Removal from public office by operation of law

Removal from public office by operation of law
2013 NY Slip Op 04884, Appellate Division, First Department

A New York City police officer was summarily dismissed from his position upon his entering a plea of “guilty” of “offering a false instrument for filing.”*

The officer’s CPLR Article 78 petition challenging his termination was dismissed by Supreme Court, New York County and he appealed.

Sustaining the lower court’s ruling, the Appellate Division noted that his offering a false instrument for filing constituted a violation of the oath of office, since the offense involves willful deceit.

Accordingly, said the court, his office was vacated automatically upon conviction,** pursuant to Public Officers Law §30(1)(e). §30(1) of the Public Officers Law provides that a public office shall become vacant by operation of law under certain circumstances, including the officer’s conviction of a felony, or a crime involving a violation of his or her oath of office. A police officer is a public officer and thus subject to the provisions of §30(1)(e).

In any event, a pre-termination hearing that might be otherwise required as a condition precedent to removing a public officer having tenure in the position or prior to the expiration of his or her term of office is not required in the event his or her termination is within the ambit of §30(1).

Significantly, §30(1)(e) provides that that a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. As the police officer had entered a plea of guilty, it appears unlikely that his conviction would be “reversed” or “vacated,” thus triggering any opportunity to seek a hearing seeking reinstatement to his former position.

* See Penal Law §175.30.

** A plea of guilty is deemed a conviction.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04884.htm

Using a Global Positioning System device to gather evidence of employee misconduct

Using a Global Positioning System device to gather evidence of employee misconduct
2013 NY Slip Op 04838, Court of Appeals

The Department, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile. Citing People v Weaver (12 NY3d 433) and United States v Jones(132 S Ct 945, the Court of Appeals ruled that the State's action was a search within the meaning of the State and Federal Constitutions but that under the relevant facts in this case “did not require a warrant.”

The court, however, then proclaimed that “on the facts of this case such surveillance was  unreasonable”

Addressing the lawful used of a GPS, the court noted that the employee’s Department initiated an investigation concerning the individual’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. As a result the employee was served with certain disciplinary charges, found guilty and was suspended without pay for two months.

However, a second investigation was initiated when the Department referred the employee’s efforts to avoid surveillance to the Office of the State Inspector General. The Inspector General's investigation resulted in a second disciplinary proceeding, which resulted in this litigation.

According to the decision, the Inspector General's investigator attach a GPS device to the employee's car without his knowledge while the car was parked in a lot near the Department’s offices. Ultimately GPS devices recorded all of the car's movements for a month, including evenings, weekends and several days when the employee was on vacation. Subsequently the Inspector General’s investigators initiated surveillance of an apartment building the employee was suspected of visiting during working hours, subpoenaed E-Z Pass records and interviewed the employee and his secretary.

The resulted in the Department filing new charges against employee. The hearing officer found the employee guilty of 11 of the charges, eight of which were supported by evidence obtained through the use of a GPS device in whole or in part. The appointing authority adopted the hearing officer’s findings and recommendation and terminated the employee.

In explaining its ruling, the Court of Appeals said:

1. The attachment by law enforcement officers of a GPS device to the automobile of a criminal suspect, and the use of that device to track the suspect's movements, was a search subject to constitutional limitations.

2. The search in this case was a search within the meaning of Article I, §12 of the New York Constitution and the Fourth Amendment

3. The search in this case was within the "workplace" exception to the warrant requirement recognized in O'Connor v Ortega (480 US 709) and Matter of Caruso v Ward (72 NY2d 432).

The court noted that O'Connor involved the warrantless search by a public employer of the office of an employee suspected of misconduct. The United States Supreme Court upheld the search.

Subsequently the Court of Appeals had made it clear that it would follow O'Connor in deciding the constitutionality of searches conducted by public employers, whether for "noninvestigatory, work-related purposes" or for "investigations of work-related misconduct," under the New York as well as the Federal Constitution in its decision in Caruso.

Significantly, the employee did not challenge the existence of a workplace exception to the warrant requirement, but argued that it is inapplicable because the object of the search in this case was the employee's personal car. Accordingly, the employee contended that the court should “confine the exception to ‘the workplace itself, or . . . workplace-issued property that can be seen as an extension of the workplace.’" 

The Court of Appeals rejected this contention “at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.”

The bottom line: the Court of Appeals conclude that “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search [and the] Inspector General did not violate the State or Federal Constitution by failing to seek a warrant before attaching a GPS device to [the employee's] car.”

That said, the court then explained that “While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search.” According, the court ruled that the State has failed to demonstrate that this search was reasonable.

