Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

New York City Dept. of Environmental Protection v Giacia, OATH Index No. 211/16, [Memorandum Decision]

In the course of an employee disciplinary proceeding, the New York City Department of Environmental Protection asked New York City Office of Administrative Tribunals and Hearing Administrative Law Judge John B. Spooner to recuse himself, alleging that Judge Spooner was bias against the agency.

The Department had earlier made similar motions in two prior cases presided over by Judge Spooner in which it alleged Judge Spooner had made statements demonstrating “enmity towards the agency.”

Judge Sooner found that the statements attributed to him did not suggest bias or prejudice against the agency but were simply relevant to determining the appropriate penalty, noting that the fact that he had agreed with some of the arguments made by the employee’s counsel when assessing the penalty to be imposed was not a basis for finding bias against the Department. The Department’s recusal motions in those hearing were denied.

Judge Spooner noted that OATH rules provide that an OATH administrative law judge “shall be disqualified for bias, prejudice, interest, or any other cause for which a judge may be disqualified in accordance with §14 of the Judiciary Law.”*

None of the remarks quoted, said Judge Spooner, demonstrate “bias” or “prejudice” against the Department, noting that “The remark that the Department alleged displayed some 'animus toward [the Department]' was based upon statements made during the disciplinary hearing “to explain the factors considered in arriving at a penalty recommendation and for no other purpose, any more than sustaining disciplinary charges would be a basis for finding bias against all employees.”

Citing Jump v Jump, 268 AD2d 709, Judge Spooner noted that, in general, “a judge’s presiding over and rendering decisions in prior cases involving one of the parties has not been held to warrant recusal or disqualification.”

In People v Glynn, 21 NY3d 614, the Court of Appeals said that “Unless disqualification is required under Judiciary Law §14, a judge's decision on a recusal motion is one of discretion.”

*§14 of the Judiciary Law provides for the “Disqualification of judge by reason of interest or consanguinity.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-211md.pdf

School Board asks the Commissioner of Education to remove the president of the school board from the position

School Board asks the Commissioner of Education to remove the president of the school board from the position

City of Gloversville School Board v Semione, Decisions of the Commissioner of Education, Decision 16,857

In this appeal to the Commissioner of Education the Board of Education Gloversville City School District [Petitioner] sought the removal of Peter Semione  as a board member and president of the school board.

Petitioner’s application was based on allegations that Semione  made inappropriate public and private statements to other board members that Petitioner characterized as having “engaged in a course of conduct which is a distraction to the board and the regular conduct of its business.”

Addressing a number of procedural issues, the Commissioner ruled that the application must be denied as untimely. The Commissioner explained that such an appeal must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown. Further, said the Commissioner, the 30-day limitation period also applies to a removal application made pursuant to Education Law §306.*

Here the specific actions cited by Petitioner in support of its application occurred on two days, August 31 and September 1, 2012.  The affidavit of service indicates the appeal was served on November 27, 2012, beyond the required 30-day period. Although Petitioner cites the service date as November 21, 2012, the Commissioner noted “that date is also outside the required 30-day period.”

Petitioner also asserted that it had to retain outside legal counsel because the school district’s attorney recused himself, thus contributing to the delay.  However, said the Commissioner, Petitioner fails to indicate when that recusal took place, nor is Petitioner’s decision to retain outside counsel, without further details, sufficient to excuse the delay. 

Finally, the Commissioner said that the appeal must also be dismissed as moot, taking judicial notice that respondent Semione is no longer a member of the board and only matters in actual controversy are ripe for appeal, explaining that a decision on a state of facts which no longer exist or which subsequent events have laid to rest will not be addressed.

Turning to the merits of Petitioner’s appeal, the Commissioner said “A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.” Further, said the Commissioner, “Removal may be warranted where a board member's improper conduct occurs during a board meeting and disrupts the meeting or interferes with the board's ability to function.”

