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Thursday, July 30, 2015

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]


Summaries of recent decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]
Source: NYC Office of Administrative Trials and Hearings
Click on text highlighted in color to access the text of the decision.


Use of excessive force against a juvenile resident at a detention center

Administrative Law Judge [ALJ] Tynia D. Richard sustained charges that a counselor at a juvenile detention center used excessive force against a resident and made a false report.

A video showed the counselor initiate force against the resident who was not complying with commands but was not physically resisting. It also showed the counselor put the resident in a bear hug, push him over a group of chairs, and choke him; the same video later showed him chase the resident and throw him to the floor. Others had to intervene in both instances to get counselor away from the juvenile.

The director and the head of training testified these acts were serious violations of agency guidelines. The counselor’s report of the incident was false and misleading, having omitted material facts.

The ALJ recommended the counselor be terminated from his position.

The Commissioner adopted the ALJ’s factual findings but did not impose a penalty, as the counselor had resigned from his position with Children’s Services.*   Admin. For Children Services v. Silva, OATH Index No. 1275/15.


Failure to report to work as scheduled  

A corrections captain was charged with filing an untimely report and with being AWOL for 5 days. ALJ Alessandra F. Zorgniotti sustained the charges.

The captain had hurt his back while on vacation and converted his vacation days to sick days. While still on vacation, he requested that his vacation be extended by the number of days he was on sick leave. The captain did not report to work as scheduled and failed to verify whether his request to extend his vacation had been granted.

ALJ Alessandra F. Zorgniotti recommended 20-day suspension for the AWOL charges and a reprimand for submitting a late report.  Dep't of Correction v. Ramos, OATH Index No. 1903/15.


Testing positive for cocaine

A sanitation worker admitted that he had tested positive for cocaine and offered evidence in mitigation, including character evidence from supervisors. ALJ Kevin F. Casey recommended termination of employment, but urged the Department to consider alternative penalties such as drug and alcohol testing for the remainder of the worker's career.   Dep't of Sanitation v. Anonymous, OATH Index No. 1821/15.


Failure to meet deadlines

In a Loft Board proceeding, ALJ John B. Spooner formally admonished an attorney who failed to meet ordered deadlines and refused to reply to repeated discovery requests. The attorney did not receive a more severe sanction because he ultimately complied with requests and conducted himself professionally at trial.  Matter of Stone, OATH Index No. 1945/14.

* With respect to the State as the employer, 4 NYCRR 5.3(b), in pertinent part, provides “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.”

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A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

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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/

Caution:

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

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