Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Employee alleged to have engaged in plagiarism

Office of Payroll Management v. Hassan, OATH Index No. 308/15

Computer systems manager who was assigned the task of developing a technical design document for the agency's new training application, was charged with plagiarism after he submitted a template which he had downloaded from the Internet and modified in part. ALJ Ingrid M. Addison recommended dismissal of the charge. Evidence showed that the manager's work was not in final form, he did not conceal that he was using a template, and the use of templates were not forbidden by petitioner's rules. Testimony suggested that downloading templates was common practice in the industry. ALJ Addison also recommended dismissal of the charge that respondent was incompetent because he failed to meet project deadlines. The ALJ found that the delay was caused by other factors not created by the manager. Charges that the manager was paid for work not performed and was excessively absent were also not proven.  

Employee charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at work

Fire Dep't v. Buttaro, OATH Index No. 2430/14

Firefighter was charged with creating a hostile environment by repeatedly wearing an offensive t-shirt at the firehouse, while on and off-duty, instead of Department-issued attire. ALJ Alessandra F. Zorgniotti found that petitioner established the charge and the additional charge that the firefighter disobeyed orders to wear only authorized clothing in the firehouse. The Department showed that the potential workplace disruption caused by the firefighter's conduct outweighed the firefighter's First Amendment right to wear non-Department issued t-shirts in the firehouse. Termination of employment was recommended and imposed.  Fire Dep't v. Buttaro, OATH Index No. 2430/14

Testing positive for alcohol during random test

Dep't of Transportation v. Anonymous, OATH Index No. 147/15.

Ship carpenter was charged with testing positive for alcohol during random test administered under federal regulations. ALJ Addison rejected carpenter's claims that he was not randomly selected or that the technician who performed the test did not comply with federal regulations or that the positive result was caused by acid reflux. Termination of employment was recommended.  

Employee alleged to be mentally unfit to perform his job

Dep't of Environmental Protection v. J.B., OATH Index No. 321/15

Petitioner alleged that an environmental police officer was mentally unfit to perform his job under Civil Service Law Section 72, subjected the officer to examinations by psychiatrists employed by the Police Department who found him mentally unfit, and placed him on an immediate leave of absence, following an incident in which the officer engaged in a religious practice known as "speaking in tongues" in the workplace. ALJ Tynia D. Richard granted respondent's motion to dismiss the proceeding, finding petitioner failed to comply with statutory requirements and the officer was not afforded due process. Written notice that should have been provided to the employee to advise him of the facts that gave rise to the Department's belief that he was unfit and of its intent to place him on a Section 72 medical leave was untimely, occurring five months after psychological testing commenced; the exams were not conducted by doctors designated by the Citywide Administrative Services as required by statute; and an involuntary leave was imposed prior to hearing without probable cause to believe that the officer's presence at the job would present a danger or severely interfere with operations.   

N.B. OATH Index No. 321/15 decision rejected and remanded, Commissioner ruled that Section 72 procedures were inapplicable because the purpose of the exams was not to evaluate the officer for a leave of absence and remanded the case to the ALJ for a recommendation regarding the officer's mental fitness.

Submission of a fraudulent medical note alleged

Human Resources Admin. v. Lopez, OATH Index No. 496/15

ALJ Kara J. Miller found that a job opportunity specialist submitted a fraudulent medical note and was absent without authorization for two weeks. After the employee's request for summer vacation had been denied in part, he failed to report to work for two weeks and then submitted a medical note requesting that his absence be excused for the entire period due to poison ivy. Noting irregularities in the note, petitioner checked with medical office employees, who indicated that the note was valid for only one day excusal. Termination of employment recommended.  

Positive drug test

Dep't of Sanitation v. Petosa, OATH Index No. 758/15

ALJ Richard recommended dismissal of a disciplinary charge based upon sanitation worker's positive drug test, where worker had admitted his drug problem and sought in good faith to obtain rehabilitation. The positive test occurred after worker had voluntarily entered a drug and alcohol rehabilitation facility, and he was referred to the Department's Employee Assistance Unit for testing and monitoring. He was told that he would have to take a drug test to establish a baseline level of usage and he would not be punished for a positive test.  

