Hearing officer recommends that employee found guilty of excessive absence be terminated from her position

Hearing officer recommends that employee found guilty of excessive absence be terminated from her position

NYC Department of Corrections v E.G., OATH Index #214/11

The Department of Correction sought to terminate a correction officer, E.G., pursuant to §73 of the Civil Service Law after she had been absent from work for more than a year due to a non-work related disability.*

In the alternative, the Department simultaneously filed disciplinary charges against E,G. pursuant to §75 of the Civil Service Law alleging that she medically incompetent to perform the duties of her position as she had ben absent on sick leave for 313 days during an 18-month period.

E.G., on the other hand, asserted that she was fit to return to work.

After weighing the testimony of three experts and the Department of Correction, OATH Administrative Law Judge Ingrid A. Addison found E.G. unfit to return to work due to her “non-job related disability.”

The ALJ also found that E.G.’s absence from work involved an excessive use of sick leave and that such conduct provided an independent basis for disciplinary action pursuant to Civil Service Law §75. 

Judge Addison ruled that E.G. was “medically incompetent to perform the duties of her position and recommended that the Appointing Authority terminate E.G.’s employment pursuant to Civil Service §75.

The ALJ also found that as E.G. “is not rehabilitated," such dismissal from her position "is not violative of her human rights protections," citing McEniry v. Landi, 84 NY2d 554.

* §73 permits the appointing authority, as a matter of discretion, to terminate an employee who has been continuously absent for one year or longer, regardless of whether such absence was self-imposed by the employee or flowing from the employee's having been involuntarily placed on a leave of absence by the appointing authority pursuant to §72 of the Civil Service Law [see §72.4]. In contrast to termination pursuant to §75, termination pursuant to §73 is not pejorative and the individual may apply for reinstatement to his or her former position "within one year after the termination of such disability."

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2141.pdf

Former welfare fraud investigator convicted of stealing almost $5,000 from the Comptroller's Office of Unclaimed Funds

Former welfare fraud investigator convicted of stealing almost $5,000 from the Comptroller's Office of Unclaimed Funds

Source: Office of the State Comptroller

After an investigation initiated by State Comptroller Thomas P. DiNapoli, a former investigator with the State Welfare Inspector General’s Office pleaded guilty to illegally obtaining unclaimed funds being held by the Comptroller’s Office of Unclaimed Funds.

The Office of Unclaimed Funds holds such monies until they are claimed by the rightful owners. DiNapoli’s investigation found that investigator had submitted 15 forged abandoned property claims to the Office of Unclaimed Funds.

The case was prosecuted by the Manhattan District Attorney’s office and the former investigator, who resigned from his $62,597 position with the State, was sentenced to perform community service and ordered to pay restitution.

The Comptroller maintains a site on the Internet where interested individuals, organizations or businesses may search for funds deposited with the Office of Unclaimed Funds at https://ouf.osc.state.ny.us/ouf/. Such moneys typically are sent to the Office from forgotten or unknown bank accounts, investment or brokerage accounts or insurance policies in accordance with the provisions of the Abandoned Property Law. In some cases a business or governmental agency is the owner of the money. For example, the Comptroller recently delivered $4,844.72 in unclaimed funds to the City of Syracuse.

“Fraud is fraud, but it is particularly egregious when it is committed by a public servant charged with investigating fraud,” DiNapoli said.

DiNapoli encourages the public to help fight against fraud and abuse by report allegations of fraud, corruption and abuse of taxpayer money. Persons wishing to assist the Comptroller in this may use the Comptroller’s toll-free fraud hotline at 1-888-672-4555; file a complaint online at investigations@osc.state.ny.us; or mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Terminated probationer has the burden of proof in challenging his or her dismissal

Terminated probationer has the burden of proof in challenging his or her dismissal
Lane v City of New York, 2012 NY Slip Op 01257, Appellate Division, Second Department

In affirming Supreme Court’s dismissal of a dismissed probationary employee’s petition seeking reinstatement to his former position, the Appellate Division set out the following guidelines that courts consider in adjudicating such an action.

1.The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of the former probationary employee demonstrating that his or her termination was made in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

2. Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for the other improper or impermissible reasons set forth above and the burden of proof is on the individual.

3. The individual’s speculation that his or her dismissal was made in bad faith is insufficient to warrant a hearing.

The Commissioner of Education indicated the same standard would apply had he considered the appeal submitted by a probationary teacher challenging her termination by the school board [see Decisions of the Commissioner Education, Decision No. 16,329, http://publicpersonnellaw.blogspot.com/2012/02/probationer-has-burden-of-establishing.html].

The Lane decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01257.htm

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

NYC Department of Sanitation v E.L., OATH Index #2107/11

The Department of Sanitation charged a sanitation worker, E.L., with failure to complete a federally mandated drug test in violation of Rule 2.5 of the Department’s Code of Conduct. 

E.L. had appeared for the test and was cooperative but was unable to provide the required amount of urine in the three hours he was given. He subsequently submitted a note from his urologist, explaining that E.L. had urological conditions that could have prevented him from urinating. Later E.L. was diagnosed as having prostate cancer. 

