Department of Environmental Protection v. Segarra
The petitioner, Department of Environmental Protection, sought an employee disciplinary proceeding, pursuant to section 75 of the Civil Service Law against respondent, a senior sewage treatment worker. Respondent was charged with neglecting his duties concerning the taking of water samples.
In order to punish a civil service employee for misconduct, “there must be some showing of fault on employee’s part, either that he acted intentionally or negligently.”
Charges for the first incident alleged that the respondent failed to follow procedure when a contact tank is out of service. Superintendent stated that a memo, entitled “Plant Effluent Auto Samples When Contact tank is O/S” was posted on the date of the incident “in the lab.” Respondent stated that he did not see this memo before the incident.
“It is well settled that actual or constructive notice of the rules of employment is required before an employee can be held liable for violating an employer’s rule or regulation.”
The ALJ established that because the respondent was not notified of the controlling procedure he can not be held responsible for violating the rule. Petitioner argued that the respondent should have sought a superior’s guidance. ALJ found this to be an unintentional error by the part of the respondent. “Mere errors of judgment, lacking in willful intent and not so unreasonable as to be considered negligence, are not a basis for finding misconduct.” Therefore, the charges concerning incident one were dismissed.
On the second incident, hypo interruption due to loss of power, protocol was not followed by respondent. Respondent had asked if it was necessary to take fecal samples in addition to the required chlorine residual samples every 15 minutes due to the hypo interruption. Because they had not fallen below .5, respondent determined that the sample was not necessary. Respondent’s subordinate did not log the readings as protocol, respondent counseled him in the necessity of doing so.
Respondent stated that he should not be punished as he was following the recent training where a fecal sample should be taken when the chlorine residual is under .5 mg/L. Petitioner could not prove that the respondent was given the accurate information, that the fecal sample should be taken when the chlorine residual is at or under .5mg/L. As well, the ALJ stated that a supervisor can not be held strictly liable for the acts of his subordinates. Therefore, the ALJ found the charge was without merit.
ALJ recommended that all charges be dismissed.
The Commissioner agreed with the ALJ recommendation except concerning the first incident. Commissioner found that respondent was careless and even negligent. Where a subordinate asked for guidance, “Giving his subordinated inaccurate instructions that run afoul of the Agency’s regulatory commitments is not reasonable.” The Commissioner recommended a 6 day suspension without pay.