Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

Introduction of evidence of a finding of guilt in a prior disciplinary action in the course of a disciplinary hearing

OATH Index No. 300/13*

As a general rule, evidence of prior disciplinary action taken against an employee may not be admitted at his or her disciplinary hearing to show that the employee “has a propensity to commit the charged misconduct.”

In this case, where the employee was charged with threatening and assaulting a supervisor, OATH Administrative Law Judge Faye Lewis admitted evidence that the employee had earlier pled guilty to prior charges of time and leave violations for the purpose of impeaching or rebutting the employee’s claim that he his supervisor was “scapegoating” him for “non-existent time and leave issues.”

ALJ Lewis noted that there is an exception to the rule barring the introduction of evidence of  “prior disciplinary action” taken against the individual. Such evidence may be may be admitted and considered when [1] it is offered for a different reason or another purpose; [2] where prior violations have independent relevance and [3] the fact-finder is an attorney or a judge trained to consider potentially prejudicial evidence introduced for limited purposes.

Judge Lewis also observed that “four different sets of charges, each with multiple specifications,” were served on the employee. Some of the charges, said the ALJ, were duplicative in that they alleged the same misconduct while citing an alleged violation of  a different rule.

Such duplicative pleadings are “confusing and verbose” said the ALJ. The better practice is to plead misconduct as “a single factual allegation, with citation to the agency rules that are alleged to have been violated

* The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-300.pdf

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending June 22, 2013  [Click on text highlighted in bold to access the full report] 


DiNapoli Releases Fiscal Stress Scores for Local Communities

Two dozen communities in New York have been designated as fiscally stressed under State Comptroller Thomas P. DiNapoli’s new Fiscal Stress Monitoring System. The listincludes eight counties, three cities and 13 towns. A video release is available here.

DiNapoli Applauds Legislature for Passage of Superstorm Sandy Legislation

State Comptroller Thomas P. DiNapoli Tuesday commended the state Assembly and Senate for passing legislation to help local governments deal with the financial impact of Superstorm Sandy. The three bills submitted by DiNapoli will now go to the Governor. For copies of the complete legislation, visit: http://www.osc.state.ny.us/legislation/.

DiNapoli Commends Legislature For Action On Bill Calling For Tighter Oversight Of Special Education Providers

State Comptroller Thomas P. DiNapoli Friday commended the Legislature for passing legislation mandating audits of every special education services program provider for preschool children with disabilities in the state and urged Governor Cuomo to sign the bill to ensure taxpayer monies are spent as intended and to deter further provider fraud. This legislation was a program bill of the Office of the State Comptroller and was sponsored by Sen. John Flanagan (S.5568-A) and Assemblywoman Catherine Nolan (A.7302-A). For copies of the complete legislation, visit: http://www.osc.state.ny.us/legislation/.

DiNapoli: NYC Rental Housing Less Affordable

Housing is becoming increasingly unaffordable for rental households in New York City, with only 44 percent of all apartments considered affordable in 2011 for families earning the median income, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Revenue Outpacing Estimates

State tax collections of $12.6 billion through May, rose 25.8 percent from collections during the same period last year, primarily due to non–recurring estimated Personal Income Tax payments made in April, according to the May Cash Report released Friday by State Comptroller Thomas P. DiNapoli.

Employee testified that his use of “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

Employee testified that his use of  “Nazi” and “Fascist” directed towards his supervisors constituted profanity and was intended to be offensive

NYC Dept. of Corrections v RM, OATH Index No. 651/13

RM, an employee of the NYC Department of Corrections, was served with disciplinary charges alleging that he acted in a disrespectful manor towards his supervisors, that he failed to obey an order to submit a report, he performed doing less work than his co-employees, that he refused to perform certain duties and that he had made false entries into Department records.

OATH Administrative Law Judge Astrid B. Gloade found that RM called his supervisors “Nazis” and “Fascists,” refused to conduct workshops to assist inmates, and processed less than one percent of the discharge letters issued by his three-person unit.

The ALJ said that RM had testified that the use of “Nazi” and “Fascist” to him amounts to profanity, which Judge Gloade viewed as indicating that RM’s intent was to offend his supervisors.

Further, Judge Gloade said that RM only expressed remorse that his statements, meant to be insults, “might not have hit their mark” because he “realized [his supervisors] didn't even know what [he] was talking about because they weren't even around when Nazis were current events.”

RM’s own testimony, said Judge Gloade, established that he directed highly inappropriate remarks towards his supervisors.

However, the ALJ found the Department did not prove that RM failed to submit a report when ordered to do so nor did it prove that he made false entries in Department documents with the intent to defraud.

Finding RM guilty of the remaining allegations of misconduct, ALJ Gloade recommended that the appointing authority suspend RM for 45 days without pay.

