An unblemished personnel record considered in determining the disciplinary penalty to be imposed

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] recommended a 55-day suspension of a New York Correction Officer [Officer] after finding him guilty of disciplinary charges that alleged that he used impermissible and unnecessary force against an inmate and submitting a false report about the incident.

ALJ Kevin F. Casey found that Correction Officer had entered a holding cell, put his hands around an inmate’s neck, elbowed the inmate in the head, and then held the inmate’s face to the floor based on testimony provided by testimony from an investigator and supported by a surveillance video and documentary evidence.

Judge Casey also found that Officer had filed a false report by omitting details describing  the force used by his fellow officers.

Taking into consideration Officer’s unblemished personnel record prior to the disciplinary action initiated in response to the instant situation as a mitigating consideration in determining to be imposed, ALJ Casey recommended that the appointing authority impose a penalty of a 55 days’ suspension without pay rather than a harsher penalty.

Click HERE to access the complete text of the ALJ's decision.

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Offensive statements made by an employee concerning personal matters are not protected speech within the meaning of the First Amendment

A Job Opportunity Specialist [Specialist] employed by a New York City Department [Agency] was served with disciplinary charges* alleging that he made "discourteous and threatening statements towards staff members both at the workplace and on social media."

After Specialist's stated “I’m going to shoot up this place” he was placed on pre-trial suspension without pay for 30 days. Specialist, however, continued to post  statements targeting an administrative superior and his co-workers on his non-private personal Instagram account that were deemed discourteous by the Agency . In addition, the Agency alleged that these statements included racial epithets.

New York City Office of Administrative Trials and Hearings Administrative Law Judge Noel R. Garcia ruled that the offending statements were not protected speech within the meaning of the First Amendment as they were not expressed by Specialist "acting in the role of a private citizen regarding a matter of public concern." 

In the words of the ALJ, "Here, the four discourteous statements made on [Specialist's] Instagram videos related to his personal grievances with his supervisor and co-workers, and not tomatters of public concern. Accordingly, such statements are not protected speech."

In addition, the ALJ found that Specialist did not take any responsibility for his actions or express any regret.

Judge Garcia recommended the termination of Specialist's employment in consideration of the fact that Specialist had a significant prior disciplinary record.

* The decision notes that the Agency alleged that Specialist also violated other provisions of the Agency's Code of Conduct, including rules prohibiting an employee from conduct detrimental to the agency, or activity that would compromise the effectiveness of an employee in the performance of the employee’s duties. The decision notes that these violations were "never specified in [the Agency's charges] or at trial how Specialist violated these rules" and were not considered by the Administrative Law Judge in arriving at his decision.

Click HERE to access the text of the ALJ's decision.

 

An appeal challenging a resolution of a board of a library truncating the term of office of a member of the board sustained by the Commissioner of Education

Following the election of a candidate [Petitioner] seeking a five-year term as a member of the board of a library [Board] the Board determined that the Petitioner “was not qualified to hold the position of [t]rustee” and certified her opponent ... as the winner of the five-year term." Petitioner challenged the Board's action in an appeal to the Commissioner of Education pursuant to Education Law §310.

Interim Commissioner Betty A. Rosa sustained Petitioner’s appeal and ordered, among other things, that the Board “appoint petitioner to fill the seat on the board of trustees for which she was the successful candidate in the April 2, 2019 election.”*

The Board subsequently passed a resolution [Resolution] appointing Petitioner "to the vacant [t]rustee seat" ... until the next [l]ibrary election ... at which time an election [would] be conducted for the remainder of the term for the aforesaid [t]rustee position."

Petitioner appealed the Board's action, contending:

1. The Resolution was arbitrary and capricious insofar as it appointed her to the position of trustee only until the April 2020 election; and  

2. Pursuant to the Commissioner’s order in her earlier appeal she was entitled to be appointed for the full five-year term. 

The Board, in rebuttal, argued, among other things, that Petitioner has failed to establish that the resolution was arbitrary, capricious, or in violation of law.

Initially addressing a number of procedural issues raised by the Board, the Commissioner rejected the Board's assertion that:

 [1] Petitioner’s appeal “should have been filed as an application to reopen instead of a new petition” and 

[2] Petitioner’s request that the Commissioner “clarify” the prior decision amounts to a request to reopen such decision and, therefore, this appeal is improper because {Petitioner] did not apply for reopening within 30 days of the date of the decision,"

The Commissioner said that Petitioner "does not seek to reopen the Commissioner’s Decision No. 17,785" but appeals the Board's Resolution and declined to dismiss the appeal on that basis.

As to the Board's assertion that Petitioner failed to name a necessary party - a potential candidate for election to the Board -- the Commissioner observed that "A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such."

