Video evidence of employee misconduct

Supervising Administrative Law Joan R. Salzman recommended a 30-day suspension for a TLC Inspector who cursed at his supervisors, moved aggressively toward them, and forcibly pushed away a colleague who was trying to stop him. 

The Inspector denied wrongdoing, despite video evidence showing him pushing his colleague. 

Although Inspector had no prior disciplinary history, Judge Salzman found that the gravity of the employee's violent conduct, combined with employee's refusal to take responsibility for his actions, warranted a 30-day suspension.  

Taxi & Limousine Comm’n v. Urena-Santos, OATH Index No. 527/23 (Dec. 23, 2022), adopted, Comm’r Dec. 

Board member alleged to have made false statements on his application for membership

Administrative Law Judge Jonathan Fogel recommended dismissing charges against a community board member because the community board did not prove that the member had made two false statements on his application to become a board member. 

ALJ Fogel declined to dismiss the charges on procedural grounds, however, finding that the charges were properly brought under the New York City Charter and although the application predated the member's service as a board member, it is part of the community board member's personnel file and "his membership on the board".  

Brooklyn Community Board 13 v. Greenberg, OATH Index No. 1574/22

Challenging the holding of a scheduled union election

Supreme Court granted plaintiffs' petition to enjoin AFSCME's Local 983 from holding the duly scheduled election and directed Local 983 to provide a plan, to be reviewed by Plaintiffs for a future election within 30 days. The Appellate Division unanimously reversed the Supreme Court's ruling and dismissed Plaintiff's petition.

The Appellate Division opined that Supreme Court had "improvidently exercised its discretion to enjoin [Local 983] from proceeding with their scheduled election," explaining that as Local 983 is an unincorporated association, the Plaintiff's petition fails because it does not plead "that each individual union member authorized or ratified the [allegedly] unlawful actions", citing Matter of Agramonte v Local 461, Dist. Council 37, Am. Fedn. of State County and Mun. Empls., 209 AD3d 478, and other authorities including Martin v Curran, 303 NY 276.

Further, said the Appellate Division, "even had the Martin requirement not applied, [Plaintiffs] failed to exhaust their contractual remedies before bringing this action," noting  AFSCME's constitution prohibits members from instituting a civil action without first availing themselves of the remedies in its constitution. The remedies available to Plaintiffs' include a procedure to challenge the conduct of an election so that a protesting party has an opportunity to be heard.

The decision also points out that provisions of AFSCME's constitution allow petitioners to "appeal an adverse determination to a judicial panel, then to a full judicial panel, and then again to an international convention." In addition, the Appellate Division commented that the Union's constitution "also gives the union the authority to set aside an election outcome and hold a new election upon a finding of a violation."

In the words of the Appellate Division "Petitioners have not advanced a sufficient reason to excuse them from exhausting that remedial process."

Click HERE to access the Appellate Division's decision posted on the Internet.

Selected key points made in recent decisions of the Commissioner of Education

Improper service of an appeal to the Commissioner of Education

The Commissioner dismissed this Education §310 appeal for improper service, noting that §275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  "If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a], Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939). 

As here relevant, the petition was sent by U.S. mail to respondent’s district clerk.  The Commissioner observed that service by U.S. mail "does not constitute valid service of a petition pursuant to Education Law §310" and, therefore, "the appeal must be dismissed."*

The Commissioner then opined that "Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief." The Commissioner also noted that "As [the school district correctly noted], there is no requirement that a board of education conduct a nationwide search for a superintendent."

Petitioner, said the Commissioner, has otherwise failed to demonstrate that the school district acted in an arbitrary or capricious manner in appointing its new superintendent. (see Appeal of S.E., 51 Ed Dept Rep, Decision No. 16,352; Appeal of J.P., et al., 42 id. 226, Decision No. 14,832).

* The Petitioner’s affidavit of service contained the following notation:  “Affidavit of service by mail [s]ince the school district is on Spring Break this week.”  This, said the Commissioner, "does not establish that district offices were closed or that [Petitioner] was otherwise prevented from effectuating personal service."

Click HERE top access the Commissioner's decision.