Recent rulings and recommendations by OATH Administrative Law Judges

Recent rulings and recommendations by OATH Administrative Law Judges

Summaries published by the NYC Office of Administrative Tribunals and Hearings

Employee alleged to have refused to work overtime
OATH Index No 1748/12

A hospital special officer was charged with insubordination after refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matter proceeded by inquest.*

Administrative Law Judge Kara J. Miller found that on each occasion the officer was given a form ordering him to work mandatory overtime and warning him that non-compliance could result in disciplinary action.  Each form was signed and dated by special officer and a supervisor. 

ALJ Miller found that this documentation proved the insubordination.  She recommended that the special officer be suspended without pay for 45 days.

* Courts have held that the appointing authority or its designee may proceed with the disciplinary action even though the employee is not present. Where the individual is to be  tried in absentia, a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did appear at the appointed time and place. Notwithstanding the absence of the individual, the burden is on the charging party to present and prove the disciplinary charges filed against the worker.

The decision is posted at Health & Hospitals Corp. (Jacobi Hospital Ctr.) v. Cooper (in PDF), .

Supervisor charged with leave violations, failure to supervise subordinates, sleeping on duty and misuse of agency property.
OATH Index No. 760/12 

Following a 7-day hearing, ALJ Kevin F. Casey sustained some of the leave violations, the sleeping on duty charge and the misuse of property charge, but he dismissed the failure to supervise charges. 

Noting that it was undisputed that some of supervior’s absences may have been due to medical conditions that he developed after his service at Ground Zero, and that the most serious disciplinary penalty previously imposed on employee was the loss of 10 vacation days, Judge Casey found termination of employment to be an overly harsh penalty and recommended a 48-day suspension without pay, based on principles of progressive discipline. 

The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),  

Employees alleged to have ignored directives to stop distributing union literature while not on duty
OATH Index Nos. 1497/12, 1499/12, 1707/12

Three New York City correction officers were charged with a number of allegations of misconduct, chief among them refusing to comply with orders to stop distributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.

The individuals denied they were ever given such orders and asserted a First Amendment right to distribute union information while off-duty. They also offered videos of some of the incidents into evidence.

ALJ Alessandra F. Zorgniotti sustained the charges that correction officers refused to obey orders to stop distributing their materials and orders to leave the island, as well as charges that one officer filed a false report and another failed to turn over his parking pass promptly.

Other allegations were dismissed.

ALJ Zorgniotti noted that a correctional facility presents special circumstances under the First Amendment, and that the employees had failed to prove that their First Amendment rights outweighed the compelling interest of the Department in maintaining a secure facility. 

Judge Zorgniotti recommended that each officer be suspended for 10 days without pay. 

The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF), OATH Index Nos. 1497/12, 1499/12, 1707/12

Motor vehicle operator alleged mentally unfit to perform her dutie
OATH Index No. 1546/12  

Administrative Law Judge John B. Spooner found that the individual had a mental disability but that the proof presented at the hearing was insufficient to sustain the allegation that she was presently unfit for her job as a driver.

The ALJ noted that [1] neither of the two incidents proven at trial established that employee was an unfit driver, [2] the individual had recently received favorable evaluations of her driving performance, and[3]  there had been no complaints about the employee since January 2011.

Judge Spooner recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at  Admin. for Children’s Services v. Anonymous(in PDF),

Newspaper reports admitted into evidence in an administrative disciplinary proceeding

Newspaper reports admitted into evidence in an administrative disciplinary proceeding
2012 NY Slip Op 07479, Appellate Division, Fourth Department

A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.

The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.

As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."

As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”

The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".

N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07479.htm

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law

E-mails between a public employer and an applicant for public employment may be subject to disclosure pursuant to the Freedom of Information Law
Hernandez v Office of the Mayor of the City of New York, 2012 NY Slip Op 08067, Appellate Division, First Department

Sergio Hernandez filed an Article 78 petition seeking a court order annulling the determination of the Office of the Mayor of the City of New York denying his requests under the Freedom of Information Law (FOIL) for certain e-mails sent from or “received by any government email accounts assigned to the Office of the Mayor to or from Cathleen Black, at the time she was a nominee for the position of New York City School Chancellor” and certain other records.

Supreme Court directed the City to produce redacted copies of such e-mails, which as the Appellate Division subsequently noted, were not exempt from disclosure as inter- or intra-agency materials within the meaning of Public Officers Law §89[2][g].

The City appealed the court’s order.

The Appellate Division sustained the lower court’s ruling, explaining that Black was not an agent of the City since she had not yet been retained as Chancellor. In addition, said the court, Black was not acting simply as an outside consultant on behalf of the City, but was a private citizen with interests that may have diverged from those of the City.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08067.htm