalty imposed are hereby affirmed. SO ORDERED. Dated: October 7, 2024