Mitigating circumstances set out in the record held insufficient to justify imposing a lesser penalty than termination under the circumstances

In a disciplinary proceeding brought by the Department of Education [DOE], New York City Office of Administrative Trials and Hearings ALJ Joycelyn McGeachy-Kuls recommended that an employee be terminated for failure:

1. To comply with her supervisor’s instructions;

2. Refusing to work cooperatively with co-workers; and

3. Excessive use of the Internet during business hours for non-work related matters.

It is well settled that the charging party "... bears the burden of proving the charged misconduct by a preponderance of the credible evidence.

Finding that DOE proved that the employee browsed the internet for non-work-related matters for over 33 hours over a period of less than a month, failed to clock out for lunch, made false time-card entries, and spoke to a co-worker in a rude and insulting manner.

Noting that DOE sought to impose the penalty of termination, the ALJ concluded that notwithstanding certain mitigating considerations set out in the record, termination was appropriate under the circumstances and so recommended.

Click HEREto access Judge McGeachy-Kuls' determination in this matter. 

 

Stress experienced in the performance of recognized duties of the position is not an accident for the purposes of qualifying for accidental disability retirement benefits

For purposes of the Retirement and Social Security Law, an accident has been defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact" and the burden is on the party seeking accidental disability retirement benefits to demonstrate that his or her disability arose from an accident within the meaning of the Retirement and Social Security Law. Typically the Comptroller's determination is upheld if supported by substantial evidence.

In this instance a State Trooper's [Petitioner] duties involved working with informants in an effort to infiltrate drug cartels and curtail the supply of drugs coming into the United States that entailed "interacting with dangerous individuals" which duties were set out in the job description for his position. Returning from an overseas mission, Petitioner experienced a panic attack in his office. Subsequently hospitalized and referred to an intensive therapy program, Petitioner was diagnosed with post-traumatic stress disorder, manic depression and anxiety, and deemed unable to return to work.

Petitioner filed an application for accidental disability retirement benefits based on this diagnosis, which Petitioner claimed was a result of his work with the drug cartels. His application was rejected by the retirement system, which decision, following administrative appeal, was ultimately sustained by the State Comptroller. Petitioner asked the Appellate Division to review the rejection of his application for accidental disability retirement benefits.*

The Appellate Division held that Petitioner's mental injuries were a direct result of the stress that he was under while working undercover and interacting with informants and members of dangerous drug cartels -- "dangerous undercover work was part and parcel of his regular duties as a narcotics investigator and was specifically set forth in petitioner's job description."

Accordingly, opined the court, the stress that produced Petitioner's mental injuries "was an inherent part of his job and was not unexpected, substantial evidence supports the finding that his injuries were not the result of an accident."

In contrast, the Appellate Division noted that with respect to cases involving emergency workers who sustained mental injuries after responding to the World Trade Center bombing, there is no statutory presumption that applies to Petitioner's situation and decline to disturb the Comptroller's determination denying Petitioner's application for accidental disability retirement benefits.

* The New York State and Local Retirement System denied Plaintiff's application on the ground, among others, that the incident that allegedly occurred on an unspecified date was not an accident within the meaning of Retirement and Social Security Law §363.

Click HEREto access the Appellate Division's ruling.

Reasons why a party's motion to vacate an arbitration award could be denied

A City of Newburgh[City] police officer [Petitioner] was operating a police vehicle when that vehicle was struck in the rear by an underinsured vehicle. As a result, Petitioner sought to arbitrate a claim against the City for supplementary uninsured/underinsured motorist [SUM] benefits.

Ultimately an arbitration award was issued in favor of Petitioner, who sought to confirm the award. The City cross-moved to vacate the award, contending that the arbitrator exceeded her power in issuing an award in favor of Petitioner claiming that the police vehicle Petitioner was operating at the time of the accident was not covered by the SUM endorsement, and thus, there was no agreement to arbitrate. Supreme Court granted Plaintiff's motion to confirm the award, denied the City's cross motion to vacate the award, and the City appealed.

The Appellate Division ruled that Supreme Court had properly [1] granted Plaintiff's granted the motion to confirm the arbitration award, [2] correctly denied the City's cross motion to vacate the arbitration award, and [3] appropriately confirmed the arbitration award.

The court explained:

1. An arbitration award may be vacated, as relevant with respect to the City's motion in this action, where "a party's rights were impaired by an arbitrator who 'exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made'"; and

2. "[A]n arbitrator 'exceed[s] his [or her] power' under the meaning of [CPLR 7511(b)(1)(iii)]; or

3. "Where [the] 'award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power'".

The Appellate Division rejected the City's contention that the arbitrator exceed her power, or violate public policy, by rendering an award based on the issues of whether Petitioner had suffered a serious injury under Insurance Law §5102(d) and the extent of his damages, which were the only issues placed before her by the parties.