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Noting that Respondent denied engaging in the alleged conduct the Commissioner said that aside from statements set out in its petition, Petitioner failed to submit any supporting affidavits from any board member establishing the facts alleged – that they were harassed or threatened by Respondent or that the board could not function as a result of his alleged conduct. 

In addition, the Commissioner observed that although Semione  may have used profanity in speaking to several board members, “the use of profanity and failure to apologize is not by itself, enough to warrant removal.”

Accordingly, the Commissioner ruled that Petitioner has not carried its burden in establishing the facts on which it bases its application.**

The Commissioner dismissed Petitioner’s application and dismissed the appeal.

* In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted 

** The decision also notes that Petitioner alleged that Respondent had engaged in a willful violation of law warranting removal, i.e., his conduct also constituted Aggravated Harassment in the second degree, as defined in §240.30 of the New York State Penal Law but failed to submit any evidence of pending charges or a conviction against Respondent and has therefore not carried its burden of proof in this regard. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16857

Selected Reports issued by the Office of the State Comptroller during the week ending January 9, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 9, 2016

Click on text highlighted in color to access the full report

Former Wallkill fire district chair sentenced in $240,000 theft

State Comptroller Thomas P. DiNapoli reported that on January 8, 2016 former Wallkill Fire District board chair Michael Denardo was sentenced in Ulster County Court for stealing nearly $240,000 from the district. He pleaded guilty to grand larceny in the third degree, a class D felony, and three counts of criminal tax fraud in the fifth degree, a misdemeanor. He was sentenced to 2 1/3 to 7years in prison and to pay $239,622 restitution. 

Denardo;s three-year scam was initially revealed in an audit and investigation by DiNapoli’s office, which found that Denardo convinced the treasurer to give him blank checks and another board member to sign them. He deposited the checks, laundered the money through his wife's account and submitted fake bills to the district.

Ulster County District Attorney Holley Carnright thanked the Comptroller and his staff “for their diligent work on this case [as] a valued partner in our efforts to combat fraud crimes in Ulster County.”

The Comptroller’s audit concluded that Denardo could not have committed his crimes if the fire district board enforced proper controls. DiNapoli recommended that the district. The Fire District officials agreed with the audit findings and submitted a 14-point corrective action plan to the Comptroller’s office.
 
The Comptroller findings and the fire district’s full response are in the final audit report, which can be viewed by clicking on the URL set out below.

http://osc.state.ny.us/localgov/audits/firedists/2016/wallkill.pdf.

Theft of State Pension Benefits
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of Terence Fitzpatrick, 53, of Monmouth County, N.J., following his guilty plea in November 2015 to the crime of Attempted Grand Larceny in the Second Degree, a class D felony, in Albany County Court. Fitzpatrick was sentenced to six months in jail and five years of probation.

http://www.osc.state.ny.us/press/releases/jan16/010716a.htm?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010716arelease

NYC Pre-K Special Education Provider claimed almost $3 million in ineligible expenses
A Brooklyn preschool special education provider, Yeled v’Yalda Early Childhood Center, claimed nearly $3 million in ineligible expenses for reimbursement, according to and audit released by the Comptroller.

http://www.osc.state.ny.us/press/releases/jan16/010616b.htm?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616brelease

 

Municipal Audits Released

Central NY Regional Market Authority – Internal Controls Over Selected Fiscal Operations

http://www.osc.state.ny.us/localgov/audits/schools/2015/piseco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Town of Coeymans – Financial Condition

http://www.osc.state.ny.us/localgov/audits/towns/2015/coeymans.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

Village of Green Island – Water Fund Financial Condition

http://www.osc.state.ny.us/localgov/audits/villages/2015/greenisland.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

  

Town of Peterburgh - Internal Controls Over Selected Fiscal Operations and the Justice Court

http://www.osc.state.ny.us/localgov/audits/towns/2015/petersburghjc.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

  