Requiring employees absent on sick leave to be examined by a physician designated by the employer before returning from such leave

Requiring employees absent on sick leave to be examined by a physician designated by the employer before returning from such leave
New York State Corr. Officers & Police Benevolent Assn., Inc. v New York State Dept. of Corr. & Community Supervision, 2015 NY Slip Op 01853, Appellate Division, Third Department

Supreme Court dismissed the New York State Corr. Officers & Police Benevolent Association’s [Association] application to review the New York State Department of Correction and Community Supervision’s [Department] decision to deny an Association member’s [Employee] request to restore sick leave credit the member used while absent on sick leave.

Employee was on an approved medical leave on November 3, and November 4, but then advised the Department that she was not returning to work on November 5, because her treating physician “prevented her from doing so,”

Employee’s supervisor told her that a note from her physician explaining her absence was required before she could return to work. Employee submitted a note from her doctor stating that she was fit to return to work as of November 8.

The Department than said that Employee had to undergo an Employee Health Services (EHS) examination before she could resume active duty. On December 10, EHS found that the Employee was fit to return to work, which she did on December 12.

Employee then requested the Department restore the 22 days of sick leave credits that Employee used in order to remain on the payroll while she awaited EHS clearance to return to work. The Department denied her request and the Association filed an Article 78 petition challenging the Department's decision, contending that such refusal constituted a violation of Civil Service Law §72(5).

The Appellate Division said that it agreed with Supreme Court’s determination that the Association’s reliance on §72(5) “fails to afford them any relief.” The court explained that nothing in the record suggests that Employee was placed on involuntary leave pursuant to Civil Service Law §72(5) and “the evidence shows that Department exercised its right — under 4 NYCRR 21.3(e)* and Article 14 of the parties' collective bargaining agreement — to subject Employee to an EHS assessment to ensure that she could properly perform her job responsibilities.”

The regulation and relevant provision set out in the collective bargaining agreement allowed Department to require Employee, following a medical absence, to be examined by a Department designated physician in order to ensure that she was capable of performing her work duties before being permitted to resume her employment.

According to the decision, Employee absented herself on sick leave and Department had not initiated the procedural steps to place Employee on “Leave for Ordinary Disability” pursuant to Civil Service Law §72(1) nor placed Employee on “Leave for Ordinary Disability involuntarily pursuant to Civil Service Law §72(5). Further, the Appellate Division said that it was not persuaded that Department’s refusal to allow Employee to return to work for weeks after her personal physician indicated that she was fit to do so constituted a de facto involuntary leave for ordinary disability within the meaning of §72(5).

* 4 NYCRR 21.3(e), which applies to employees of the State as an employer, provides that “The appointing authority may require an employee who has been absent because of personal illness, prior to and as a condition of his [or her] return to duty, to be examined, at the expense of the department or agency, by a physician designated by the appointing authority, to establish that he [or she] is not disabled from the performance of his [or her] normal duties and that his [or her] return to duty will not jeopardize the health of other employees.” A number of local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:.

http://www.nycourts.gov/reporter/3dseries/2015/2015_01853.htm

Recent appointments announced by the Governor

Recent appointments announced by the Governor

Source: Office of the Governor

On Martch 9, 2015, Governor Andrew M. Cuomo announced the appointment of the individuals named below to his administration.

Tom Topousis has been appointed Special Adviser to the Communications Director and Director of Speechwriting. Most recently, he served as Editor in Chief of the Queens Courier and its sister publications. Before that, he spent more than 17 years at the New York Post, where he covered city and state government, transit and the reconstruction of the World Trade Center before becoming political editor in 2010, during which he oversaw coverage of the 2012 presidential campaign. He has also worked for the Bergen Record in New Jersey as well as several newspapers in New York State, including the Poughkeepsie Journal, Oneonta Star and the Times-Herald Record of Middletown. Mr. Topousis studied anthropology at the State University of New York at New Paltz.

