The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

The lack of substantial evidence to support the hearing officer’s findings results in the court annulling the disciplinary action

Meaney v Village of Johnson City, 2012 NY Slip Op 04265, Appellate Division, Third Department

The mayor of the Village of Johnson City demoted a fire captain to firefighter first class after adopting the findings of the disciplinary hearing officer that a fire captain was guilty of multiple counts of misconduct and incompetence.

The Appellate Division annulled the mayor’s determination and reinstated the captain to his former position with back salary.

In explaining its ruling the Appellate Division said:

1. Substantial evidence does not support the determination of guilt;

2. The disciplinary charges were based on the captain’s “failure to disclose information that was neither solicited nor relevant to the conversation” with a police detective and “under no reasonable view of the evidence can it be said that the captain’s silence was willful or indicative of ‘some dereliction or neglect of duty’ on his part;” and

3. The captain was not charged with making inaccurate statements to his superior and, thus, cannot be disciplined for allegedly making such statements.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04265.htm

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Retirement System’s Medical Board’s determination that applicant is not disabled trumps Workers’ Compensation Board’s determination to the contrary

Vargas v New York City Employees' Retirement Sys., 2012 NY Slip Op 04185, Appellate Division, Second Department

Alex Vargas filed a petition pursuant to CPLR Article 78 challenging a determination of the Board of Trustees of the New York City Employees' Retirement System [NYCERS] that denied his application for accidental disability retirement benefits pursuant to Retirement and Social Security Law §605-b. When Supreme Court denied his petition, Vargas appealed.

The Appellate Division affirmed the lower court’s ruling, explaining that NYCERS’ Medical Board determines whether a member applying for accidental disability retirement benefits is disabled and NYCERS’ Board of Trustees of the New York City Employees' Retirement System is bound by the Medical Board's determination as to whether an applicant is disabled. Further, said the court, the Medical Board's determination is conclusive if it is supported by some credible evidence and is not irrational.

The record demonstrates that the Medical Board considered all of the medical evidence submitted by Vargas, interviewed him, and performed its own physical examination of him. Although the medical conclusions of some of Vargas' treating physicians differed from that reached by the Medical Board, the resolution of such conflicts is solely within the province of the Medical Board.

Rejecting Vargas’ argument to the contrary, the Appellate Division said that a disability determination by the Workers' Compensation Board does not control the Medical Board's disability determination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04185.htm

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Police officer dismissed after being found guilty of serving as an active volunteer firefighter while on GML §207-c leave

Kaufman v Wells, 56 AD3d 674

A disciplinary hearing officer found Steve Kaufman guilty of 42 of 122 specifications of misconduct filed against him, which ultimately resulted in Kaufman’s being terminated from his position with the Town of New Castle Police Department.

New Castle, among other things, charged that Kaufman, while on leave pursuant to General Municipal Law §207-c, participated in activities as a volunteer firefighter “which demonstrated his ability to work a light-duty assignment for the police department.”

Kaufman filed an Article 78 action to review New Castle’s determination.

The Appellate Division said that "Judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence."

In this instance the court found that the Town Board's determination that Kaufman was guilty of the specified acts of misconduct was supported by substantial evidence.

In addition, said the court, "[a]n administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness,' thus constituting an abuse of discretion as a matter of law," citing Kreisler v New York City Transit Authority, 2 NY3d 775.”

The Appellate Division concluded that ”Considering the repeated and numerous acts of misconduct, and the serious nature of the acts, it cannot be concluded, as a matter of law, that the penalty of [termination] shocks the judicial conscience."

Finally, the court said that “there is substantial evidence in the record to support the hearing officer's determination” that the disciplinary charges were not preferred against Kaufman in retaliation for his commencement of a civil action against the Town and members of the police department.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09082.htm

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15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose

15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose
Dep't of Sanitation v. Pulliam, OATH Index No. 1976/08

A sanitation worker was found to have disobeyed a supervisor's order and used a Department truck for an unauthorized purpose when he drove to a pay phone to call the police after allegedly being assaulted by a civilian on his route. Pulliam’s supervisor, after checking to make sure the respondent was not hurt, had ordered him to continue on his route while he called the central office to find out how to proceed. Administrative Law Judge Julio Rodriguez recommended a suspension of 15 days. He dismissed a second charge of unauthorized absence where the respondent claimed that he had gone on a bathroom break, and prior cases indicated that workers are vested with some discretion as to when and where to use the bathroom.

[For the full text of the decision, click on the title of the decision.]