Here, however, the Commissioner explained that an intention of a possible candidate to run for Petitioner’s seat in a future election "is inherently speculative and does not secure an actual, existing right in such seat," citing Appeal of Kennelly, 57 Ed Dept Rep, Decision No. 17,137.

Turning to the merits of Petitioner's appeal, the Commissioner held that Petitioner  had "established that [the Board's] resolution is arbitrary and capricious and that [Petitioner] is entitled to the relief requested," noting that Decision No. 17,785 "unambiguously concluded that [Petitioner] was eligible to serve on [the Board] and had been the successful candidate for a five-year term in the [relevant] election." 

Based on the plain language of that decision, the Commissioner held that there was no basis to conclude that Petitioner is entitled to anything less than the full five-year term to which she was elected. Rejecting other arguments advanced by the Board in support of its position, the Commissioner concluded that Petitioner was entitled to a five-year term on the Board ending June 30, 2024.

Referencing Education Law §226[4], the Commissioner advised the Board that "any future noncompliance with this decision or the prior decision may constitute a neglect of duty or a refusal to carry into effect the educational purposes of the [library]."

* See 59 Ed Dept Rep, Decision No. 17,785.

Click here to access the text of the Commissioner's decision.

 

Obtaining police department records concerning a traffic accident pursuant to the Freedom of Information Law

As the Court of Appeals held in Fappiano v New York City Police Dept., 95 NY2d 738, "[a]ll government records are presumptively open for public inspection unless specifically exempted from disclosure as provided in the Public Officers Law" and further explained in Gould v New York City Police Dept., 89 NY2d 267, a government agency may withhold records sought pursuant to FOIL only if it "articulate[s] particularized and specific justification for not disclosing requested documents."

In this CPLR Article 78 proceeding Supreme Court denied a petition seeking, among other things, to compel the New York City Police Department [NYPD] to disclose certain records concerning a traffic accident pursuant to the Freedom of Information Law.

NYPD had relied on the FOIL exemption from disclosure records that were compiled "for law enforcement purposes and which, if disclosed, would . . . interfere with . . . judicial proceedings," contending that disclosing the records demanded "would tip the hand of the Traffic Violations Bureau's [TVD] prosecuting attorney or prevent the prosecutor from testing the recollection of witnesses."

The Appellate Division unanimously reversed the Supreme Court's ruling "on the law."

Noting that TVB was an administrative agency that was legislatively created to adjudicate traffic violation charges for the purpose of reducing caseloads of courts in New York City, the court said that the accused motorist has a right to be represented by counsel and the administrative law judge presiding over the hearing must determine whether the police officer has established the charges by clear and convincing evidence.

Holding that NYPD failed to meet its burden of showing a particularized justification for withholding the records at issue within the meaning of the interference exemption provision of FOIL in this instance, the Appellate Division's decision noted that the recollection of witnesses and the basis of their testimony "would certainly be determined by questioning and cross examination at the hearing" and the court opined that NYPD's "blanket denial of document release fell short of meeting its admittedly low burden."

Click here to access the Appellate Division's decision.

 

Audits issued by the New York State Comptroller during the week ending January 22, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending January 22, 2021.

MUNICIPAL AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following local government audits have been issued.

Town of Delhi – Pool Project Donations and Disbursements (Delaware County)

The board did not properly manage pool project donations or disbursements. The board also inappropriately used town funds to pay at least $8,000 for fundraising activities. Auditors found the board did not properly document donations it received totaling $117,300. In addition, 77 of the pool checks were improperly disbursed. The town supervisor, as the town disbursing officer, should have signed the checks. However, the committee treasurer, a private citizen or a board member signed them.

 

Village of Little Valley – Capital Project Management (Cattaraugus County)

The board properly planned the waste water treatment plant (WWTP) project but could have better managed certain aspects of the project. Auditors determined the board developed a financial plan that addressed the impact of project debt payments. Village officials incurred $67,000 in additional expenses because they were unable to comply with certain grant funding requirements. In addition, project delays and project scope changes added an additional $220,000 to the WWTP project costs. The initial project completion date was December 2017 but was completed in October 2020.

 

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audit was issued.

East Rockaway Union Free School District – Extra-Classroom Activity Funds (Nassau County)

The extra classroom activity (ECA) clubs did not maintain adequate records. As a result, auditors could not determine whether all money collected was accounted for, properly remitted and deposited. Other than minor exceptions, disbursements were properly supported and for legitimate purposes; however, ECA deposits were not always timely. Managing the finances of ECA activities is meant to be a learning experience for student club members. By not properly managing ECA finances, students miss this learning opportunity and district officials have little assurance that ECA funds are adequately safeguarded and properly accounted for.

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