Aimee Vargas, Esq., has been appointed Director of Downstate Intergovernmental Affairs, which covers the Hudson Valley, NYC and Long Island. Ms. Vargas previously oversaw Governor Cuomo’s regional affairs in the Hudson Valley and served as the Mid-Hudson Regional Director of Empire State Development and the Executive Director of the Mid-Hudson Regional Economic Development Council. Ms. Vargas also serves on the Governor's Tappan Zee Community Outreach team and will continue to do so in her new role. She was formerly Associate Counsel at the New York State Department of Environmental Conservation and, prior, Director of Finance for the Town of Clarkstown in Rockland County. Ms. Vargas is a member of the Rockland Community Foundation's Advisory Board and was recognized by Rockland Economic Development Corporation as a recipient of their "40 Under 40" award. She has also been recognized by the Dutchess County Exempt Volunteer Firefighters Association's Hispanic Heritage Award. Ms. Vargas is a graduate of the S. I. Newhouse School of Public Communications at Syracuse University and the Benjamin N. Cardozo School of Law.

Julissa Gutierrez has been appointed Deputy Director of Constituency Affairs. Ms. Gutierrez previously served in a number of roles at the National Association of Latino Elected and Appointed Officials (NALEO) Educational Fund, most recently as Director of National Programs and Community Relations and Northeast Director for Civic Engagement. She was Special Assistant to the Commissioner of the New York City Department of Youth and Community Development and has had a long relationship with the Anti-Defamation League, having held various positions and participated in programs there since she was in high school. Ms. Gutierrez is Board Chair of New Immigrants Community Empowerment and a Board of Trustees for the Queens Public Library. Ms. Gutierrez has a B.A. from the University of Delaware and a M.A. from University of Chicago.

Rosemary Powers has been appointed Chief Operating Officer for the Department of Transportation. She most recently served as the Deputy Chief of Staff and Senior Director of Government Affairs for Massachusetts Governor Deval Patrick. She previously served as the Chief of Staff and Director of Government Affairs at the Department of Environmental Protection in Massachusetts. She has also served as the Director of Government Affairs at the Massachusetts Department of Conservation and Recreation and as Chief of Staff and Policy and Legislative Director for Senator Jack Hart of Massachusetts. She was co-chair of the Intergovernmental Affairs Team of the Mayor Martin J. Walsh Transition Committee. Ms. Powers has a Masters of Public Administration from Harvard University’s John F. Kennedy School of Government and a B.A. from Suffolk University.

Tanuja Mohapatra, Esq., has been appointed Director of Legislative Affairs for the Department of Financial Services. Ms. Mohapatra previously served as Chief of Staff and Counselor to New York Assemblyman N. Nick Perry, where she was instrumental in the advocacy of homeowners' rights during the financial crisis, including the passage of legislation that protected consumers from paying costly bank fees. Prior, she worked in the private sector in the areas of E-Discovery and Litigation Management representing fortune 500 companies in the financial sector, and was an attorney for Womble Carlyle Sandridge & Rice in Durham, NC engaged in pharmaceutical litigation. Ms Mohapatra is admitted in North Carolina’s 10th Judicial District and has a J.D. from the Columbus School of Law at the Catholic University and a B.A. in Political Science from North Carolina State University.

Catherine Youssef Kassenoff, Esq., has been appointed Special Counsel for Ethics, Risk and Compliance for the Energy and Finance Sub-Cabinet. She most recently served as the Executive Director, Executive Counsel and Head of U.S. Litigation and Government Investigations at Boehringer Ingelheim Pharmaceuticals where she oversaw all U.S. litigation and government investigations. She previously served as the Director of Corporate Compliance and Litigation at Edison Learning, Inc. and was an Assistant U.S. Attorney in the Eastern District of New York. Ms. Kassenoff has a J.D. from New York University School of Law and an A.B. from Dartmouth College.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 7, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 7, 2015

Click on text highlighted in color  to access the full report

On Wednesday, March 4, 2015, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Brookhaven Fire District,

Fair Haven Volunteer Fire Department,

Town of Ira, and the

Lake View Fire District.

Threatening workplace violence

Threatening workplace violence

2015 NY Slip Op 01754, Appellate Division, First Department

An employee [Employee] was found guilty of disciplinary charges alleging that he threatened his supervisor with violence. In the administrative disciplinary action the employee’s supervisor had testified that Employee had threatened him as Employee stood near him, holding wood or another object in his hand, and raised the object while getting angrier in his statements to the supervisor.

