Hearing officer rejects motion to seal disciplinary hearing records but redacts the name of the victim of the employee's misconduct

Hearing officer rejects motion to seal disciplinary hearing records but redacts* the name of the victim of the employee's misconduct
Fire Department v Palleschi, OATH Index #551/11

In this Civil Service Law §75 disciplinary action, an EMT Lieutenant was charged with “bringing the agency into disrepute and showing disrespect to the public.” OATH Administrative Law Judge Joan Salzman said that the Lieutenant admitted the charges “in all material respects” and that the critical issue was her recommendation to as to the appropriate penalty for such misconduct.

Judge Salzman recommended the termination of an EMS lieutenant who admitted that he had posted private and confidential patient information on his Facebook page, "where 460 of his friends could see it for their amusement."

Significantly, Judge Salzman rejected a motion made after the close of the evidence whereby the parties jointly asked to have the Administrative Law Judge “seal the entire record.”

The ALJ explained her reason as follows:

I declined, because this was a public hearing, 48 RCNY §1-49 (Lexis 2009), and there was no reason to seal the entire record. See Mosallem v. Berenson, 76 A.D.3d 345, 348-49 (1st Dep’t 2010) (“Under New York law, there is a broad presumption that the public is entitled to access to judicial proceedings and court records”; public right to access is not absolute, and confidentiality is the exception, not the rule). However, I did indicate to the parties that I was not going to identify the patient in my decision and directed them to review the transcript and exhibits and to redact her identity (meaning name, address, and phone number) from this record should it be sought for publication or filed in court. Even though that information was on the Internet, I see no reason to republish it.

* Remove or black out material in a document prior to its publication or release.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-192.pdf
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Complying with all statutory tests critical to sustaining an administrative decision

Complying with all statutory tests critical to sustaining an administrative decision
Gallo v Office of Mental Retardation and Developmental Disabilities, 37 AD3d 984

Albert P. Gallo’s application for employment as a bus driver with the Schenectady County Chapter NYSARC, Inc. (ARC) was rejected by OMRDD after it found that Gallo had been convicted of assault in the second degree in 1988.

OMRDD said that his employment as an ARC driver involved an unreasonable risk to the safety or welfare of consumers served by ARC in view of this conviction. Gallo sued, asking the court to overturn OMRDD’s determination.

Supreme Court found the record “insufficiently developed” and annulled OMRDD’s determination. The court also directed OMRDD to approve ARC's employment of Gallo but denied Gallo counsel fees. The parties cross-appealed, OMRDD from that part of the judgment annulling its determination and directing it to approve Gallo’s employment by ARC and Gallo from the denial of counsel fees.

The Appellate Division said that OMRDD is required by statute to undertake criminal history background checks of employees of voluntary corporations such as Schenectady ARC. It noted that when Gallo’s background check revealed the 1988 assault in the second-degree conviction, OMRDD notified Gallo of its finding. It also advised him “to submit any answering documentation.”

After receiving Gallo’s letter of explanation and letters of reference, OMRDD rejected Gallo’s application, indicating that its decision was “on the grounds that [Gallo was] convicted of a crime or crimes” and that this determination was consistent with the provisions of Correction Law Article 23-A.

The court noted that Correction Law Section 753, which is part of Article 23-A, sets out eight elements that a public agency is to consider in making a determination pursuant to Correction Law Section 752 concerning licensure or employment of any individual with a criminal conviction. In the words of the Appellate Division:

When all eight factors are considered and the positive factors are balanced against the negative factors, the resulting decision is neither arbitrary nor capricious nor does it constitute an abuse of discretion and reviewing courts may not reweigh the factors and substitute their judgment for that of the agency.

In this instance, however, the Appellate Division found that a number of the statutory elements required to be considered were not set out in the “checklist” that OMRDD claimed mirrored the statutory factors and was used in making OMRDD’s determination regarding Gallo’s eligibility for employment by ARC.

Because these factors were apparently not considered, the Appellate Division ruled that OMRDD’s determination was arbitrary. It remitted the matter back to OMRDD for its consideration of “the public policy issue and for a determination of whether a certificate of relief from disabilities or good conduct or the equivalent evidence would benefit this applicant.”

Addressing the issue of the attorney fees claimed by Gallo, the court said it that denial of counsel fees was not premature and OMRDD’s position herein “may ultimately prove to be correct” and, in any event, “it was substantially justified.”

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/complying-with-all-statutory-tests.html
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While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant’s statutory rights

While a public employer may abolish a position for reasons of economy or efficiency, it may not do so to avoid a civil servant’s statutory rights
Matter of Gallagher v Board of Educ. for Buffalo City School Dist., 2011 NY Slip Op 01163, Appellate Division, Fourth Department

James F. Gallagher, in his capacity as president of the responsible employee organization, challenged the Buffalo City School District’s abolishing the positions of Director of Emergency Planning for the Buffalo City School District and Stenographic Secretary to the Superintendent and in replacing them with nearly identical civil-service exempt confidential positions.

Contending that the School District had acted in bad faith in abolishing these positions, Gallagher asked Supreme Court to annul the District’s decision abolishing the items.

