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Friday, March 16, 2012

Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge

Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge
NYC Department of Sanitation v Bongiardina, OATH Index #1971/11

OATH Administrative Law Judge Faye Lewis recommended that a NYC Department of Sanitation employee who plead guilty in criminal court to the charge that he had accepted an unlawful gratuity in violation of Penal Law Section 200.35, a Class A misdemeanor.

The employee’s plea included a statement on the record that he accepted a gratuity while performing his job duties, a violation of the Department’s code of conduct and Mayor’s Executive Order 16. Executive Order 16 provides that any City employees “convicted of a crime* relating to their office or employment, involving moral turpitude or which bears upon their fitness or ability to perform their duties or responsibilities . . . absent compelling mitigating circumstances . . .” shall be dismissed for his or her position. Judge Lewis found that this plea conclusively established that the acts underlying the crime occurred.

The ALJ rejected the employee’s claim that he was pressured into agreeing to the plea bargain by his co-defendants, finding he could not show “any concrete reason for believing that the co-defendants would retaliate against him” if he failed to do so.

The Commissioner adopted the ALJ’s findings and noted that her decision was based on the evidence and precedents.

However, considering the employee’s good work record and his lesser role in the misconduct involving his co-workers, the Commissioner elected not to terminate his employment and imposed a 30 work-day suspension without pay and the loss of 4 weeks vacation as the disciplinary penalty.

* An individual who enters a pled of guilty in a court of law is deemed to have been convicted of the charge[s] filed against him or her.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-1971.pdf

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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