Imposing a disciplinary penalty on an employee found guilty of submitting a false or misleading report

New York City Office of Administrative Trials And Hearings [OATH] Administrative Law Judge [ALJ] Faye Lewis recommended that a correction captain [CC] be place on a 49-day suspension without pay as the appropriate disciplinary penalty to be imposed on a Correction Captain for placing a person in custody [detainee] in an impermissible neck restraint hold and submitted a false or misleading "use of force report" concerning the incident.

The CC said he was attempting to stop the detainee from leaving a designated housing area when he grabbed the detainee’s neck and threw him to the ground. The video evidence, however, contradicted CC's testimony claiming that contact with the detainee’s neck was inadvertent. The ALJ found that there was no evidence that CC was in imminent danger of death or serious bodily injury and, therefore, the neck restraint was unjustified and excessive.

The Judge Lewis also found that CC made a material omission in his use of force report by writing that he applied force to the “upper body” without mentioning that he applied force to the neck.

After weighing CC's minimal disciplinary record, his duties as a correction captain, and the severity of the misconduct, the ALJ recommended a penalty consistent with the Disciplinary Guidelines for Use of Force Incidents issued under the aegis of the U.S. District Court for the Southern District of New York, the principles of progressive discipline, and the written policy of the Department of Correction, a 50-day suspension without pay is appropriate.

However, while Appointing Authority did not so request such a penalty be imposed in the event CC was found guilty of the disciplinary charges served on him,  in considering the penalty recommended by the Administrative Law Judge, the Appointing Authority noted  “there is a [departmental policy] requirement that Captains are to be suspended in seven (7) day increments.”*

Accordingly, for the proven misconduct, the Appointing Authority held that CC should be suspended without pay for 49 days.

Click HERE to access Judge Lewis' findings and recommendation posted on the Internet.

* See the decision in Rothwell, Decisions of the Commissioner, OATH 1963/17 -- the recommended penalty for a Correction Captain was modified from a 50 day suspension without pay to suspension without pay for 49 days in consideration of Departmental Memorandum 01/99, which “requires that suspension of all captains be imposed in 7-day increments”.

Analyzing settlement documents executed by the parties in the course of litigation

Plaintiff had settled a federal action she had commenced against the City of New York [NYC] and her employer, the New York City Administration for Children's Services [ACS]. The settlement agreement specifically provided that Plaintiff was settling any and all claims related to her pleadings in the federal action in consideration of her receipt of a payment in the amount of $50,000. 

The release provided that Plaintiff was "releasing any and all claims related to the allegations in the pleadings in the federal action, as well as any right or claim under the Federal Age Discrimination in Employment Act", and "any and all other liability, claims or rights of action that may exist or arise up to and including the date" the release was executed.

However, at the time Plaintiff executed the release of her claims in the federal action, Plaintiff had an action pending in a New York State Supreme Court alleging NYC had violated §8-107(1)(a) of the New York City Human Rights Law because it denied Plaintiff a reasonable accommodation for her disabilities, which were allegedly connected to a work-related accident.

NYC moved to have a New York State Supreme Court dismiss Plaintiff's pending state action under color of the party's federal settlement agreement. Supreme Court denied NYC's motion and NYC appealed the ruling. 

The Appellate Division unanimously affirmed the Supreme Court's decision, explaining that the settlement documents concerning Plaintiff's federal action, when read as a whole, established that the parties intended the release "to be limited to the recital of claims stated in the release", namely, claims that could have been brought in connection with Plaintiff's federal employment discrimination action, or under the Age Discrimination in Employment Act, provided such a claim arose prior to the execution of the release.

In the words of the Appellate Division: 

"The settlement agreement is properly read in conjunction with the release, particularly where the release expressly refers to the settlement agreement. That agreement settles only the claims in the federal action" and "makes no mention of the claims in the instant state action, although it was pending at the time". 

Further, the Appellate Division's decision notes the claims in the two actions were unrelated.

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

Effort to have a court annul resignation voluntarily submitted by an employee fails

Petitioner appealed Supreme Court's denial of his CPLR Article 78 petition to annul and rescind Petitioner's resignation from his probationary police officer position with the Metropolitan Transportation Authority [MTA]. The Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division said Supreme Court "correctly concluded that it lacked subject matter jurisdiction because the termination of [Petitioner's] employment was accomplished by his voluntary resignation rather than an administrative determination." The Appellate Division noted that the record indicated that Petitioner's resignation "was voluntary based on his desire to improve his chances of reinstatement in the future".

The court also held that Petitioner's claim of bias based on his ethnicity was unsupported by evidence in the record and he failed to present anything that indicated his termination was based on his ethnicity or any bias by the Field Training Officers who rated his performance as a probationary employee.

The Appellate Division opined that even had Petitioner's resignation not been voluntary, he failed to present evidence showing that his separation of his employment by MTA was arbitrary and capricious, an abuse of discretion, in bad faith, or violative of law and procedure as Petitioner's "performance in phases 2 and 3, and the remedial training phase was found below expectations and unacceptable by different Field Training Officers".

Smith v Kunkel,* is case involving an individual's seeking to have a court consider his efforts to withdraw his written resignation prior to its effective date.

