Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Use of excessive force against a juvenile resident at a detention center

Administrative Law Judge [ALJ] Tynia D. Richard sustained charges that a counselor at a juvenile detention center used excessive force against a resident and made a false report.

A video showed the counselor initiate force against the resident who was not complying with commands but was not physically resisting. It also showed the counselor put the resident in a bear hug, push him over a group of chairs, and choke him; the same video later showed him chase the resident and throw him to the floor. Others had to intervene in both instances to get counselor away from the juvenile.

The director and the head of training testified these acts were serious violations of agency guidelines. The counselor’s report of the incident was false and misleading, having omitted material facts.

The ALJ recommended the counselor be terminated from his position.

The Commissioner adopted the ALJ’s factual findings but did not impose a penalty, as the counselor had resigned from his position with Children’s Services.*   Admin. For Children Services v. Silva, OATH Index No. 1275/15.

Failure to report to work as scheduled  

A corrections captain was charged with filing an untimely report and with being AWOL for 5 days. ALJ Alessandra F. Zorgniotti sustained the charges.

The captain had hurt his back while on vacation and converted his vacation days to sick days. While still on vacation, he requested that his vacation be extended by the number of days he was on sick leave. The captain did not report to work as scheduled and failed to verify whether his request to extend his vacation had been granted.

ALJ Alessandra F. Zorgniotti recommended 20-day suspension for the AWOL charges and a reprimand for submitting a late report.  Dep't of Correction v. Ramos, OATH Index No. 1903/15.

Testing positive for cocaine

A sanitation worker admitted that he had tested positive for cocaine and offered evidence in mitigation, including character evidence from supervisors. ALJ Kevin F. Casey recommended termination of employment, but urged the Department to consider alternative penalties such as drug and alcohol testing for the remainder of the worker's career.   Dep't of Sanitation v. Anonymous, OATH Index No. 1821/15.

Failure to meet deadlines

In a Loft Board proceeding, ALJ John B. Spooner formally admonished an attorney who failed to meet ordered deadlines and refused to reply to repeated discovery requests. The attorney did not receive a more severe sanction because he ultimately complied with requests and conducted himself professionally at trial.  Matter of Stone, OATH Index No. 1945/14.

* With respect to the State as the employer, 4 NYCRR 5.3(b), in pertinent part, provides “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.”

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A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

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An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”

An attorney representing an individual in an administrative hearing may be disqualified where such representation could result in an actual or apparent “conflict of interest”

Tartakoff v New York State Educ. Dept., 2015 NY Slip Op 06276, Appellate Division, Third Department

One of the issues raised by Raymond Tartakoff in his appeal of an adverse decision following an administrative hearing before the State Department of Education’s Office of Professional Discipline [OPD] was the disqualification of his attorney from representing him in the hearing.

Tartakoff contended that he did not receive a fair hearing because his chosen counsel was disqualified. The Appellate Division disagreed, noting that Tartakoff had retained the attorney who was already representing another individual, JC, in a separate civil rights action against her employer in federal court.

The court explained that to represent Tartakoff, the attorney would have had to effectively cross-examine JC, who was a key witness in OPD's case against Tartakoff. . The attorney’s simultaneous representation of JC in a pending federal action potentially gave him access to information not otherwise available for use on cross-examination. Further, said the court, in the Tartakoff proceeding the attorney would be attempting to diminish JC’s credibility, whereas an opposite result would be pursued in the federal action. There, ruled the Appellate Division, was a sufficient conflict of interest to justify disqualifying Tartakoff’s attorney in the administrative proceeding.

In the words of the court, "When the representation is simultaneous, the burden shifts to the attorney to demonstrate that no actual or apparent conflict in loyalties exists" and any  "[D]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06276.htm

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

The custodian of a public record must articulate particularized and specific justification for denying access to a record requested pursuant to the Freedom of Information Law

Villalobos v New York City Fire Dept., 2015 NY Slip Op 06249, Appellate Division, Second Department

Amaury Villalobos filed a Freedom of Information Law [FOIL] request seeking certain documents in the custody of the New York City Fire Department. Among the material demanded by Villalobos were documents containing the residence address of certain individuals. After an in camera review of the documents demanded, Supreme Court directed the New York City Fire Department to provide Villalobos with “legible unredacted copies of all documents inspected by the court in camera” which would documents would then include the residence address of the individuals.

The Fire Department appealed the Supreme Court ruling and the Appellate Division deleted that portion of Supreme Court’s order that, in effect, directed the Department to provide the Villalobos with residence addresses contained in the documents inspected by the court in camera.

