Recent decisions by OATH Administrative Law Judges

Recent decisions by OATH Administrative Law Judges

Source:  New York City Office of Administrative Trials And Hearings

Physical altercations: A special officer was charged with engaging in an off-duty fight with a co-worker, making harassing phone calls to that co-worker, and striking a handcuffed homeless shelter resident in the face. ALJ Kevin F. Casey found that respondent was a willing participant in a fight with a co-worker at an off-duty event where many current and former agency employees were present. He recommended dismissal of the harassment charge because the Department did not prove that harassing phone calls were made or that special officer was the caller. As for the charge that the officer hit a resident, ALJ Casey found the testimony from the employer’s witness that he saw the officer strike a seated resident with a closed fist, more credible than the employee's claim that she pushed the resident after he charged at her with a head-butt motion. For the misconduct proven, ALJ Casey recommended a 60-day suspension. Dep't of Homeless Services v. Smith, OATH Index No. 518/14.

Excessive Absences: A computer programmer analyst was charged with misconduct, incompetence, and leaving her work station early on at least 165 occasions. ALJ Ingrid M. Addison found that the Agency condoned respondent’s practice of scanning out at 4:53 p.m., and recommended dismissal of that charge, but she sustained the charge that on each occasion that she scanned out at 4:53 p.m., respondent left her work station without authorization at least 18 minutes prior, in order to scan out on a different floor. ALJ Addison found that petitioner proved that respondent is incapable of performing the duties of her title. Although the Agency sought termination of respondent's employment, ALJ Addison found that petitioner must assume some responsibility for its failure to evaluate and assess respondent’s qualifications before assigning her to her position. She recommended demotion of respondent to her previous title. Financial Information Services Agency v. Leung, OATH Index No. 2115/13.

Failure to perform duties: A correction officer was found to have been excessively absent for missing 198 days of work in a nine-month period. Although the employee provided valid documentation for her continued absence, she still may be disciplined for failure to perform the duties of her position because of excessive absence. The employee was also found to have disobeyed orders on two occasions and to having filed a false report. Based on the high number of absences and the other misconduct proven, ALJ Alessandra F. Zorgniotti recommended the officer's termination from employment. Dep't of Correction v. Vives, OATH Index Nos. 1162/14, 1163/14 & 1164/14.

Leaving training class early: ALJ Faye Lewis found that an assistant civil engineer committed misconduct by leaving a training class early without authorization and by failing to participate in the class and instead reviewed other work material. The ALJ recommended the employee be suspended without pay for two days, finding that the Agency's proof failed to establish that employee was disruptive in class or that he committed misconduct because he had absented himself from class for two hours to attend a scheduled meeting with a supervisor. Dep't of Environmental Protection v. Frenzel, OATH Index No. 611/14.

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Providing assistance to an employee in the negotiating unit served with disciplinary charges

Providing assistance to an employee in the negotiating unit served with disciplinary charges

Source: Inquiry from a NYPPL reader

A reader asks “what kinds of assistance may a union provide a member served with disciplinary charges?”

Most Taylor Law agreements include a multi-step disciplinary grievance procedure in lieu of, or as an alternative to, a statutory disciplinary procedure. Included in the employee organization’s duty of fair representation is the duty to assist an individual in the collective bargaining unit in the event the individual is served with disciplinary charges by the appointing authority.

If, after evaluating the disciplinary action initiated by the appointing authority against the employee, the employee organization determines that it has a duty to assist the employee in the defense of the disciplinary charges filed against the individual, its representative or an attorney designated by the employee organization can assist the employee by representing him or her in the disciplinary grievance procedure and represent the individual in an administrative disciplinary hearing as well as advising the individual in the following areas:*

1. Evaluate the charges and possible defenses available to the employee. The union representative or attorney typically has the experience and training to advise the individual of the potential for successfully defending the disciplinary action, in whole or in part, and the disciplinary penalties that may be imposed if the individual is found guilty of one or more of the charges filed against him or her.

2. Negotiate with the employer's representative or attorney. A union’s representative or attorney can discuss possible settlement or withdrawal of the charges with employer or its representative to negotiate the best settlement possible to attain a mutually satisfactory resolution of the disciplinary charges. 

3. Evaluate settlement offers. If an offer to settle the disciplinary action is made by the employer, the union’s representative or attorney can advise the individual about things that might be prove significant such as the impact of a resignation from the position in lieu of the employer going forward with prosecuting the charges. Likewise the union’s representative or attorney may initiate settlement discussions with the employer's representative or the employer's attorney.

4.Consider the economic impact of the settlement under consideration.  The settlement offer could have an adverse impact on the individual’s career, other job opportunities, retirement benefits and other elements involving his or her financial future that the union’s representative or attorney could explain.

