Dep t of Sanitation v. Cassar OATH Index No. 468/11 (Jan. 13, 2011)

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1 Dep t of Sanitation v. Cassar OATH Index No. 468/11 (Jan. 13, 2011) Petitioner failed to prove that sanitation worker removed trade waste or violated trade waste order when he and a co-worker picked up six garbage bags placed out for collection in front of a home and then picked up four more garbage bags that the homeowner brought out to the street. Evidence failed to show that the bags contained trade waste or that respondent should have concluded that the bags contained material that required notification of a supervisor prior to removal. Dismissal of charges recommended. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF SANITATION Petitioner - against - DOMINIC CASSAR Respondent REPORT AND RECOMMENDATION KEVIN F. CASEY, Administrative Law Judge Petitioner brought this employee disciplinary action under section of the New York City Administrative Code, alleging that respondent, sanitation worker Dominic Cassar, violated the Department s trade waste policy (ALJ Ex. 1). General Order (Dec. 24, 2001); Dep t of Sanitation Code of Conduct (Mar. 1, 2002). At a three-day hearing, petitioner presented videotape evidence, documentary proof, and the testimony of Superintendent Charles Burge. Respondent testified in his own behalf, produced documentary evidence, and presented testimony from supervisors Donald Fitzpatrick and Alan Lamm. For the reasons below, I find that petitioner failed to prove that respondent committed misconduct and recommend dismissal of the charges.

2 - 2 - ANALYSIS Petitioner alleged that respondent and co-worker Joseph Kruszewski violated the Department s trade waste policy when they serviced a home along their route on Whitehall Terrace in Queens on May 19, There is no dispute about the material facts. Videotape evidence showed that the homeowner handed money to Kruszewski. 1 When Kruszewski took the money, his back was to respondent who was down the block, several houses away. After Kruszewski accepted the money, respondent helped him pick up six garbage bags that the homeowner had left at the curb for collection. Meanwhile, the homeowner went to the side of his house with a wheelbarrow and brought four more garbage bags to the middle of the street. Respondent helped toss those additional bags into the collection truck (Pet. Ex. 3). Prior to the hearing, petitioner withdrew an allegation that respondent accepted a gratuity (ALJ Ex. 1; Tr. 4). At the end of the hearing, petitioner also conceded that respondent did not commit misconduct when he picked up the six bags left at the curb for collection (Tr ). However, petitioner claimed that respondent violated the trade waste policy when he helped pick up the four additional bags that the homeowner wheeled out to the street (Tr. 780). The Department s trade waste policy, set forth in General Order , in relevant part, defines trade waste as: 3. Any material originating from the alteration, construction, repair or maintenance of a residential building ( work ), which was performed for a fee, by a contractor or any person engaged in the home improvement business ( Contractor ). Such material may include, but is not limited to cement, concrete, lumber, plasterboard, plaster, rock, or timber ( Construction Debris ). 4. Any grass clippings and tree limbs or branches ( Grass Clippings ) originating from work performed by a commercial landscaper or gardener ( Landscaper ) on a residential property. General Order at II (2)(A). A collection crew may service a stop on its route where there are six boxes, bundles, and cans of Construction Debris that may be considered Trade Waste or Grass Clippings, if the material is put out for collection at a curb adjoining a residential building and work is not being performed by a contractor or a landscaper. Id. at III(A) and IV(A). However, if there are more than six bags, boxes, bundles, or cans of Construction Debris that may be considered Trade Waste or Grass Clippings placed out for 1 Disciplinary charges against Kruszewski are pending.

