Worker fired for theft back on job, city ordered to give back pay
Kenneth R. Naylor, 48, of West Warwick was back to work at the Department of Public Works yesterday, although, depending on the outcome of police charges that he stole equipment from the department, he could be terminated and, in addition, required to refund nine months of pay an arbitrator has demanded that the city pay.
Mayor Scott Avedisian said yesterday that the city requested Council 94 of the American Federation of County, State and Municipal Employees to postpone arbitration until there was a ruling on the charges of theft, but they wanted to go ahead.
In a ruling issued Aug. 7, arbitrator Sharon Henderson Ellis found that the city should not have fired Naylor because the city and union had reached an agreement to suspend him without pay for 20 days.
Avedisian said a decision hasn’t been reached as to whether the city would appeal the arbitration nor has the city calculated what Naylor would be paid. He said the payment amount would have to take into consideration temporary disability insurance and other deductions.
Michael Downey, president of Local 94, said yesterday he was not involved with the case but is familiar with it.
In reviewing the documents, he said that three members of the administration agreed that Naylor was “a highly competent and valuable employee of the department” and that the parties agreed to the suspension without pay.
“Then they unilaterally changed that agreement to a termination,” Downey said. He said that once disciplinary action has been imposed for a particular offense, another penalty for the same offense can’t be imposed.
“The arbitrator agreed it was a case of double jeopardy,” said Downey.
He also said the city did not request that the arbitration be postponed and that, according to testimony during arbitration, Naylor’s termination came in the wake of a “firestorm of public criticism.”
As for Naylor receiving pay for work he did not do, Downey said, “We don’t want people paid for nine months for not doing work.”
He added, however, that the city should have followed the agreement.
Asked whether the city considered creating an escrow account that would hold the payment until Naylor’s case was adjudicated, Avedisian said the arbitrator would not allow it.
In a statement released by his office, Avedisian said:
“While I am tremendously disappointed with this decision, we will be making a number of changes to the city’s personnel policies and procedures to ensure consistent and appropriate disciplinary actions in the future.”
Naylor’s case dates to Sept. 28, 2011, when a police officer, who was conducting surveillance concerning missing city property, reported he saw him unlock the gates to the city yard at about 8 p.m., enter the yard and then leave a short time later. Police said they stopped Naylor near City Hall where they found about $2,000 of city equipment in his pickup truck. The equipment included a chain saw, gas can and pipes, which Naylor said he was “borrowing,” although he had not called superiors to inform them of that.
At the time, acting DPW Director David Picozzi confirmed that employees were allowed to borrow equipment with permission, which was not the case with Naylor, and an agreement was reached with the union to suspend him for 20 days without pay.
In his statement released Tuesday, Avedisian said, when he became aware of the circumstances surrounding the incident, he disagreed with the disciplinary action.
“The city then terminated Mr. Naylor following our internal review of the allegations that were relative to his taking city-owned property,” the statement reads. Charges were brought on Oct. 27, 2011 and Naylor was fired.
Asked whether Naylor could collect unemployment, a spokesperson for the Personnel Department said persons fired are not permitted to collect, however, they can appeal and a ruling could be made on a case-by-case basis. The spokesperson did not know whether Naylor has been collecting unemployment, but if he has, that amount would be deducted from any pay under the arbitrator’s ruling.
Avedisian did not know when Naylor’s case would be heard.
According to Rhode Island Court Records, Naylor is not a complete stranger to police in several communities:
In 1989, Naylor pleaded nolo contendere to trespassing to get a felony larceny charge dismissed in connection with a Cranston arrest.
In 2005, Naylor pleaded nolo to shoplifting and removing a theft prevention sensor from merchandise in July and again pleaded nolo to shoplifting in September. Warwick Police brought both charges.
In December of 2005, Naylor was charged with driving on a suspended license and unauthorized use of official insignia in East Greenwich. He pleaded nolo to the suspended license charge and the insignia charge was dismissed.