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.

Employee testified that his use of “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

Employee testified that his use of  “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

NYC Dept. of Corrections v RM, OATH Index No. 651/13

RM, an employee of the NYC Department of Corrections, was served with disciplinary charges alleging that he acted in a disrespectful manor towards his supervisors, that he failed to obey an order to submit a report, he performed doing less work than his co-employees, that he refused to perform certain duties and that he had made false entries into Department records.

OATH Administrative Law Judge Astrid B. Gloade found that RM called his supervisors “Nazis” and “Fascists,” refused to conduct workshops to assist inmates, and processed less than one percent of the discharge letters issued by his three-person unit.

The ALJ said that RM had testified that the use of “Nazi” and “Fascist” to him amounts to profanity, which Judge Gloade viewed as indicating that RM’s intent was to offend his supervisors.

Further, Judge Gloade said that RM only expressed remorse that his statements, meant to be insults, “might not have hit their mark” because he “realized [his supervisors] didn't even know what [he] was talking about because they weren't even around when Nazis were current events.”

RM’s own testimony, said Judge Gloade, established that he directed highly inappropriate remarks towards his supervisors.

However, the ALJ found the Department did not prove that RM failed to submit a report when ordered to do so nor did it prove that he made false entries in Department documents with the intent to defraud.

Finding RM guilty of the remaining allegations of misconduct, ALJ Gloade recommended that the appointing authority suspend RM for 45 days without pay.

N.B. In Matter of Shafer, 2013 NY Slip Op 04571, Appellate Division, Third Department, an individual dismissed from her employment for “insubordinate behavior” that included rude, disrespectful and hostile conduct,was found guilty of disqualifying misconduct for the purposes of eligibility for Unemployment Insurance benefits by the Unemployment Insurance Appeal Board.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-651.pdf