3 - 3 - collection in front of a residential building, the collection crew may not service the stop and must report the stop to a section supervisor for investigation. Id. at III(B) and IV(B). A key issue in this case is whether petitioner proved that respondent knew or should have known that the four additional bags wheeled out by the homeowner contained Construction Debris that may be considered Trade Waste or Grass Clippings originating from work performed by a commercial landscaper or gardener. Based upon the evidence presented at the hearing, petitioner failed to meet its burden. Petitioner s case rested primarily on videotape evidence and testimony of Superintendent Burge, who has 17 years experience in the Department s investigations unit (Tr. 20, 95). On May 8, 2008, Burge investigated a homeowner complaint (Tr , 155). Burge spoke to the homeowner who said that he had performed major yard work, leveled his lawn, and generated approximately 120 bags of debris (Tr. 149, ). The homeowner said that, on successive Mondays, he put out 20 bags of dirt for collection and had paid sanitation workers $10 to $30 (Tr. 46). On the most recent Thursday, however, the homeowner put 12 bags out for collection and the sanitation workers failed to pick them up, prompting the homeowner to make a complaint (Pet. Ex. 1; Tr ). Burge inspected the premises and verified that the material was not trade waste (Tr. 150). On Monday, May 12, 2008, Burge conducted surveillance outside the homeowner s residence on Whitehall Terrace. He video recorded Kruszewski and another sanitation worker as they failed to pick up 16 bags that the homeowner had left out at the curb for collection. Although Burge s written report indicated that Kruszewski worked with respondent on May 12, 2008, Burge testified that he was mistaken and that Kruszewski worked with someone other than respondent that day (Pet. Ex. 1; Tr. 192). Burge also inadvertently destroyed that video when he later attempted to transfer it to a different format (Tr , 167). Based upon his observations, Burge issued a complaint to a supervisor named Perez, who failed to report uncollected material left at the curb and for failure to speak to the homeowner about bulk material (Tr ). The next Monday, May 19, 2008, Burge parked an unmarked surveillance van a few feet from the homeowner s driveway (Tr. 57). At the curb, the homeowner left out six dark green or black garbage bags for collection. Burge kicked the bags to confirm that they contained dirt (Tr , 162). For the most part, Burge referred to bags contents as dirt but he also referred to it as lawn-type material (Tr. 46, , 151, 153).

4 - 4 - From inside the van, Burge video recorded respondent and Kruszewski servicing the one-way, dead-end block (Tr. 58). As respondent drove the truck in reverse, Kruszewski walked on the left side of the street and loaded the truck. Kruszewski walked past six bags put out for collection by the complaining homeowner (Tr. 59, 271). The homeowner said something to Kruszewski, who replied, I m not going to lose my job for $20 or I m not getting in trouble for $20 (Tr. 59). Due to the truck noise, the audio recording is unclear (Tr. 70; Pet. Ex. 3 at 5:15-5:17). Kruszewski continued to service the left side of the street (Tr. 59). Supervisor Fitzpatrick arrived on the scene after the truck stopped at the end of the block. Fitzpatrick got out of his car, spoke with one of the sanitation workers, signed the DS-350 activity card, and left the scene (Tr. 60, 71). Kruszewski entered the left side of the truck and drove away from the dead end as respondent serviced the right side of the street. Kruszewski stopped the truck next to the six bags that he did not collect and spoke to the homeowner again. Meanwhile, respondent walked up the street and rolled out garbage cans (Tr. 61, 72-73, 76, 327, 330; Pet. Ex. 3 at 9:44, 11:28). Due to the truck noise, Burge could not hear the entire conversation between Kruszewski and the homeowner (Tr. 328, 331). Kruszewski eventually got out of the truck and continued to speak with the homeowner, who handed him approximately $30 in cash (Tr. 63, 75; Pet. Ex. 3 at 11:32-11:48). When he took the cash, Kruszewski was facing Burge and the video camera, but his back was to respondent who was down the block, several houses away (Tr. 339; Pet. Ex. 3 at 11:32-11:48). Kruszewski pocketed the cash and turned his back to the camera as respondent walked towards the truck (Tr. 339; Pet. Ex. 3 at 11: 50-53). Respondent crossed the street and helped Kruszewksi load six garbage bags into the truck (Tr. 64, 78, 187, 336, 341; Pet. Ex. 3 at 11:56). The bags appear to be heavy and the sanitation workers dragged them a few feet from the curb to the back of the truck (Pet. Ex. 3 at 12:15-12:35). As the sanitation workers loaded the sixth bag, the homeowner brought more garbage bags to the back of the truck in a wheelbarrow (Tr. 64; Pet. Ex. 3 at 12:39). Respondent and Kruszewski loaded those additional garbage bags on to the truck (Pet. Ex. 3 at 12:45-12:52). It is unclear from the video, but it appears that the wheelbarrow contained approximately four garbage bags (Tr. 342; Pet. Ex. 3 at 12:38-12:51). Kruszewski and respondent resumed the route for a few more houses until Burge approached and told respondent to stop loading the truck (Tr. 65; Pet Ex. 3 at 13:55). Burge

