Administrative Law Judge recommends dismissal of correction officer foung guilty of using excessive force

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade recommended that the appointing authority terminate the employment of a correction officer [Officer] she found had retaliated against an incarcerated person.

Judge Gloade found that the New York City Department of Correction met its burden of proof that Officer used excessive and unnecessary force when he threw urine on an incarcerated person and failed to submit an accurate and complete use of force report regarding his actions. The ALJ noted Officer conceded the Department's allegations and the only disputed fact was "whether liquid that the incarcerated person tossed out of the cell before [Officer's] actions made contact with [Officer]".

Noting Officer's testimony that since the incident, "he has grown mentally and learned from the experience" and the proven misconduct arises from a single incident for which Officer has expressed remorse, Judge Gloade held that Officer's "conduct was egregious and raises grave concerns about his fitness to perform his duties as a correction officer."

Although Officer's Counsel argued that a penalty of not more than a 60-day suspension without pay was "appropriate in light of all of the circumstances" considered during the hearing, the Administrative Law Judge opined Officer's "disciplinary record, which includes a prior, recent use of force and a domestic violence incident, offers little by way of mitigation."

Click HERE to access the ALJ's findings and recommendation posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court and administrative decisions addressing disciplinary penalties imposed on officers and employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For additional information about this e-book, and access to a free excerpt, click HERE.

 

Court sustains employer's denial of employee's request for a religious exemption from the employer's COVID-19 vaccination requirement

In response to a New York City employee's [Petitioner] challenge to the denial of his request for a religious exemption from COVID-19 vaccinations the Appellate Division sustained the City's action, observing that:

1. Petitioner failed to demonstrate that the City's determination was arbitrary and capricious or made in violation of lawful procedure;

2. Petitioner's application contained a "generic statement that does not support [his] request";

3. Petitioner "failed to explain how his religious tenets conflict with the vaccine requirement.'

The court's decision also noted that Petitioner's employer "found that [Petitioner] had no demonstrated history of refusing medications or vaccines.

Finding that the employer's decision "had a rational basis in the record", the Appellate Division declined to substitute its judgment for that of the employer's, citing  Matter of Roberts v Gavin, 96 AD3d 669.

Addressing a procedural issue, the Appellate Division opined "where, as here, there was no administrative hearing, an agency may submit an official's affidavit to explain the information that was before the agency and the rationale for its decision" the court may consider such an affidavit even though it was not submitted during the administrative process [See Matter of Robins v New York City Off. of Chief Med. Examiner, 212 AD3d 541.

The Appellate Division also held that Petitioner did not established that the City's process for resolving requests for accommodations to the vaccine mandate fell short of the requirements of New York City's Human Rights Law.

Click HERE to access the Appellate Division's decision posted on the Internet.

 

State Comptroller Thomas P. DiNapoli announced the following school audits have been issued

 

On June 20, 2023, New York State Comptroller Thomas P. DiNapoli announced the following school audits were issued. 

Olean City School District – Reserve Funds (Cattaraugus County) The board and district officials properly established the district’s nine general fund reserve funds totaling $10.9 million but did not use the reserve funds and could not demonstrate that $8 million held in seven of these reserves was reasonable or needed. In addition, the board and district officials did not adopt a comprehensive written reserve fund policy, transparently fund reserves or take appropriate action to address overfunded reserves.

 

Thousand Islands Central School District – Financial Management (Jefferson County) The board and district officials did not properly manage fund balance and reserves. As a result, officials withheld funds from productive use and may have missed opportunities to reduce the tax levy. The board and district officials overestimated appropriations by $9.7 million (11.6%) between the 2017-18 and 2020-21 fiscal years and appropriated fund balance totaling $6.1 million that was not needed. They also reported fiscal year-end surplus fund balance ranging from $2.4 to $3 million (10.3 to 12.8%) of the next year’s budget (during the same period), which exceeded the 4% statutory limit by $1.4 to $2.1 million. In addition, a tax certiorari reserve was improperly funded by $304,641 and a debt reserve, with a balance of approximately $1 million, was not used to pay debt-service costs during the 2019-20 and 2020-21 fiscal years as required.

 

Ontario-Seneca-Yates-Cayuga-Wayne Board of Cooperative Educational Services (BOCES) – Budget Development BOCES officials’ budget development process was ineffective and did not ensure reasonable budget estimates. Budgets developed for the 2019-20, 2020-21 and 2021-22 fiscal years had overestimated appropriations totaling $65.5 million and overestimated revenues totaling $41.2 million. This resulted in net operating surpluses totaling more than $24 million over the three-year period. Appropriations for three equipment accounts and two printing service accounts were consistently overestimated by approximately $11.5 million and $3 million annually. In addition, department heads utilize worksheets to prepare budget estimates, which are then required to be manually input into the financial system by the business office, which is inefficient and increases the likelihood of errors.

 

Ontario-Seneca-Yates-Cayuga-Wayne Board of Cooperative Educational Services (BOCES) – Payroll Although BOCES officials compensated employees the auditors reviewed in accordance with collective bargaining agreements and employment contracts, 40 employees received unearned wages totaling $25,948 of which $19,985 was not recouped. In addition, it cost BOCES approximately $111,000 annually for time spent in the review, approval and manual entry into the financial system of the timesheets utilized by certain bargaining units/departments.

 

Oxford Academy and Central School District – Transportation Department Purchase and Service Contracts (Chenango County) District officials did not comply with competitive bidding requirements for 33 of 35 transportation contracts totaling $322,056. In addition, district fuel credit card purchases resulting in 155 charges totaling $16,258 did not comply with district procedures. Lastly, vehicle repair invoices and parts ordered by the vehicle maintenance and repair vendor were not reviewed and 22 charges, totaling $1,891, did not have enough detail to verify that the parts ordered were used for district vehicles.

 

Hawthorne Cedar Knolls Union Free School District – Financial Condition (Westchester County) The district had a general fund balance deficit in each of the last five fiscal years, averaging more than $2.9 million each year. This contributed to the district’s overall cash position, which decreased by 71%. The largest deficit occurred in the 2020-21 fiscal year and totaled more than $5.1 million. Although a multiyear financial plan would provide more transparency regarding the district’s long-term financial goals and help guide the board and officials as they develop district budgets, they did not develop a multiyear financial plan for the district.

 

Gouverneur Central School District – Medicaid Reimbursements (St. Lawrence County) District officials did not identify students who received Medicaid-eligible services or file Medicaid-reimbursement claims to recover part of the costs associated with these services. As a result, the district did not receive about $68,200 for reimbursements to which it was entitled. Although the district provided Medicaid-reimbursable services to 27 students who were eligible for Medicaid during the 2021-22 fiscal year, officials did not file for reimbursements because a district-prepared cost-benefit analysis did not fully quantify the potential revenue that could be realized. District officials also did not establish Medicaid claims procedures to ensure that staff maintained sufficient documentation for eligible services provided.

 

Fishers Island Union Free School District – Website Transparency (Suffolk County)District officials did not ensure the district’s website provided the public with transparent and comprehensive financial information. As a result, the community and other interested parties could not readily access and review information that could be used to make informed decisions. Officials also did not post information they were required to include on the district’s website.

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