Village of Pomona – Financial Condition

http://www.osc.state.ny.us/localgov/audits/villages/2015/pomona.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

Seneca County Industrial Development Agency – Project Approval and Monitoring

http://www.osc.state.ny.us/localgov/audits/ida/2015/senecaco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

School Audits Released

Johnson City Central School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2015/johnsoncity.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Kings Park Central School District – Fuel Inventory

http://www.osc.state.ny.us/localgov/audits/schools/2015/kingspark.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Menands Union Free School District - Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2015/menands.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Nanuet Union Free School District – Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2015/menands.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Piseco Common School District – Claims Auditing
http://www.osc.state.ny.us/localgov/audits/schools/2015/piseco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

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Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Gakhal v Kelly, 2016 NY Slip Op 00003, Appellate Division, First Department

Supreme Court dismissed Paramjit Gakhal’s Article 78 petition seeking an order annulling the NYC Police Pension Fund’s determination rejecting her application for accidental disability retirement (ADR) benefits.

The Appellate Division, Judge Sweeny dissenting,* reversed the Supreme Court’s determination “on the law” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

Gakhal’s injury occurred on the first day of her learning to ride a motor scooter as part of her normal police training. She lost control of the scooter while navigating on a motor scooter obstacle course and “crashed into a metal barrier at a speed of 40 miles per hour.” The barrier and scooter then both fell on top of Gakhal.

The Appellate Division, noting that an accident for the purposes of claiming eligibility for ADR is defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," and that the commanding officer of the training unit characterized the incident as "unexpected," concluded that Gakhal’s injury was the result of an event that qualified her for ADR benefits.

The court, citing Becker v Ward, 169 AD2d 453, explained that while injuries sustained during routine training exercises typically may not qualify for ADR benefits, ruled that in Gakhal’s case the loss of control of the scooter she was operating, coupled with the scooter's acceleration, “appears to have ‘been sudden and out of the ordinary,’” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

* Judge Sweeny, in his dissent, said “although the commanding officer's subjective observation that the incident was ‘unexpected’ is favorable for [Gakhal], there is credible objective evidence that the incident was not an ‘accident’” and opined that “the Board's determination must stand.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00003.htm

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The Disability Benefits E-book: - This 810 page e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

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Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Faisal v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09431, Appellate Division

Muhammad Faisal brought an Article 78 action to review a determination of the New York State Department of Motor Vehicles Appeals Board confirming a determination of an administrative law judge [ALJ]. The ALJ, after a hearing, found that Faisal violated Vehicle and Traffic Law §1180(d), speeding, and revoked his driver license.

The Appellate Division confirmed the Appeals Board ruling on the merits, explaining that the Board’s determination was supported by substantial evidence.

The court noted that the ALJ had “properly relied on the police witness's testimony concerning his visual estimate of the speed of the petitioner's vehicle as well as the reading of the radar device.”

The Appellate Division noted that there was a significant difference between the posted speed limit, which was 40 miles per hour, and the 70 miles per hour at which the police witness visually estimated the speed of Faisal’s vehicle, an estimation that was promptly confirmed by a radar indication that the actual speed was 71 miles per hour.

In the present action Faisal raised certain evidentiary objections that the court said were not raised at the administrative hearing, “when any alleged error might have been cured” and thus these arguments were unpreserved for review.

Also noted were the alleged “minor gaps and errors in the hearing transcript” but, said the court, such alleged omissions do not preclude meaningful review of the hearing.

Faisal’s petition alleged that a police sergeant was the sole witness at the hearing. In contrast, said the court, there is no indication anywhere in the record that Faisal was sworn in as a witness.

However, even assuming that the transcript of the hearing omits certain unsworn statements supposedly interjected by Faisal at some point during the course of the hearing, as alleged in his affidavit submitted to the Appeals Board, the Appellate Division ruled that those statements would not affect the validity of the determination under review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09431.htm