Admin. for Children's Services v. King

REPORT AND RECOMMENDATION Petitioner, the Administration for Children’s Services (“ACS”), brought this disciplinary proceeding under section 75 of the Civil Service Law against respondent Dawn King, an Administrative Director of Social Services. Petitioner alleged respondent knowingly approved a subordinate’s fraudulent timesheets, made false timesheet entries on his behalf, and failed to verify the accuracy of timesheets that he submitted for respondent’s approval.¹ Respondent denied the charges, asserting she did not know that her subordinate’s timesheets were false. At a three-day trial, held remotely via videoconference, petitioner relied on documentary evidence and testimony from three witnesses. Respondent testified on her own behalf and offered documentary evidence. For the reasons below, I find that petitioner proved respondent knowingly approved fraudulent timesheets for her subordinate on five of twelve occasions and made false timesheet entries on his behalf. Petitioner did not prove respondent committed misconduct by failing to verify the accuracy of her subordinate’s timesheets. I recommend respondent’s termination from her employment. ANALYSIS The charges against respondent concern her approval of fraudulent timesheets for a subordinate, Bola Alade-Gbami, on 12 occasions between September 2017 and February 2023, when Mr. Alade-Gbami traveled out of state and was not at work. Mr. Alade-Gbami, a congregate care specialist, was responsible for transporting children to various locations such as school and court, and also worked in-office with respondent at an ACS building known as the Children’s Center, which housed children waiting to be placed in foster care (Tr. 21, 23, 199-200, 210). Respondent’s role included management of transportation, contract administration, procurement, and approval of weekly timesheets for subordinates (Tr. 201-02). In 2019, the Department of Investigation (“DOI”) received an anonymous complaint that Mr. Alade-Gbami falsified his timesheets by claiming to work on days when he was traveling out of state, and respondent was complicit in approving those timesheets and submitting false time entries for him (Tr. 94-95). Respondent believed a former employee had falsely accused her in the 2019 complaint based on a work grievance (Tr. 228-30; Resp. Exs. D, E, G). Investigator Nixon testified, however, that the employee did not submit the 2019 complaint (Tr. 175). DOI substantiated the complaint (Tr. 94-95; Pet. Ex. 8). Following DOI’s investigation, the New York County District Attorney brought criminal charges against Mr. Alade-Gbami for falsifying his timesheets (Pet. Ex. 9). Mr. Alade-Gbami pled guilty to one count of Petit Larceny (Penal Law §155.00) and agreed to pay $30,455.96 in restitution (Pet. Exs. 10, 11). Petitioner charged respondent with knowingly approving 12 fraudulent timesheets for Mr. Alade-Gbami while he was traveling, recording false time entries on his behalf, and failing to verify the accuracy of his work hours. Petitioner proved some, but not all of the charges. Petitioner’s Evidence Samantha Nixon, a DOI investigator assigned to investigate the 2019 complaint, concluded that Mr. Alade-Gbami falsely reported work hours and overtime on days he did not work, and respondent covered for him by approving his false timesheets and submitting false time entries and overtime on his behalf (Tr. 65, 75, 94-95, 162-63). Investigator Nixon compared flight itineraries to Mr. Alade-Gbami’s timesheets, which showed that between September 2, 2017, and February 27, 2023, Mr. Alade-Gbami took nine out-of-state trips during at least part of 12 weeks that he reported working (Pet. Exs. 7, 8 at 2-3, 13, 14A, 14B, 16, 17; Tr. 117, 125-26, 131). For instance, Mr. Alade-Gbami claimed he worked during the week ending September 9, 2017, but British Airways records reflect that he flew to Lagos, Nigeria from September 2, 2017, to September 17, 2017 (Pet. Exs. 7 at 3-7, 14A, 14B). Investigator Nixon also reviewed Mr. Alade-Gbami’s “key card” usage, a record of instances he used his employee identification to enter areas within the Children’s Center, which showed no usage for most weeks he traveled (Pet. Ex. 15; Tr. 84, 123, 126, 131, 137, 143, 156, 161).² Respondent approved Mr. Alade-Gbami’s false timesheets for all 12 weeks (Pet. Ex. 7). For eight of the twelve weeks ending with dates below, Mr. Alade-Gbami submitted his own timesheets for respondent’s approval: September 9, 2017 (Tr. 112-13; Pet. Ex. 7 at 7), June 2, 2018 (Tr. 133-34; Pet. Ex. 7 at 26), September 12 and 19, 2020 (Tr. 138-40; Pet. Ex. 7 at 32, 38), March 19, 2022 (Tr. 145; Pet. Ex. 7 at 49), September 10, 2022 (Tr. 151-52; Pet. Ex. 7 at 54), September 17, 2022 (Tr. 152; Pet. Ex. 7 at 59), and February 25, 2023 (Tr. 158-59; Pet. Ex. 7 at 64). For four of the twelve weeks — weeks ending September 16, 2017, December 2, 2017, April 21, 2018, and March 12, 2022 — respondent submitted timesheets on Mr. Alade-Gbami’s behalf, approved them, and either created and approved a request for