5 - 5 - spoke to Kruszewski and confronted him about the money and the bags (Tr. 66). However, Burge did not have a conversation with respondent (Tr , 346, 348). Burge reviewed the DS-350 Card for the truck and noted that it did not contain any authorization to pick up additional material on Whitehall Terrace (Tr. 87; Pet. Ex. 4). He spoke to the section supervisor, Fitzpatrick, who said that he had not authorized collection of additional material on Whitehall Terrace (Tr. 87, 228, 392). Burge wrote a complaint against Fitzpatrick for failing to notice the six uncollected bags that he passed when he drove to and from the dead end of the street, when he signed the DS-350 card (Tr. 405). Burge told Fitzpatrick, We ve got a situation here because you didn t do your job (Tr. 431). According to Burge, Fitzpatrick should have noticed the uncollected six bags when he drove down the dead-end street to sign the DS-350 card and he should have escorted the sanitation workers back to the location to pick up the material (Tr. 431). Before they were stopped by Burge, respondent and Kruszewski had serviced nearly half their route and collected more than three tons of garbage, most of which was in green or black bags (Tr ; Pet. Ex. 3 at 19:00). After Burge stopped the truck, it was taken to another location and unloaded (Tr ). At Burge s direction, more than two dozen dark bags were cut open and inspected. Many bags contained smaller bags of ordinary household garbage, such as food scraps (Pet. Ex. 3 at 20:16-20:20). Eventually, Burge separated 15 of the heaviest bags from the rest of the load (Pet. Ex. 3 at 20:40-31:00). Some of those bags had sticks and grass (Tr. 363). Several bags appeared to contain sod and dirt (Pet. Ex. 3 at 22:58, 29:15-31:00). While he was recording the video, Burge said that there were seven bags removed from the curb before the homeowner wheeled out additional bags (Pet. Ex. 3). Also, in his initial report of the incident, Burge estimated that respondent and Kruszewski collected a total of 13 to 15 bags from the curb and the wheelbarrow (Tr. 366; Pet. Ex. 1). However, after reviewing the video at the hearing, Burge conceded that there were only six bags at the curb (Tr. 171, 187). He also testified and the combined number of bags loaded from the curb and wheelbarrow was nine or ten (Tr. 367). Thus, it is uncertain which, if any, of the 15 heaviest bags that Burge later opened and inspected were actually collected on Whitehall Terrace. Respondent testified that he worked his entire career in Queens Section 8 after the Department hired him in 2004 (Tr. 709). He was a recipient of the Department s Bronze Medal of Valor for coming to the aid of a motorist and he is presently a shop steward (Tr. 710, 774). In

6 - 6 - May 2008, respondent did not have a steady route or regular partner (Tr ). Prior to May 19, 2008, he had never worked with Kruszewski (Tr. 713). On May 19, shortly after the morning break, respondent backed down Whitehall Terrace while Kruszewski serviced the left side of the street (Tr ). Respondent concentrated on driving in reverse between parked cars on both sides of the truck (Tr. 724, 751). After backing up past the home with six bags at the curb, respondent realized that Kruszewski had skipped the spot (Tr. 732, 753). At the end of block, when they switched places, respondent asked Kruszewksi why he had skipped a spot. Kruszewski shrugged his shoulders and said that the homeowner was an asshole (Tr. 757). Respondent, the junior person on the crew, did not make an issue of it; he was not going to cross the street and show up the more senior partner by picking up the material because it probably would have caused some problems (Tr ). When Kruszewski stopped the truck to speak with the homeowner, respondent went down the street and rolled cans out (Tr. 755). Because of the truck noise, respondent could not hear what Kruszewski and the homeowner said (Tr. 735). Respondent credibly testified that he had no knowledge that the homeowner gave money to Kruszewski (Tr ). As respondent walked back towards the truck, Kruszewski nodded to give him a hand (Tr. 736, 756, 760). Respondent testified that it was taking a lot of time to service the block and I was getting a little antsy (Tr. 761). When he picked up the bags from the curb, respondent could tell that the contents were soft and he knew it wasn t wood or rock (Tr. 736). Respondent has serviced that home only once before, on the preceding Thursday, and he recalled picking up less than ten similar garbage bags (Tr. 714, 727, 764). After respondent and Kruszewski loaded the six bags from the curb to the truck, the homeowner brought out four more garbage bags in a wheelbarrow (Tr. 737). Respondent testified that he did not see any commercial activity, he had no notice that this was a problem location, he had no conversation with the homeowner, and he did not know what was in the bags (Tr. 727, 737, , 760, 766). Asked why he took the additional bags, respondent replied, Because it was there and there was not an excessive amount of material at the curb (Tr. 737). Respondent testified that his immediate supervisor, Fitzpatrick, and the district superintendent expected sanitation workers to have everything off the street and collect material left out by homeowners (Tr. 717, ). According to respondent, he learned of his

