Hearing officer recommends termination of employee unwilling to follow instructions

Hearing officer recommends termination of employee unwilling to follow instructions
Dept. of Housing Preservation and Development v Hand, OATH Index #2594/10

OATH Administrative Law Judge Kara Miller decided that a clerical employee's persistent unwillingness to properly process tenant appointments warranted termination.

Judge Miller found that the employee, Deborrah Hand, had improperly processed 112 appointments despite the fact that she had been given step-by-step instructions on how to do the task.

Hand, instead, “deliberatively chose to do it her own way.” As a result of Hand's failure to make proper computer entries complaints were automatically closed out and inspectors were not sent to scheduled inspections.

Consequently, Housing received complaints from tenants who waited at home for inspectors who never came.

Judge Miller recommend that Hand be terminated because of her unwillingness to follow instructions “constituted incompetence.” The ALJ also commented that Hand’s incompetence “cannot be cured by moving her to another job title.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2594.pdf
NYPPL

A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75

A party seeking to vacate an arbitration award must prove one or more of the limited reasons for vacating the award set out in Article 75
Matter of Smith v New York City Dept. of Educ., 2010 NY Slip Op 51989(U), Decided on November 8, 2010, Supreme Court, New York County, Judge Barbara Jaffe, [Not selected for publication in the Official Reports]

Theodore Smith, a tenured physical education teacher at the New York City Department of Education’s Museum School, was served with 23 charges Education Law 3020-a.

Arbitrator Jack Tillem was assigned to conduct the hearing in the [first] proceeding. In the course of this proceeding Smith’s attorney, David Kearney,* told Tillem that Smith had threatened to kill Tillem, whereupon Tillem recused himself from conducting the hearing in the first proceeding. .

Following an investigation by Office of the Special Commissioner of Investigations (SCI) into Kearney's allegations Smith was referred to the Department of Education’s Medical Unit for psychiatric evaluation. In the meanwhile, Kearney moved for leave to withdraw as counsel for Smith in the federal court action and described why he wished to so withdraw -- the threats Smith allegedly made against Tillem.**

Subsequently a new arbitrator conducted the disciplinary hearing , found Smith guilty of certain charges and recommended that Smith be suspended without pay for one year, a ruling that was ultimately sustained by the Appellate Division. [Smith v Department of Education, 67 AD3d 555, motion for leave to appeal denied, Slip Opinion No: 2010 NY Slip Op 66952].

The Department of Education then commenced a second disciplinary proceeding against Smith pursuant to Education Law 3020-a in which it alleged that Smith had made death threats against Tillem resulting in Tillem's recusing himself from the first proceeding thus “causing delay and thereby obstructing, impairing and perverting the administration of law.”***

The arbitrator found that Smith had "uttered death threats" against the arbitrator assigned to his first §3020-a hearing and that "such threats constituted just cause for [Smith's] dismissal from service."

Smith filed a petition pursuant to CPLR Article 75 contending that the arbitration award should be vacated on the ground of corruption, or fraud or misconduct by the arbitrator and the Department's attorneys, “which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him.”

Noting that the scope of judicial review of an arbitration proceeding is extremely limited, Judge Jaffe said that “The court must defer to the arbitrator's decision and is bound by the arbitrator's factual findings and interpretations of the agreement at issue.”

Judge Jaffe explained that after a hearing is held pursuant to §3020-a, a party may apply to vacate the arbitrator's decision pursuant to CPLR 7511 based on allegations of misconduct, bias, excess of power, or procedural defects.

The party challenging the arbitration award, however, has the burden of proving that the award is invalid for one or more of the reasons for vacating an arbitration award specified in CPLR Article 75. Further, an allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality.

Judge Jaffe, finding that the arbitrator’s award in the second proceeding was rational and supported by adequate evidence, ruled that Smith had not satisfied his burden of proving that the arbitrator engaged in corruption, or fraud, or misconduct, and confirmed the arbitration award.

* Prior to the charges being brought against Smith, Smith retained the law firm of Neal Brickman & Associates to file a lawsuit in federal court against the NYC Department of Education. David Kearney, an attorney with the firm, agreed to represent Smith in the Federal action and subsequently agreed to represent Smith in the §3020-a proceeding.

** SCI reported that it had substantiated Kearney's allegations regarding Smith’s threats and recommended that Smith's employment be terminated and that he be placed on the Department’s “ineligible employment list.”

*** Smith was later served with third set of charges related to time and attendance. All of the charges were consolidated and considered in the second §3020-a hearing.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51989.htm
NYPPL

Statute of limitations for filing Section 75 disciplinary charges

Statute of limitations for filing Section 75 disciplinary charges
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804

Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga’s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.

Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4’s 18-month statute of limitation for bring such charges did not apply in his case because he was a “managerial employee” and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.

The Appellate Division, however, pointed out that Wade’s theory overlooked one critical phrase contained in Section 75.4: a “state employee who is designated managerial or confidential” within the meaning of the Taylor Law. The court said “the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.”

Accordingly, the court ruled, Section 75.4’s “general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, “if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.”

Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, “if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.”

As to the penalty imposed, dismissal, the court said that Wade’s “unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.”

Finding that the penalty was “by no means so disproportionate as to shock our sense of fairness,” the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that “sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.”
NYPPL

Employee charged with “computer trespass” for allegedly tampering with department’s computer records

Employee charged with “computer trespass” for allegedly tampering with department’s computer records
Saunders v Washington County, 255 AD2d 788

After announcing that she was resigning her from position as payroll clerk with the Washington County Sheriff’s Department, Mary Lou Saunders told a co-worker, Joanne Murone, she had deleted a budget report from the computer and planned on deleting other files.

Murone reported Saunders’ statement to her superiors and Saunders’ computer access code was deactivated the same day - July 22, 1992.

On July 23, 1992, a current purchase order list could not be retrieved from the computer. It was then discovered that between 9:30 a.m. and 9:42 a.m. “someone had accessed the computer from the communications center using Murone’s access code and deleted over 100 files.” When questioned by the Sheriff, Saunders admitted that she had used Murone’s access code without permission to delete the files, claiming that “she did not intentionally delete current files.”

During a subsequent investigation by the State Police, Saunders “indicated that she had been the subject of harassment at work and readily acknowledged that, after being denied access to the computer system, she used Murone’s code to delete files in an ‘attempt to show the department the value of [her] services.’”

Saunders was arrested and charged with a felony count of “computer trespass” [Penal Law Section 156.10(2)] and a misdemeanor count of tampering with public records ... [Penal Law Section 175.20]. The felony charge was reduced to misdemeanor.

After a jury acquitted Saunders of all charges, she sued the county, alleging “false arrest, malicious prosecution and defamation.” A State Supreme Court justice granted the county’s motion for summary judgment, dismissing Saunders’ petition.

With respect to Saunders’ allegations of false arrest and malicious prosecution, the Appellate Division affirmed the lower court’s dismissal of her complaint, indicating that “the unrefuted evidence in the record, including [Saunders’] own admissions and the statements of her co-workers, supports a finding that a reasonable person would have believed that [Saunders] had committed the crimes for which she was arrested.”

As to Saunders’ defamation claims, which was based on the Sheriff’s Department’s issuing a press release reporting her arrest, the Appellate Division pointed out that “truth constitutes a complete defense to such a claim.”

Since there was no substantive factual dispute that all the statements contained in the press release were true, the Appellate Division held that Saunders’ defamation cause of action was also properly dismissed by the lower court.
NYPPL