Due process - GPS monitoring of state employee

From the New York Law Journal, "Panel Backs Use of GPS Device on State Worker's Personal Car" by John Caher, reviewing Cunningham v. New York State Dep't of Labor, N.Y. App. Div. 3d Dep't, No. 512036, Nov. 23, 2011. Opening paragraphs:

The state Inspector General's placement of a GPS tracking device on the private vehicle of a government employee suspected of falsifying attendance records did not violate the employee's rights, a deeply divided appeals panel held Wednesday.

The Appellate Division, Third Department, which was previously reversed when it upheld the warrantless use of a GPS device to track a criminal suspect, said the electronic surveillance was justified and reasonable in this civil matter because traditional methods, such as following the employee, had been thwarted.

But a two-judge dissent said the government went too far and tracked the employee's movements not only when he was supposed to be working, but when he was on a family vacation.

This is a civil matter, no criminal charges involved. The employee was fired. So we are dealing here with a matter of due process. From the opinion:

A search conducted by a public employer investigating workrelated misconduct of one of its employees is judged by the standard of reasonableness under all the circumstances, both as to the inception and scope of the intrusion. Closely related, but typically applied when the search was conducted by an entity other than the administrative body seeking to use the evidence in a disciplinary proceeding, is the exclusionary rule in the noncriminal context; such rule is applied by balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth. In noncriminal proceedings, the clarity of the law at the time the governmental official acts can be pertinent to the reasonableness of the action and the deterrent effect.

Slip op. at 4 (citations and quotation marks omitted). From the article:

Justice Lahtinen said that due to Mr. Cunningham's prior disciplinary record, officials had a "reasonable suspicion" of continuing misconduct and had an obligation "to curtail the suspected ongoing abuse of work time not only to preserve its integrity, but also to protect taxpayers' monies." He said the means of pursuing that mission—installation of a GPS on an employee's personal vehicle—was reasonable.

"To establish a pattern of serious misconduct…it was necessary to obtain pertinent and credible information over a period of time," Justice Lahtinen wrote. "Obtaining such information for one month was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonwork-related ventures during work hours."

Two justices dissented, giving the employee a right of appeal to the N.Y. Court of Appeals. The case was decided under the New York Constitution, not the U.S. Constitution. With such a strong dissent and a recent New York decision requiring a warrant for GPS tracking in criminal cases (People v. Weaver, 12 N.Y.3d 433 (2009)), it will be interesting to see what the N.Y Court of Appeals does with this. EMM