7 - 7 - supervisors expectations through trial and error (Tr ). If he called Fitzpatrick for approval to pick up seven to ten bags, and was told to pick up the material, respondent knew what was expected (Tr. 746). In fact, on the morning of May 19, 2008, respondent noted that there were 15 to 20 bags at another location (Tr ). He brought that location to Fitzpatrick s attention and received written approval to service that stop (Tr ; Pet. Ex. 4). Donald Fitzpatrick, a supervisor for 15 years, described respondent, as an excellent worker (Tr , 463). Fitzpatrick recalled driving down Whitehall Terrace on May 19 and speaking with Kruszewski at the end of the block (Tr. 486, ). Fitzpatrick wrote on the DS-350 card that it was okay to service another location that respondent had asked him to check for possible trade waste (Tr , 555; Pet. Ex. 4). Fitzpatrick had no prior knowledge of any problem location on Whitehall Terrace and he did not notice the six bags by the curb when he passed them (Tr. 497, , ). After reviewing the video evidence, Fitzpatrick did not see anything wrong with picking up the six bags at the curb (Tr ). Moreover, Fitzpatrick testified that the four black bags brought out by the homeowner appeared to be regular household refuse, which the crew was allowed to pick up (Tr. 642, ). Even if the four additional bags were on the curb, Fitzpatrick would expect the crew to pick them up (Tr ). Noting that there could be 101 things in those bags, Fitzpatrick stressed that there was no evidence of commercial activity, sanitation workers were under no obligation to open individual bags, and it was not clear to him that the bags contained anything other than ordinary household refuse (Tr. 581, ). Asked to assume that the bags contained dirt, Fitzpatrick unequivocally testified, Dirt is garbage (Tr. 639). If they got bags of dirt, yeah, throw them in the truck (Tr. 639). Supervisor Alan Lamm, a rotating officer in 2008, testified on respondent s behalf regarding an earlier incident on Whitehall Terrace involving other sanitation workers (Tr. 695). On April 21, 2008, sanitation worker Scilla brought the location to Lamm s attention (Tr. 700). Lamm went to the location, saw more than six bags of material (Tr. 701). There was no sign of any commercial activity (Tr. 701, 705). Lamm kicked the bags and lifted them. The bags appeared to contain dirt. After knocking on the homeowner s door, without receiving an answer, Lamm directed the workers to pick up the bags (Tr ). According to Lamm, if material is

8 - 8 - clearly household waste there is no need to call a supervisor, even if a homeowner has left 10 to 15 bags out for collection (Tr. 705). The amended charge against respondent alleged that he picked up more than six bags of yard debris without authorization, which constitutes a violation of the trade waste order (ALJ Ex. 1; Tr. 4-5). As a preliminary matter, petitioner properly withdrew the claim that respondent received a gratuity. There was no evidence that respondent had anything to do with Kruszewski s acceptance of money from the homeowner. Kruszewski and respondent had never worked with each other before. Respondent did not see any money change hands and he did not hear any conversation between Kruszewski and the homeowner. When Kruszewski accepted the money, his back was to respondent, who was down the block, several houses away. Respondent was too far away to hear any conversation. Burge, who was a few feet away when the homeowner handed money to Kruszewski, could not clearly hear their conversation due to the truck noise. Because respondent was unaware of any illicit payment, the only remaining issue is whether he committed misconduct by assisting in the removal of four additional garbage bags of material that the homeowner wheeled out after the sanitation crew had removed six bags from the curb. The Department does not have a bright line rule that sanitation workers must contact a supervisor before picking up more than six bags of material left at the curb by a homeowner. Burge conceded that sanitation workers could collect more than six bags of household waste from a residence (Burge: Tr. 365). An obligation to contact a supervisor occurs when there are more than six bags, boxes, bundles, or cans of Construction Debris that may be considered Trade Waste or Grass Clippings originating from work performed by a commercial landscaper or gardener, placed out for collection in front of a residential building. General Order at III(B) and IV(B). Furthermore, a charge of employee misconduct may not be based upon strict liability. Dep t of Sanitation v. Burns, OATH Index No. 1322/01 at 7 (June 15, 2001). To prevail, it is not enough for petitioner to show that respondent picked up more than six bags of material that were later found to contain construction debris or lawn clippings. Rather, petitioner must prove by a preponderance of the evidence that respondent knew or should have known that the extra bags contained material that may be considered construction debris or lawn clippings. Compare Dep t of Sanitation v. Taylor, OATH Index Nos /01 at 21-22, 24 (Mar. 29, 2002) (evidence

