Arbitrator finds allegations insufficient to support termination even if proven, orders reinstatement before hearing.

By John H Curley on September 30, 2018

The Nassau County (NY) District Attorney’s office has challenged a decision of Arbitrator John Sands ordering the reinstatement of Investigator (and Local Union President) Michael Falzanaro. Nassau DA challenges ruling that her office improperly disclosed wiretap

The DA’s office had a wiretap in place in connection with an investigation of municipal corruption. In August 2016, while monitoring certain calls pursuant to an eavesdropping warrant, investigators overhead the subjects of the warrant mention grievant’s name. The DA’s office applied for and received permission to amend the original warrant to include grievant and others for violating NY Penal Law prohibiting divulging an Eavesdropping Warrant. In June 2017, a grand jury returned sealed indictments against several individuals, not including grievant. On June 29, 2017 the DA’s Office terminated grievant’s employment.

The termination was based on four specific charges. Those charges read:

1. On or about July 16, 2016 Chief Investigator Daniel Rizzo via a communication email to all Investigators assigned to the Nassau County District Attorney’s Office, instructed that only assigned investigators, having received wiretap monitoring instructions relative to Confidential Investigation PC 16-56, were to be permitted in the hallway outside of the monitoring location in the basement of 272 Old Country Rd., Mineola NY On or about August 22, 2016, Michael Falzarano was in violation of that directive. Again, on or about August 29, 2016, Michael Falzarano was observed in the vicinity of the hallway just outside the monitoring location. Both August incidents were in violation of explicit instructions to avoid the location used to intercept and monitor communications authorized by court-ordered wiretaps.

2. On or about August 15, 2016, Michael Falzarano did have a conversation with a target of Confidential Investigation PC 16-56, in which Michael Falzarano did, in sum and substance, advise the target that the Public Corruption Bureau was conducting an investigation utilizing wiretaps. The substance of that conversation was overheard in a court ordered wiretap, on or about August 18, 2016.

3. On or about March 24, 2017, at a meeting of the Nassau County District Attorney’s Investigators, at which Michael Falzarano was present, said investigators were instructed to make every effort to avoid any contact with either witnesses or juror assembled for the Special Grand Jury to hear evidence for case referenced above. On or about April 5, 2017, Investigator Michael Falzarano disobeyed such directives and was in the vicinity of the Special Grand Jury and a witness for that proceeding.

4. On or about and between August 15, 2016 and February 13, 2017, without good cause and contrary to directives, Investigator Falzarano engaged in a course of conduct seeking to continually interact with investigators assigned to the above referenced investigation in an effort to elicit information regarding the details of the investigation and to influence the investigators’ conduct by referencing prior favorable labor relations between the NCDA investigators staff and the targets.

Ruling on the Union’s Motion to Dismiss, Arbitrator Sands agreed with the Union that the employer violated NY law by divulging the existence and content of the eavesdropping warrant to other than law enforcement officers, including the County’s outside labor counsel, the grievant, the Union and Union counsel, and the Arbitrator. He rejected the County’s argument that the subsequent approval of the County’s ex party request for permission to disclose justified its actions, noting that the request did not cure the earlier violation and allowed the County to “cherry pick” the items it wanted to disclose. He noted further that the legality of the warrant had not yet been resolved in the criminal proceedings that arose out of the indictments, and that Falzanaro had not been indicted in the criminal proceeding, either because “NCDA did in fact seek Falzanaro’s indictment but failed to convince the grand jury or (b) that NCDA did not seek his indictment because it did not believe its evidence provided sufficient support for that effort.” Accordingly, and concluding that evidence unrelated to the warrant could have, but did not, form the basis for discipline (whether or not ultimately deemed supported by just cause) at the time it occurred rather than ten months later, he granted the Union’s motion to dismiss Charges 1 and 2.

Regarding Charges 3 and 4, Arbitrator Sands observed that they related to matters well after the intercepted communications and “it is not clear in either case that the charge rests on excluded evidence or its fruits.” He concluded that “I accordingly cannot dismiss them out of hand without having received evidence to the contrary, which I would expect a hearing to address.”

Nevertheless, he found that the allegations did not support grievant’s immediate termination. On Charge 3, he noted “Even if NCDA were to prove that grievant’s having been ‘in the vicinity’ violated its instruction, I cannot see how that would support the discharge penalty NCDA imposed.”

Similarly, with regard to Charge 4 he found:

Given grievant’s role as president and the issue of NCDA’s potential discrimination in assignments of IPBA Board members, his interacting with bargaining unit members concerning that subject matter and referring to positive labor relations issues would appear to fall within the ambit of protected union activity. To sustain this charge as an appropriate exercise of managerial authority NCDA would have to adduce affirmative evidence of grievant’s improper intent to interfere with the effectiveness of NCDA’s investigation or operation or his actions’ having actually done so. Charge 4 does not reflect such an allegation; indeed, the grand jury did in fact issue the indictments NCDA sought notwithstanding anything grievant had done. I accordingly conclude that Charge 4 too does not support the immediate termination of grievant’s employment that NCDA imposed. I shall therefore direct NCDA to restore grievant to employment with full back pay and benefits during the pendency of this proceeding.

The Nassau County DA is quoted in the article linked above as describing the award as “”really unconscionable.” Her office has argued to the Court that Falzanaro wasn’t fired until after the probe was over, and that the eavesdropping evidence was no longer secret.