Refusal to accept assignments ruled misconduct

Refusal to accept assignments ruled misconduct

NYC Transit Authority v Alday, OATH Index #475/12

The New York City Transit Authority charged a civil engineer with insubordination after he had repeatedly refused to accept work reassignments given to him by his supervisor despite his subsequently complying with the supervisor’s directive after being order to do so by a higher level superior.

Rejecting the employee’s defense that he wanted to make sure it was "the official management decision” as he did not believe his temporary supervisor had the authority to “reassign people just like that,” OATH Administrative Law Judge Tynia D. Richard held that employee’s repeated refusals to accept the reassignments given to him by his temporary supervisor constituted misconduct.

Dismissing two other charges of alleged misconduct filed against the employee, Judge Richard, in consideration of the individual's “nearly clean record of discipline and 28-year tenure with the City,” recommended the Department imposed the penalty of a reprimand rather than the 15-day suspension without pay proposed by the Transit Authority.

The ALJ explained that the lesser penalty was being recommended as two of the three charges of alleged misconduct had been dismissed as the agency had “failed to prove” them.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-475.pdf

Children permitted to testify as witnesses in a disciplinary arbitration

Children permitted to testify as witnesses in a disciplinary arbitration

Stergiou v New York City Dept. of Educ., 2012 NY Slip Op 50291(U), Supreme Court, New York County, Justice Shlomo S. Hagler

One of the issues in this Article 75 of the Civil Practice Law appeal from an adverse disciplinary arbitration award was the arbitrator’s permitting 8-year old third grade students to testify in a disciplinary hearing “because she believed that they were competent witnesses.” The arbitrator excluded the accused teacher from the hearing room while the students were testifying but permitted the teacher’s attorney to cross-examine them.

Justice Hagler, noting that under Education Law §3020-a the parties are subject to compulsory arbitration, said that the arbitration award must satisfy the tests set out in Article 75 and, in addition, also satisfy further judicial scrutiny in that it "must have evidentiary support and cannot be arbitrary and capricious."

Addressing the teachers argument that the arbitrator permitted incompetent witnesses to testify and failed to let her “confront the witnesses,” Justice Hagler said that the “courts are the gate-keepers in ensuring that only competent witnesses may testify under oath” and children may testify “after a preliminary examination gauging the capacity and intelligence of the child, the appreciation of the difference between right and wrong, and the obligations of taking an oath.”

The court then quoted United States Supreme Court Justice Brewer’s statement in Wheeler v United States, 159 US 523, that "The decision of this question rests primarily with the trial judge [or hearing officer], who sees the proposed [child] witness, notices his manner, his apparent possession or lack of intelligence, as well as his understanding of the obligations of an oath."

Justice Hagler found that the arbitrator conducted an adequate voir dire or preliminary examination into each witnesses’ competency and was able to gauge their level of understanding, ability to tell the truth and to take an oath. In addition, said the court, the arbitrator’s “line of inquiry was satisfactory” and the teacher’s counsel “did not seek any voir dire whatsoever into the minor witnesses competency.”

Further, Justice Hagler held that “Even assuming arguendo that the [arbitrator] did not have a proper foundation for children's testimony, the [she] was not bound by the strict rules of evidence and was permitted to elicit such testimony that she believed would be just and proper under the circumstances.”

As to the teacher’s claim that she was denied her due process rights to hear the testimony or confront the eight (8) year old witnesses, the court said that she “did not have an absolute right to do so in the context of an arbitration/administrative disciplinary hearing,” citing Matter of Abdur-Raheem v Mann, 85 NY2d 113.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50291.htm

Hearing officer recommends correction officer found to have fraternized with an inmate be dismissed

Hearing officer recommends correction officer found to have fraternized with an inmate be dismissed

NYC Department of Corrections v Tillery, OATH Index #467/12

OATH Administrative Law Judge John B. Spooner sustained charges that a correction officer engaged in undue familiarity with an ex-inmate and made false statements about the relationship.

Judge Spooner found the officer’s testimony that the two had never met before the ex-inmate had completed his sentence lacked credibility, considering that the officer had worked in the same dormitory where the inmate was incarcerated for three months under her supervision.