9 - 9 - that sanitation workers collected three black garbage bags and bottom halves of five plantain boxes, four of which were empty, not enough to prove violation of trade waste order where there was nothing blatantly commercial about the material), with Dep t of Sanitation v. Iannello, OATH Index No. 1978/08 at 3-4, 7, 10 (July 30, 2008) (violation of trade waste order shown where there were obvious signs of construction activity at the premises, homeowner offered a gratuity, and sanitation crew collected at least 15 to 16 and as many as 27 bags of material, including loose wood, plaster, tiles, and sheetrock dust). Here, the evidence fell short of proving intentional or negligent misconduct. There was no indication that the bags contained cement, concrete, lumber, plasterboard, plaster, rock, or timber, items specified in the trade waste order as construction debris. See, e.g., Dep t of Sanitation v. Baran OATH Index Nos /00 at 4 (Feb. 11, 2000) (trade waste violation found, in part, based upon evidence that sanitation workers made ten trips down a homeowner s driveway and removed a variety of loose wood and plasterboard or cardboard, including cans that emitted white dust that was consistent with plaster); Dep t of Sanitation v. Morales, OATH Index Nos. 2184/99 & 2196/99 at 5, 9 (Sept. 24, 1999), appeals withdrawn, NYC Civ. Serv. Comm n Item Nos , (Apr. 10, 2000) (trade waste violation proved in part by large amount of construction debris, including loose wood and tiles, and presence of construction workers at the scene). Likewise, there was no indication that the additional bags contained grass clippings and tree limbs or branches, referred to as grass clippings in the trade waste order, generated by a landscaper. Notably, the amended charge does not refer to construction debris or grass clippings; instead, it refers to lawn debris, a term that is not contained in the trade waste order. To be sure, the list of restricted material in the trade waste order is not all-inclusive. The list of items specifically referred to as construction debris is preceded by the phrase, may include, but is not limited to. General Order at II(A)(3). However, the absence of a specific prohibition against picking up more than six bags of dirt undercuts petitioner s claim that respondent had a clear duty to call his supervisor. 2 2 Petitioner presented evidence that Bureau of Waste Disposal Supervisors assigned to dumping locations are instructed to look for excessive dirt, sheetrock, concrete, bricks, cement, wood, metal, or tile or commercially generated material, such as boxes of fruit, vegetables, or large amounts of car parts (Tr. 383, 389). Operations Order at VI (Sept. 24, 1998). This instruction to supervisors regarding Bureau of Waste Disposal Inspections, which is more specific than the trade waste order, is not enough to put respondent or other sanitation workers on notice that garbage bags containing dirt are presumed to be potential trade waste.

10 As far as respondent knew, he was collecting material from an ordinary private residence on Whitehall Terrace. There was no evidence of any commercial sign, workers, or equipment. Instead, there were six garbage bags at the curb. The bags looked like most of the other garbage that respondent collected that day. Petitioner argued that respondent should have assumed that the bags contained possible trade waste because they were heavy and he had collected similar material the prior week. To begin with, it is unclear whether the additional bags that the homeowner wheeled out were as heavy as the six bags left on the street. The crew loaded the bags directly from the wheelbarrow to the truck. Moreover, an experienced supervisor, Fitzpatrick, reviewed the video and credibly testified that there could be 101 things in the bags, which respondent was under no obligation to open. See Taylor, OATH /01 at (sanitation workers on collection route are not there to conduct an investigation and are expected to pick up material as efficiently as possible ); see also Dep t of Sanitation v. Brooks OATH Index Nos /09 at 9 (Jan. 30, 2009) (sustaining allegation of trade waste violation, based upon presence of sheetrock and large quantity of wood, but noting that sanitation workers are generally permitted to pick up as many bags of garbage that are put out for collection and not expected to open bags). Even if respondent knew that the bags contained dirt, Fitzpatrick expected him to pick them up because, dirt is garbage (Tr. 639, 681). Petitioner s witness supported much of Fitzpatrick s testimony. Superintendent Burge agreed that sanitation workers are not required to open up garbage bags (Tr. 100). He also noted that, on the video, Kruszewski told the homeowner that sanitation workers did not have to pick up dirt. According to Burge, that information was incorrect (Tr. 73, 329). Burge was also uncertain whether dirt was included in the trade waste order (Tr ). When asked whether dirt was covered by the trade waste order, Burge testified, I don t know. I m not sure (Tr ). Pressed on this point, Burge said, I would have to refer to the order first (Tr. 113). If a seasoned investigator was uncertain whether dirt is covered by the trade waste order, then a sanitation worker in the field cannot be held to a tougher standard. There was also credible evidence that respondent s supervisor expected him to collect up to ten garbage bags when there was no evidence of commercial activity. Respondent testified, and Supervisor Fitzpatrick confirmed, that supervisors do not want workers calling for approval every time they come across seven to ten garbage bags in front of a home (Fitzpatrick: Tr. 501-