overtime hours for him or made other entries on the timesheets (Pet. Ex. 7 at 12, 17, 21, 44, 66-82, 75-82, 97-98). For instance, for the week ending September 16, 2017, Mr. Alade-Gbami did not clock out of work on September 14, 2017, yet his timesheet reflects a “time out” of 6:00 p.m. and respondent added the following comment to his timesheet: “ok punched due [t]o finished in the field” (Pet. Ex. 7 at 8-9, 12; Tr. 114-15). Investigator Nixon testified that respondent clocked Mr. Alade-Gbami out of work that day because respondent submitted his timesheet, as reflected on the “timesheet history,” and timesheets cannot be submitted without an end time for workdays (Tr. 114-17; Pet. Ex. 7 at 12). For the week ending December 2, 2017, Mr. Alade-Gbami submitted his timesheet, but respondent returned it to “draft” status, re-submitted it with overtime for November 27, 2017 through December 1, 2017, and added the comment “return[ed] to draft[,] submitted with employee['s] overtime” (Pet. Ex. 7 at 17, 65-74; Tr. 124-25). For the week ending April 21, 2018, the timesheet history reflects that Mr. Alade-Gbami did not access his timesheet for that week and respondent submitted it on his behalf (Pet. Ex. 7 at 21). The timesheet records indicate respondent clocked Mr. Alade-Gbami into work at 6:00 a.m. and out of work at 6:00 p.m. from April 17, 2018 through April 20, 2018, which included 16 hours of overtime (Pet. Ex. 7 at 18-19, 21, 75-82). Respondent also added a comment stating, “Employee failed to complete timesheet- start and end shift in the field” (Tr. 127-28; Pet. Ex. 7 at 21). On the week ending March 12, 2022 timesheet, for March 10, 2022, respondent created and submitted four hours of overtime for Mr. Alade-Gbami and added the comment “school trip part 2″ (Pet. Ex. 7 at 42, 44, 97-98; Tr. 144-45). Investigator Nixon testified, based on her interview with the ACS vendor that transports children, that Mr. Alade-Gbami took no school trips on March 10, 2022 (Tr. 147). Investigator Nixon did not find any emails between respondent and Mr. Alade-Gbami about “missing timesheets,” instances where Mr. Alade-Gbami did not submit his timesheet and asked someone to do it for him (Tr. 105-07). She also found no emails that Mr. Alade-Gbami and respondent sent each other about overtime, except for an email from 2020 or 2021 that respondent sent to staff informing them that overtime requests must be approved (Tr. 107). The emails, as well as phone records, revealed they had frequent communication, but none when Mr. Alade-Gbami was traveling during weeks he reported working (Tr. 77, 94, 179). The one notable exception was a text message stating “on the plane” that Mr. Alade-Gbami sent from his phone to respondent’s work email on September 2, 2017, which was the week preceding two of the weeks that respondent approved Mr. Alade-Gbami’s false timesheets —  September 9, 2017 and September 16, 2017 (Pet. Exs. 5, 6A, 6B, 7; Tr. 92-93, 120). The message was sent at 8:11 p.m., four minutes before Mr. Alade-Gbami had a flight scheduled from JFK Airport to Lagos, Nigeria (Pet. Exs. 6A, 14B). Investigator Nixon verified via LexisNexis that the message came from Mr. Alade-Gbami’s cell phone (Tr. 92-93, 121). Victoria Bosah, an eDiscovery manager at DOI, testified that the September 2, 2017 email was read, but she could not determine when it was read (Tr. 41, 45-46, 51-52; Pet. Ex. 6A at 3). Based on interviews with ACS employees, Investigator Nixon testified respondent and Mr. Alade-Gbami were “close friends” (Tr. 75-76). Stuart Goldstein, Assistant Commissioner for Support Services and respondent’s supervisor, told Investigator Nixon that respondent and Mr. Alade-Gbami sat next to each other in a fourth-floor office and later worked in the same office on the sixth floor, albeit with several people who also worked there (Tr. 76, 180, 183). Mr. Alade-Gbami spent most of his time in-office coordinating transportation, but also transported children himself and performed childcare duties (Tr. 162, 176-77, 181-82). Investigator Nixon additionally reviewed bank records indicating Ms. King sent Mr. Alade-Gbami money several times, but petitioner did not introduce the records (Tr. 75).³ Investigator Nixon prepared a report consistent with her testimony (Pet. Ex. 8; Tr. 66).⁴ The report summarized a DOI interview with respondent (Pet. Ex. 8 at 4-5). According to the interview summary in the report, respondent suspected someone had “compromised” her CityTime account, since her password is saved to log-in to CityTime (Id. at 5). Her CityTime and ACS computer passwords changed multiple times between 2017 and 2022 and the passwords for the accounts were different (Id.). Respondent used an honor system when approving timesheets from subordinates and had no reason to question their validity because “the work was done” (Id.). She entered overtime hours for subordinates based on their work patterns, without verifying the hours, which respondent said “in hindsight” was improper (Id.). Respondent did not recall seeing the message “on the plane” (Id. at 