Unscrupulous conduct or gross dereliction of duty warrants the removal of an officer of a town, village and other political subdivisions of the State pursuant to Public Officers Law §36

Unscrupulous conduct or gross dereliction of duty warrants the removal of an officer of a town, village and other political subdivisions of the State pursuant to Public Officers Law §36

2015 NY Slip Op 02815, Appellate Division, Third Department

Public Officers Law §36 provides that certain officers of a political division of the State may be removed from his or her office for misconduct, maladministration, malfeasance or malversation in office.  Loosely defined, these terms are used to describe, respectively, [1] acting unlawfully; [2] administer or manage badly or inefficiently; [3] commission of an act that is unequivocally illegal; and [4] corrupt behavior while serving in a position of trust.

In this action to remove a public officer from his positions with a Village the Appellate Division explained that “To warrant removal, an official's misconduct must amount to more than minor violations and must consist of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust” constituting "unscrupulous conduct or gross dereliction of duty or conduct that . . . connotes a pattern of misconduct and abuse of authority."

Residents of the Village commenced this proceeding in the Appellate Division*seeking to remove the incumbent [Officer] from the public offices of Mayor and Village Manager pursuant to Public Officers Law §36. When Officer moved to dismiss the petition the court denied the motion. The Appellate Division then referred the matter to a Referee to conduct a hearing and report his findings and recommendations to the court.

In the course of the hearing the residents offered testimony from a Village Trustee, an Assistant District Attorney, two Village police officers and a Village employee, as well as submitting affidavits and other evidence to support their allegations.  In contrast, Officer, who was present and was represented by counsel during the hearing, offered no testimony or evidence on his own behalf.

Ultimately the Referee issued a report recommending the removal of Officer from his positions. When the residents moved to confirm the Referee's report, Officer cross-moved to disconfirm the report and dismiss the petition.

The Appellate Division confirmed the Referee's report, concluding that Officer’s conduct warranted his removal from the offices of Mayor and Village Administrator pursuant to Public Officers Law §36. The court commented that Officer’s actions "rise to the level of 'unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority.’"

* §36 provides, in pertinent part, that an application for such removal “may be made by any citizen resident of such town, village, improvement district or fire district … and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district.”

The decision, which sets out the acts or omissions alleged to warrant Officer’s removal from office are set out in the decision of the Appellate Division which is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02815.htm

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A disciplinary penalty consisting of a “51 days' forfeiture” deemed already served while on prehearing suspension without pay, found appropriate under the circumstances

A disciplinary penalty consisting of a “51 days' forfeiture” deemed already served while on prehearing suspension without pay, found appropriate under the circumstances 
2015 NY Slip Op 02913, Appellate Division, First Department 

Supreme Court annulled the New York City’s Police Commissioner finding an employee [Employee] of the New York City Police Department [NYPD] guilty of multiple disciplinary charges filed against Employee and the penalty imposed by the Commissioner: 51 days' forfeiture, deemed already served while on pretrial suspension.”

The Police Commissioner appealed and the Appellate Division unanimously reversed the lower court’s ruling “on the law” and reinstated the penalty set by the Commissioner.

The Appellate Division noted that Employee had been found guilty of multiple disciplinary charges stemming from a variety of circumstances by a hearing officer including:

Accessing police computer information for personal purposes,

Supplying a resident address different from that of her actual address to obtain more favorable insurance rates, and

Patronizing an unlicensed establishment that served alcohol.

The court also noted that Employee’s at the NYPD reflected two prior disciplinary matters, one of which stemmed from “a DWI arrest” and resulted in a penalty of, among other things, one year on “dismissal probation.”

Under the circumstances, said the Appellate Division, the penalty imposed by the Commissioner was not so disproportionate to Employee's offenses “as to be shocking to one's sense of fairness” and found no basis to disturb the penalty imposed on Employee.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02913.htm

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Rules and regulations of the Department of Civil Service reviewed.in accordance with §207 of the State Administrative Procedure Act

Rules and regulations of the Department of Civil Service reviewed in accordance with §207 of the State Administrative Procedure Act

Source: The New York State Register


§207 of the State Administrative Procedures Act, in pertinent part, provides that any rule adopted on or after its effective ion for the rule, provided that at a minimum every rule shall be initially reviewed no later than in the fifth calendar year after the year in which the rule is adopted, and, thereafter, every rule shall be re-reviewed at five-year intervals.

The April 15, 2015 issue of the New York State Register reports the publication of the Five Year review of certain existing rules and regulations set out in 4 NYCRR and the conclusion of the forty-five (45) day public comment period. No public comments were received regarding any of the rules and regulations listed below during this forty-five day comment period.

The rules and regulations reviewed were found to “have functioned consistent with the purposes underlying their adoption and are continued without modification:”

Adopted in 2000

1. Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service). The resolution added a new subdivision (vii) to paragraph (2) of subsection (b) of Rule 4.5 to provide for a probationary term for the position of “Thruway Maintenance Worker” of not less than 26 weeks nor more than 52 weeks.