The disciplinary penalty imposed: suspension without pay for 31 work days,

Employee’s challenge to the administrative disciplinary determination and the penalty imposed, but the Appellate Division sustained both the finding of guilt and the penalty imposed on Employee..

The court explained that the administrative determination that Employee had engaged in an incident of workplace violence was supported by substantial evidence and that was no basis to disturb the credibility determinations of the hearing officer.

As to the penalty imposed, suspension without pay for 31 work days, the Appellate Division said that based on the employer’s “strong concern with promoting a nonviolent workplace, the suspension imposed does not shock our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01754.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing 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. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

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The top five NYPPL summaries for the week ending March 7, 2015

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NYS Comptroller Thomas P. DiNapoli releases report on 30-day State Budget amendments

NYS Comptroller Thomas P. DiNapoli releases report on 30-day state budget amendments

Source: Office of the State Comptroller

Amendments to the proposed state budget appropriately lower tax collection estimates in the Financial Plan for state fiscal year 2014-15 but increase the Executive’s discretion over spending, including $4.55 billion from financial settlements, and attach major policy issues to time-limited appropriations, according to an analysis released today by New York State Comptroller Thomas P. DiNapoli. [Click on “analysis” to access the Comptroller’s Executive Summary and Overview of the 30-day budget amendments.]

“Several of the amendments give the Executive great latitude in spending,” DiNapoli said. “And while particular substantive proposals may be worthy, attaching them to spending bills that expire within two years or less may not be the best way to consider the merits.”

The 30-day amendments add language directly to appropriation bills for a variety of policy purposes including evaluation of teachers and principals, a proposed education tax credit program, extension of tuition assistance to certain undocumented immigrants, certain personal financial and other disclosures by state legislators, and reimbursement of travel and related expenses by state elected officials. 

Other areas where policy initiatives have been added to appropriations include Medicaid and authorization for the state to use design-build procurements.

The 30-day amendments also eliminate proposed separate appropriations from a new Dedicated Infrastructure Investment Fund (DIIF), advanced by the Executive to allocate certain financial settlement funds, and instead add $4.55 billion to existing appropriations at the Department of Health (DOH), the Metropolitan Transportation Authority (MTA) and the Department of Transportation (DOT), allocating these appropriations through percentage shares.

With the exception of the health care funding, that spending would be subject to approval of the director of the Division of the Budget (DOB) and could be used for costs incurred before April 1, 2015. The money could also be transferred to any state agency or public authority for the purposes described. As a result, oversight measures, checks and balances, and spending reviews could be bypassed,

DiNapoli reports that DOB has also modified projections made in the SFY 2014-15 third quarter financial plan update included with the Executive Budget. These adjustments primarily address a shortfall in tax revenues relative to the most recent projections, reducing General Fund tax receipts by $355 million. The report finds that while overall estimates in the current year have been reduced downward, projections for SFY 2015-16 remain the same, resulting in continued risks associated with the revised estimates. The revenue consensus between the Executive and the Legislature further increased projected revenues by $200 million. The report found that based on certain economic projections and actual tax collection results to date, the revised revenue projections may be optimistic,

For a copy of the report visit: Review of the SFY 2015-16 Executive Budget Amendments and Revenue Consensus.

In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

In the public sector the intent of parties to a collective bargaining agreement to arbitrate a particular issue may not be presumed

County of Rockland v Corr. Officers Benevolent Assn. of Rockland County, Inc., 2015 NY Slip Op 01798, Appellate Division, Second Department

A correction officer filed a grievance after he was denied a longevity pay increase. After his grievance was denied, the Correction Officers Benevolent Association of Rockland County, Inc. filed a notice of intent to arbitrate the grievance. Contending that the parties had not agreed to arbitrate this type of grievance, Rockland County sought a permanent stay of arbitration. The County's motion to permanently stay arbitration was granted by Supreme Court. 

