OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave

OATH hearing officer denies 9-month postponement of disciplinary hearing while individual is on §72 disability leave
New York City Department of Consumer Affairs v Santamaria, OATH Index #2455/10
NYPPL
The New York City Department of Consumer Affairs filed §75 disciplinary charges against Randi Santamaria alleging various acts of insubordination and “carelessness.” After several adjournments by both parties, Consumer Affairs asked the Administrative Law Judge to go forward with the disciplinary hearing scheduled for August 19 and 20, 2010.

Santamaria, however, had earlier requested leave under the Family Medical Leave Act based upon her mental health, her second request for such leave within the last two years. Consumer Affairs then had Santamaria evaluated by a psychiatrist. The psychiatrist found Santamaria “mentally unfit to work” and Consumer Affairs placed her on “a one-year involuntary leave under §72 of the Civil Service Law” effective May 13, 2010.

Prior to the scheduled disciplinary hearing Santamaria’s attorney asked for a stay of the §75 action based on Santamaria being place on §72 leave by the agency. Santamaria's attorney also stated that he was requesting a stay pending “the resolution" of the §72 proceedings and suggested that "should [Santamaria] not be able to return to work within the year, she could be terminated under §73 and the §75 case would be rendered moot.”*

Although OATH’s Administrative Law Judge John B. Spooner said that he was “skeptical of the legal soundness” of Consumer Affair’s decision “to proceed with a §75 proceeding immediately after finding an employee unfit and placing her out on involuntary leave, based upon the same acts charged in the misconduct case … nevertheless, [Santamaria's] request for a nine-month stay is problematic and cannot be granted.”**

Noting that an OATH Administrative Law Judge “possesses the power to adjourn an action ‘for good cause,’ lengthy adjournments due to another pending action have not been found to constitute sufficient cause and have generally been denied.”

Judge Spooner cited Department of Correction v. Noriega-Harvey, OATH Index No. 575/93, (“pendency of related litigation has apparently never been sufficient basis for grant of an indefinite adjournment of an OATH trial.”) and Department of Environmental Protection v. Bellach, OATH Index No. 1574/08 (denying respondent’s request for a stay of a disciplinary hearing during the pendency of criminal proceedings)” in support of his determination.

* This is not entirely accurate as an individual terminated from §72 leave pursuant to §73 of the Civil Service Law has the right to reinstatement to his or her former position in the event he or she applies for such reinstatement with the responsible civil service commission within one year after the termination of such disability. In the event the commission’s medical examiner certifies that the individual is physically and mentally fit to perform the duties of his or her former position, he or she is to be reinstated if a suitable position is available or place on a preferred list, depending on the situation.

** On this point ALJ Spooner said that at “the very least, the medical officer’s finding of unfitness in May 2010 would appear to significantly undermine the agency’s ability to establish, at a §75 hearing, that [Santamaria's] actions constituted intentional misconduct. At worst, seeking to punish an employee for conduct caused by a disability could arguably defy the entire policy underlying the legislature’s enactment of Civil Service Law §72 as an alternative to §75,” citing Dep’t of Housing Preservation & Development v. Chambart, OATH Index No. 380/84..

The decision is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-2455md.pdf