N.B. In Matter of Shafer, 2013 NY Slip Op 04571, Appellate Division, Third Department, an individual dismissed from her employment for “insubordinate behavior” that included rude, disrespectful and hostile conduct,was found guilty of disqualifying misconduct for the purposes of eligibility for Unemployment Insurance benefits by the Unemployment Insurance Appeal Board.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-651.pdf

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices

Governor Cuomo announces Senate confirmation of a number of individuals he nominated for appointment to various public offices

Source: Office of the Governor

On June 20, 2013, Governor Andrew M. Cuomo announced the Senate’s approval of multiple appointments within the administration. Below are the individuals confirmed.

New York State Office of Temporary and Disability Assistance

Kristin Proud

Ms. Proud will serve as Commissioner. She earlier served in Governor Andrew Cuomo’s Office as Deputy Secretary for Human Services, Technology & Operations. She is a member of the Governor’s Olmstead Cabinet and the State’s Mandate Relief Council. She previously served in the Governor’s Office as the Deputy Director of State Operations from November 2007 to August 2009 and the Director of Health and Human Services from January to November 2007. Ms. Proud spent fourteen years in the New York State Assembly, during which time she worked for three Speakers of the Assembly. Ms. Proud was the Deputy Secretary of the Assembly Ways and Means Committee and was also the principal staff advisor to the Speaker and the Assembly Majority on issues related to health and human services. Following that, she served as Senior Director of Community Relations and Planned Giving for the Center for Disability Services, the largest provider of services to individuals with disabilities in the Capital Region. Ms. Proud is a summa cum laude graduate of the State University of New York at Albany. She also attended Florida State University.

Gaming Commission

John A. Crotty

A founding member of Workforce Housing Advisors, a New York City-based development firm with a particular focus on affordable housing. Mr. Crotty has nearly two decades of experience in housing, government and finance in a variety of capacities. Mr. Crotty is a former member of the Board of Directors of the New York City Off-Track Betting Corporation and was appointed by Governor Paterson to a panel to restructure the Off Track Gaming system statewide. Mr. Crotty was also a member of the New York State Franchise Oversight Board, which oversees the finances of The New York Racing Association, Inc.

John J. Poklemba

Served as General Counsel to American Transit Insurance Company, a New York City-based Commercial Automobile Insurer. Previously, Mr. Poklemba was the managing partner of his general practice in Saratoga County for more than a decade. Prior to that, Mr. Poklemba was the principal attorney responsible for governmental relations and litigation for Bartlett, Pontiff, Stewart & Rhodes, P.C. in Glens Falls. Mr. Poklemba also served in New York State government for many years working on criminal justice.

Barry Sample

Mr. Sample recently retired from Governor Cuomo’s Administration as Deputy Director of State Operations where he handled the day-to-day management of state government following nearly two decades in service to New York State. Previously, Mr. Sample served as Deputy Director at the New York State Division of Criminal Justice Services, Deputy Director at the New York State Division of Budget, and Director of Intergovernmental Affairs and Community Relations at the New York State Comptroller’s Office.

Todd R. Snyder

Serves as executive vice chairman of North American Global Financial Advisory and co-head of the debt and restructuring group at Rothschild, Inc., a leading international investment banking and financial advisory firm where he is also Senior Managing Director. Mr. Snyder has been an advisor for Rothschild Inc.’s companies for more than two decades, including work with Emerald Casino, Dow Corning and United Airlines. Mr. Snyder also served as part of Governor Cuomo’s Labor Negotiating Team, where he was instrumental in forging new contracts with the state’s public sector unions. He advised the Bush and Obama administrations on the restructuring of the auto industry.

Justice Center Advisory Council

William Gettman

Mr. Gettman will serve as Chair. He is Executive Director of St. Catherine’s Center, with more than 25 years of experience in the child welfare field in both the public and private sectors. Previously, he was Executive Deputy Commissioner at OCFS, responsible for all child welfare programs throughout the State.

Other appointees include:

Euphemia Strauchn-Adams

Joseph Rich

Snowden Earl Eichelberger

Glen Liebman

Jeremy Klemanski

Leslie Hulbert

Judith O’Rourke

Alfred Kingon

Robert Weisman, DO

Michael Arsham

Shirley Flowers

Peter Pierri

Denise Figueroa

Harvey Rosenthal

Gabrielle Horowitz-Prisco

Walter Joseph, Jr.

David Allen Lamphere

Norwig Debye-Saxinger

Ronald Lehrer

Tanya Hernandez

Christopher Tavella

Delores McFadden

Brian McLane

Scott Salmon

Lisa Goring

Mary Bonsignore

Clint Perrin

Belinda Lerner

Eva Dech

Behavioral Health Services Advisory Council

Paul Samuels, JD

Mr. Samuels will serve as Chair. He is the Director and President of the Legal Action Center (LAC), a non-profit law and policy organization whose mission is to fight discrimination against people with histories of addiction, HIV/AIDS, or criminal records, and to advocate for sound public policies in these areas. Mr. Samuels has served as a member of the NYS Advisory Council on Alcoholism and Substance Abuse Services as Vice-Chairperson.