Smith had submitted his resignation to the employer indicating that he was doing so for "personal reasons." The resignation was dated August 21 and was to take effect the September 3, next following. On August 29 Smith wrote Kunkel, the agency's Administrative Officer, "seeking to withdraw and rescind" his resignation. Kunkel declined to approve Smith’s request to withdraw his resignation, citing 4 NYCRR5.3(c)** of the rules for the classified service for employees of the State of New York as the Employer. 

Smith sued the agency contending that Kunkel's refusal to permit him to withdraw his resignation was arbitrary and capricious and that 4 NYCRR 5.3(c) was unconstitutional as it deprived him of his public employment without notice and hearing.

Addressing Smith's constitutional challenge to 4 NYCRR 5.3(c), the Appellate Division rejected Smith's argument noting his contention overlooked a crucial fact -- Smith had not been terminated by the appointing authority but rather had voluntarily resigned from his position. 

The court indicated that the "voluntariness of [Smith's] resignation is not vitiated by the fact that Kunkel rejected his withdrawal request prior to the effective date of his resignation." The Appellate Division concluded that Smith, having by his own action relinquished his position, did not retain any constitutionally protected property interest in it.

* 152 AD2d 893, appeal dismissed, 74 NY 2d 944.

** Said rules "apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service". Many municipal civil service agencies in New York State have adopted a similar rule or regulation applicable to individuals subject to the municipal agency's jurisdiction.

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

New York State Comptroller Thomas P. DiNapoli announced the municipal audits listed below have been issued

On January 31, 2025 New York State Comptroller Thomas P. DiNapoli announced the municipal audits listed below have been issued. 

Click on the text highlighted in color to access the item posted on the Internet 

Rensselaer County Industrial Development Agency (RCIDA) – Payments in Lieu of Taxes (2021M-74)

Officials did not ensure all PILOT agreements were properly billed, collected and distributed. Sixteen of the 62 bills reviewed were inaccurate because the county’s director of real property tax either used incorrect assessment values or tax rates and had an inconsistent payment calculation process that resulted in two projects being overbilled a total of $170,842 and two projects being underbilled a total of $184,474. Auditors also found that two taxing jurisdictions received $10,607 more than they should have while five others did not receive $24,239 that they should have.

 

Fairview Fire District – Payroll and Leave Accruals (Dutchess County)

District officials did not ensure all employee payroll payments and leave accruals were accurate, monitored, properly approved and supported. This occurred because the board did not provide adequate oversight, segregate payroll duties or develop compensating controls or develop written policies and procedures for these duties. As a result, auditors determined that district officials made payroll calculation errors totaling $8,936 and potentially overpaid 11 employees by a total of $44,301 for leave accrual payments. Officials also paid five employees $55,407 in overtime payments that could have been avoided or reduced.

 

Town of Chesterfield – Town Clerk (Essex County)

The clerk did not properly record, deposit, remit or report collections. As a result, officials do not have assurance that all collections are accounted for, and money could be lost or misappropriated. The clerk and deputy clerk did not record and issue receipts for collections totaling $18,289 received for 273 of 805 fees (34%). The clerk also did not prepare accurate monthly reports and remit collections to the supervisor and other agencies or prepare monthly bank reconciliations and accountability analyses which compare the amount of cash on hand and on deposit in the bank to detailed lists of amounts due to the supervisor and other agencies. Had the town board fulfilled its fiscal oversight responsibilities by conducting a thorough annual audit of the clerk’s records, the deficiencies identified may have been detected and addressed sooner.

 

Village of Washingtonville – Budget Review (Orange County)

The scope of the review was significantly limited by the lack of complete, accurate and current accounting records maintained by the village. The village could face a shortfall of approximately $261,000 in sewer rents and $123,000 in water rents if revenues are not realized. The 2025-26 tentative budget includes appropriations for personnel services of $3.3 million for general, water and sewer funds combined, but it could have additional expenditures when the village settles the police department’s expired collective bargaining agreement. Auditors also project the village is underestimating personnel services by approximately $21,000 for the water and sewer funds. The budget includes appropriations of approximately $243,400 for social security payments which are likely underestimated by approximately $21,200. The village has also underestimated health insurance payments for at least the last two fiscal years. The budget includes a $75,000 general fund contingency, which is less than 1% of the village’s general fund budgeted appropriations and a decrease of $25,000 from the 2024-25 adopted budget. During the review of the village’s proposed budget, auditors were provided with the village’s tentative budget 30 days before the scheduled vote, as required. However, the village posted a conflicting budget to its website six days later. As some of the differences between budgets were significant, such as a $32,471 difference in real property taxes, auditors chose to rely on the proposed budget that was posted to the village's website, as that was the version presented to the public. By not providing accurate budgeted figures timely for the review, the village hinders auditors’ ability to examine the tentative budget and make recommendations to help improve the village’s financial condition. The budget includes a tax levy of $5.4 million. Similar to the revenue and expenditure estimates, the lack of complete, accurate, and current accounting and financial records precludes auditors from concluding on the village’s tax cap compliance.

 

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A Reasonable Disciplinary Penalty Under the Circumstances

The text of this E-Book focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.