4). Mr. Goldstein, respondent’s supervisor, testified that respondent would know if Mr. Alade-Gbami was not in the office for more than a day because “we’re such a small office, if we didn’t see somebody, we would notice that somebody wasn’t there” (Tr. 27). However, he acknowledged Mr. Alade-Gbami’s job duties involved transportation of children out of the office, to medical appointments and court, and he also had responsibilities at the Children’s Center (Tr. 21-23). He also stated that he did not work in the same building as respondent and Mr. Alade-Gbami, and that respondent did not directly supervise Mr. Alade-Gbami (Tr. 24, 34). He understood the relationship between respondent and Mr. Alade-Gbami as professional (Tr. 25). Mr. Goldstein stated that respondent had to approve Mr. Alade-Gbami’s timesheets (Tr. 15-16, 20, 24). ACS employees submit their work hours on an “ACS network computer” using a web clock that automatically records arrival time, or after working off-site, they can manually enter their time with the reason for the manual entry (Tr. 14-15). Overtime requests are submitted through CityTime with start and end times and the reason for the request (Tr. 18-19). Supervisors can approve overtime requests if there is no discrepancy in the hours worked or reason for the overtime (Tr. 15, 18-19). When employees neglect to submit their timesheets, the “practice” was to follow up with the employee about the “missing timesheet” and ask about the delay or let them know that there was an error preventing submission of the timesheet (Tr. 28-29). Mr. Goldstein recalled one or two instances where he “work[ed] with” respondent where employees submitted timesheets that contained errors (Tr. 29-31). Supervisors can manually record time for subordinates where hours were improperly entered or if the subordinate failed to submit the timesheet while on bereavement leave (Tr. 16-17). Mr. Goldstein also noted that seven people currently approve timesheets for employees who work in respondent’s unit, although respondent never expressed an inability to perform her timekeeping duties (Tr. 31-32, 37-38). He had praise for respondent’s work and said her evaluations were “near the top” (Tr. 34). Respondent’s Evidence Respondent denied the allegations and asserted she did not know Mr. Alade-Gbami was traveling when she approved his fraudulent timesheets (Tr. 217). Respondent testified that her role in approving timesheets and overtime requests in CityTime was limited to “clicking a button” (Tr. 206-08). She had responsibility for approving a large number of subordinates’ timesheets, including drivers, dispatchers, and other staff, which by 2023 grew to approximately 40 people (Tr. 203-05, 208). As a result, she took the accuracy of submitted hours on “good faith,” particularly as she had responsibility for more staff (Tr. 216-18). It was “impossible” to verify subordinates’ hours or overtime requests when they worked in the field (Tr. 208). Her former supervisor similarly approved hours without verifying them (Tr. 208-09). Respondent testified she had “no choice” but to assume Mr. Alade-Gbami submitted his timesheets in “good faith” when she approved them, since she handled hundreds of entries from field employees such as Mr. Alade-Gbami (Tr. 215-16). Mr. Alade-Gbami often did not report to the office because he worked in the field “every single day” transporting children to various locations (Tr. 209-10, 240). It was “impossible” to verify Mr. Alade-Gbami’s work hours because she did not always “engag[e]” with him and there were “ levels of supervision” between respondent and Mr. Alade-Gbami (Tr. 218). She did not know Mr. Alade-Gbami traveled out of state because “the work got done” (Tr. 217). Mr. Alade-Gbami had regular hours between 6:00 a.m. and 2:00 p.m. but often worked overtime and nights (Tr. 210-11). Respondent testified that he was an “exemplary” employee with whom she had a close working relationship (Tr. 211, 223-24; Resp. Exs. B, C). Since the incident with Mr. Alade-Gbami, ACS has held training for supervisors on timekeeping issues (Tr. 220; Resp. Ex. A). Seven people now supervise timekeeping in her unit (Tr. 237). Addressing Mr. Alade-Gbami’s September 2, 2017 text message “on the plane,” respondent said she never saw the message until DOI told her about it during a July 2023 interview (Tr. 214). She reviewed her email after the interview because she knew text messages end up in emails, and she never saw the message on her phone (Tr. 214). The September 2017 message from Mr. Alade-Gbami was “still bold” in her email, meaning she had not previously seen it (Tr. 214). Respondent did not testify about instances where she submitted timesheets, created requests for overtime hours, and made timesheet entries on Mr. Alade-Gbami’s behalf. The Charges Petitioner alleged that respondent (1) approved Mr. Alade-Gbami’s fraudulent timesheets on 12 occasions, including submitting false time entries and overtime requests on his behalf; and (2) failed to accurately perform her supervisory duties related to time and leave regulations