Sanman Acquitted of Crime Still Can't Get Job Back

JOHN J. DOHERTY: Reluctant to reinstate Sanman.

The Sanitation Department has refused to reinstate a Sanitation Worker who was fired after he was arrested on murder conspiracy charges despite a State Supreme Court Justice's ruling following his exoneration that the department must reinstate him.

Matthew Silberzweig, who was incarcerated for nearly seven months starting on Aug. 1, 2007, was written up on charges of being AWOL while he was detained in the Metropolitan Detention Center in Brooklyn. Mr. Silberzweig, who moonlighted as a used car salesman, was in a feud with another car salesman whom he allegedly plotted to murder after that salesman informed the Department of Investigation of alleged crimes committed at his second job.

Didn't Respond From Lockup

A week after his arrest, the DSNY issued a complaint to Mr. Silberzweig for being AWOL for five workdays between Aug. 2 and Aug. 8, 2007. A letter said he had not contacted the department to resolve his status or resign.

"According to the department, Silberzweig was given a full and fair opportunity to be heard before his employment was terminated while he was in prison," Justice Alice Schlesinger wrote in her decision.

The department scheduled a hearing for Oct. 31, but asked Mr. Silberzweig to resign in the interim. Although the hearing was postponed to November, the Sanitation Worker never appeared because he remained incarcerated. An Administrative Law Judge assigned to the case found that "an employee's incarceration is actionable as an absence without leave." On Dec. 31, 2007, he was terminated.

On Feb. 4, 2008, Mr. Silberzweig went on trial in Federal court for murder conspiracy charges. On Feb. 13, he was acquitted of all charges and released.

As soon as he was released from prison, his counsel wrote to Sanitation Commissioner John J. Doherty asking for his reinstatement to the department. A week later, the request was denied.

Says Sanit Acted Illegally

Mr. Silberzweig in the lawsuit challenged the decision not to reinstate him, alleging that it illegally imposed a penalty even though no basis existed for a finding of misconduct. His lawyer argued that since he was found not guilty, he could not have committed misconduct, and his incarceration was beyond his control.

In court papers, Mr. Doherty stated for the record, "In reviewing petitioner's request for reinstatement, I found that petitioner had an extensive disciplinary history. Further, petitioner had a record of poor work performance evaluations, and had even been disciplined for violations of DSNY's sick leave policy. As such, I determined that petitioner's request for reinstatement should be denied."

Mr. Silberzweig, who was previously disciplined based on a recommendation by DOI pertaining to his use of Sanitation Department stationery for non-department business, cited past cases where the department had reinstated workers in similar situations, but Mr. Doherty said that those employees had better disciplinary records.

Absence Insufficient Grounds

The court found that the Sanitation Department did not have the right to terminate Mr. Silberzweig based solely on his AWOL status because of incarceration. "If the department is dissatisfied with Silberzweig's performance, it may seek his discharge in accordance with proper procedures," the decision stated. "However, the Commissioner may not circumvent those procedures by denying the employee's reinstatement application in the 'exercise of his discretion.' ''

The judge ruled in February that the Sanitation Department should reinstate Mr. Silberzweig, but the city has yet to do so because it is appealing the decision, according to a spokesman for DSNY, Matthew Lipani. He declined to comment further because of pending litigation.

Justice Schlesinger, who also awarded back pay to the Sanitation Worker, stated, "No misconduct existed which justified the denial of reinstatement once Silberzweig had been acquitted of the charges which had led to his arrest."