Punishment for praise
The state Department of Transportation planned to fire its top official in Essex County for granting an interview to this Enterprise reporter about the department’s response to Tropical Storm Irene without the approval of his agency’s communications office.
Mike Fayette, a 29-year DOT employee, opted to retire earlier this month rather than fight the charges, which stemmed from a story in which he heaped praise on his agency. Fayette doesn’t deny speaking to the press without getting the proper approval, but he says he was singled out for something he and other DOT employees have done frequently in the past with no repercussions, let alone the threat of getting fired.
“I am the only person that this has happened to,” Fayette said. “What I tell people now is, it’s a story that you just can’t believe. It’s just so incredible that you’d think you were making it up.”
It’s a case that illustrates how far the state sometimes goes to limit its rank-and-file employees – those who have direct knowledge and expertise in their particular fields – from communicating with the press, and therefore, the public.
Calling it a “personnel matter,” a DOT spokesman refused to answer questions about Fayette’s case and why it pursued what some say was a rare, “shocking” and severe penalty against him.
However, in the discipline notices the agency sent to Fayette, which he provided to the Enterprise, the department says a prior disciplinary action against Fayette – he said he and another DOT employee carried on a relationship on state time and using state computers and cell phones – played a role in pursuing his termination.
Fayette started working for DOT in 1983. He became the department’s Essex County resident engineer in January 2005, overseeing road and bridge projects and all DOT maintenance personnel in the county. Fayette lives in Alexandria Bay but had an apartment in Port Kent where he stayed during the work week.
DOT’s disciplinary case against him stems from an Aug. 30 Enterprise article that was part of a one-year anniversary series on Irene. This reporter had emailed DOT spokeswoman Carol Breen, who works in Albany, on Aug. 21, asking to interview department employees who were on the ground when the storm hit Essex County.
On Aug. 27, Breen still hadn’t responded, so I emailed her again and called Fayette. He said he’d be willing to talk, and met me that day at his agency’s Ray Brook station. Fayette says he remembered telling me over the phone that he would first need to contact DOT’s communications office, although I didn’t recall him saying so until the next day, when I called him with a follow-up question.
Fayette said Friday he agreed to talk to the newspaper for the Irene story because of some of the critical media coverage, including an Enterprise editorial, DOT received that summer over the repaving of state Route 86 between Saranac Lake and Lake Placid.
If he didn’t agree to the interview, Fayette said, he was afraid the newspaper would accuse DOT of “blowing off” the request and it would lead to more bad press for the agency.
“I was afraid for the DOT,” he said. “I was worried that Carol had not gotten back to you. So I said, ‘OK, we’ll just talk.’ And we did.”
In the story, titled “DOT engineer on Irene: ‘We were up for it,'” Fayette spoke about the challenges of responding to what he called the worst infrastructure devastation he’s seen in his career. None of his quotes were controversial or in any way critical of his agency; rather, he praised it highly.
On Sept. 5, Fayette received the first of what would be several certified letters from DOT’s Employee Relations Bureau. It ordered him to report to the agency’s main office in Albany on Sept. 12 for “a disciplinary interrogation,” though it didn’t say why.
He came to the interrogation with a representative of the Organization of NYS Management Confidential Employees, a nonprofit group that advocates for non-union management-level employees like Fayette. At one point during the proceeding, Fayette said he was handed DOT’s “News Media Contact” policy, which says approval of the agency’s public affairs office is required “for any oral or written statement given to news media representatives.”
Fayette said he was also shown copies of an email exchange between him and Breen on Aug. 28, when she told Fayette not to speak with the Enterprise for the Irene story because DOT Commissioner Joan McDonald planned to do so on her own. However, that email exchange occurred after this reporter had already interviewed Fayette.
Two days after he was questioned, on Sept. 14, Fayette received a second certified letter from DOT. It said the agency had begun a disciplinary action against him for “actions constituting misconduct and/or incompetence.” If found guilty of the charge, “the penalty exacted against you will consist of termination,” the letter reads.
“I couldn’t believe it,” Fayette said. “I contacted my OMCE people about it, and everybody was flabbergasted by this, saying ‘What in the heck is this all about?'”
The letter says Fayette disobeyed a written directive issued by Breen on Aug. 28 not to speak with the Enterprise about the Irene anniversary, actions that “disrupted the commissioner’s intent to conduct the interview herself.”
DOT subsequently sent Fayette two amended disciplinary notices – on Sept. 17 and Sept. 28 – that corrected and clarified information in the case. The third notice says Fayette violated policy during late August by speaking with the media without permission from the agency’s communications office. It also said Fayette didn’t tell Breen, when she issued her directive, that he had already talked to the newspaper.
Under state Civil Service Law, Fayette could contest the charges at a disciplinary hearing, which he initially planned to do. He reached out to several Essex County supervisors and state legislators, many of whom agreed to testify on his behalf as character witnesses.
Contacted for this story, those elected officials spoke highly of Fayette and said they were amazed that he was being disciplined so severely.
“I was surprised that they were considering letting them go over that,” said Moriah Supervisor Tom Scozzafava. “I’ve worked with Mike for a number of years. I’ve always had a good working relationship with him.”
“I was kind of shocked,” said Essex County Board of Supervisors Chairman and town of Jay Supervisor Randy Douglas. “He told me he was in trouble for the article. I read the article again and said, ‘Jeez, it doesn’t look like you did anything damaging; you praised everybody up.'”