2. Amendments to Chapter IV of 4 NYCRR (Regulations of the State Civil Service Commission [Commission’s Regulations]) A new §55.5 codified the long-standing Civil Service Commission practice of granting prior approval for certain examination rating keys, according to the conditions and standards set forth within such section, upon the request of the Civil Service Department’s Director of Examinations or his or her designee. The existing §§55.5 and 55.6 were renumbered §§55.6 and 55.7, respectively.

Adopted in 2005

Amendment to Chapter I of Title 4 of NYCRR (Rules for the Classified Service). The resolution added a new paragraph (viii) to subdivision (1) of subsection (b) of Rule 4.5 to provide for a probationary term for the positions of “University Police Officer 1” and “University Police Officer 1 (Spanish Language)” of not less than 52 weeks nor more than 78 weeks.

Adopted in 2010

Amendment to Chapter V of Title 4 of NYCRR (Regulations of the Department of Civil Service [President’s Regulations]). The resolution added a new paragraph to Rule 72.1 designating the Authorities Budget Office as a separate unit for suspension, demotion or displacement within the Department of State.

Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

Individual’s right to due process in a disciplinary hearing was not violated when the complaining witness was absent from the hearing due to intimidation and feared to testify

2015 NY Slip Op 03075, Appellate Division, First Department

The Commissioner of the New York State Department of Health adopted an Administrative Law Judge's recommendation to sustain the three charges alleging patient abuse and/or neglect by a certified nurse's aide [Aide]. The Aide appealed the Commissioner's determination but the Appellate Division sustained the Commissioner’s finding that the Aide was guilty of these three charges alleged in the notice of discipline.

The Appellate Division said that there was no basis for disturbing the ALJ’s determination with respect to the credibility of witnesses, citing Berenhaus v Ward, 70 NY2d 436.

The court found that there was substantial evidence in the record to support the ALJ’s findings including:

1. Consistent testimony from several witnesses;

2. Photographs of the patient’s bruises; and

3. The facility's clinical records.

Further, the Appellate Division said that the Aide’s right to administrative due process was not violated as the result of the patient's absence at the hearing as the record supports the ALJ’s finding that the patient was intimidated and was afraid to testify.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03075.htm

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

General Municipal Law §207-c Hearing Officer entitled to weigh conflicting medical opinions and determine which expert’s testimony to credit.

2015 NY Slip Op 03214, Appellate Division, Third Department

A correction officer [CO] at a county correctional facility sustained a concussion when he hit his head on a wall while attempting to restrain an inmate. Treated for symptoms attributed to a mild traumatic brain injury and post-concussive disorder, he began receiving benefits pursuant to General Municipal Law §207-c.*

Subsequently the County Sheriff [Sheriff] offered CO the opportunity to return to work on light duty status where he would be assigned to “a sitting job with no inmate contact and no lifting, pushing or pulling any objects in excess of two pounds.” CO refused to accept the light duty assignment and the matter was submitted to an administrative hearing in accordance with the relevant procedures set out in the collective bargaining agreement applicable to CO.

The Hearing Officer's recommendation: CO should be returned to light duty. The Sheriff adopted the Hearing Officer’s recommendation and ordered CO to report as assigned.** CO appealed the Sheriff’s decision.

The question before the Appellate Division: Was the Sheriff's determination supported by substantial evidence?

The Sheriff’s expert, a neuropsychologist, conducted an independent medical examination of CO that included a number of neuropsychological tests, had opined that CO could return to work, testifying that in his opinion”

1. CO had exerted "suboptimal effort" during the testing, and that he found nothing that would prohibit CO  from returning to work based on cognitive and psychological issues; and

2. After a follow-up examination of CO, Sheriff’s expert again opined that CO could return to work.

In contrast, CO’s, also a neuropsychologist, testified that CO displayed deficits in visual and mental processing, planning, language comprehension, attention, concentration and memory and in her opinion CO “was not able to work in the proposed light duty position.”

The Appellate Division explained that while CO’s expert did not agree with the Sheriff’s expert, the Hearing Officer was entitled to weigh the conflicting medical opinions and determine which expert’s testimony to credit.

Although CO had argued that the Sheriff’s expert’s opinion was based on unreliable test results and should not have been credited, the Appellate Division said that the Sheriff’s expert did not indicate that the test results were unreliable, but that the test results showed that CO's claims were unreliable.

The court dismissed CO’s appeal, holding that where the appointing authority’s determination is supported by substantial evidence, as it was in this case, it will not be disturbed.

* §207-c of the General Municipal Law provides for the payment of salary, wages, medical and hospital expenses of police officers and other law enforcement personnel suffering injuries or illness incurred in the performance of duties.

** §207-c 3 of the General Municipal Law provides, in pertinent part that in the event the individual is not eligible for or is not granted such accidental disability retirement allowance or retirement for disability incurred in performance of duty allowance or similar accidental disability pension and, in the opinion of such health authorities or physician, is unable to perform his regular duties as a result of such injury or sickness but is able, in their opinion, “to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him, provided, however, that such light duty shall be consistent with his [or her] status as a policeman...” [emphasis supplied].  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03214.htm

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