The Medical Review Officer (MRO), who had no specialized knowledge in urology, ruled that the note submitted by E.L.’s physician were insufficient to excuse for E.L.’s failure to provide a sufficient sample.  In addition, the MRO refused to consider E.L.’s prostate cancer as that condition was not diagnosed within the five-day time period the regulations gave test subjects for providing a note. 

As a result, the MRO marked respondent as having refused to take the drug test and the Department initiated disciplinary action against E.L. 

OATH Administrative Law Judge Kara J. Miller found that both the test collector and the MRO failed to follow federal drug testing procedures, and these procedural errors mandated cancellation of E.L.’s test. 

In addition Judge Miller ruled that even absent the necessity for cancellation, the charges against E.L. should be dismissed as his actions were not willful and the evidence established that he was physically unable to provide the required amount of urine when asked to the urine sample requested and dismissed the charges the Department had filed against E.L.  

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2107.pdf

Commissioner’s holding office for a specified term may only be removed during such term for cause

Commissioner’s holding office for a specified term may only be removed during such term for cause

Sedacca v Kelly, 2012 NY Slip Op 01319, Court of Appeals

The Court of Appeals has ruled that the Nassau County Executive did not have the authority to terminate Commissioners of the Nassau County Assessment Review Commission (ARC), in the absence of cause, prior to the expiration of their fixed, statutory terms. 

The ARC consists of nine commissioners appointed by the County Executive subject to approval by the County Legislature and have staggered five-year terms and that no more than six of the commissioners can be enrolled voters of the same political party.

The outgoing Nassau County Executive had appointed six ARC Commissioners. The counsel to the then-newly elected County Executive sent letters to each of the nine commissioners informing them that they were being removed from office pursuant to §203 of the Nassau County Charter. The letter stated that the commissioners had an opportunity to be heard, if they so desired. 

The Court of Appeals noted that the Nassau County Charter vests the County Executive with authority to appoint members of county boards and commissions, subject to approval of the County Legislature, citing Nassau County Charter § 203 [1]). Concomitantly, said the court, "[t]he County Executive may at any time remove any person so appointed; provided that in the case of members of boards and commissions appointed for definite terms, no removal shall be made until the person to be removed has been serv[ed] with a notice of the reasons for such removal and given an opportunity to be heard, publicly if he or she desires, thereon by the County Executive. The decision of the County Executive shall be final." 

Nassau County argued that, according to the plain language of the County Charter, the County Executive was within his authority to terminate Commissioners notwithstanding the absence of any wrongdoing on their part and regardless of the statutory term of office “in order to appoint individuals of his choosing.”

The Court of Appeals said that, in its view, the County’s argument “is inconsistent with the salutary purpose of the legislation at issue.” The court explained that “Although Real Property Tax Law §523-b does not set forth any procedure for the removal of commissioners, the statute demonstrates the legislative intent to protect the ARC from political influence. It is evident that the fixed, staggered terms of office along with the requirement that all of the commissioners must not be members of a single political party, are designed to promote stability of membership and political diversity. Notably, the five-year term of office exceeds the length of the County Executive's own. This design may frustrate the most recent expression of the electorate's mandate, but it is meant precisely to avoid a wholesale change of membership of the ARC upon the installation of each successive administration.”

As Nassau County’s Charter makes clear that when members of a commission appointed for a fixed term are removed, the "reasons for such removal" must be provided. "Reasons," in this context said the Court of Appeals, can reasonably be read as a synonym for "cause." Thus §203 permits removal of commissioners serving fixed terms for cause, but not otherwise. The court ruled that "the Real Property Tax Law §523-b and County Charter §203 are not incompatible, and read them together "to accomplish the clear legislative intent."

Although the Court of Appeals said that the commissioners, as County employees, are not protected by §36 of Public Officers Law,* it then noted that “it is instructive that a finding of some type of misconduct would be required to remove members of the similarly situated Board of Assessment Review (see 4 Ops Counsel SBEA No. 27 [1974])”**.

The court then observed that “Removing the Commissioners without cause under County Charter §203 would frustrate the legislative intent by nullifying the requirements of the RPTL and rendering the staggered statutory terms of office in RPTL 523-b superfluous. \”

Thus, said the court, under the circumstances the commissioners are not essentially at-will employees, subject to termination for any reason whatsoever.

As to the several commissioners’ claim that that they were entitled to attorneys' fees they incurred in the course of this litigation, the Court of Appeals disagreed, holding that although the County is required to "provide for the defense" of an employee involved in a civil action arising out of an act or omission that occurred during the scope of his or her employment, in this instance the “employees commenced the action.” Accordingly, there is no obligation on the part of the County to pay for their "defense."

* §36 of the Public Officers Law provides for the removal of public officers "for any misconduct, maladministration, malfeasance or malversation in office."

** Office of Real Property Tax Services, New York State Department of Taxation and Finance. Opinions of Counsel are posted on the Internet at: http://www.tax.ny.gov/pubs_and_bulls/orpts/legal_opinions/index.htm

The decision is posted on the Internet at:

http://www.publicpersonnellaw.blogspot.com/