OATH Administrative Law Judge [ALJ] Seon Jeong Lee found the Respondent in this administrative disciplinary action guilty of charges alleging that she had submitted a false or misleading report by stating that she had secured her cell phone prior to entering the correction facility and omitting any reference to having the cell phone with her inside the correction facility.
Judge Lee credited the testimony of Respondent’s fellow correction officers, which was supported by their contemporaneous notes and reports, in finding that Respondent entered a department facility while in possession of her personal cell phone.
Although the Appointing Authority sought Respondent's termination for the proved charges, the ALJ found this penalty to be excessive, citing the principle of progressive discipline and mitigating factors such as the speed with which Respondent left the facility and secured her phone on the bus after realizing it was on her person and before the start of a housing search operation.
Additionally, the ALJ noted that although this was Respondent’s second offense related to making a dishonest statement, Respondent had served the Department for eight years, the underlying incident did not cause injury or risk to others, and a penalty short of termination could deter against similar misconduct in the future.
Accordingly, the ALJ recommended the Employer impose a 10-day suspension without pay for the unauthorized possession of a cell phone and a 40-day suspension without pay for the false or misleading report.
Click HERE to access the ALJ's decision and recommended penalty posted on the Internet.
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NYPPL's A Reasonable Disciplinary Penalty Under the Circumstances is a 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in instances where the employee has been found guilty of misconduct or incompetence.
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