Disciplinary hearings held in absentia

Disciplinary hearings held in absentia

NYC Office of Administrative Trials and Hearings [OATH], Index No. 728/17

A New York City tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations. The auditor failed to appear at trial and the hearing proceed in absentia.

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed with the hearing but it must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing* as scheduled is, in effect, a concession of guilt.

OATH Administrative Law Judge Ingrid M. Addison conducted the hearing in "the form of an inquest" at which the Department presented the testimony the employee's supervisor, and documentary evidence.

Based on credible testimony from the auditor's supervisor and documentary evidence, Judge Addison sustained the charges. She found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct. The ALJ then recommended that the employee be terminated by the appointing authority.  

* N.B. The appointing authority is required to make a reasonable effort to contact the employee before proceeding to hold a disciplinary hearing in absentia. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment. Attempting to contact the accused, or his or her attorney,  is advisable even if the individual had announce that he or she does not intend to appear at the hearing as scheduled since he or she can elect to do so the last moment and then be prevented from being present at the proceeding as the result of some legitimate mischance or medical inability.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

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The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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Disciplinary hearings held in absentia

Disciplinary hearings held in absentia

NYC Office of Administrative Trials and Hearings [OATH], Index No. 728/17

A New York City tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations. The auditor failed to appear at trial and the hearing proceed in absentia.

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed with the hearing but it must actually hold a “hearing in absentia” and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee’s failure to appear at the hearing* as scheduled is, in effect, a concession of guilt.

OATH Administrative Law Judge Ingrid M. Addison conducted the hearing in "the form of an inquest" at which the Department presented the testimony the employee's supervisor, and documentary evidence.

Based on credible testimony from the auditor's supervisor and documentary evidence, Judge Addison sustained the charges. She found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct. The ALJ then recommended that the employee be terminated by the appointing authority.  

* N.B. The appointing authority is required to make a reasonable effort to contact the employee before proceeding to hold a disciplinary hearing in absentia. It may be that the employee has a valid excuse for his or her nonappearance such as a family emergency or personal illness that would justify the hearing officer granting an adjournment. Attempting to contact the accused, or his or her attorney,  is advisable even if the individual had announce that he or she does not intend to appear at the hearing as scheduled since he or she can elect to do so the last moment and then be prevented from being present at the proceeding as the result of some legitimate mischance or medical inability.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

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Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Henvill v Metropolitan Transp. Auth., 2017 NY Slip Op 01785, Appellate Division, First Department

Winston Henvill, an employee of the Metropolitan Transportation Authority [MTA],  filed a CPLR Article 75 petition seeking to vacate the arbitration award resulted in the terminated his employment with MTA upon his being found guilty of misconduct. 

Supreme Court dismissed Henvill's petition and the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division initially explained that Henvill "failed to adequately plead a claim for breach of the duty of fair representation against the Metropolitan Transportation Authority Police Benevolent Association [PBA], his collective bargaining unit's representative, finding that none of the allegations in Henvill's complaint demonstrated that PBA's conduct, in representing Henvill at the arbitration hearing which resulted in his termination, was arbitrary, discriminatory or conducted in bad faith.

Thus, said the court, as Henvill failed to state an unfair representation claim against PBA, his claim against his employer, MTA, alleging a breach of the relevant collective bargaining agreement, must also fail.

The Appellate Division also noted that Henvill had failed to demonstrate the existence of any of the statutory grounds for vacating the arbitrator's award set out in Article 75 such as fraud, bias or the failure to follow proper procedure.  

In addition, the court rejected what it characterized as Henvill's major argument: the arbitrator's fact-finding was irrational and required vacatur in view of "the well-settled principle that courts in considering a petition to vacate a voluntary arbitration may not review the arbitrator's findings of fact."