Supreme Court determined that the parties had only agreed to arbitrate certain limited matters expressly delineated in the collective bargaining agreement [CBA], which did not include the grievance at issue. The Association appealed and the Appellate Division ruled that Supreme Court properly granted the County’s petition to permanently stay arbitration and denied the Association’s cross petition to compel arbitration.

The Appellate Division explained that the determination of whether a dispute between a public sector employer and a public employee organization is arbitrable is subject to a two-prong test, citing Deer Park UFSD v Deer Park Teachers’ Association, 77 AD3d 747, whereby:

1. The court must initially determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance and absent such a finding;

2. Must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular dispute at issue.

Observing that here the County did not claim that the arbitration of the subject matter of the dispute was prohibited by law or public policy, the court concluded the only issue to consider was whether the parties agreed to arbitrate the particular dispute.

The Appellate Division said that unlike general labor disputes in the private sector involving arbitration, the intent of parties to a collective bargaining agreement in the field of public employment to arbitrate a particular issue may not be presumed but rather “it must be taken, in the absence of clear, unequivocal agreement to the contrary, that the [parties to the collective bargaining agreement] did not intend to refer differences which might arise to the arbitration forum," citing Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d at 514.

Finding that the relevant collective bargaining agreement did not broadly provide for the arbitration of any grievance that may arise under the CBA, the Appellate Division ruled that Supreme Court correctly concluded that the CBA limited the availability of arbitration to specifically enumerated matters.

The bottom line: As the Association failed to demonstrate that "the parties in fact agreed to arbitrate [this] particular dispute," the Supreme Court properly granted the County's petition to permanently stay arbitration and properly denied the Association's cross petition to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01798.htm

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee

An individual appointed subject to the satisfactory completion of a training period has no greater rights than those of a probationary employee
2015 NY Slip Op 01746, Appellate Division, First Department

An individual [Trainee] was accepted into a seven-week pre-service training period. When Trainee was terminated in the midst of a seven-week pre-service training period he filed an Article 78 petition seeking a court order annulling the employer’s determination to dismiss him from the traineeship.. Supreme Court granted the employer’s motion to dismiss Trainee’s petition and Trainee appealed.

Sustaining the Supreme Court’s decision, the Appellate Division said that Trainee had no greater rights than those of probationary employees, and a probationary employee "may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."*

The court explained that the record demonstrates that trainee did not have a cause of action as the evidence submitted with the petition and cross motion established that during Trainee’s “pre-service training period, several complaints had been made about [Trainee’s] performance, resulting in the issuance of a performance concern letter.”

The Appellate Division noted that Trainee “had been admonished multiple times for using his cell phone in the classroom and improperly leaving the classroom when students were present” and, in addition, Trainee was also directed by a supervisor to refrain from contacting another teacher who had expressed concerns about how he had previously spoken to her.

Under these circumstances, said the court, where there is evidence of multiple instances of unsatisfactory performance during a short seven-week period, the discharge was made in good faith.

* N. B. Should the appointing authority elected to terminate a probationary employee prior to his or her completing the minimum period of his or her probationary period, the individual is entitled to notice and hearing in accordance with the controlling disciplinary procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01746.htm

Employee’s refusal to cooperate with a police investigation found to constitute misconduct

Employee’s refusal to cooperate with a police investigation found to constitute misconduct
2015 NY Slip Op 01740, Appellate Division, First Department

The Appellate Division confirmed the determination of New York City’s Police Commissioner adopting the findings of the disciplinary Hearing Officer that a New York City police officer had engaged in misconduct, and imposing a penalty of forfeiture of 30 vacation days, a 30-day suspension, without pay, and a one-year dismissal probation period.

The court said that there was substantial evidence to support the Hearing Officer’s findings that the police officer had refused to cooperate with a Port Authority Police Department (PAPD) investigation, and that he gave vague and nonresponsive answers at a subsequent interview by New York City Police Department officials.

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The imposed penalty does not shock our sense of fairness.”

Similarly, a New York City Office of Administrative Trials and Hearings' administrative law judge held that an employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview [NYC Health and Hospital Corporation v Jones, OATH Index #1100/10, posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1100.pdf].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01740.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing 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. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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