Use of GPS device, said the court, was conditioned on the employer first making a reasonable effort to avoid tracking the employee using a GPS device outside of business hours. Its failure to do so will result in the search, as a whole, being considered unreasonable.

Accordingly the court said that what is required in this instance is the suppression of the GPS evidence. 

However, the suppression of evidence obtained using a GPS device in this case did not to preclude the employer from disciplining the employee since only four of the 11 charges for which the employee was found guilty depended on GPS evidence. Accordingly only dismissal of those four charges was required.

The court then said that as to the others, the GPS evidence was either substantially duplicated by other records in evidence or was wholly irrelevant. Thus, whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor.

Accordingly, the Court of Appeals reversed the Appellate Division’s ruling and said that “charges one, two, three and six against [the employee are] dismissed, and matter remitted to the Appellate Division with directions to remand to the Commissioner of Labor for redetermination of the penalty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

Good faith test for job abolishment

Good faith test for job abolishment

Christian v Casey, 76 AD 835

Former employees of the City of Yonkers lost their jobs when the City planned to close it jail under its fiscal program.

The jail was never actually closed, however. It continued in operation with a reduced staff, with police officers performing some of the duties of the former employees that served in the titles of jailer or matron. When the employees sued, the Court held that municipal corporation may in good faith abolish civil service positions for reasons of economy.

The assignment of police officers to the jail was held to be a good faith effort to consolidate the arrest procedures and not an attempt to replace the former employees with newly hired personnel.

The fact that some of the duties of the former employees were being performed by police officers serving in the jail was not viewed as bad faith by the Court as “the utilization of existing personnel to carry out those duties which remained after the abolishment of the positions in the wake of a financial emergency cannot amount to a lack of good faith.”

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA
2013 NY Slip Op 04411, Appellate Division, Third Department

A member of the college's faculty [MF] contended that various members of the faculty and the administration failed to follow the procedures set forth in the collective bargaining agreement [CBA] in considering him for promotion to his professional and economic detriment.

The Faculty Association filed a grievance on MF’s behalf but shortly thereafter decided withdraw its grievance. MR sued, alleging a breach of the CBA. Ultimately Supreme Court dismissed his petition, finding that MF “lacked standing” to bring the action and MF appealed that ruling to the Appellate Division.

MF argued that although he does not contend that the Faculty Association breached its duty of fair representation, he should have standing to pursue a common-law breach of contract action against his employer regarding the alleged violations of the promotion procedures.

The Appellate Division disagreed, holding that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract."

Although the court noted “Exceptions [to the general proposition] [1] include where the collective bargaining agreement grants an employee a right to sue directly or [2] where the union fails in its duty of fair representation,” it pointed out that MF acknowledged that he is not alleging that Faculty Association breached its duty of representation but that argued that under the CBA decisions related to promotions are excepted from the grievance procedure and, thus, he contends that he can pursue an action directly against college defendants.

Rejecting MF’s theory, the Appellate Division said that the ultimate decision granting a promotion is not subject to a grievance under the CBA in contrast to the “lengthy procedures” faculty members must follow over several years to become eligible for consideration of a promotion. Such procedures, said the court, “are set forth in the CBA and are not explicitly excepted from the grievance process.”

It is the purported failure to follow these promotion procedures that MF challenged and the CBA, said the court, “does not carve out a separate right regarding these procedures that can be enforced by an employee directly against defendants.”

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04411.htm

Disqualifying an individual for employment in the public service

Disqualifying an individual for employment in the public service

Ferrine v Bahou, 75 AD2d 669

§50.4 of the Civil Service Law requires notice of the reasons for the disqualification of a person for employment in the public service by the New York State Department of Civil Service, or the municipal commission or personnel officer having jurisdiction, be given to the individual, together with an opportunity to submit an explanation challenging such disqualification.

As the employee in this case, Ferrine, was not provided with an opportunity to submit facts in opposition to his disqualification, the Appellate Division sustained the Supreme Court’s ruling holding that his dismissal was unlawful and the appointing authority was required to reinstate the employee to the position with back salary.

Judge Casey, however, dissented, noting that the basis for Ferrine’s disqualification was that he was unable to meet the age requirements for appointment to the position and thus “The [municipal]  commission had not only a right but a duty to remove him.”

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Retirement System member retroactively reinstated to Tier I membership not entitled to employee contributions he or she made to the Retirement System as a Tier III member

Price v New York State & Local Employees' Retirement Sys., 2013 NY Slip Op 04405, Appellate Division, Third Department

An individual [Member] was employed in various positions by New York State public employers in 1968 until 1975 when he left public service. At no time during such period did Member join the New York State and Local Employees’ Retirement System [ERS] nor, according to the decision, was he advised that he was a “mandatory Tier 1 member” of ERS.

