Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

OATH Index No. 1767/17

A New York City Division of Housing housing inspector, whose duties included inspecting private and multiple dwellings for safety and "illegal conversions in cellars" was served with disciplinary charges alleging that he had [1] unlawfully converting the cellar of his two-family residence into single rooming units; [2] unlawfully installing kitchen and plumbing fixtures in the cellar space and [3] his failure to advise his employer of his ownership of his residence constituted a conflict of interest.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls found that the inspector had, indeed, unlawfully converted his cellar into rooming units, which he rented to tenants. Further, the ALJ noted that the rooms were unsafe because "they lacked the required means of egress."

Finding that the inspector's conduct showed disregard for the housing and safety standards he was charged with enforcing and was in violation of the public trust, Judge McGeachy-Kuls recommended that the inspector be terminated from his employment with the Division of Housing.

Also noted was a procedural element that the ALJ had to address. The inspector's employer called [the inspector as a witness] and asked him if "he had been arrested for violations at the subject premises." The inspector declined to answer the question invoking his Fifth Amendment right not to provide information that might be incriminating.*

The Division of Housing asked Judge McGeachy-Kuls that she "draw an adverse inference from the [inspector's] refusal to answer questions. The inspector then "stipulated to the admission of the criminal complaint filed against [him] citing violations at the subject premises."

Under the circumstances the ALJ said that she found it "unnecessary to draw an adverse inference."

* At the time of this disciplinary hearing was held criminal charges filed against the inspector were still pending.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1767.pdf

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Complying with administrative procedural requirements prior initiating litigation seeking information pursuant to the Freedom of Information Law

Empire Ctr. for Pub. Policy, Inc. v N.Y.C. Off. of Payroll Admin., 2018 NY Slip Op 01143, Appellate Division, First Department

Supreme Court granted the Empire Center for Public Policy's CPLR Article 78 petition seeking to compel the New York City Office of Payroll Administration [Administration] to disclose certain information it had requested pursuant to the Freedom of Information Law [FOIL]. The court also referred the matter to a special referee to hear and report on the appropriate amount of attorney's fees to be awarded to the Center.

The Appellate Division unanimously reversed Supreme Court's ruling "on the law" without costs and dismissed the Center's Article 78 petition.

The Appellate Division noted that the Center and Administration had corresponded regarding Administration's attempt to comply with the Center's request. Administration indicated it would not be able to compile the date requested until October 2015. On November 5, responding to the Center's inquiry concerning Administration's failure to yet provide all the data it had requested, Administration ask Center for an additional 20 days to provide the requested data.

Acknowledging that in South Shore Press v Havemeyer, 136 AD3d 929, it was held that a failure to provide an approximate date when a petitioner's FOIL request would be granted constituted a constructive denial, the Appellate Division ruled that here the Center's appeal was premature as Administration had not constructively denied the Center's FOIL request in that Administration had provided "most of the information" by November 18."

The Appellate Division, conceding that a custodian of a public record's failure to provide an approximate date when a FOIL request would be granted constituted a constructive denial, found that the Center "did not file an administrative appeal from [the Administration's November 18 response] and thus the Center failed to exhaust its administrative remedies before commencing its Article 78 action.

The decision notes that in Taylor v NYC Police Department, FOIL Unit, 25 AD3d 347, [leave to appeal denied 7 NY3d 714], despite the FOIL Unit's untimely response to Taylor's FOIL request, Taylor improperly institute an Article 78 action "without first taking an administrative appeal" challenging the untimely response to his FOIL request.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01143.htm

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Cooper v City of New York, 2018 NY Slip Op 01240, Appellate Division, First Department

Supreme Court annulled the New York City Department of Education's determination terminating probationary employee John Cooper's from his position. The Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division held that Cooper failed to establish that he was terminated in bad faith in view of the record demonstrating that his performance during his probationary period was unsatisfactory.

On the contrary, said the court, "the record demonstrates that [the New York City Department of Education] had a good faith reason for its determination" in that there were issues with Cooper's leadership, communication, and project management skills, which not resolved despite Cooper's supervisor's repeated advice that he needed to improve and her efforts to assist him.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01240.htm