by not verifying Mr. Alade-Gbami’s work hours. Petitioner served respondent with disciplinary charges on September 8, 2023. The misconduct alleged in charge one, specifications 1, 2, 3, 5(a), (b), (c), (d), (e), (f), and (g), would, if proven to constitute a crime by a preponderance of the credible evidence, fall within the crimes exception to the 18-month statute of limitations in section 75(4) of the Civil Service Law, which provides that the statute of limitations period does 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). For the crimes exception to apply, petitioner must establish by a preponderance of the evidence all of the elements of the alleged crime as defined in the Penal Law. Dep’t of Correction v. Lopez, OATH Index No. 2365/18, mem. dec. at 4-5 (Sept. 25, 2018); see also Aronsky v. Bd. of Education, 75 N.Y.2d 997, 1000 (1990) (“[T]he exception to the six-month Statute of Limitations in Education Law §2590-j(7)(c) should only apply when the specific facts alleged in the charge, if proven by a preponderance of the evidence, constitute a crime under our Penal Law.”). Intentionally or knowingly submitting fraudulent timesheets or making false timesheet entries, if proven by a preponderance of the evidence, would constitute several crimes, including falsifying business records, tampering with public records, and offering a false instrument for filing. See, e.g., Penal Law §§175.05, 175.20, 175.30 (Lexis 2024). Whether the specifications in charge one fall within the crimes exception depends upon whether the evidence in support of the specifications was sufficient to prove that respondent engaged in criminal conduct, as discussed below. See Dep’t of Correction v. Martinez, OATH Index No. 1899/23 at 6-7 (Nov. 3, 2023), modified on penalty, Comm’r Dec. (Nov. 22, 2023) (finding 18-month statute of limitations did not apply to charges, which included allegations that officer committed acts that would constitute violations of the Penal Law and the Charter); Dep’t of Correction v. Blanc, OATH Index No. 2571/11 at 6 (Feb. 2, 2012), aff’d, NYC Civ. Serv. Comm’n Item No. CD 12-40-SA (Aug. 10, 2012). By contrast, charge two, specifications 1(a), (b), (c), (d), (e), (f), and (g), alleging respondent failed to perform her job duties under ACS rules, do not specify conduct that would constitute a crime. Accordingly, these specifications are time-barred. Blanc, OATH 2571/11 at 6; Civ. Serv. Law §75(4). Petitioner has the burden of proving these charges by a preponderance of the credible evidence. See 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. CD08-33-SA (May 30, 2008). In assessing credibility, relevant considerations include demeanor, consistency of testimony, supporting evidence, witness motivation, bias, prejudice, and whether the testimony comports with common sense and human experience. See, e.g., Dep’t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 5, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD98-101-A (Sept. 9, 1998). I found that petitioner’s witnesses made a good-faith effort to describe the events as they perceived and recalled them. For the reasons described below, I did not find respondent’s testimony credible. Charge One (Knowingly Approving and Submitting False Timesheets) “To prove that [a] respondent falsified…timesheet[s], petitioner must show that respondent deliberately made false entr[ies]“. Health & Hospitals Corp. (Bellevue Hospital Ctr.) v. Garces, OATH Index No. 1617/08 at 4 (June 27, 2008), modified on penalty, Assoc. Exec. Dir. Dec. (Aug. 12, 2008). A false statement charge requires some proof of intentional or knowing falsehood and intent to deceive. See, e.g., Dep’t of Correction v. Callabrass, OATH Index No. 1981/10 at 8-9 (July 23, 2010), adopted in part, rejected in part, Comm’r Dec. (Dec. 1, 2010), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 11-81-M (Oct. 31, 2011) (correction officer who admitted she was away from her post when she made a logbook entry indicating she was at her post found to have made a false entry in her logbook). Weeks Ending December 2, 2017, April 21, 2018, and March 12, 2022 (Specifications 2, 3, 4, 5(c), 5(d), 5(h)) Petitioner alleged that respondent knowingly approved fraudulent timesheets for Mr. Alade-Gbami for the weeks ending December 2, 2017, April 21, 2018, and March 12, 2022 (ALJ Ex. 1, Specs. 