Supreme Court granted the petition Gallagher’s petition and the Appellate Division sustained the lower court’s ruling.

The Appellate Division rejected the School District’s contention that they were entitled to abolish the position of Director of Emergency Planning because “they are entitled to abolish a position at any time” as being without merit.

While, the court explained, "A public employer may in good faith abolish a civil service position for reasons of economy or efficiency, but a position may not be abolished as a subterfuge to avoid the statutory protection afforded to civil servants," citing Hartman v Erie 1 BOCES Bd. of Educ., 204 AD2d 1037.

The Appellate Division said that in this instance the record showed that the position of Director of Emergency Planning was abolished in favor of a re-created civil-service exempt position entitled Homeland Security Coordinator. Yet, said the court, the School District “presented no evidence justifying the need for that position to be re-created for reasons of economy or efficiency, nor did they justify the need for that position to be classified as civil-service exempt.”

The court said that the primary duty of both the abolished Director position and the "re-created" Director position was the responsibility for emergency preparedness, including the implementation of safety plans and the organization of training programs and the knowledge, skill and ability for both positions appeared identical.

The Appellate Division said that with respect to the Stenographic Secretary position, the record supports a finding that it was abolished in bad faith.

Again, said the court, the School District did not present any evidence justifying the need to replace the Stenographic Secretary position with the newly created Confidential Secretary position for reasons of economy or efficiency, nor did they justify the need for that position to be classified as civil-service exempt.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01163.htm

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Employer’s filing appropriate Workers’ Compensation claims forms defeats “statute of limitation” objection to payment employee’s claim

Employer’s filing appropriate Workers’ Compensation claims forms defeats “statute of limitation” objection to payment employee’s claim
Matter of Kwadzogah v New York City Health & Hosp. Corp, 2011 NY Slip Op 01389, Appellate Division, Third Department

An employer waives the limitations defense by making payments of compensation to a claimant in the form of wages, medical treatment or other compensable expenses that carry a "recognition or acknowledgment of liability under the Workers' Compensation Law"

In this case the Appellate Division found that Innocencia Kwadzogah had sustained a work-related injury on July 29, 2006, but did not lose any time from work at that time and therefore did not file a claim for workers' compensation benefits.

In June 2008, however, Kwadzogah lost time from work as a result of the injury and filed a claim for benefits on July 30, 2008 — one day after the expiration of the limitations period of Workers' Compensation Law §28.

When her employer, the New York City Health and Hospital Corporation opposed the claim, alleging that it was time-barred, a Workers' Compensation Law Judge determined that the employer had waived the limitations defense by making payments of compensation to claimant with an acknowledgment of liability.

Intimately the Workers' Compensation Board affirmed and HHC appealed.

The Appellate Division found that substantial evidence existed in the record* to support the Board's determination that HHC made payments to Kwadzogah “with a recognition of liability and, thus, waived the statute of limitations defense.”

Further, said the court, HHC did not file a notice of controversy, however, which it was required to do within 25 days of the Board's mailing of the notice of indexing if it intended to contest the claim (see Workers' Compensation Law §25[2][b]).

Cited as substantial evidence to support the Board's determination that HHC had waived the statute of limitations defense by:

1. Making payments of compensation to Kwadzogah with an acknowledgment of liability:

2. Filing a C-2 form reporting the injury as a work-related injury, offeredKwadzogah medical treatment; and

3. Filed a C-669 form (notice of carrier's action on a claim for benefits) with the Board in which HHC reported that the "claim [was] not disputed."

In addition, said the Appellate Division, HHC filed a C-11 form (Employer's report of injured employee's change in employment status resulting from injury) reporting to the Workers' Compensation Board that Kwadzogah had lost time beginning in June 2008 and indicating that, for part of that time, it had made payments to Kwadzogah.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01389.htm
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Federal charges characterized as involving “the failings of New York State government” and highlighting the need for comprehensive reform legislation

Federal charges characterized as involving “the failings of New York State government” and highlighting the need for comprehensive reform legislation
Source: Office of the Governor

U.S. Attorney Preet Bharara has filed a 53-page complaint in the United States District Court, Southern District of New York, United States of America v Carl Kruger, Richard Lipsky, Aaron Malinski, Solomon Kalish, Robert Aquino, David Rosen, William Boyland, Jr. and Michael Turano, alleging violations of 18 USC §§1341, 1343, 1346, 1349, and 1956(a)(1)(B) and (h).

In a press release issued March 10, 2011, concerning the complaint, Governor Cuomo said:

"Today's arrests again spotlight the failings of New York State government and highlight the urgent need for the legislature to pass comprehensive ethics reform - now. During the campaign, I made a commitment that we would either pass real ethics reform with real disclosure and real enforcement or I would form a Moreland Commission on public integrity. New Yorkers deserve a clean and transparent government comprised of officials who work for the people, not for the special interests and certainly not for their own corrupt self-interests. Today, I reaffirm my commitment to clean up Albany and state clearly that either ethics legislation will be passed or I will form a Moreland Commission by the end of this legislative session."

The compliant filed by the U.S. Attorney is available on the Internet at: http://www.scribd.com/doc/50454766/Kruger-Carl-et-al-Complaint
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