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Torres v. Sussex County Council

Superior Court of Delaware

November 14, 2013

Ismael Torres, Jr.
Sussex County Council and the Unemployment Insurance Appeal Board

Date Submitted: July 30, 2013

Dear Counsel:

This is my decision on Ismael Torres's appeal of the Unemployment Insurance Appeal Board's denial of his claim for unemployment benefits. Torres was employed by Sussex County as a Deputy Sheriff. Torres's primary job was to serve legal papers for the Sussex County Courts. Torres used a County vehicle to do his job. Torres's vehicle was equipped with a personal computer that he used to log his daily activities. Torres would record, among other things, when and where he served legal papers. Torres's vehicle was also equipped with a GPS device that automatically recorded his vehicle's location, speed, odometer values, and when the vehicle's motor was turned on or off. The County equipped approximately 40 of its vehicles with GPS devices. These vehicles were mostly used by employees whose jobs required them to spend a large amount of their work day on the road.

Torres attended a County Council meeting while on duty on March 27, 2012. County policy provides that the Deputy Sheriffs are not to attend County Council meetings while on duty unless they are there on official business. Torres was not at the meeting on official business. However, when Torres submitted his weekly overtime report it included the time he spent at the County Council meeting on March 27, 2012. This prompted the County to investigate Torres's overtime reports. The investigation compared Torres's daily logs to his vehicle's GPS data. This comparison showed that Torres was not working when he claimed to be and that he was inflating his overtime. The County then terminated Torres. Torres then filed a claim for unemployment benefits.


Todd Lawson, Hal Godwin, Karen Brewington and Chris Ransom submitted testimony to the Board for the County.[1] Lawson is the County Administrator. Godwin is the Deputy County Administrator. Brewington is the Director of Human Resources for the County. Ransom works for Network Fleet, a designer and manufacturer of GPS hardware and software and the provider of GPS services to the County. Jeffrey Christopher is the County Sheriff. Christopher submitted testimony to the Appeals Referee for Torres. Torres also submitted testimony to the Appeals Referee.

Lawson testified about the County's fleet of vehicles, the GPS system, the County Council meeting on March 27, Brewington's investigation of Torres's overtime reports, and the County's testing of the GPS device in Torres's vehicle before it terminated Torres. The County has approximately 40 vehicles that are equipped with GPS devices. The County Council decided to install GPS devices in those vehicles used by County employees who spent a significant portion of their work day on the road. This allowed the County to monitor the activities of those employees. The GPS system is provided by Network Fleet, a subsidiary of Verizon. This matter began when Lawson received a request for overtime compensation from Torres for attending the County Council meeting on March 27. The subject of the meeting was the Sheriff's Office. The County Council and the Sheriff were apparently at odds over the Sheriff's proper duties. Lawson thought that Torres's request for overtime was odd because Torres was not at the meeting on official business and thus should not have been compensated for the time he spent there. This prompted Lawson to direct Brewington to investigate Torres's overtime reports. Brewington's investigation disclosed that Torres was inflating his overtime. Lawson directed Godwin to test Torres's GPS device to see if it was working properly. Godwin's test concluded that it was working properly. Lawson then terminated Torres.

Brewington testified about her investigation of Torres's overtime reports. Brewington examined Torres's reports for the time period from February 27, 2012 to April 27, 2012. Brewington compared Torres's daily log sheets and overtime reports to the GPS reports. Brewington found conflicts and other problems for eight of the days over the two month period of time. For example, in a number of instances, Torres's logs showed that he was out serving papers when the GPS reports showed that his car was still in his driveway at home. The GPS reports also showed that Torres's car had spent a substantial amount of time idling at his home and other locations where his relatives and friends were either living or working. Brewington also testified that the Deputy Sheriff who took Torres's vehicle after he was terminated did not have any problems with the GPS device in it and that the County did not have any other vehicles with problems with their GPS devices or batteries or alternators. Brewington's investigation also discovered that Torres had received over $6, 000 in overtime, which was substantially more than every other deputy, and that he had wrongly claimed $785 in overtime.

Godwin testified about the County's fleet of vehicles and the test he conducted on Torres's GPS device before Lawson terminated Torres. Godwin manages the County's fleet of vehicles. On April 30, 2012, Godwin and Torres drove around in Torres's vehicle, going to many of the places that Torres visited regularly. Godwin drove and recorded the places visited, time of visit, and speed of the vehicle. Torres acknowledged that Godwin's log was accurate, but refused to sign it. After finishing the test drive, Godwin compared his log to the GPS report for the test drive. He told the Board that his log and GPS report were accurate to within a few feet and one mile per hour. Godwin and Brewington did a second test on a different deputy's vehicle on May 11, 2012. The results were the same. Godwin told the Board that no other County employees had complained about the GPS devices in their vehicles. Godwin also told the Board that Network Fleet had examined the GPS system and concluded that it was working properly.

Ransom testified about the background of Network Fleet, how GPS systems work, and about some of the specific issues raised by Torres. Network Fleet has GPS devices in 2, 500 cars for the State of Delaware, 100 for New Castle County, 700 for Del-Dot, and 200 for the Delaware River and Bay Authority. Ransom testified that the GPS device is connected to the vehicle's engine computer. The GPS device gathers information on the vehicle's speed and odometer values, which are then transmitted by satellite. When a vehicle is turned on, the GPS device gathers a date and time stamp from the satellite and logs the vehicle's location. When a vehicle is turned off, the GPS device logs that information as well. Ransom testified that the GPS device reports its location every two minutes. As for location accuracy, Ransom testified that the GPS device is precise down to a 15-20 meter area. Ransom testified about "GPS drift." This is a situation where the location of the vehicle can change up to 15-20 feet without the vehicle ever actually moving. Since the GPS device is connected to the engine computer, the speed the engine shows is the speed that is reported. The speed is then sampled inside the two minute reporting period. Ransom testified that less than one percent of the GPS devices fail. Ransom also testified that if a GPS device fails, the GPS device will not continue to record information. After reviewing all of the GPS data, Ransom testified that he had no doubt that the GPS device in Torres's vehicle was providing accurate information.

Christopher offered explanations for why Torres might have so m u ch overtime. Christopher told the Board that Torres, as a new deputy, needed a lot of training. Christopher added that Torres served legal papers for Family Court, which had many time-sensitive legal papers that had to be served with little notice, and that Torres was also responsible for a large geographic area. Christopher also added that he thought the GPS reports were wrong because he had checked with some people, including the Bridgeville Police Chief, and verified that Torres was where he said he was on his daily logs. Christopher told the Board that he thought the County was trying to terminate Torres because he was in a dispute with the County over his authority and that this was a way to get at him.

Torres offered some explanations for the various things uncovered by Brewington's investigation. Torres's vehicle had a lot of idling time because he had to leave it idling so that he could work on his computer without running down the vehicle's battery. Torres also explained that he had a lot of overtime for the same reasons Christopher discussed. Torres said he took his vehicle to a friend's place to be fixed because he was having problems with either the battery or alternator. Torres did acknowledge that he understood that he was not to appear at County Council meetings in uniform unless he was on official business.

The Board found that the GPS device in Torres's vehicle was reliable and that Torres's effort to wrongly claim overtime compensation constituted "just cause" for his termination and that he was therefore disqualified from the receipt of ...

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