Noting that respondent’s false statements were nearly as troubling as the misconduct itself, the ALJ recommended termination of the officer’s employment.

Other decisions addressing workplace fraternization issues include: Vega v Dept. of Correctional Services, 588 NYS2d 202; Laspisa v Mahoney, 603 NYS2d 536; State of New York v Wal-Mart Stores, 207 A.D.2d 150; and DeCintio v Westchester County Medical Center, 821 F2d 111

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-467.pdf

Public employer’s agreement to defend and indemnify officers and employees being sued in a civil action may be rescinded for failure to cooperate

Public employer’s agreement to defend and indemnify officers and employees being sued in a civil action may be rescinded for failure to cooperate

Lancaster v Incorporated Vil. of Freeport, 2012 NY Slip Op 01465, Appellate Division, Second Department

The Board of Trustees of the Incorporated Village of Freeport revoked its earlier resolution adopted in accordance with §18 of the Public Officers Law providing a defense and indemnification in certain civil actions for certain officers or employees of the Village. *

§18, in pertinent part, provides for the defense and indemnification of officers and employees of public entities being sued for an act or omission related to the performance of official duties.

Subdivision 5 of §18 requires the officer or employee to meet the following requirements in order to meet the following conditions with respect to the public entity’s “duty to defend or indemnify and save harmless” the individual being sued:

 (i) delivery by the employee to the chief legal officer of the public entity or to its chief administrative officer of a written request to provide for his defense together with the original or a copy of any summons, complaint, process, notice, demand or pleading within ten days after he is served with such document, and

 (ii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the public entity based upon the same act or omission, and in the prosecution of any appeal.

In response to the officers and employees challenging the action of the Board rescinding its earlier resolution to defend and indemnify them, the Appellate Division sustained Supreme Court’s dismissal of their petition.

The Appellate Division explained that such action on the part of the Board was neither arbitrary and capricious nor an abuse of discretion as the conduct of such officers and employees “after their cooperation in the defense of those actions was diligently sought, was one of willful and avowed obstruction.”

* §17 of the Public Officers Law provides similar protections to officers and employees of the State as the employer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01465.htm

Hearing officer recommends that employee found guilty of excessive absence be terminated from her position

Hearing officer recommends that employee found guilty of excessive absence be terminated from her position

NYC Department of Corrections v E.G., OATH Index #214/11

The Department of Correction sought to terminate a correction officer, E.G., pursuant to §73 of the Civil Service Law after she had been absent from work for more than a year due to a non-work related disability.*

In the alternative, the Department simultaneously filed disciplinary charges against E,G. pursuant to §75 of the Civil Service Law alleging that she medically incompetent to perform the duties of her position as she had ben absent on sick leave for 313 days during an 18-month period.

E.G., on the other hand, asserted that she was fit to return to work.

After weighing the testimony of three experts and the Department of Correction, OATH Administrative Law Judge Ingrid A. Addison found E.G. unfit to return to work due to her “non-job related disability.”

The ALJ also found that E.G.’s absence from work involved an excessive use of sick leave and that such conduct provided an independent basis for disciplinary action pursuant to Civil Service Law §75. 

Judge Addison ruled that E.G. was “medically incompetent to perform the duties of her position and recommended that the Appointing Authority terminate E.G.’s employment pursuant to Civil Service §75.

The ALJ also found that as E.G. “is not rehabilitated," such dismissal from her position "is not violative of her human rights protections," citing McEniry v. Landi, 84 NY2d 554.

* §73 permits the appointing authority, as a matter of discretion, to terminate an employee who has been continuously absent for one year or longer, regardless of whether such absence was self-imposed by the employee or flowing from the employee's having been involuntarily placed on a leave of absence by the appointing authority pursuant to §72 of the Civil Service Law [see §72.4]. In contrast to termination pursuant to §75, termination pursuant to §73 is not pejorative and the individual may apply for reinstatement to his or her former position "within one year after the termination of such disability."