5(c), 5(d), 5(h)). For the week ending December 2, 2017, petitioner alleged respondent also falsely submitted 35 ½ hours of overtime for Mr. Alade-Gbami (ALJ Ex. 1, Spec. 2). For the week ending April 21, 2018, petitioner alleged respondent falsely recorded clock-in times of 6:00 a.m. and clock out times of 6:00 p.m. from April 17, 2018 through April 20, 2018, falsely noted that “Employee failed to complete timesheet- start and end shift in the field,” and approved 16 hours of overtime for him that he did not work (ALJ Ex. 1, Spec. 3). For the week ending March 12, 2022, petitioner alleged respondent falsely recorded that Mr. Alade-Gbami clocked in at 6:00 a.m. on March 10, 2022, clocked out at 6:00 p.m., and completed four hours overtime (ALJ Ex. 1, Spec. 4). These charges are sustained. The credible and undisputed evidence, including flight records, key card records, and Mr. Alade-Gbami’s guilty plea in criminal court, established that Mr. Alade-Gbami was not at work during the weeks ending December 2, 2017 and April 21, 2018, and on March 10, 2022⁵ (Pet. Exs. 9, 10, 11, 13, 15, 16, 17; Tr. 243). Yet respondent submitted timesheets on Mr. Alade-Gbami’s behalf for all three weeks, including overtime, and approved the timesheets. In particular, for the week ending April 21, 2018, the timesheet history reflects that only respondent, and not Mr. Alade-Gbami, accessed the timesheet. Respondent clocked Mr. Alade-Gbami in and out of work several days during the week ending April 21, 2018, and commented on the timesheet that he started and ended work in the field, meaning that he would not be able to clock in and out himself. The timesheet records further indicate that respondent clocked Mr. Alade-Gbami in and out of work on March 10, 2022, because Mr. Alade-Gbami only punched into work that week on March 7 and March 8, and respondent added the comment on his timesheet “school trip part 2″ (Pet. Ex. 7 at 97). Petitioner proved respondent knew Mr. Alade-Gbami was not at work during the weeks ending December 2, 2017 and April 21, 2018, and on March 10, 2022, and submitted false timesheets and time entries on his behalf. Although Mr. Alade-Gbami had off-site responsibilities, including transporting children to various locations, Mr. Goldstein testified employees can manually submit their time after returning from off-site work. Respondent offered no explanation at trial for why she instead submitted Mr. Alade-Gbami’s timesheets for him and made several, specific false entries on the timesheets when he was not at work, including clocking him in and out of work several days during the week ending April 21, 2018, and claiming he was on a school trip on March 10, 2022. The explanations respondent provided during her DOI interview for why Citytime reflected that that she submitted the false timesheets and time entries, that her CityTime account was “compromised” and that she would submit overtime hours for employees based on their “work patterns,” were inconsistent and not credible. It strained credulity to believe that someone gained unauthorized access and “compromised” respondent’s computer multiple times over several years, without her knowledge, and where respondent had another safeguard to prevent someone from using her CityTime account, a separate username and password for her ACS computer. Respondent’s implausible belief that someone “compromised” her account was also inconsistent with her statement during the DOI interview that she would submit overtime hours herself for subordinates, without verifying the hours, based on their “work patterns.” Moreover, respondent’s purported submission of overtime hours for subordinates was contrary to the practice described by Mr. Goldstein, that respondent is expected to confirm the overtime hours that subordinates work and the reason for the overtime request before approving the hours. Mr. Goldstein similarly testified that the unit’s practice was to follow up with an employee who did not submit a timesheet (Tr. 28-29). Here, there is no evidence that respondent followed up with Mr. Alade-Gbami about the weeks he did not submit a timesheet, or that she confirmed the overtime hours she approved for him. Respondent’s assertion that she approved her subordinates’ timesheets in good faith failed to address why she took actions on behalf of Mr. Alade-Gbami in submitting his timesheet, overtime, and specific time entries that were false. Her affirmative steps to record and approve specific work hours for Mr. Alade-Gbami, including overtime, when he was not working and traveling out of state, her failure to offer any plausible explanation for why she did so despite employees’ ability to enter their own time, the lack of evidence that she followed up with Mr. Alade-Gbami about his missing timesheets, and her incredible statements during her DOI interview, all convinced me that she submitted Mr. Alade-Gbami’s timesheets on his behalf to cover for him while he was traveling and then knowingly approved these fraudulent timesheets. The credible evidence shows respondent knew Mr. Alade-Gbami was not at work, approved his false timesheets, and made false time entries, in violation of agency rules and criminal statutes (Pet. Ex. 3).