Other appointees include:

Kunsook Song Bernstein, PhD

John Kastan, PhD

Jennifer Havens, MD

Tino Hernandez

Ralph Fasano

William Gettman, Jr.

Howard Meitiner

Katherine Breslin

Lt. Colonel April Critelli

James Scordo

Stephanie Orlando

Patrice Wallace-Moore

Sharon Gillette

Grant Mitchell, MD

John Lee

Maura Kelley

Euphemia Strauchn-Adams

Andrew Roberts

Deborah Mayo

Michael Martin

Glenn Martin

Robert Cruz

Scott LaVigne

Dormitory Authority of the State of New York (DASNY)

Alfonso Carney, Jr.

Mr. Carney will serve as Chair. He is a principal of Rockwood Partners, LLC, which provides medical consulting services in New York City. He has served as Acting Chief Operating Officer and Corporate Secretary for the Goldman Sachs Foundation and has held senior level legal positions with Altria Group Inc., Philip Morris Companies Inc., Philip Morris Management Corporation, Kraft Foods, Inc. and General Foods Corporation.

Other appointees include:

Beryl Snyder

John B. Johnson

New York Convention Center Operating Corporation (Javits Center)

Henry Silverman

Senior Advisor and Vice Chairman of Investment Management Business for Guggenheim Partners, a diversified financial services firm in New York City, Mr. Silverman will serve as Chair. He currently serves as Chair of the New York Convention Center Development Corporation.

Other appointees include:

Daniel De Vita

Andrew Murstein

David Emil

Civil Service Commission

Jerry Boone

Continuing to serve as Commissioner and President, Mr. Boone is currently the Managing Principal of Boone Consulting, where he has helped develop human resources and operations infrastructure. Previously, Mr. Boone founded Pride Properties, LLC, in 2008, a company based in Memphis, Tennessee, focused on the acquisition and rehabilitation of distressed properties to develop quality, affordable housing for sale or rental to lower to middle income households. Mr. Boone still serves as President of the organization, which also offers financial counseling provided for first-time home buyers.

State Board for Historic Preservation

Robert MacKay, PhD

Executive Director of the Society for the Preservation of Long Island Antiquities in Cold Spring Harbor, where he led the society's evolution and growth from being primarily a manager of traditional house museums to becoming a vibrant regional preservation organization that provides assistance to communities to safeguard and revitalize their historic built environments in the midst of ever increasing development pressure, Dr. MacKay will continue to serve as the Board’s Chair.

Other appointees include:

John Winthrop Aldrich

Randall Crawford

Jay DiLorenzo

Douglas Perrelli, PhD

State Commission of Correction

Thomas A. Beilein

Mr. Beilein, holds the distinction of being the only former sheriff in the history of the Commission to serve as the Commission’s Chair. His experience as the Niagara County Sheriff from 1994 to 2008 – which includes running a jail with an average daily population of 450 – is unique in the annals of Commission history. Mr. Beilein brings a wealth of law enforcement and administrative experience. He has worked as a correction officer, road patrol officer, investigator and administrator.

Other appointees include:
Thomas Loughren 

The Port Authority of New York and New Jersey

Basil Alexander Paterson

Mr. Paterson, a member of the law firm of Meyer, Suozzi, English & Klein and Co-Chair of the firm’s Labor practice, is a Harlem native and former New York State Senator, having first been elected in 1965. A former New York City Deputy Mayor for Labor Relations and Personnel, he was appointed as New York’s first African American Secretary of State in 1979. He previously served on the Port Authority’s Board of Commissioners from 1989 to 1995. Mr. Paterson has also taught at the State University of New York at New Paltz, Fordham University School of Education, and Hunter College. He is a double alumnus of St. John’s University in Queens.

Kenneth Lipper

Mr. Lipper brings years of experience in public and private sector management and investment banking to the Port Authority. Since 1987 he has served as Chairman and Chief Executive Officer of Lipper & Co. LLC, an investment management and investment banking firm. He is has also been a Director of CNH Global NV, a leading agricultural and construction equipment company since 1996. Previously, Mr. Lipper was Executive Vice President and Senior Adviser of the leading global real estate firm Cushman & Wakefield. He also served as Advisor and Deputy Mayor to New York City under Mayor Ed Koch, and is a former adjunct professor at Columbia University’s Graduate School of International and Public Affairs.

