ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

Jan 28, 2021

An unblemished personnel record considered in determining the disciplinary penalty to be imposed

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] recommended a 55-day suspension of a New York Correction Officer [Officer] after finding him guilty of disciplinary charges that alleged that he used impermissible and unnecessary force against an inmate and submitting a false report about the incident.

ALJ Kevin F. Casey found that Correction Officer had entered a holding cell, put his hands around an inmate’s neck, elbowed the inmate in the head, and then held the inmate’s face to the floor based on testimony provided by testimony from an investigator and supported by a surveillance video and documentary evidence.

Judge Casey also found that Officer had filed a false report by omitting details describing  the force used by his fellow officers.

Taking into consideration Officer’s unblemished personnel record prior to the disciplinary action initiated in response to the instant situation as a mitigating consideration in determining to be imposed, ALJ Casey recommended that the appointing authority impose a penalty of a 55 days’ suspension without pay rather than a harsher penalty.

Click HERE to access the complete text of the ALJ's decision.

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Jan 27, 2021

Offensive statements made by an employee concerning personal matters are not protected speech within the meaning of the First Amendment

A Job Opportunity Specialist [Specialist] employed by a New York City Department [Agency] was served with disciplinary charges* alleging that he made "discourteous and threatening statements towards staff members both at the workplace and on social media."

After Specialist's stated “I’m going to shoot up this place” he was placed on pre-trial suspension without pay for 30 days. Specialist, however, continued to post  statements targeting an administrative superior and his co-workers on his non-private personal Instagram account that were deemed discourteous by the Agency . In addition, the Agency alleged that these statements included racial epithets.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia ruled that the offending statements were not protected speech within the meaning of the First Amendment as they were not expressed by Specialist "acting in the role of a private citizen regarding a matter of public concern." 

In the words of the ALJ, "Here, the four discourteous statements made on [Specialist's] Instagram videos related to his personal grievances with his supervisor and co-workers, and not tomatters of public concern. Accordingly, such statements are not protected speech."

In addition, the ALJ found that Specialist did not take any responsibility for his actions or express any regret.

Judge Garcia recommended the termination of Specialist's employment in consideration of the fact that Specialist had a significant prior disciplinary record.

* The decision notes that the Agency alleged that Specialist also violated other provisions of the Agency's Code of Conduct, including rules prohibiting an employee from conduct detrimental to the agency, or activity that would compromise the effectiveness of an employee in the performance of the employee’s duties. The decision notes that these violations were "never specified in [the Agency's charges] or at trial how Specialist violated these rules" and were not considered by the Administrative Law Judge in arriving at his decision.

Click HERE to access the text of the ALJ's decision.

 

Jan 26, 2021

An appeal challenging a resolution of a board of a library truncating the term of office of a member of the board sustained by the Commissioner of Education

Following the election of a candidate [Petitioner] seeking a five-year term as a member of the board of a library [Board] the Board determined that the Petitioner “was not qualified to hold the position of [t]rustee” and certified her opponent ... as the winner of the five-year term." Petitioner challenged the Board's action in an appeal to the Commissioner of Education pursuant to Education Law §310.

Interim Commissioner Betty A. Rosa sustained Petitioner’s appeal and ordered, among other things, that the Board “appoint petitioner to fill the seat on the board of trustees for which she was the successful candidate in the April 2, 2019 election.”*

The Board subsequently passed a resolution [Resolution] appointing Petitioner "to the vacant [t]rustee seat" ... until the next [l]ibrary election ... at which time an election [would] be conducted for the remainder of the term for the aforesaid [t]rustee position."

Petitioner appealed the Board's action, contending:

1. The Resolution was arbitrary and capricious insofar as it appointed her to the position of trustee only until the April 2020 election; and  

2. Pursuant to the Commissioner’s order in her earlier appeal she was entitled to be appointed for the full five-year term. 

The Board, in rebuttal, argued, among other things, that Petitioner has failed to establish that the resolution was arbitrary, capricious, or in violation of law.

Initially addressing a number of procedural issues raised by the Board, the Commissioner rejected the Board's assertion that:

 [1] Petitioner’s appeal “should have been filed as an application to reopen instead of a new petition” and 

[2] Petitioner’s request that the Commissioner “clarify” the prior decision amounts to a request to reopen such decision and, therefore, this appeal is improper because {Petitioner] did not apply for reopening within 30 days of the date of the decision,"

The Commissioner said that Petitioner "does not seek to reopen the Commissioner’s Decision No. 17,785" but appeals the Board's Resolution and declined to dismiss the appeal on that basis.

As to the Board's assertion that Petitioner failed to name a necessary party - a potential candidate for election to the Board -- the Commissioner observed that "A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such."

Here, however, the Commissioner explained that an intention of a possible candidate to run for Petitioner’s seat in a future election "is inherently speculative and does not secure an actual, existing right in such seat," citing Appeal of Kennelly, 57 Ed Dept Rep, Decision No. 17,137.

Turning to the merits of Petitioner's appeal, the Commissioner held that Petitioner  had "established that [the Board's] resolution is arbitrary and capricious and that [Petitioner] is entitled to the relief requested," noting that Decision No. 17,785 "unambiguously concluded that [Petitioner] was eligible to serve on [the Board] and had been the successful candidate for a five-year term in the [relevant] election." 

Based on the plain language of that decision, the Commissioner held that there was no basis to conclude that Petitioner is entitled to anything less than the full five-year term to which she was elected. Rejecting other arguments advanced by the Board in support of its position, the Commissioner concluded that Petitioner was entitled to a five-year term on the Board ending June 30, 2024.

Referencing Education Law §226[4], the Commissioner advised the Board that "any future noncompliance with this decision or the prior decision may constitute a neglect of duty or a refusal to carry into effect the educational purposes of the [library]."

* See 59 Ed Dept Rep, Decision No. 17,785.

Click here to access the text of the Commissioner's decision.

 

NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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