Recent disciplinary action decisions issued by the New York City Office of Administrative Trials and Hearings

Administrative disciplinary action follows employee's guilty plea in criminal court

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade recommended termination of employment for a sanitation worker who drove a Department of Sanitation collection truck the wrong way down a one-way street in Brooklyn and struck a pedestrian, resulting in the pedestrian’s death.

ALJ Gloade found that the worker’s guilty plea in criminal court to conduct that constitutes a failure to exercise due care precluded him from contending at his disciplinary trial that he acted reasonably.* The ALJ also found that the worker was negligent when he drove a collection truck against the flow of traffic.

Judge Gloade also sustained a charge that the worker brought discredit on the agency because he was arrested and ultimately pled guilty to conduct that generated publicity that reflected negatively on the Department. 

Charges involving the use of "time and leave" filed against the employee were also sustained but a charge of having damaged department property was dismissed.

[The Commissioner adopted the ALJ's findings and recommendation.]

* In Kelly v Levin, 81 A.D.2d 1005, the Appellate Division held if a jury finds a person guilty beyond a reasonable doubt, or the charged individual enters a plea of guilty, a disciplinary hearing officer need hear no other evidence to render a verdict of guilty regarding a parallel charge in an administrative disciplinary proceeding brought against that individual.

Click HERE to access the full text of Judge Gloade's findings and recommendation.

 

Employee disciplined for alleged inappropriate use of force against a prison inmate

 ALJ Susan J. Pogoda recommended a 60-day suspension without pay for a correction officer for inappropriate use of force, submitting a misleading use of force report, and making false statements during a post-incident interview.

Judge Pogoda found that even though the inmate became non-compliant and disruptive, the officer’s striking the inmate’s facial area was not justified as the inmate’s movement was limited by enhanced restraints and he did not pose a danger to staff.

Rejecting the officer’s defense that he was attempting to utilize a control hold, the ALj found that the officer struck the inmate in the face to gain compliance, and, further, found that the officer made misleading statements in a post-incident report and interview.

Click HERE to access the text of Judge Pogoda's findings and recommendation.

 

Correction Officer found guilty of using excessive force against an inmate

 OATH ALJ Noel R. Garcia recommended a 10-day suspension without pay for a correction officer for excessive force against an inmate by unnecessarily placing his hand on the inmate’s face. Judge Garcia found the officer’s defense that he extended his hands to try to prevent the inmate from spitting on him unpersuasive as the officer had both time and opportunity to move away from the inmate.

However, ALJ Garcia found the Department of Correction did not prove the officer made a false report because the report noted that he did apply force to the inmate’s face.

Click HERE to access the full text of Judge Garcia's findings and recommendation.

Responding to evolving ransomware threats

On October 14, 2021, New York State Governor Kathy Hochul issued a proclamation announcing October 2021 as Cyber Security Awareness Month in New York State. 

Government Technology will hold a live webinar on October 21 at 11:00am Pacific/2:00pm Eastern addressing responding to evolving ransomware threats. 

By some estimates, the number of ransomware attacks worldwide more than doubled over the past year. This event will provide practical insights on creating a preparedness and recovery strategy for ransomware and other common cyber attacks.

• Find out how trends like ransomware-as-a-service and rising payment demands are changing the risk landscape
• Learn best practices for preventing ransomware attacks and responding to attacks in progress
• See how a tiered recovery plan can protect your organization as you adopt permanent hybrid work and digital services strategies

Register now!

N.B. Government Technology is offering a "special thank you" to the first 60 government professionals who "log in and watch the entire webinar presentation."

For additional information contact:

Kathy Simpson
Registration Coordinator
Government Technology | a Division of e.Republic
https://webinars.govtech.com/ 
800-940-6039 ext. 1394 
ksimpson@govtech.com

Possible SARS-CoV-2 Persistence: Further Expanding Covid-19 Booster Eligibility

Dr. Robert A. Michaels,NYPPL's science consultant, in an article posted on Research Gate, reports that in the Fall of 2021, the US FDA and CDC expanded eligibility for Pfizer Covid-19 booster shots but imposed inadvisable restrictions. 

Two issues support unrestricted booster eligibility:  SARS-CoV-2 is strongly selected for exploiting personal immunological weaknesses, resulting in weakened immune protection and slower immune response with increasing viral adaptation. Further, the virus might be persistent, which means that it might remain dormant in immune-privileged 'refugia' such as the central nervous system of previously infected people, even if their Covid-19 symptoms had been mild or non-existent.

Opportunistic re-activation of dormant viruses can cause severe illness, as in childhood chickenpox producing adult shingles decades later. External re-infection is unnecessary. Consistent with the 'precautionary principle', the overriding FDA and CDC public health priority should be to prevent as many SARS-CoV-2 infections as possible, not tolerate them, assuming optimistically that they will not impose major public health and associated economic burdens in the future.

Click HEREto access the complete text of Dr. Michaels' Research Gate article.

Health Plan Surcharge for Unvaccinated Employees: New Guidance Provides a Roadmap

Guideline addressing health plan surcharges for unvaccinated employees

Click HERE to access the article by Timothy J. Stanton and Jessica E. Kuester of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

New York State Comptroller DiNapoli releases dashboard tracking federal covid funding and state relief programs

On October 13, 2021, New York State Comptroller Thomas P. DiNapoli announced today the launch of his new online tool to monitor spending of federal recovery aid and COVID-19 relief programs in the state, including funds for excluded workers, childcare providers, emergency rental and homeowner assistance, and small business recovery.

The dashboard explains each federal and state program, and how much has been received and spent to date. The data will be updated monthly and expanded to include additional programs and spending details as new information becomes available. New Yorkers can use the tool to understand how federal aid is used and to inform future conversations about budget priorities.

Funds received and spent through Sept. 30, 2021 are listed in the table below. Some insights from the tracker include:

• The Excluded Workers Fund has disbursed $968.5 million of $2.1 billion; the state budget forecasts it will be fully disbursed in the current fiscal year.
• The Emergency Rental Assistance Program is forecast to be fully disbursed in State Fiscal Year 2022-23; $696.4 million of the $2.85 billion has been disbursed.

For a specific breakdown of spending, contact the agency overseeing the program area. In some limited instances, the Comptroller’s office can provide more detailed information.

Dashboard = Interactive Federal Funding and Relief Programs Tracker