Olympic Regional Development Authority (ORDA)

J. Patrick Barrett

Mr. Barrett will continue serving as ORDA Chair. He is Chairman and Chief Executive Officer of CARPAT Investments, a private investment company. Previously, he was Chairman and CEO of Avis.

Other appointees include: 
Jill Ruhm Broderick
Robert Francis Flacke

State Athletic Commission
John Signorile – Commissioner 

Battery Park City Authority
Lester Petracca 

State Council on the Arts
Deborah Ronnen 

Saratoga-Capital District State Parks, Recreation and Historic Preservation Commission
Karen Lee Bilowith
John McEneny

Niagara Frontier Transportation Authority
LaVonne E. Ansari
Anthony Baynes
Peter G. Demakos
Margo Dawn Downey
Michael P. Hughes
Adam W. Perry

Adirondack Park Agency 
Daniel Wilt
Arthur Lussi
William Thomas
Karen Feldman

Allegany State Parks, Recreation and Historic Preservation Commission
Michael Lyons 
Thomas Erlandson 
Michael McLaughlin 

Genesee State Parks, Recreation and Historic Preservation Commission
Frank Allkofer 
Thomas Jennings 
Peter Humphrey 
Martin Miskell 
Loren Penman 

Niagara Frontier State Parks, Recreation and Historic Preservation Commission
Thomas Yots 
Stuart Angert 

Palisades Interstate State Parks, Recreation and Historic Preservation Commission
Howard G. Seitz

Thousand Island State Parks, Recreation and Historic Preservation Commission
James Ransom 

Central New York State Parks, Recreation and Historic Preservation Commission
Stephen Buechner 
Terry Ettinger 
Cornelius B. Murphy 

Finger Lakes State Parks, Recreation and Historic Preservation Commission
Ludi Augustine 
Mitchell Cornish 
Robert Scharf 

New York City State Parks, Recreation and Historic Preservation Commission 
Allison Whipple Rockefeller 
Leisle Lin 
Alexander Durst 
Simon Roosevelt

Niagara Frontier Transportation Authority
Charles (Sam) Gurney
Wesley Hicks, MD 

Workers’ Compensation Board
Frances Libous (Vice Chair)

CUNY Board of Trustees
Alfreida D. Foster-Tolbert

State Insurance Fund
Joseph Canovas 
Barry Swidler

NYS Housing Finance Agency
Nestor Davidson
Joyce Miller 

Tax Appeals Tribunal
Roberta Moseley Nero 

Advisory Council on Agriculture 
Samuel Casella
Lesa Sobolewski 
David Haight 

Albany Pine Bush Commission
John Brust 
Harvey Alexander 
Nancy Pierson 
Steven Rice, PhD

Citizen’s Policy and Complaint Review Council
Nicholas A. LaBella

New York State Council on the Arts 
Laura Aswad

Ogdensburg Bridge and Port Authority 
Samuel James LaMacchia

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law”

Disciplinary action taken under the CBA notwithstanding the teacher’s requesting a hearing pursuant to the CBA “reversed on the law” 

2013 NY Slip Op 04472, Appellate Division, Fourth Department

The Appellate Division reversed a Supreme Court decision that denied a tenured teacher’s [Educator] Article 78 petition seeking to annul the school district’s suspending her without pay for 30 days.

The Appellate Division said it agreed with Educator that the school district failed to comply with the requirements of Education Law §3020(1) when it disciplined her without affording her a hearing pursuant to Education Law §3020-a.

The court explained that “the plain language of Education Law §3020(1) provides that a tenured teacher facing discipline, and whose terms and conditions of employment are covered by a collective bargaining agreement (CBA) that became effective on or after September 1, 1994, is entitled to elect either the disciplinary procedures specified in Education Law §3020-a or the alternative procedures contained in the CBA.”

The court determined that the relevant CBA took effect on July 1, 2006. Accordingly, said the court, Educator was entitled to choose whether to be disciplined under the procedures set forth in the CBA or to elect a disciplinary hearing in accordance with Education Law §3020-a as a matter of law regardless of whether or not the CBA offered such an option.

The school district, however, had denied Educator’s written request for a §3020-a hearing.

Finding that the school district’s action was “incorrect,” the Appellate Division annulled the school district’s imposing a disciplinary penalty suspending Educator for 30 days without pay and directed the school district to [1] reinstate her to her position with back pay and benefits retroactive to the date of her suspension and [2] to remove all references to the discipline imposed from Educator’s personnel file.

Significantly, §3020.1, in pertinent part, provides that any such ”alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September 1, 1994, must provide for the written election by the employee of either the procedures specified in such §3020-a or the alternative disciplinary procedures contained in the collective bargaining agreement.” [emphasis supplied].

Further, the negotiated alternative disciplinary procedure must provided constitutional due process protections equivalent to those available under the statutory procedure [Antinore v State, 40 NY2d 6].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04472.htm

_____________________________

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html