Citing Matter of Infinity Indem. Ins. Co. v Hereford Ins. Co., 149 AD3d 1075, the court opined that "Having fully participated in the arbitration proceeding, the City cannot seek to vacate the award on the basis that there was no coverage and no agreement to arbitrate."

The Appellate Division's ruling is posted on the Internet HERE.

 

Balancing a plaintiff's privacy interests against the presumption in favor of public disclosure of the names of the parties involved in a litigation

The defendant [Appellant] challenged Supreme Court's granting plaintiff's [John Doe] motion to proceed in this action using pseudonym "John Doe" rather then rather than reveal his identity. The Appellate Division unanimously affirmed the lower court's ruling, without costs.

Citing  Anonymous v Lerner, 124 AD3d 487, the Appellate Division opined that after a "comprehensive balancing" of Doe's privacy interests against the presumption in favor of public disclosure and any prejudice to Appellant, Supreme Court "providently exercised its discretion in granting [John Doe's] motion to proceed anonymously."

Supreme Court's, said the court, had credited Doe's assertions that "he feared not only embarrassment and economic harm from the public disclosure of his identity but also social stigmatization, professional repercussions, and social isolation from his peers and colleagues in the legal profession", which concerns Appellant "had offered no reason to question."

Although Appellant argued that such disclosure would have no chilling effect since Doe  has already commenced suit, the Appellate Division observed that Appellant's argument "fails to account for the real possibility that [Doe] would be dissuaded from pursuing the action further and for the inhibiting effect it could have on other potential plaintiffs."

Concluding that Doe's proceeding anonymously would better serve the public's right to know than having the records sealed, the Appellate Division noted that:

1. Appellant had not explained why the public must know Doe's identity in addition to all other aspects of the case; and

2. Appellant has not shown that it will suffer any prejudice as Doe had agreed to divulge his identity to it and to the court.

The Appellate Division's decision is posted on the Internet HERE.

 

Government Technology Webinar update for the week of July 5, 2021

Boost Cyber Resilience and Reduce Organizational Risk: A New Approach to Application Security As government organizations quickly embraced hybrid and multi-cloud technologies at the onset of the pandemic, they also faced an unprecedented rise in malicious security threats, testing the limits of existing monitoring practices. Now that the initial stages of the emergency have passed, organizations need a better way to monitor increasingly complex applications, understand potential security impacts and strategically prioritize response. Click here to Watch Now 

Fight Fraud with Data: How States Can Confront Unemployment Insurance (UI) Abuse Unemployment claims skyrocketed over the past year, as millions of Americans lost their jobs during the pandemic. Sadly, as the number of claims rose, so did instances of unemployment insurance benefits fraud. These cases have resulted in billions of dollars lost. In California alone, officials reported more than $11 billion in improper payments in the first nine months of the pandemic. And these fraudulent claims aren’t just costly – they add complications and delays to already-overwhelmed state benefits systems that ultimately affect regular citizens who are out of work. Each state provides a critical lifeline for individuals and it's incredibly important that these systems perform well and detect fraudulent activity immediately. How can states fight fraud? With better access to data. More comprehensive information on identity and behavior will help stem the tide of fraudulent claims. Click here to Watch Now 

Migrating Government IT to the Cloud with Speed and Confidence State and local governments have always had to juggle a wide range of priorities, from supporting constituents and defending against cyber threats, to modernizing service delivery through digital initiatives. Government IT organizations are increasingly looking to the public cloud to realize their priorities while managing the expanding risk surface. The COVID-19 pandemic accelerated this transformation by increasing the demand for more self-serve and automated government services. But the already-stretched IT teams with limited resources and lower tolerance for risk have struggled to keep up with the increased demands. Click here to Watch Now 

Stop Fraud Before It Happens: Safeguarding Public Benefits Unemployment insurance (UI) fraud may have cost the nation nearly $40 billion last year, experts say, depriving out-of-work Americans of desperately needed help during the COVID-19 crisis. And while state unemployment programs were hardest hit, they weren’t the only targets. Emergency relief programs for rent and utility bills also came under attack. Join Government Technology on May 17 at 11am PT/2pm ET, for an important conversation on how state and local agencies can stop benefits fraud before it happens. You’ll learn how intelligent cloud-based technologies can detect and prevent efforts to create fake user accounts and takeover legitimate accounts – all without slowing down the delivery of critical payments to applicants in need of assistance. Click here to Watch Now 

To view more on-demand and upcoming webinars, visit webinars.govtech.com.

For assistance with registration, contact: Jeremy Smith, jsmith@erepublic.com (916) 932-1402.