Douglas said he agreed to testify at the hearing. At one point, Douglas said he even contacted the governor’s office to speak on Fayette’s behalf, but was told it was “a personnel matter that they were handling through the New York state DOT and they couldn’t comment any further.”
Just days before the hearing, this reporter was contacted by Fayette’s attorney, John Saccocio, who said I may be called to testify over the phone. He said DOT was taking the issue very seriously, even though Fayette didn’t say anything inflammatory in the Irene story.
“It’s a pro-DOT article,” Saccocio said. “He didn’t take a shot at anybody. He didn’t say anything that should cause any concern for the agency. I think it’s just a question of who gets to talk, and apparently that’s a mighty, mighty serious issue as far as they’re concerned in this case.”
On Dec. 3, the state made a settlement offer. Fayette could accept a permanent demotion and relocate to the agency’s Albany office.
Fayette turned it down. He said he couldn’t afford to the demotion, which would have cost him several thousands of dollars a year in salary, and couldn’t afford to move. He could still go through with the hearing, but he said there was no guarantee that he wouldn’t lose his job when the proceeding was over.
That’s when Fayette started thinking about retirement. He was 55 years old at that point and just a few months shy of 30 years of state service.
“I said to my attorney, ‘I don’t want to put people through all this, all these people who’ve said they want to speak on my behalf. It could be all for naught and this blows up in my face.’ So I said, ‘I’ll have 30 years in mid-January; I can retire.’ I could have fought it, but I just wanted to move on.”
The hearing was called off and Fayette submitted his letter of resignation on Dec. 10. His retirement date was set for Feb. 8.
But Fayette’s ordeal wasn’t over. On Jan. 3, he got another letter from DOT. It said he was suspended without pay “for acts of insubordination and failure to comply with settlement terms previously agreed upon.”
Fayette learned it had to do with an article that appeared in the Dec. 31 issue of the Plattsburgh-based Press-Republican newspaper.
The story, written by Lohr McKinstry, was based on comments Fayette made at a Nov. 19 Essex County Board of Supervisors meeting. Fayette told the Enterprise that his boss, Region 1 Operations Director Michael Johnson, had asked him to get the word out to county officials that DOT’s 24-hour “radio watch” dispatching system was being moved from Elizabethtown to DOT’s transportation maintenance center in Saratoga County.
Fayette said county Emergency Services Director Don Jaquish had asked him to speak at the meeting. He didn’t know McKinstry was in the audience taking notes.
“I did exactly what I was told to do,” Fayette said. “I was there at the behest of my boss. I didn’t get interviewed by the reporter.”
After he explained to his boss what happened, Fayette received an amended version of the Jan. 3 letter. It said he would still be suspended until his Feb. 8 resignation date but could use accrued leave time until then.
Douglas said he was surprised to hear Fayette got in trouble for the Press-Republican article.
“I think that’s the resident engineer’s job to come and let the Board of Supervisors know what projects are happening in our towns and what procedures are in place,” he said.
Others who are more familiar with the state’s personnel policies said they’ve never heard of a state employee facing such harsh sanctions for talking to the press.
“I’ve been around for 26 years and I don’t remember any single situation where anyone’s been brought up on charges for speaking to the press from our ranks,” said Civil Service Employees Association union spokesman Stephen Madarasz. “But there is a distinction between a management person versus a union person. If you’re in a management confidential position (like Fayette), you have to follow orders. There’s a strict hierarchy, and if they didn’t want him talking to the press, then it is what it is.”
Over the last few months, Fayette said he’s heard from people involved in his case that there’s “something more” behind DOT’s attempt to fire him, “but nobody elaborates what that ‘something more’ is.”
In determining the penalty against him, DOT officials wrote that Fayette’s past disciplinary history was taken into account. They cited a prior case against him, dating to March 2011, when he was charged with misuse of the Internet, email, a department vehicle and Blackberry, theft of service and falsification of time sheets.
Fayette said the case stems from a relationship he had with another DOT employee. He said it’s the only other time in his DOT career that he’s been disciplined.
“I stupidly used my state computer and Blackberry to send messages back and forth to this woman,” he said. “They suspended me for 10 days, and they fined me 10 days’ pay. I’m not defending myself for that poor choice, but there are state employees who meet future spouses on the job and send personal emails every single day.”
In January, Fayette sent letters to Gov. Andrew Cuomo and the state inspector general’s office asking them to investigate his case. In one of the letters, Fayette writes that there’s a “rogue element” within DOT “that is seriously abusing their power over fellow NYSDOT personnel.”
Yet despite what’s happened, and despite the fact that he agreed to retire, Fayette has asked for reinstatement.
“I was forced to retire,” he said. “I also want my vacation time back that they forced me to burn up for something I didn’t do. It certainly would be nice to have a letter of apology for putting me through this. I’m just looking for things wrong to me to be made right.”
The state doesn’t appear to be interested. Fayette’s letter to the governor was forwarded to DOT for a response.
“You have resigned from the Department of Transportation as a settlement in the face of official misconduct charges,” Assistant Commissioner Peter J. Snyder said in a Feb. 1 letter to Fayette. “The Department has accepted your resignation and will not re-consider its position, no matter how and to whom you misrepresent what department officials have said to you, or the fundamental facts of your case.”
Contact Chris Knight at 891-2600 ext. 24 or firstname.lastname@example.org.