⁶ See Penal Law §§175.05, 175.20, 175.30; see also People v. Reyes, 69 A.D.3d 537, 538-539 (1st Dep’t 2010) (upholding falsifying business records conviction where corrections officer made false entries in a logbook in order to conceal a crime); People v. Saporita, 132 A.D.2d 713, 715 (2d Dep’t 1987) (finding sufficient evidence in the record to establish crime of tampering with public records in the second degree where defendant knowingly altered police records); People v. Armitt, 195 Misc.2d 879, 880-81 (App. Term, 2d Dep’t 2003) (upholding conviction for offering a false instrument for filing in the second degree where defendant submitted false information in an employment application to the Nassau County District Attorney’s office). Accordingly, these charges are sustained. Weeks Ending September 9, 2017 and September 16, 2017 (Specifications 1, 5(a), 5(b)) Petitioner alleged that respondent knowingly approved fraudulent timesheets for Mr. Alade-Gbami for the weeks ending September 9, 2017 and September 16, 2017, including two false entries that respondent recorded for September 14, 2017: clocking Mr. Alade-Gbami out of work at 6:00 p.m. and adding a comment, “ok punched o [sic] finished in the field” (ALJ Ex. 1, Specs. 1, 5(a), 5(b)). These charges are sustained. The credible and undisputed evidence, including flight records, key card usage records, and Mr. Alade-Gbami’s guilty plea in criminal court, established that Mr. Alade-Gbami was not at work during the weeks ending September 9, 2017 and September 16, 2017 (Pet. Exs. 9, 10, 11, 14A, 14B, 15; Tr. 243). The timesheet records indicate respondent approved Mr. Alade-Gbami’s timesheets for both weeks and submitted the September 16, 2017 timesheet for him, including punching him out of work on September 14, 2017 at 6:00 p.m. and adding a comment that he was in the field. Petitioner proved respondent knew Mr. Alade-Gbami was not at work and out of the country during the weeks ending September 9 and September 16, 2017. On September 2, 2017, the week preceding the weeks ending September 9 and September 16, 2017, Mr. Alade-Gbami messaged respondent “on the plane,” the same day he flew from JFK Airport to Nigeria (Pet. Exs. 5, 6A, 6B). The message was sent to respondent’s work email and read, indicating respondent knew Mr. Alade-Gbami was out of the country and not at work when she approved his timesheets for these two weeks. Moreover, I found it improbable that respondent did not realize Mr. Alade-Gbami, who occupied the same office, was not at work for two weeks, even taking into account Mr. Alade-Gbami’s duties out of the office. Respondent’s self-serving contention that she did not read Mr. Alade-Gbami’s email until after her 2023 DOI interview was not credible. It was implausible that respondent neglected to see this particular message from Mr. Alade-Gbami, a message that implicated her in misconduct, until six years later. Additionally, the words “on the plane,” without further context or detail, permits an inference that Mr. Alade-Gbami previously informed respondent about his plans to travel on a plane during work hours. See Dep’t of Social Services (Human Resources Admin.) v. DeFrance, OATH Index No. 1593/20 at 8 (Sept. 28, 2020), adopted, Comm’r Dec. (Dec. 16, 2020), aff’d, NYC Civ. Serv. Comm’n Case No. 2020-0810 (Feb. 19, 2021) (“A finding based entirely on circumstantial evidence may be established in a civil service disciplinary proceeding so long as the circumstantial evidence supports the conclusion that ‘the inference drawn is the only one that is fair and reasonable.’”); see also Ridings v. Vaccarello, 55 A.D.2d 650, 651 (2d Dep’t 1976) (“In order to prove a fact by circumstances, there must be positive proof of some fact which…affords a reasonable inference of its existence…. [I]t must then appear that the inference drawn is the only one that is fair and reasonable.”). Petitioner also persuaded me that respondent knew Mr. Alade-Gbami was traveling and not at work because respondent submitted his September 16, 2017 timesheet for him and made specific false time entries on Mr. Alade-Gbami’s behalf, including punching him out of work at 6:00 p.m. on September 14, 2017 and falsely noting that he was “in the field.” Respondent offered no explanation for why she submitted Mr. Alade-Gbami’s timesheet for him or why she stated he was in the field until 6:00 p.m., when those hours were false. Respondent’s failure to explain her actions for Mr. Alade-Gbami was significant in light of Mr. Goldstein’s testimony that employees can enter their own time after returning from off-site work. Moreover, as described above, respondent offered incredible and inconsistent explanations for why she submitted false timesheets and time entries, that her CityTime account was “compromised” and she submitted overtime hours based on employee work patterns. There is also no evidence that respondent followed up with Mr. Alade-Gbami about his failure to submit the September 16, 2017 timesheet, as Mr. Goldstein testified was the practice for supervisors, providing further evidence that respondent was complicit with Mr. Alade-Gbami. Respondent’s assertion that she approved her subordinates’ timesheets in good faith failed to address why she took actions on behalf of Mr. Alade-Gbami in submitting his timesheet, including specific time entries that she knew were false. The credible evidence, including Mr. Alade-Gbami’s message “on the plane,” respondent’s affirmative steps to record and approve specific work hours for him, the lack of any plausible explanation for why she did so, her failure to verify the hours, and her incredible explanations, proved that respondent approved Mr. Alade-Gbami’s false timesheets and made false time entries when she knew he was not at work and traveling. Accordingly, these charges are sustained. Remaining Seven Weeks (Specifications 5(e), 5(f), 5(g), 5(i), 5(j), 5(k), 5(l)) Petitioner alleged that respondent approved false timesheets and overtime requests for Mr. Alade-Gbami for the weeks ending June 2, 2018, September 12, 2020, September 19, 2020, March 19, 2022, September 10, 2022, September 17, 2022, and February 25, 2023 (ALJ Ex. 1, Specs. 