Amending disciplinary charges "to conform with the testimony" given in the course of the disciplinary hearing

Amending disciplinary charges "to conform with the testimony" given in the course of the disciplinary hearing

Office of Administrative Trials and Hearings, OATH Index Nos. 1213/18 and 1215/1

Two correction officers [Respondents] were charged with making false reports about a use of force incident involving an inmate.

Judge Lewis also denied a request by the Appointing Authority, made on the second day of hearing, to expand the scope of its redirect examination of its primary witness and to amend the charges to conform to any testimony derived from the expanded questioning.

The ALJ concluded that amendment of the charges at that juncture would cause substantial prejudice to Respondents who had already spent a full day defending the charges filed against the correction officers.

Citing Block v. Ambach, 73 N.Y.2d 323 and DiAmbrosio v. Dep’t of Health, 4 N.Y. 3d 133, Judge Lewis explained that "Charges in administrative proceedings must apprise the party whose rights are being determined of the charges against him ... to allow for the preparation of an adequate defense. In an administrative trial, as in a criminal trial, [n]o person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” 

As to the merits of the disciplinary charges filed against the officers who were part of a team sent to search for contraband in a housing area, during the search, a third officer sprayed an inmate with a chemical agent. In their reports, Respondents wrote that the inmate, who was facing a wall, turned around or spun away from the wall in an aggressive manner before he was sprayed.

Video of the incident showed that the inmate turned his head to look at a struggle involving another inmate. But the inmate did not aggressively turn his body or spin away from the wall. OATH Administrative Law Judge Faye Lewis sustained the false statement charges relating to the characterization of the inmate acting aggressively.

One of the two officers was also charged with making a second false statement in his use of force report concerning another inmate. ALJ Lewis dismissed that portion of the charge for lack of sufficient evidence to support the allegation.

A 15-day suspension recommended for one Respondent and a 45-day suspension for the other, based upon the second officer’s prior disciplinary record involving similar misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1213-18-1215.pdf

Employee found guilty of charges of submitting a substituted urine sample during the administration of a random drug test

Employee found guilty of charges of submitting a substituted urine sample during the administration of a random drug test

OATH Index No. 1880/18

A New York City sanitation worker was served with disciplinary charges alleging that he had submitted a "substituted urine sample" during a random drug test because no creatinine was detected in his sample.

The federal government has determined that when creatinine drops below 20 milligrams per deciliter, it is a diluted sample; when it drops below two milligrams per deciliter, it is a substituted sample.

The employer’s expert noted that the worker had six prior negative/dilute results and she opined that he was trying to beat the test by drinking lots of water.

OATH Administrative Law Judge Alessandra F. Zorgniotti sustained the charge.

The ALJ also found the employee guilty of having committed time and leave violations and insubordination and recommended that the individual be terminated from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1880.pdf

Placing an employee on disability leave pursuant to Civil Service Law Section 72

Placing an employee on disability leave pursuant to Civil Service Law Section 72

Jimenez-Reyez' v State of New York, 2018 NY Slip Op 05649, Appellate Division, Third Department

§72 of the Civil Service Law provides for the placement of an employee unable to perform the duties of his or her position as the result on an injury or disease that is not "job related" on leave without pay.* The employee, however, may elect to use his or her leave credits to remain on the payroll until such leave credits are exhausted.

The basics with respect to placing an employee on disability leave pursuant to §72, except where the appointing authority determines that the individual's continued presence at the job site constitutes a danger to the individual or to his or her coworkers or agency clients within the meaning of §72.5 of the Civil Service Law, are as follows:

1. An employee may not be place on §72 leave until employee has been examined by a physician designated by the State Department of Civil Service or a municipal commission having jurisdiction;

2. In the event the physician certifies that the individual is unable to perform the duties of his or her position and the appointing authority decides to place the individual on §72 leave, the employee must be notified of this decision and of his or her right to appeal the determination before being placed on such leave and except as permitted by Section 72.5, the appointing authority may not place the individual on Section 72 leave until a final determination is made by the appointing authority.*

3. An individual placed on Section 72 leave has the right to appeal the appointing officer's "final determination" placing him or her of such leave to the "civil service commission having jurisdiction."

In contrast, in the event the appointing authority deems the employee's continued presence at the job site a danger to the individual or to his or her coworkers or agency clients, the employee may be placed on disability leave immediately and involuntarily pursuant to §72.5 of the Civil Service Law.

Johnny Jimenez-Reyez [Petitioner] was employed as a police officer by the State University of New York Downstate Medical Center [Downstate]. Petitioner was placed on immediate involuntary medical leave pursuant to §72.5 of the Civil Service Law after psychological testing conducted by an emergency health services physician determined that he was mentally unfit to perform the duties of his position at that time.

Petitioner's employment was terminated** one year later based on the written decision of a Hearing Officer who concluded that Petitioner had been properly placed on leave of absence involuntarily by the appointing authority because he was mentally unfit at that time he was placed on such leave pursuant to §72.5. The Hearing Officer also recommended that Petitioner be terminated from his position.

In an earlier proceeding initiated by Petitioner commenced after his employment was terminated by the Appointing Authority and his request for a post-termination hearing was denied, the Appellate Division "confirmed the determination placing [Petitioner] on involuntary leave, annulled the determination terminating his employment and remitted the matter to Downstate to conduct a post-termination hearing."

The "post-termination" Hearing Officer found that Petitioner failed to prove that he was mentally fit to return to work on the date of his termination and Downstate notified Petitioner that his employment was terminated. Petitioner thereupon commenced a second Article 78 proceeding seeking a court order annulling Downstate's determination to terminate his employment and reinstating him to his position with back pay and benefits.

