Albany

New York's top judges on Wednesday listened to arguments in a workplace surveillance case that, depending on the outcome, could affect the privacy of hundreds of thousands of public employees. The case could set a precedent on the use of electronic tracking devices to trace the movements of state and possibly local government workers.

"You saw the government overreaching by taking some new technology that was very exciting and cheap and easy," New York Civil Liberties Union lawyer Corey Stoughton said following oral arguments at the state Court of Appeals.

She was representing Michael A. Cunningham, a former state labor department training manager who was fired in 2010 with evidence gathered by a GPS device that the state inspector general's office had secretly placed on his privately owned BMW two years earlier.

The GPS was used to track Cunningham's whereabouts for 30 days. He was ultimately terminated after the state convinced an administrative judge he had falsified time records.

On Wednesday, judges appeared to take a keen interest in the case, peppering both sides with questions balancing the right to privacy against the state's duty to ensure taxpayers are getting their money's worth from public employees.

Chief Judge Jonathan Lippman at one point asked if the GPS amounted to a "nuclear option" for management, especially since it remained activated 24 hours a day. The device even tracked Cunningham's vacation with his family in Massachusetts.

Kate Nepveu, the state's lawyer, said that earlier efforts to tail Cunningham using more conventional means fell flat after he spotted his trackers.

She said Cunningham "had a diminished expectation of privacy" since he knew he was under investigation.

Stoughton said the outcome of the case could determine whether the approximately 200,000 people who work for the state could be tracked with GPS or other devices. Cell phones, for example, have greatly advanced since 2008, and many are now equipped with tracking features.

Interest in the outcome of the case goes beyond the state workforce.

"It has the potential to spill over into other areas," said Stephen Acquario, executive director of the state Association of Counties. He attended Wednesday's arguments as an observer.

More Information See More Collapse

Acquario stressed that his organization has no stance on whether public employers such as counties should be able to electronically track employees' whereabouts. "It would vary by county," he said.

In 2011, a lower appellate division court upheld the state's use of the GPS in a 3-2 decision.

In June 2012, the U.S. Supreme Court ruled that police in Washington, D.C., shouldn't have tracked a suspected drug dealer's travels with a GPS, an operation that was done secretly and without a warrant. But that was a criminal and not a civil case.

The NYCLU is arguing that state and not federal constitutional protections were violated in Cunningham's case.

The 61-year-old Colonie man collects a state retirement pension, but says he wants to be reinstated.

If that were to happen, he could conceivably get additional credits for a larger pension.

His odyssey began almost a decade earlier when, as reported in the Times Union, he said he was retaliated against for complaining about officials appointed by Gov. George Pataki who he said had pressured people to purchase tickets to a prayer breakfast.

"I filed a complaint about it and nothing was done," he said on Wednesday.

There is no firm timetable for a decision by the Court of Appeals judges but such cases are frequently ruled upon within a month to six weeks.

rkarlin@timesunion.com • 518-454-5758 • @RickKarlinTU