Police confrontations with mentally impaired citizens and inmates

Police confrontations with mentally impaired citizens and inmates

An AELE publication [© 2016 by Ashley Torres and AELE; 60 pages]

Americans for Effective Law Enforcement [AELE] has published a study addressing confrontations with mentally impaired citizens and inmates entitled “Accommodating the Violent: Analyzing Title II of the Americans with Disabilities Relevant to Arrests of the Armed, Violent, and Mentally Ill” by Ashley Torres.

Ms. Torres, a Whittier Law Schoolcandidate for the Juris Doctor degree and the Staff Editor of the Whittier Law Review, notes that “Although a law enforcement officer’s job is maintaining public safety and restoring order, society now demands that officers’ double as mental health proxies, counselors, and hospital transportation for persons with a mental Illness.” Ms. Torres observes that “In order to solve the public policy issue at hand, we must look to outside sources, other than the police themselves, to solve the problem and meet middle ground to keep both our officers and the mentally ill safe.”

The article is posted on the Internet at: http://www.aele.org/sheehan-torres.pdf

Unlawful discrimination on the basis of gender identity

Unlawful discrimination on the basis of gender identity

9 New York Code of Rules and Regulations (NYCRR) §466.13

The New York State Division of Human Rights adopted regulations, 9 NYCRR 466.13, prohibiting discrimination and harassment against transgender people and makes clear that transgender individuals are protected under New York State’s Human Rights Law. The new regulations expand the definition of “sex” under New York state law to include gender identity and transgender status.

The Division filed the Rule on January 5, 2016, and it took effect on January 20, 2016. The new rule clarifies how gender identity discrimination may constitute either sex or disability discrimination under the Human Rights Law.

§466.13 reads as follows:

466.13 Discrimination on the basis of gender identity.

(a) Statutory Authority.

Pursuant to N.Y. Executive Law §295.5, it is a power and a duty of the Division to adopt, promulgate, amend and rescind suitable rules and regulations to carry out the provisions of the N.Y. Executive Law, Article 15 (Human Rights Law).

(b) Definitions.

(1) Gender identity means having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associated with the sex assigned to that person at birth.

(2) A transgender person is an individual who has a gender identity different from the sex assigned to that individual at birth.

(3) Gender dysphoria* is a recognized medical condition related to an individual having a gender identity different from the sex assigned at birth.

(c) Discrimination on the basis of gender identity is sex discrimination.

(1) The term “sex” when used in the Human Rights Law includes gender identity and the status of being transgender.

(2) The prohibitions contained in the Human Rights Law against discrimination on the basis of sex, in all areas of jurisdiction where sex is a protected category, also prohibit discrimination on the basis of gender identity or the status of being transgender.

(3) Harassment on the basis of a person’s gender identity or the status of being transgender is sexual harassment.

(d) Discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out below is disability discrimination.

(1) The term “disability” as defined in Human Rights Law §292.21, means

(a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or

(b) a record of such an impairment or

(c) a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

(2) The term “disability” when used in the Human Rights Law includes gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(3) The prohibitions contained in the Human Rights Law against discrimination on the basis of disability, in all areas of jurisdiction where disability is a protected category, also prohibit discrimination on the basis of gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above.

(4) Refusal to provide reasonable accommodation for persons with gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above, where requested and necessary, and in accordance with the Divisions regulations on reasonable accommodation found at 9 NYCRR § 466.11 , is disability discrimination.

(5) Harassment on the basis of a person’s gender dysphoria or other condition meeting the definition of disability in the Human Rights Law set out above is harassment on the basis of disability.

* Dysphoria: a state of feeling unwell or unhappy.

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

OATH Index No. 2088/15

A community liaison worker at Bellevue Hospital was charged with violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments.

OATH Administrative Law Judge Kara J. Miller sustained the charges. Evidence showed that the employee had violated patient escort procedures on three occasions by leaving patients unescorted at locations outside the facility; violated the hospital's lateness policy and in one instance, falsified her time sheet to indicate she had arrived to work on time.

ALJ Miller recommended termination of employment.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2088.pdf

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

The Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence
Close v Nitido, 2016 NY Slip Op 00407, Appellate Division, Third Department

Eric M. Close’s father, William Close [Decedent], died in January 2012. Decedent's mother, Peggy Eythe, was listed as his primary beneficiary on the last designation of beneficiary form filed with the New York State Employees' Retirement System, [ERS] dated November 17, 2011. On a previous designation of beneficiary form, dated July 26, 2010, Close was listed as Decedent's primary beneficiary. After Decedent's death and upon being informed that he was no longer a primary beneficiary of Decedent's death benefits, Close filed an application for Decedent’s death benefits with ERS and requested an investigation and a hearing into whether Eythe submitted a fraudulent designation of beneficiary form.

ERS informed Close that its records indicated that Decedent had submitted a notarized change of beneficiary form and that payment would be made in accordance with the last valid designation.

At the administrative hearing Close indicated that “despite his knowledge that Decedent had been diagnosed with stage four cancer, [he] had not visited Decedent — who lived in the same state and sometimes the same city — for approximately five months leading up to Decedent's death. Among the reasons given by Close “for his lack of consistent contact with Decedent prior to Decedent's death” was that he was busy "trying to inherit [an] apartment" from his recently deceased grandmother.

In contrast, as the Appellate Division’s decision notes, Eythe, the primary beneficiary of the 2011 designation of beneficiary form filed with ERS, had moved in with Decedent to help care for him. Further, although Close’s handwriting expert opined that the signature on the 2011 designation of beneficiary form was forged, Decedent’s attorney testified to the contrary, stating that he had witnessed Decedent sign the 2011 change of beneficiary form and that he then notarized that form for the Decedent.

The Hearing Officer found that Close's testimony and the testimony of his witnesses were less credible than the witnesses called by ERS and determined that Close had failed to meet his burden of establishing that the 2011 designation was invalid. The Comptroller accepted in its entirety the Hearing Officer's determination and, as a result, denied Close's application for designation as the beneficiary of Decedent’s death benefits.

Close initiated Article 78 proceeding challenging Comptroller's determination and Supreme Court, finding there was an issue of substantial evidence present, transferred the action to the Appellate Division.

Initially Appellate Division explained that [1] the Comptroller has exclusive authority to determine the validity of beneficiary designations on applications for death benefits, and each such  determination must be supported by substantial evidence and [2] an individual challenging the Comptroller's determination had the burden of proving that the beneficiary designation accepted by the Comptroller was invalid.

Given the eyewitness testimony regarding validity of Decedent's signature on the 2011 designation form, the Appellate Division said that there was “compelling evidence” explaining Decedent's motivation for changing his beneficiary from Close to Eythe and, giving due deference to the Comptroller’s credibility determinations, found that substantial evidence supported the Comptroller decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00407.htm

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony unsupported by reliable documentary evidence

OATH Index No. 195/16

The Department of Environmental Protection charged the employee, a city research scientist, with failing to perform the duties of his job satisfactorily. The Department presented the testimony of employee's supervisors, as well as employee's work performance evaluations.

The employee testified that after filing an Equal Employment and Opportunity complaint against one of his supervisors, he had been treated unfairly and his supervisors rated his work performance as unsatisfactory.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the testimony of the supervisors was unsupported by reliable documentary evidence and thus was not objective proof that employee was unable to meet the minimally acceptable threshold requirements with respect to performing the duties of his position satisfactorily.

Judge Zorgniotti recommended that the charges be dismissed.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-195.pdf