5.Anticipate legal issues the individual may not have considered. The union’s repetitive or attorney can explain the plethora of legal issues that could arise as a result of finding that the individual guilty of one or more of the charges filed against the employee in a disciplinary action or, in the alternative, the potential difficulties that might arise in the event the matter is settled or the employee’s submits his or her resignation or an application for retirement in an effort to avoid a disciplinary hearing.

*These same general observations would apply in the event the disciplinary charges are filed against a member of the negotiating unit pursuant to Civil Service Law §75, Education Law §3020-a or a similar statutory disciplinary procedure.

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Violating the employer’s prohibition against its employees associating with an individual associated with criminal activity

Violating the employer’s prohibition against its employees associating with an individual associated with criminal activity

Dillin v Waterfront Commn. of N.Y. Harbor, 2014 NY Slip Op 05036, Appellate  Division, First Department

Supreme Court granted a longshoreman’s [Petitioner] motion seeking to annul the determination of the Waterfront Commission of New York Harbor (Commission) revoking Petitioner's longshoreman's certificate and remanded the matter for a new hearing before a different hearing officer. The Appellate Division reinstated the Commission’s determination.

The Appellate Division explained that the Commission’s finding that Petitioner “violated a prohibition against association with an identified member of an organized crime family is supported by substantial evidence,” noting that the prohibition was imposed by a federal court* pursuant to a provision* of the Waterfront and Airport Commission Act.** “prohibiting such association under circumstances rendering a person's continued participation in any activities requiring registration pursuant to the WCA to be ‘inimical to the policies of’ the WCA (Uncons Laws § 9913[6]).” The policies of the WCA, said the court, include countering organized crime and corruption which have been found to be endemic in waterfront labor practices.

In this case there was testimony that Petitioner attended two parties that were also attended by an associate of an organized crime group. The Appellate Division said that there was “sufficient evidence to refute Petitioner's claim that her attendance at the same parties as the person in question was accidental or inadvertent.” Petitioner, said the court, also admitted to making remarks to coworkers about being "best friends" with this person and "hanging out" with him, and insofar as petitioner suggested that she was not serious about such remarks, the ALJ was not required to credit her testimony.

The Appellate Division then said that it did not find that the penalty of revocation of Petitioner's registration shocking to one's sense of fairness in that by associating with individuals with connections to organized crime and boasting about such associations to other longshoremen, Petitioner “engaged in conduct which potentially undermines the Commission's continuing efforts to ensure public safety by reducing corruption on the waterfront.”

Noting that Petitioner “does not have a perfect record” in that she was suspended by the Commission for 15 days for filing a false application for longshoreman registration and  was also previously found guilty of theft by deception for continuing to receive food stamps after she had become ineligible, the court said that “In light of Petitioner's behavior in connection with the instant misconduct and on previous occasions, revocation of petitioner's registration does not shock our sense of fairness.”

An employer, particularly one engaged in law enforcement, may prohibit its employees from associating with certain individuals.

For example, the Suffolk County Police Department's rules prohibit members of the Department from "associating or fraternizing" with any person known (by the employee) to have been convicted of any misdemeanor or felony under (any) state or federal law”. A police officer, after being advised that "a close friend" was a convicted felon, decided his continued association with him would not violate Department rules because the individual's "conviction was nearly 20 years old" and he had a "certificate of relief from civil disabilities." Eventually the officer was charged pursuant to §75 of the Civil Service Law with violating Department Rules, found guilty, and had to forfeit 10 days of vacation credit as a penalty. The Court of Appeals rejected the officer's argument that the rule was unconstitutionally overbroad,*** noting that the State could regulate the off-duty conduct of its police officers even though it involved a constitutionally protected right (1st Amendment, Right of Association), the regulation was held to serve a valid governmental concern the public's perception of a police department as perceived through the conduct of the individual officers.

Indeed, in Fludd v Sielaff, 184 A.D.2d 362 (1992), the Appellate Division sustained the termination of a New York City correction officer who, when police officers seeking to execute a warrant for the arrest of her estranged husband, asked her if she knew his whereabouts, denied having seen him for three or four weeks, knowing that he was hiding in another room in her apartment. A few moments later police discovered her estranged husband and arrested him. Fludd  was charged with official misconduct for "harboring a fugitive," and for lying about her knowledge of his presence in her apartment when confronted by police seeking to arrest him. The court explained that "the commissioner was free to find that the choice [Fludd] made was utterly incompatible with her position as correction officer."

Further, the U.S. Supreme Court has refused to review an appeal of a California State Court decision, Bailey v National City, Calif., 277 Cal Rptr 427, which had sustained the termination of a police officer who was found to have violated department rules concerning outside work, used his position as a police officer for personal gain and refused to discontinue a personal association with a known felon.

* See United States v ILA Local 1588, 2003 WL 221851, 2003 US Dist LEXIS 1229 [SD NY, Jan. 30, 2003], affd 77 Fed Appx 542 [2d Cir 2003].

** Unconsolidated Laws of New York, §9801, et seq.

*** Morrisette v. Dilworth, 59 N.Y.2d 449 (1983).