Monday, November 25, 2013

Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct


Administrative Law Judge applies the Doctrine of Collateral Estoppel to establish employee’s guilt of charges of misconduct
OATH Index #2272/13

A Human Resources Administration public benefits fraud investigator pled guilty to federal charges for fraudulently obtaining Section 8 housing benefits.

The employee had earlier pled guilty in federal court to a felony, admitting that she failed to disclose her HRA employment to HUD and received $62,376 in Section 8 public assistance to which she was not entitled. 

OATH Administrative Law Judge Alessandra F. Zorgniotti ruled that pursuant to the doctrine of collateral estoppel, the employee’s guilty plea conclusively establishes the underlying facts of the criminal charge of federally funded program fraud.

The decision notes that the disciplinary charges of misconduct were amended to include the employee’s guilty plea.

Noting that Mayoral Executive Order No. 105 Section 5(b) mandates dismissal of an employee who commits a crime that either involves moral turpitude or bears on the employee’s fitness to perform his job, unless compelling mitigating circumstances exist, the Judge Zorgniotti said that “[I]ntentional fraud and theft of government benefits are crimes of moral turpitude that invariably lead to termination of employment,” and that defrauding HUD is an act of moral turpitude.”

Further, the ALJ said that “Not only is respondent’s crime one of moral turpitude, it bears directly on her fitness to perform the job of a fraud investigator. Respondent engaged in conduct that she is responsible for preventing, namely public assistance fraud.”

Finding that the employee failed to present any mitigating circumstances for her actions. Judge Zorgniotti sustained the disciplinary charges filed against the employee and as the penalty to be imposed, recommended her termination from employment.

The decision is posted on the Internet at:

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/

Challenging Adverse Personnel Decisions 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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