5(e), 5(f), 5(g), 5(i), 5(j), 5(k), 5(l)). These charges are not sustained. Petitioner did not prove respondent knew Mr. Alade-Gbami was traveling and not at work during the seven weeks charged in these specifications. This includes the weeks prior to 2022, which are time-barred under the statute of limitations because petitioner failed to prove that respondent engaged in criminal conduct. In contrast to the other charged allegations, where respondent recorded false time entries for Mr. Alade-Gbami and submitted fraudulent timesheets and overtime on his behalf, for these seven weeks respondent only approved timesheets that Mr. Alade-Gbami submitted. Approving the timesheets, without more, was insufficient to prove respondent knew Mr. Alade-Gbami falsely recorded his work hours. Petitioner’s other evidence failed to establish respondent knew Mr. Alade-Gbami’s timesheets were false or that she negligently approved them. Petitioner argued respondent would have known when Mr. Alade-Gbami was not working, but the evidence suggested Mr. Alade-Gbami did much of his work out of the office. Investigator Nixon’s testimony that Mr. Alade-Gbami was usually in the office was at odds with Mr. Goldstein’s testimony that Mr. Alade-Gbami was responsible for transporting children. Investigator Nixon’s testimony that respondent and Mr. Alade-Gbami did not exchange emails or phone calls when Mr. Alade-Gbami was traveling also carried little weight, as petitioner did not produce documentation, including emails or phone records, comparing the frequency of Mr. Alade-Gbami’s communications with respondent during weeks he traveled and weeks he was at work. And Investigator Nixon’s hearsay testimony that respondent and Mr. Alade-Gbami were close friends was contradicted by Mr. Goldstein’s testimony that their relationship was professional. Although Mr. Goldstein believed respondent would have known if Mr. Alade-Gbami did not report to work, because they worked in a small office, his testimony lacked specificity and provided no further details, such as how often respondent and Mr. Alade-Gbami interacted with each other, how much time Mr. Alade-Gbami spent in the office, and respondent’s obligation to know Mr. Alade-Gbami’s daily whereabouts. The DOI report indicates respondent was questioned about weeks other than the seven weeks charged in these specifications, including weeks she approved Mr. Alade-Gbami’s false timesheets for him, but not about the frequency of her interaction with Mr. Alade-Gbami during the seven weeks charged, weeks Mr. Alade-Gbami submitted timesheets for respondent’s approval (Pet. Ex. 8). Additionally, for six of the seven weeks, Mr. Alade-Gbami was not absent for the entire week, and for four of the weeks, he was only absent on a Friday or a Monday (ALJ Ex. 1, Spec. 5(f), (g), (i), (j)). This evidence is insufficient to prove respondent knowingly or negligently approved those fraudulent timesheets. Although Mr. Alade-Gbami was traveling for an entire week in February 2023, which raised questions about whether respondent knew he was not at work, that was not sufficient to convince me respondent knowingly approved his false timesheet for that week. In sum, petitioner’s evidence was not sufficient to establish that respondent knew or should have known Mr. Alade-Gbami was not working during the seven weeks charged in specifications 5(e), 5(f), 5(g), 5(i), 5(j), 5(k), and 5(l). Accordingly, these charges are not sustained. Charge Two (Failure to Accurately Perform Supervisory Duties) Petitioner charged respondent with failing to accurately perform her supervisory duties with regard to time and leave rules, by not verifying the accuracy of the hours that respondent approved in CityTime for Mr. Alade-Gbami during the weeks he was traveling. As described above, specifications (a) through (g) are barred by the statute of limitations. Petitioner’s evidence was not sufficient to establish specifications (h), (i), (j), (k), and (l). Petitioner’s Code of Conduct, effective 2021, requires employees to carry out all work assignments given to them as accurately and efficiently as possible while maintaining performance standards established for the job assignment (Pet. Ex. 3 at 10). The Code of Conduct also requires supervisory personnel and management employees to be responsible for the “proper instruction, conferencing, and efficiency of their subordinates with respect to…compliance with time and leave rules and regulations” (Id. at 38). Mr. Alade-Gbami submitted his own timesheets, which included overtime