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2141.pdf

Former welfare fraud investigator convicted of stealing almost $5,000 from the Comptroller's Office of Unclaimed Funds

Former welfare fraud investigator convicted of stealing almost $5,000 from the Comptroller's Office of Unclaimed Funds

Source: Office of the State Comptroller

After an investigation initiated by State Comptroller Thomas P. DiNapoli, a former investigator with the State Welfare Inspector General’s Office pleaded guilty to illegally obtaining unclaimed funds being held by the Comptroller’s Office of Unclaimed Funds.

The Office of Unclaimed Funds holds such monies until they are claimed by the rightful owners. DiNapoli’s investigation found that investigator had submitted 15 forged abandoned property claims to the Office of Unclaimed Funds.

The case was prosecuted by the Manhattan District Attorney’s office and the former investigator, who resigned from his $62,597 position with the State, was sentenced to perform community service and ordered to pay restitution.

The Comptroller maintains a site on the Internet where interested individuals, organizations or businesses may search for funds deposited with the Office of Unclaimed Funds at https://ouf.osc.state.ny.us/ouf/. Such moneys typically are sent to the Office from forgotten or unknown bank accounts, investment or brokerage accounts or insurance policies in accordance with the provisions of the Abandoned Property Law. In some cases a business or governmental agency is the owner of the money. For example, the Comptroller recently delivered $4,844.72 in unclaimed funds to the City of Syracuse.

“Fraud is fraud, but it is particularly egregious when it is committed by a public servant charged with investigating fraud,” DiNapoli said.

DiNapoli encourages the public to help fight against fraud and abuse by report allegations of fraud, corruption and abuse of taxpayer money. Persons wishing to assist the Comptroller in this may use the Comptroller’s toll-free fraud hotline at 1-888-672-4555; file a complaint online at investigations@osc.state.ny.us; or mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Terminated probationer has the burden of proof in challenging his or her dismissal

Terminated probationer has the burden of proof in challenging his or her dismissal
Lane v City of New York, 2012 NY Slip Op 01257, Appellate Division, Second Department

In affirming Supreme Court’s dismissal of a dismissed probationary employee’s petition seeking reinstatement to his former position, the Appellate Division set out the following guidelines that courts consider in adjudicating such an action.

1.The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of the former probationary employee demonstrating that his or her termination was made in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

2. Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for the other improper or impermissible reasons set forth above and the burden of proof is on the individual.

3. The individual’s speculation that his or her dismissal was made in bad faith is insufficient to warrant a hearing.

The Commissioner of Education indicated the same standard would apply had he considered the appeal submitted by a probationary teacher challenging her termination by the school board [see Decisions of the Commissioner Education, Decision No. 16,329, http://publicpersonnellaw.blogspot.com/2012/02/probationer-has-burden-of-establishing.html].

The Lane decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01257.htm

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

NYC Department of Sanitation v E.L., OATH Index #2107/11

The Department of Sanitation charged a sanitation worker, E.L., with failure to complete a federally mandated drug test in violation of Rule 2.5 of the Department’s Code of Conduct. 

E.L. had appeared for the test and was cooperative but was unable to provide the required amount of urine in the three hours he was given. He subsequently submitted a note from his urologist, explaining that E.L. had urological conditions that could have prevented him from urinating. Later E.L. was diagnosed as having prostate cancer. 

The Medical Review Officer (MRO), who had no specialized knowledge in urology, ruled that the note submitted by E.L.’s physician were insufficient to excuse for E.L.’s failure to provide a sufficient sample.  In addition, the MRO refused to consider E.L.’s prostate cancer as that condition was not diagnosed within the five-day time period the regulations gave test subjects for providing a note. 

As a result, the MRO marked respondent as having refused to take the drug test and the Department initiated disciplinary action against E.L. 

OATH Administrative Law Judge Kara J. Miller found that both the test collector and the MRO failed to follow federal drug testing procedures, and these procedural errors mandated cancellation of E.L.’s test. 

In addition Judge Miller ruled that even absent the necessity for cancellation, the charges against E.L. should be dismissed as his actions were not willful and the evidence established that he was physically unable to provide the required amount of urine when asked to the urine sample requested and dismissed the charges the Department had filed against E.L.  

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2107.pdf