Member reentered New York State public employment in 1980 and joined ERS as a contributory Tier 3 member. In 1997, without notice to Member, ERS administratively granted him Tier 1 membership with service credit for the initial years he had worked (1968-1975). However, upon further review, ERS deemed that Member’s Tier 1 membership automatically terminated in 1975 for inactivity in accordance with the provisions of the Retirement and Social Security Law then in effect, thereby continuing him as a Tier III member of ERS.

Member subsequently applied for, and was approved for, reinstatement to Tier 1 pursuant to Retirement and Social Security Law §645.* He then requested a refund of the contributions he had made since 1980 as a Tier 3 member.

ERS denied his request indicating that “[Member] did not qualify for a refund under the … statute pursuant to which he was reinstated,” (see Retirement and Social Security Law §645[2]). Member then commenced an Article 78 proceeding challenging the Retirement System’s determination denying his request for a refund of the contributions he had made as a Tier 3 member prior to his reinstatement to Tier 1, a noncontributory tier, pursuant to Retirement and Social Security Law §645.

The Appellate Division sustained ERS’s determination, explaining that  “Under the unambiguous terms of [Retirement and Social Security Law §645(2)], ‘[a]ny contribution made to [ERS] pursuant to Article [14] or [15] of this Chapter by a member who rejoined his or her current system on or after [July 27, 1976] shall not be refunded.”" [Emphasis supplied by the Appellate Division.]

Where, as here, said the court, "the Comptroller's application and interpretation of the relevant statutes are not 'irrational, unreasonable or contrary to the statutory language,' the determination will be upheld.”

As to “procedural difficulties” experienced by Member, the court said that “erroneous advice by [Member’s] employer, misplacement [of him] by [ERS] in a contributory tier or [his] delayed reinstatement to a noncontributory tier ‘cannot estop the Comptroller from performing his duties and denying any reinstatement [or refund of contributions] that is contrary to the statutes.’"

The Appellate Division also addressed the various provisions set out in the Retirement and Social Security Law addressing “vesting” of a member's ERS benefits under certain conditions, none of which “conditions,” said the court, were applicable in Member’s situation.

* Retirement and Social Security Law §645, which was adopted in 1998, allows current members of ERS who had reentered public service to apply for reinstatement to their original Tier membership status under certain circumstances.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04405.htm

Correction officers locked up for compulsory overtime

Correction officers locked up for compulsory overtime

Cacace v Seniuk, 104 Misc.2d 560

While a somewhat novel way to have overtime work performed, Supreme Court, Nassau County, held that correction officers compelled to work overtime were not denied their constitutional rights.

Although locked up in the jail, as they were during normal working hours, and denied the ability to leave without permission, Supreme Court ruled that such action was within the power of management.

The fact that the employees had received overtime pay or compensatory time off, together with a view that such a procedure was a reasonable and necessary limitation on the correction officers, was enough to support for the Court to hold that correction officers were not entitled to injunctive or declaratory relief.

Indeed, said the court, “In the last analysis, it is doubtful whether it is within the competence of the judiciary to grant the injunctive relief requested in any event. The question of manpower and its deployment is essentially one of management prerogative solely within the discretion of the public employer.”

The Court also found that §161 of the Labor Law was not applicable to correction officers, explaining that a corrections officer is a “peace officer” and “clearly not an employee within the statutory definition, i.e., a “mechanic, workingman or laborer working for another for hire,” set out in §161.

A change in the professional obligation of employees in a collective bargaining unit negotiable

A change in the professional obligation of employees in a collective bargaining unit negotiable

PERB (Case U-4144)

The unilateral reduction of the school district’s administrators’ work year [professional obligation] from 11 to 10 months -- but requiring the performance of essentially the same service -- was held to be a violation of the school district’s duty to negotiate the change with the employee organization representing the administrators’ “negotiating unit”.

The school district was directed to reinstate the administrators’ 11-month professional obligation and pay any back salary due them.

In contrast, a PERB hearing officer held that the unilateral change in a district’s work day for teachers from 8 am to 3 pm to 8:30 am to 3:30 pm following good faith bargaining to impasse on the issue was not a violation of the Taylor Law even though the impasse had not been resolved at the time of the change by the district. (Case U-4294).

Jurisdiction of village school crossing guards

Jurisdiction of village school crossing guards

Informal Opinion of the Attorney General 2013-3

The Attorney General’s Assistant Solicitor General in Charge of Opinions, Kathryn Sheingold, advised the Village of Alden’s village attorney, Chris G. Trapp, Esq., that, consistent with General Municipal Law §208-a, a village school crossing guard may control traffic at an intersection within the village that does not abut school property if his or her exercise of such traffic control is to aid in protecting school children going to and from school.

The opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-3_pw.pdf

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

OATH Index No. 559/13

An OATH Administrative Law Judge found a housekeeping aide guilty of [1] laying down on a clean stretcher in a patient area to make a phone call during work hours and [2] failing to complete his assigned cleaning duties.

However ALJ Faye Lewis dismissed charges that Aide abandoned his post, was discourteous, and did not comply with a directive to clean certain areas in a medical unit.

Taking into consideration employee’s prior disciplinary record, which included 30-day suspensions, ALJ Lewis recommended a 45-day suspension.

The case usually cited as authority for considering the employee's personnel record in recommending a disciplinary penalty is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470. Further, the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty. 

However, in the event the employee's personnel records will be considered in determining the disciplinary penalty, he or she must be advised of that fact and given an opportunity to explain or rebut anything in that record.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-559.pdf

Removal of a public officer from his or her position by operation of law

Removal of a public officer from his or her position by operation of law

Greene v McGuire, 683 F.2d 32

§30 of the Public Officers Law provides for the automatic removal of an individual from his or her public office under certain conditions.

A federal district court held that a police officer who was removed from his position following his being convicted of a felony in accordance with Public Officer Law §30.1(e) was entitled to an administrative hearing on the question of reinstatement following the reversal of the conviction

The 2nd Circuit Court of Appeals reversed, indicating that as the state law automatically results in dismissal upon conviction, refusal to provide an administrative hearing following the reversal of the former police officer’s conviction did not deprive the former employee of a property right or liberty interest protected by the 14th Amendment.

However, it should be noted that §30.1(e) provides in the event a public officer* is convicted of a “felony, or a crime involving a violation of his [or her] oath of office …. a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy.”

The statute further provides that “After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.

“The record of the hearing shall include the final judgment of the court which reversed or vacated such conviction and may also include the entire employment history of the applicant and any other submissions which may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction.

“Notwithstanding any law to the contrary, after review of such record, the appointing authority may, in its discretion, reappoint such non-elected official to his former office, or a similar office if his former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof;”

A similar principle** was applied in a case where although a principal was initially recommended for tenure, the new superintendent recommended his termination on the grounds that a change in leadership was required.

While there was still 120 days left to the principal’s probationary period, his contract of employment expired and he was terminated by the School Board.

It was held that the principal was not entitled to a termination hearing pursuant to §3020-a of the Education Law, nor did the earlier recommendation for tenure have any effect on the contract provision (See §1709, Education Law).

* A police officer is a public officer. Although all public officers are public employees, not all public employees are public officers.

** See Knight v. Wyandanch Union Free School District, affd. 56 NY2 628

An employee’s disability will not excuse his or her misconduct

An employee’s disability will not excuse his or her misconduct

2013 NY Slip Op 04703, Appellate Division, First Department

The employee [Employee] was served with disciplinary charges alleging misconduct. His defense: his conduct was involuntary because it was the result of illnesses, Tourette's Syndrome and an obsessive-compulsive disorder, from which he suffers, and thus does not constitute misconduct.

A Judicial Hearing Officer (JHO) found Employee guilty and that his misconduct was only partially attributable to these disorders. Based on the JHO’s findings, the appointing authority dismissed Employee from his position.

The Appellate Division, finding that “substantial evidence supports [the agency’s] determination that [Employee] engaged in the misconduct alleged, dismissed Employee’s appeal. The court said that Employee’s argument that his conduct “was involuntary because it was the result of illnesses …  and therefore does not constitute misconduct is unavailing.”

Noting that the JHO found that Employee's conduct was only partially attributable to the disorders he claimed to suffer, the Appellate Division said that “the law does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace,” citing Hazen v Hill Bettz and Nash, 92 AD3d 162, leave to appeal denied, 19 NY3d 812.

As to the penalty imposed, dismissal from his position, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, held that under the circumstances, the penalty of termination is not "so disproportionate as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04703.htm

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Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment

Considering Certificates of Relief from Civil Disabilities, Certificates of Good Conduct or an Executives Pardon in determining eligibility for public employment

Anonymous v NYC Human Resources Administration, 154 A.D.2d 233.

In Anonymous v NYCHRA the Appellate Division considered the termination of a public employee because he allegedly made false statements on his application for public employment. The decision involves the inter-relationship and application of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.

Anonymous had been appointed in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."*

According to the ruling, Anonymous allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Anonymous'] termination."