Rejecting Petitioner's argument that the Hearing Officer incorrectly placed the burden of proof on Petitioner to demonstrate that he was mentally fit to return to work on the date of termination, the Appellate Division explained that the Civil Service Law requires that an employee who seeks reinstatement after being placed on leave pursuant to §72.1 or §72.5 to first apply for a medical examination to be conducted by a medical officer selected by the responsible civil service commission or personnel officer. Further, said the court, an employee absent on §72 for one year or longer may be terminated from his or her position in accordance with the provisions of Civil Service Law §72.4 of the Civil Service Law.***

In the event the individual is terminated, §73 of the Civil Service Law provides that the employee can be restored to employment only upon a finding that he or she is medically fit to perform the duties of the position and the individual must apply for such a medical examination within one year of the termination of his or her disability.

In this instance, said the Appellate Division, Petitioner failed to comply with the statutory requirement of applying for a medical examination to test his fitness for reinstatement nor did he submit proof at the post-termination hearing that his mental condition had sufficiently improved prior to the effective date of his termination to allow him to perform the duties of his position.

Finding that the record of the post-termination hearing was substantively the same record on which the Appellate Division based its prior determination that Petitioner was properly placed on leave because he was mentally unfit to perform the duties of his position, the court ruled that Petitioner's failure to produce evidence that he had become mentally fit to perform the duties of his position as of the effective date of his termination required the confirmation of the appointing authority decision to terminate his employment pursuant to §73 of the Civil Service Law.

* An employee suffering an "occupational injury or disease" as defined in New York State's Workers' Compensation Law may be placed on disability leave pursuant to §71 of the Civil Service Law.

** Typically the appointing authority's "final determination" placing an employee on leave pursuant to §72 is preceded by a hearing conducted by an "independent hearing officer" agreed upon by the employee and the appointing authority or as may be required pursuant to the terms and conditions of collective bargaining agreement. With respect to employees of the City of New York, such a hearing may be conducted by a hearing officer employed by the New York City Office of Administrative Trials and Hearings.

*** §72.4 of the Civil Service Law provides as follows: 4. If an employee placed on leave pursuant to this section is not reinstated within one year after the date of commencement of such leave, his or her employment status may be terminated in accordance with the provisions of section seventy-three of this article.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05649.htm

Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual

Determining if an employer-employee relationship existed for the purposes of determining providing unemployment insurance coverage to an individual

Matter of New York State Sheriffs' Assn., Inc. (Commissioner of Labor), 2018 NY Slip Op 05644, Appellate Division, Third Department

New York State Sheriffs' Association, Inc. [Association] is a nonprofit trade organization that represents, provides training and offers legal resources for elected sheriffs in New York State. The Association also advocates on behalf New York State Sheriffs.

The Department of Labor issued an initial "audit determination" that assessed the Association for additional unemployment insurance contributions on behalf of two individuals who provided service to the Association; one in marketing and communication services, and a second who provided bookkeeping services. Following the affirmation of that finding by an Administrative Law Judge, which was ultimately sustained by the Unemployment Insurance Appeals Board, the Association appealed the Board's determination.

The Appellate Division affirmed the Board's determination explaining "[w]hether an employer-employee relationship exists is a question of fact, to be decided on the basis of evidence from which it can be found that the alleged employer exercises control over the results produced . . . or the means used to achieve the results." Further, said the court, "... no one factor is determinative and the determination of the . . . [B]oard, if supported by substantial evidence on the record as a whole, is beyond further judicial review even though there is evidence in the record that would have supported a contrary conclusion."

Here, said the court, both individuals were represented on the Association's website as staff members, and had email addresses and contact telephone numbers at the Association. They both were provided with office space, equipment and supplies, parking spots and the access code to enter the Association's offices.

With respect to the individual performing marketing and communication services, the decision notes that "she submitted a resume and was hired by the executive director of the Association, without a contract, to write the Association's weekly newsletter, maintain its website and social media information, and enlist vendors for the Association's biannual conference" among other duties. The Associationg provided her with business cards identifying her as the Association's marketing and communications manager and negotiated her rate of pay, as well as paid vacation. It paid her "in her personal capacity" and provided her with additional "employee benefits."

The individual providing bookkeeping service had been "the Association's bookkeeper for over 10 years," had been hired after submitting a resume in response to an advertisement by the Association, performed typical bookkeeper duties such as billing customers, paying bills, balanced accounts, wrote checks and processed the time records for the payroll. Although the bookkeeper "had a bookkeeping business," the Appellate Division noted that "he is no longer actively pursuing clients, no longer submits a business invoice to the Association for his services and is paid by the hour, biweekly through direct deposit to his personal account."

This, said the court, provides substantial evidence demonstrating that the Association retained overall control over important aspects of the services performed by these two workers "that they are employees, and the Department properly assessed the Association for additional unemployment insurance contributions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05644.htm

Positive drug test results rebutted as "false positive" by employee's expert witness

Positive drug test results rebutted as "false positive" by employee's expert witness

Office of Administrative Trials and Hearings, OATH Index No. 1717/18

A New York City correction officer who tested positive for morphine and codeine denied that he had used illegal drugs and claimed that the test result was a "false positive."

OATH Administrative Law Judge John B. Spooner found the officer's witness had rebutted the employer's allegation that the employee had tested positive as the result of having ingested unlawful drugs and he recommended dismissal of the charge. 

The ALJ credited the officer’s testimony that he had eaten bagels that contained poppy seed prior to the drug test. 

Judge Spooner found the qualifications of the officer’s expert, a toxicologist, were superior to those of petitioner’s expert, the lab manager. The toxicologist had testified that the relatively low levels of the drugs found in the officer’s urine could only be explained by eating poppy seed bagels because the quantities were at non-therapeutic doses and the relative proportions were inconsistent with heroin or morphine or codeine ingestion.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1717.pdf