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May 15, 2019

Disciplinary hearing decisions handed down by Administrative Law Judges of the Office of Administrative Tribunals and Hearings


A correction officer was charged with using excessive force and submitting a false report concerning force used by officers in subduing a group of inmates. At trial petitioner presented testimony of an investigator and video of the incident. The officer testified on his own behalf, denying that his report was false. Following the officer’s testimony, petitioner withdrew the excessive force charge. ALJ John B. Spooner recommended dismissal of the false report charge, finding the video did not show that the officer was in the vicinity of where force was used against the inmate. Dep’t of Correction v. Smith, OATH Index No. 1001/19 (Apr. 2, 2019).

An emergency medical technician (“EMT”) was charged with leaving a patient in the care of persons who were not medically trained, refusing an order to undergo substance use testing, being absent without leave, falsely reporting that a patient had flagged down an ambulance so that he could eat his meal, creating a false patient care report for a nonexistent patient, forging his partner’s signature on the false patient care report, and testing positive for a controlled substance. Following a two-day trial where petitioner presented testimony from seven witnesses and documentary evidence, and the EMT testified on his own behalf, ALJ Astrid B. Gloade sustained the charges and recommended termination of the EMT’s employment. Fire Dep’t v. Gala, OATH Index No. 2772/18 (Apr. 16, 2019), adopted, Comm’r Dec. (May 7, 2019).

A medicolegal investigator was charged with negligently failing to take jurisdiction over one case, failing to perform adequate investigations of six other cases, and being discourteous during a phone conversation with a decedent’s daughter. ALJ Kevin F. Casey sustained the charge that the investigator negligently failed to take jurisdiction over a case involving a 12-year old boy with a dislodged tracheostomy tube, who died after he was transported from school to the hospital. He found that in four instances petitioner showed the errors were so serious that they amounted to misconduct and he sustained that charge in part. He dismissed the discourtesy charge. A 40-day suspension was recommended. Dep’t of Health & Mental Hygiene v. Yee, OATH Index No. 520/19 (Apr. 5, 2019).

A correction captain was found to have been excessively absent over a 17 month period. All but two days of absence were due to psychological disability caused by an inmate assault. The captain had returned to her post for three months, when petitioner ordered her out on leave for the next four months. The captain has since returned to work. Petitioner sought termination of the captain’s employment, but ALJ Casey found that would be unduly harsh. Noting that the available penalties under section 75 of the Civil Service Law are limited, he recommended a 30 day suspension, but he urged the parties to consider an alternative, appropriate remedy, such as a leave of absence, probation, or holding the penalty in abeyance. Dep’t of Correction v. Anonymous, OATH Index No. 348/19 (Apr. 29, 2019).


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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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