Anonymous sued, contending that his termination was arbitrary and that his discharge was in violation of §296 of the Human Rights Law.

Anonymous had been convicted of two misdemeanors. However, he contended that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil Disabilities together with "the dispositions of his criminal cases along with his application."

Although New York courts have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Appellate Division believed that Anonymous "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."

 The court appeared troubled by the summary dismissal of Anonymous' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Anonymous] to retain his position after questioning." A second footnote indicated that the file of investigator originally involved in the case, whom Anonymous claimed told him that "there would be no further problems with his application [despite the inconsistency regarding his criminal record,] had been misplaced."

As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, §296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual has been convicted.

Additional protections against discrimination based on a criminal conviction are contained in §752 of the Corrections Law. §752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see §702, Correction Law]. Anonymous had obtained such a Certificate from a State court judge.

The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain or be eligible for public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**

Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of his or her conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [§703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, §4, State Constitution].

In the Anonymous case the Appellate Division said that the action taken against Anonymous by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law §702(2)(c)] and the court which saw fit to grant [Anonymous] a second chance at life."

This suggests that in a §50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil Disabilities or a Certificate of Good Conduct or an Executive Pardon in challenging his or her proposed disqualification form the eligible list or employment in the public service.

* Although the statutory authority for the termination is not specified in the decision, it is assumed that Anonymous was disqualified pursuant to §50.4 of the Civil Service Law. §50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to §50.4.]

** The Board of Parole is also authorized to issue such Certificates. See §703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

OATH Index No. 300/13*

As a general rule, evidence of prior disciplinary action taken against an employee may not be admitted at his or her disciplinary hearing to show that the employee “has a propensity to commit the charged misconduct.”

In this case, where the employee was charged with threatening and assaulting a supervisor, OATH Administrative Law Judge Faye Lewis admitted evidence that the employee had earlier pled guilty to prior charges of time and leave violations for the purpose of impeaching or rebutting the employee’s claim that he his supervisor was “scapegoating” him for “non-existent time and leave issues.”

ALJ Lewis noted that there is an exception to the rule barring the introduction of evidence of  “prior disciplinary action” taken against the individual. Such evidence may be may be admitted and considered when [1] it is offered for a different reason or another purpose; [2] where prior violations have independent relevance and [3] the fact-finder is an attorney or a judge trained to consider potentially prejudicial evidence introduced for limited purposes.

Judge Lewis also observed that “four different sets of charges, each with multiple specifications,” were served on the employee. Some of the charges, said the ALJ, were duplicative in that they alleged the same misconduct while citing an alleged violation of  a different rule.

Such duplicative pleadings are “confusing and verbose” said the ALJ. The better practice is to plead misconduct as “a single factual allegation, with citation to the agency rules that are alleged to have been violated

* The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-300.pdf

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending June 22, 2013  [Click on text highlighted in bold to access the full report] 


DiNapoli Releases Fiscal Stress Scores for Local Communities

Two dozen communities in New York have been designated as fiscally stressed under State Comptroller Thomas P. DiNapoli’s new Fiscal Stress Monitoring System. The listincludes eight counties, three cities and 13 towns. A video release is available here.

DiNapoli Applauds Legislature for Passage of Superstorm Sandy Legislation

State Comptroller Thomas P. DiNapoli Tuesday commended the state Assembly and Senate for passing legislation to help local governments deal with the financial impact of Superstorm Sandy. The three bills submitted by DiNapoli will now go to the Governor. For copies of the complete legislation, visit: http://www.osc.state.ny.us/legislation/.

DiNapoli Commends Legislature For Action On Bill Calling For Tighter Oversight Of Special Education Providers

State Comptroller Thomas P. DiNapoli Friday commended the Legislature for passing legislation mandating audits of every special education services program provider for preschool children with disabilities in the state and urged Governor Cuomo to sign the bill to ensure taxpayer monies are spent as intended and to deter further provider fraud. This legislation was a program bill of the Office of the State Comptroller and was sponsored by Sen. John Flanagan (S.5568-A) and Assemblywoman Catherine Nolan (A.7302-A). For copies of the complete legislation, visit: http://www.osc.state.ny.us/legislation/.

DiNapoli: NYC Rental Housing Less Affordable

Housing is becoming increasingly unaffordable for rental households in New York City, with only 44 percent of all apartments considered affordable in 2011 for families earning the median income, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Revenue Outpacing Estimates

State tax collections of $12.6 billion through May, rose 25.8 percent from collections during the same period last year, primarily due to non–recurring estimated Personal Income Tax payments made in April, according to the May Cash Report released Friday by State Comptroller Thomas P. DiNapoli.