Attorney may not withdraw from an OATH hearing without his or her client’s permission

Attorney may not withdraw from an OATH hearing without his or her client’s permission

Health & Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Wolf, OATH Index No. 2153/08

Under rules of the New York City’s Office of Administrative Trials and Hearings, an attorney who has filed a notice of appearance may not withdraw from representation without the client's permission or as delineated in the Code of Professional Responsibility.

OATH Administrative Law Judge Ingrid Addison denied an attorney's motion to withdraw based on the accused employee's failure to appear at the hearing and the attorney's inability to contact him.

The ALJ found no indication that the attorney had taken steps to avoid prejudice to the employee, including giving due notice of her intention to withdraw.

The hearing continued not withstanding the employee's absence.

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed

A “citizen action” challenging the State’s settlement of earlier litigation involving payment of damages by the State dismissed
Santora v Silver, 20 Misc.3d 836, Modified and Affirmed, 61 A.D.3d 621, Motion to appeal denied, 13 N.Y.3d 704

This “citizen taxpayer action” pursuant to State Finance Law Section 123 et seq., sought money damages from Assembly Speaker Sheldon Silver and his former chief legal counsel, James Michael Boxley for the sum paid by the State of New York in settlement of a prior action entitled Jane Doe v The New York State Assembly, et al, Sup. Ct., Albany County, Index No. 33 14/04 (the Jane Doe action).

Ultimately The Jane Doe action was settled for $507,500 with the State of New York paying $500,000, conditioned on the approval of all appropriate state officials in accordance with the provisions for indemnification under Section 17 of the Public Officers Law.*$7,500 was paid contributed by Boxley, who was represented by private counsel in that litigation.

In this action, Joseph J. Santora sued in an effort to obtain a court order directing “restitution to [the State] from Silver and Boxley of the ‘$480,000’ that was paid by [the State] in settlement of the Jane Doe action.” In addition, Santora sought “money damages for the value of the legal services provided by the Attorney General in connection with his defense of Silver in the Jane Doe action, and argues that the Attorney General must be prevented from appearing in the present action on behalf of Silver.”

Judge Goodman dismissed the complaint filed by Santora against Silver and Boxley for the following reasons:

1. The complaint fails to allege any illegal or wrongful expenditure of state funds on Silver’s behalf, even if Silver had demonstrated leadership that would have led to an entirely different and more acceptable outcome. “A claim that state funds are not being spent wisely is patently insufficient to satisfy the minimum threshold for standing under the [relevant] statute.”

2. The Attorney General’s representation of public officers does not entail the expenditure of public funds within the meaning of the State Finance Law … and [the Court is powerless to undertake] judicial scrutiny of statutorily-mandated non-fiscal activity of the Attorney General.”

3. Boxley was represented by private counsel in the Jane Doe action; and he was personally responsible for $7,500 of the total settlement paid to Jane Doe.

* Section 18 of the Public Officers Law permits political subdivisions of the State to elect to provide for representation and indemnification of its officers and employees sued as the result of the performance of, or the failure to perform, official duties.

The Supreme Court’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_31995.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03456.htm

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

An official significantly involved in the prosecution of a disciplinary action brought against an employee should not participate in making the final determination

Ashe v Town Bd. of The Town of Crown Point, N.Y., 2012 NY Slip Op 05693, Appellate Division, Third Department

The Town Board of the Town of Crown Point filed disciplinary charges against one of its employees pursuant to Civil Service Law §75.

The Board conducted the hearing rather than appointing a hearing officer hear the charges and make findings of fact and a recommendation as to the disposition of the charges. The Town Supervisor was the primary person to present proof in support of the charge.

Ultimately the employee was, a divided vote found guilty of misconduct and terminated from his employment with the Town Supervisor participating in the Board’s voting on the charge and penalty. The Supervisor voted in favor of the prevailing determination to find the employee guilty and terminate his employment with the Town.

The employee challenged the Board’s action.

As to the role of the Town Supervisor in the proceeding and adjudication, the Appellate Division, citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, noted that "Although '[i]nvolvement in the disciplinary process does not automatically require recusal,' . . . individuals 'who are personally or extensively involved in the disciplinary process should disqualify themselves from . . . acting on the charges.'"

Finding that the Town Supervisor “was extensively involved as she presented virtually all of the proof in support of the charge,” the court concluded that the Town Supervisor should have disqualified herself from voting on the final determination.

Considering a procedural challenge made by the Town concerning the employee’s appeal, the Appellate Division commented that although an objection to a particular hearing officer generally must be timely asserted at the hearing to preserve the issue for appeal, it is incumbent upon a person who has been extensively involved in the disciplinary process to "disqualify himself or herself from [involvement in] rendering a final determination," [emphasis supplied].

Finding that the Town Supervisor was extensively involved in the disciplinary proceeding but did not recuse herself from participating in the determination, the Appellate Division ruled that the determination must be annulled and the matter remitted to Town Board for a de novodetermination based on the record.

On this last point, the court noted that it appeared that the Board considered events that occurred after the misconduct alleged in the charges and the hearing. Accordingly, it said, the Board’s determination should not consider any such post-hearing events.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05693.htm

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