hours, for the weeks charged in specifications (i), (j), (k), and (l). Petitioner did not prove that respondent knowingly approved false timesheets and overtime requests for these weeks. And petitioner provided no evidence that the Code of Conduct’s time and leave rules require supervisors to verify the accuracy of subordinate’s work hours as reflected on timesheets submitted by the subordinate, or that anyone communicated such an obligation to respondent. Dep’t of Correction v. Caldwell, OATH Index No. 2702/14 at 7 (May 27, 2015), modified on penalty, Comm’r Dec. (Apr. 19, 2016), modified on penalty, NYC Civ. Serv. Comm’n Case No. 2016-0444 (Feb. 21, 2017) (“The courts long have held that employees are not held to a strict liability standard, because a finding of misconduct is not the equivalent of a finding that an administrative rule has been violated; rather, misconduct requires proof of fault.”). Although Mr. Goldstein explained that supervisors would confirm start and end times for overtime hours before approving them, as well as the assignment referenced, Mr. Goldstein’s testimony was insufficient to establish misconduct, in the absence of a specific rule requiring that supervisors verify the accuracy of the hours approved in CityTime. Moreover, an adverse finding against respondent for the failure to verify Mr. Alade-Gbami’s hours for March 10, 2022, charged in specification (h), where respondent submitted and approved Mr. Alade-Gbami’s fraudulent timesheet, would be duplicative. See, e.g., Fire Dep’t v. Lumsden, OATH Index No. 265/85 at 7 (Sept. 12, 1985), adopted, Comm’r Dec. (Oct. 2, 1985) (holding that separately stated rule violations, arising from identical conduct, are duplicative and may not serve as justification for an independent penalty). FINDINGS AND CONCLUSIONS 1. Petitioner proved that respondent knowingly approved Mr. Alade-Gbami’s fraudulent timesheets for the weeks ending September 9, 2017 and September 16, 2017, and made false entries on his behalf. 2. Petitioner proved that respondent knowingly approved Mr. Alade-Gbami’s fraudulent timesheets for the weeks ending December 2, 2017, April 21, 2018, and March 12, 2022, and made false entries on his behalf, including the false submission of overtime hours. 3. Petitioner failed to prove that respondent knowingly or negligently approved false timesheets for Mr. Alade-Gbami for the weeks ending June 2, 2018, September 12 and 19, 2020, March 19, 2022, September 10 and 17, 2022, and February 25, 2023. 4. Petitioner failed to prove that respondent failed to perform her supervisory duties related to her subordinate’s compliance with time and leave regulations. RECOMMENDATION Upon making these findings, I obtained and reviewed respondent’s personnel abstract. Respondent has been employed by petitioner since 2009 and was appointed to her current title in 2022. She received favorable performance reviews in 2021 and 2022. Respondent has no disciplinary history.⁷ For the charges that were the subject of this trial, respondent served a pre-trial suspension of 30 days without pay. Petitioner sought termination of respondent’s employment. That is appropriate. Falsifying timesheets is serious misconduct that often leads to termination of employment. Dep’t of Parks and Recreation vs. Gillette-Infante, OATH Index No. 361/83 (Feb. 29, 1984) (recommending termination for a supervisor who knowingly falsified daily time reports for seasonal workers who were no longer working for the Department); see also Health & Hospitals Corp. (Kings County Hospital Ctr.) v. Alexander, OATH Index No. 0074/22 at 5 (Nov. 12, 2021), adopted, CEO Dec. (Jan. 3, 2022); see also Dep’t of Education v. Halpin, OATH Index No. 818/07 (Aug. 9, 2007), adopted, Chancellor’s Dec. (Aug. 23, 2009), aff’d sub nom., Halpin v. Klein, 62 A.D.3d 403 (1st Dep’t 2009) (terminating employment where long-term employee, with minor disciplinary record, left work early and falsified timesheets on 63 occasions); Dep’t of Education v. Matos, NYC Civ. Serv. Comm’n Item No. CD05-17-SA (Apr. 15, 2005), aff’g, Chancellor’s Dec. (Apr. 2, 2004), modifying on penalty, OATH Index No. 214/04 (Feb. 13, 2004) (termination of employment upheld where long-term employee with unblemished record falsified time records on three occasions); Office of the Comptroller v. Nieves, OATH Index No. 962/04 at 19-22 (Oct. 29, 2004) (employee fired for falsifying arrival time on 26 occasions). Respondent’s repeated and deliberate dishonesty over several years is a fundamental form of misconduct that demonstrates a lack of integrity. Though respondent has a long tenure with the agency, good evaluations, and no disciplinary history, those mitigating factors are heavily outweighed by the frequency and severity of her actions, committed over an extended time. Respondent’s misconduct was further aggravated by her role as a supervisor. Respondent failed to accept any responsibility for her deceit and cannot be trusted to continue as an employee. Accordingly, I recommend respondent’s termination from her employment. Dated: October 11, 2024