11 , 516). Fitzpatrick expected workers to use some judgment. He explained that, when workers do not pick up garbage, it often results in needless 311 complaints and a waste of Department resources (Tr. 596, 599). In Fitzpatrick s words, he is not a babysitter and he expects sanitation workers to get the job done and keep the street clean (Tr. 517, , 665). Of course, respondent s supervisors had no power to ignore the trade waste order. See Dep t of Sanitation v. Joyce, OATH Index Nos /00 (Aug. 16, 2000), aff d NYC Civ. Serv. Comm n Item No. CD00-75-SA (Oct. 22, 2001)(workers had some latitude in removing residential bulk material, but supervisor s instruction to collect everything does not authorize violation of the trade waste order, especially where there is an indication that a contractor performed work and generated construction debris). If there was objective evidence of commercial activity, such as the presence of plaster, loose wood, workers, or a sign, respondent had a duty to contact his supervisor. However, where there was no outward evidence of commercial activity, evidence concerning the supervisors expectations sheds light on the issue of whether respondent intentionally, or negligently, committed misconduct when he exercised his professional judgment and picked up four more garbage bags wheeled out by the homeowner. Shortly before this incident, respondent demonstrated his familiarity with the trade waste rules and his supervisors expectations. Before servicing Whitehall Terrace that morning, respondent notified Fitzpatrick that there were 15 to 20 bags at another location (Respondent: Tr: 449; Fitzpatrick: Tr. 414; Pet. Ex. 4). Fitzpatrick investigated the location and gave respondent written approval on the DS-350 to service the stop (Tr. 414; Pet. Ex. 4). This tends to show that respondent is a conscientious worker who follows the rules; it also undermines the suggestion that respondent engaged in misconduct when he tossed four additional garbage bags in the truck. Evidence that another worker reported an excessive number of bags at the home on Whitehall Terrace to Supervisor Lamm in April 2008 does not change the analysis. Such evidence merely shows that, based upon the conditions observed, different sanitation workers could have reached different conclusions. Indeed, at least three supervisors (Lamm, Perez, and Fitzpatrick) inspected Whitehall Terrace in April and May of 2008, when the homeowner put many garbage bags of dirt out for collection. Yet none of those supervisors flagged the material as potential trade waste. This further demonstrates that it was not readily apparent to respondent that the bags contained questionable or prohibited material.

12 With the benefit of hindsight, respondent could have acted differently. When the homeowner wheeled out four more bags, perhaps respondent could have erred on the side of caution, declined to pick up the bags, refused to assist his co-worker, and announced that he needed to contact a supervisor. And respondent could have left the material on the curb until a supervisor had an opportunity to investigate. Respondent s failure to take that alternative action does not mean that he committed misconduct. In summation, petitioner stressed that giving sanitation workers too much discretion poses an integrity risk (Tr ). That is a legitimate concern. However, the trade waste order does not include an ironclad ban on picking up more than six garbage bags without a supervisor s approval. Instead, the order gives workers some limited discretion. On the narrow facts of this case -- where there was absolutely no outward sign of commercial activity, no visible evidence that the bags contained material specifically identified in the trade waste order, and the amount of material did not appear excessive -- petitioner failed to meet its burden of proving that respondent committed misconduct by picking up four additional garbage bags. FINDING AND CONCLUSION Petitioner failed to prove that respondent violated the Department s trade waste order on May 19, RECOMMENDATION I recommend dismissal of the charges against respondent. January 13, 2011 Kevin F. Casey Administrative Law Judge SUBMITTED TO: JOHN J. DOHERTY Commissioner APPEARANCES: CARLTON LAING, ESQ. Attorney for Petitioner KIRSCHNER & COHEN, PC Attorneys for Respondent BY: ALLEN COHEN, ESQ.