Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Admin. For Children’s Services v Berrios, OATH Index #124/16

Giselle Berrios, a child protective specialist, employed by the Administration for Children’s Services [ACS], was served with disciplinary charges alleging that she failed to appear at family court hearing concerning a case under her supervision at the time scheduled and raising her voice at an agency attorney when questioned about the case.

Berrios admitted to having forgotten to appear at family court, but denied yelling at the agency attorney.

ALJ Astrid B. Gloade found that Berrios' testimony was not credible. The ALJ noted that the case had been on the court’s calendar almost every week because the judge was closely monitoring ACS’s response to numerous concerns that had been raised about the family’s well-being.

In contrast, the ALJ found that the attorney's testimony was corroborated by a contemporaneous telephone complaint and an e-mail to Berrios' supervisor after the incident.

In addition, Judge Gloade noted that “even were I to credit [Berrios’] explanation [that she forgot the court appearance], her forgetfulness does not excuse her failure to appear in court.”

Given the nature of the proven misconduct, as well as Berrios’ disciplinary history for rudeness and insubordination, the ALJ recommended that Berrios be suspended without pay for 55-days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16-124.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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Use of video surveillance recording in disciplinary actions

Use of video surveillance recording in disciplinary actions

NYC Dept. of Environmental Protection v Gaicia, OATH Index #211/16

With the expanding installation of video surveillance equipment, video tape recordings are being used with increasing frequency in disciplinary actions.

The NYC Dept. of Environmental Protection [Department], alleged that one of its employees, Supervising Sewage Treatment Worker Nicholas Gaicia, had an oral altercation with a co-worker that also involved Gaici's throwing chairs and slamming doors.

The Department introduced a video surveillance recording into evidence, contending that  the video the showed the exchange between Gaicia and his co-worker. It also presented the testimony of three employees in support of the charges it had filed against Gaicia.

Gaicia testified in his defense and called four other employees as witnesses testify on his behalf.

OATH Administrative Law Judge [ALJ] John B. Spooner found that the video tape and the testimony presented by the employer failed to support the “incredible assertion that Gaicia was threatening” his co-worker. The ALJ also found that the allegations that Gaicia had thrown chairs and slammed doors set out in the Department's notice of discipline were not corroborated by the Department’s witnesses.

ALJ Spooner recommended that the disciplinary charges brought against Gaicia be dismissed and that he be reimbursed for the time he was suspended from his position without pay.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-0211.pdf

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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Cybercriminals hold computer files hostage for ransom

Cybercriminals hold computer files hostage for ransom

Source: Governing the States and Localities

Tod Newcombe, writing for Governing the States and Localities, points out the growing threat of cybercrime and just how vulnerable public entitites are to it.

As an example, Mr. Newcombe reports that “In June 2014, an officer with the Durham, N.H., Police Department opened what she thought was a digital fax attached to an email about an investigation she was working on. Instead, it was a type of malicious software that infected files throughout the entire police department’s network of computers. By the next morning, the entire system was in serious trouble.

“The officer had accidentally downloaded an extortion malware program popularly known as ransomware. It encrypts a computer’s files (meaning they can only be accessed by the cybercriminals) and then sends victims a digital ransom note, demanding money to decrypt them.”

The full text of Mr. Newcombe’s article is posted on the Internet at:

http://www.governing.com/columns/tech-talk/gov-ransomware-police-cybsersecurity.html?utm_medium=email&utm_source=Act-On+Software&utm_content=email&utm_campaign=Federal%20GMO%20Labeling%20Bill%20Would%20Trump%20State%20Laws&utm_term=Hackers%20Hold%20Police%20Files%20Hostage%20for%20Ransom

Professional Career Opportunities (PCO) eligible lists

Professional Career Opportunities (PCO) eligible lists

Source: NYS Dept. of Civil Service, Scott DeFruscio, Director of Staffing Services

The New York State Department of Civil Service has published new policies for agencies that choose to canvass the Professional Career Opportunities (PCO) eligible lists by email. These policies are designed to improve  timeliness and efficiency when canvassing a PCO eligible list.

Advisory Memorandum updates and replaces the section on Email Canvasses No. 14-03. and is posted on the Internet at: https://www.cs.ny.gov/ssd/pdf/am16-01.pdf

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

Garcia v City Univ. of N.Y., 2016 NY Slip Op 01271, Appellate Division, First Department

Supreme Court dismissed Minerva Garcia's disability discrimination claims brought against the City University of New York pursuant to New York’s Executive Law §296(4), the State’s Human Rights Law (HRL).

The Appellate Division, citing North Syracuse Central School District v New York State Division of Human Rights, 19 NY3d 481, sustained the lower court’s ruling explaining that the City University of New York is a public educational institutions*and not "education corporation[s] or association[s]" within the meaning of Executive Law §296(4).

In North Syracuse Central School District the Court of Appeals said that the issue before it was whether a public school district is an "education corporation or association" as contemplated by Executive Law §296(4).”  The court concluded that it was not and, therefore, the New York State Division of Human Rights (SDHR) “lacks jurisdiction to investigate complaints against public school districts under that provision.”

Although SDHR asked the court to “liberally construe the ‘general purpose’ of the Human Rights Law, which is to ‘eliminate and prevent discrimination . . . in educational institutions’ [citing Executive Law §290(3)], and conclude that a public school district is an ‘education corporation or association,’” the court declined, stating that the Division’s argument overlooked a basic premise: “there must first be an underlying directive in the statute before this Court can apply such a construction”  and that  “it is evident from the legislative history that the term ‘education corporation or association,’ the origins of which can be traced to the Tax Law, refers to only private, non-sectarian entities that are exempt from taxation under [Real Property Tax Law] Article 4.”

The Appellate Division then noted:

1. Even if Ms. Garcia's were able to assert her claims under the HRL her complaint would have been dismissed as she did not make out a prima faciecase of unlawful disability discrimination having failed to present any medical evidence showing that she suffered from bipolar disorder, depression, or any other cognizable disability; and

2. Ms/ Garcia's proposed disability discrimination claims under the Americans with Disabilities Act (ADA) were similarly without merit as ADAclaims "are governed by the same legal standards" as disability discrimination claims under the HRL.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01271.htm