The Appellate Division explained that under FOIL, government records are "presumptively open" for public inspection and copying, unless they fall within an enumerated statutory exemption* set out in Public Officers Law §87(2). However, said the court, “exemptions are to be ‘narrowly construed’ so as to ensure maximum public access … and the burden rests on the agency to demonstrate that the requested material in fact qualifies for exemption.” To meet this burden, said the court, the agency must "articulate particularized and specific justification" for the nondisclosure at issue.”

In this instance the Appellate Division concluded that the Fire Department “failed to articulate a particularized and specific justification for any of the redacted information at issue, except for the residence addresses contained in the subject documents.” The court opined that the Department’s “conclusory assertions” that the redacted information, other than residence addresses, fell within a statutory exemption were insufficient to meet its burden of demonstrating that the requested information was exempt from disclosure.

As to the disclosure of the residence addresses contained in the documents, the court ruled that such disclosure “would constitute an unwarranted invasion of personal privacy … since, under the circumstances of this case, the privacy interests at stake outweigh the public interest in disclosure of that information.

Accordingly, the Appellate Division modified the Supreme Court’s judgment so as to permit redaction of the residence addresses contained in the documents at issue.

* The release of some public records is limited by a statute such as Education Law, §1127 - Confidentiality of records or §33.13, Mental Hygiene Law - Clinical records; confidentiality. However, it should also be noted that there is no statutory bar to the custodian of the public record providing documents pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06249.htm

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining

Parties may negotiate pre-disciplinary suspension procedures in the course of collective bargaining
Transport Workers Union of Greater N.Y. v Bianco, 2015 NY Slip Op 06041, Appellate Division, First Department

The Appellate Division said Supreme Court properly dismissed the Transport Workers Union's complaint alleging that the collective bargaining agreement provision setting forth procedures for pre-disciplinary suspensions was void under Civil Service Law §75.

The court said that "Rights under Civil Service Law §75 may be supplemented, modified or replaced by the terms of a collective bargaining agreement," which is the case here with respect to disciplinary grievance procedures set forth under the Civil Service Law, “including those concerning pre-disciplinary suspensions.”

§76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law relating to the removal or suspension of “officers or employees in the competitive class of the civil service of thestate or any civil  division” may be supplemented,   modified or replaced by agreements negotiated between the state and an employee organization  pursuant  to  Article 15 of the Civil Service Law.

In Antinore v State, 40 NY2d 6, the Court said that a union could bargain away a collective bargaining unit member’s statutory disciplinary rights in favor of an alternative disciplinary procedure as long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced.

The Transport Workers Union v Bianco decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06041.htm

The Antinore decision is posted on the Internet at:

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19750718_0043291.NY.htm/qx

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 26, 2015

[Click on text highlighted in colorto access the full report]

Audits of the following jurisdictions completed:

City of Johnstown;

http://www.osc.state.ny.us/localgov/audits/cities/2015/johnstown.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

North Patchogue Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/northpatchogue.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of Rosendale

http://www.osc.state.ny.us/localgov/audits/towns/2015/rosendale.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Town of West Seneca

http://www.osc.state.ny.us/localgov/audits/towns/2015/westseneca.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215brelease

Amani Public Charter School

http://www.osc.state.ny.us/localgov/audits/schools/2015/amanicharter.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Holland Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/holland.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Mount Pleasant Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/mountpleasant.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215creleaseand the

Onteora Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/onteora.pdf?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072215crelease

Comptroller finds persistent problems at the Long Island Power Authority

New York State Comptroller Thomas P. DiNapoli recommended improvement of oversight of the Long Island Power Authority (LIPA) after a report by his office found that previous reforms have not reduced costs for ratepayers and debt levels continue to rise. http://www.osc.state.ny.us/press/releases/july15/072415.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072415release

Comptroller DiNapoli expects the “Tax Cap” will drop below 1% in 2016

Property tax growth for local governments will be capped at less than one percent for the 2016 fiscal year, according to a report issued by State Comptroller Thomas P. DiNapoli. The report noted the allowable tax levy growth factor will be 0.73 percent for entities that operate on a calendar-based fiscal year – which includes all counties, towns, fire districts, 44 cities and 10 villages.

http://www.osc.state.ny.us/press/releases/july15/072015.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072015release

Former Fire District Treasurer sentenced after being found guilty of theft of district funds

Lisa Stone, the former treasurer of Pulteney Fire District No. 2 was sentenced to five years probation and ordered to pay full restitution for stealing more than $6,800 in fire district funds, after an audit and investigation by State Comptroller Thomas P. DiNapoli revealed that she paid herself an illegal second salary.

http://www.osc.state.ny.us/press/releases/july15/072315.htm?utm_source=weeklynews20150726&utm_medium=email&utm_campaign=072315release