Finally, said the court, "we perceive no reason to overturn the imposed penalty of termination."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01785.htm

 _______________________ 

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

_______________________ 

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Woman arrested for alleged theft of NYS Retirement benefits and welfare fraud

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a five-count indictment charging Tammy Banack, a resident of Kirkville, New York, with one count of Grand Larceny in the Second Degree, a class C felony, one count of Welfare Fraud in the Third Degree, a class D felony, two counts of Grand Larceny in the Third Degree, a class D felony, and one count of Offering a False Instrument for Filing in the First Degree, a class E felony.

http://www.osc.state.ny.us/press/releases/mar17/031317.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

Man alleged to have pocketed his deceased mother's retirement benefits

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Jimmie Buie, a resident of Brooklyn, with Grand Larceny in the Third Degree, a class D felony. Jimmie Buie is alleged to have stolen over $23,000 in pension benefits issued by the New York State and Local Employees Retirement System to his deceased mother, Sandra Buie, between May 2011 and December 2012.

http://www.osc.state.ny.us/press/releases/mar17/031617b.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

Office of Temporary and Disability Assistance - Wage Subsidy and Transitional Employment Programs

New York State Health Insurance Program - Long Island Bone and Joint, LLP waived Empire Plan members’ out-of-pocket costs resulting in overpayments on claims submitted by LI Bone and Joint.

State University of New York - State University of New York Upstate Medical University’s Billing Practices

Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct

Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct

R.T. v Freeport Memorial Library, Decision of the Commissioner of Education, Decision #17,060

The Freeport Memorial Library[Library] R.T.'s library use privileges were being suspended for a period of one year due to repeated violations of the Library’s Code of Conduct [Code] policy, contending that over a period of eight separate days, R.T. Had violated the Code by using his cellular telephone, speaking in an inappropriate manner to Library staff, and not vacating a computer when directed to at closing time. The letter also noted that R.T. had previously received a one-month suspension for Code violations and advised him that if he were to return to the Library prior to the conclusion of the one-year suspension, he will be deemed a trespasser and the police will be contacted. 

R.T. appealed the determination to Library’s board of trustees. The board dismissed his appeal, observing “that the use of a library 'is a privilege, not a right' and the Library’s board must consider the conduct of one individual in light of how it affects other Library patrons.”  The board's letter also noted that R.T. was “cited in approximately 17 different incidents reported in writing by approximately 12 separate members of the [Library’s] staff.” R.T. appealed the board's decision to the Commissioner, contending that the board's decision was “draconian” and that the allegations that he violated the Code are too vague “as a matter of fact, as a matter of law,” for him to properly respond to, and he specifically notes an alleged failure of the Library to provide him with a “bill of particulars.”

In his defense, R.T. offered alternative explanations for his conduct, such as, having “sensitive files” on the computer at closing time, that he used his cellphone but in areas designated for such use, or that certain Library staff have personal grievances against petitioner. He also argued that the suspension by the Library constitutes a violation of his rights under the United States and New York Constitutions including due process and equal protection.

In constructing her ruling, the Commissioner of Education Elia said that “Education Law §310 states in part that the Commissioner is 'authorized and required to examine and decide' a petition 'made in consequence of any action ... [b]y any trustees of any school library concerning such library, or the books therein, or the use of such books' (emphasis added in the opinion). Accordingly, the Commissioner ruled that R.T.'s appeal of the Library’s one-year suspension of his library use privileges is properly before her.

After dismissing R.T.'s appeal was moot, as the “penalty time” had passed, the Commissioner elected to address the merits of R.T.'s appeal regarding the penalty imposed by the board in view and R.T.'s complaint that “the Library’s determination to suspend his library use privileges for one year was excessive and constituted a penalty against petitioner beyond the scope of authority authorized by law.”

The Commissioner affirmed the board decision, finding that the suspension of R.T.’s library use privileges for various violations of the Library’s Code of Conduct was reasonable under the circumstances, noting that Education Law §262 states, in relevant part, that Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully violates such rules . . .  (emphasis added in the Commissioner's decision).

The Commissioner's decision concludes by observing that “On the facts of this case, I cannot find that the Library acted in an arbitrary and capricious manner in suspending petitioner’s library privileges. Petitioner engaged in disruptive behavior that violated the Library’s Code on several occasions, despite being put on notice from a prior suspension of privileges that he needed to cease his disruptive behavior.  …. I cannot find that a one-year suspension of library use privileges is excessive considering the numerous Code violations documented against petitioner, the responsibility that respondents have to the other patrons of the Library and to maintain a safe and orderly environment for the Library’s staff and the protection of its property, and that this one-year suspension was not petitioner’s first suspension from use of the Library.”

The decision is posted on the Internet at:  

http://www.counsel.nysed.gov/Decisions/volume56/d17060

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Withdrawing a letter of resignation

Withdrawing a letter of resignation

Lust v State of New York, 2017 NY Slip Op 01742, Appellate Division, Third Department

Francis Lust visited his employer's Human Resources office and told a personnel associate of his intention to retire. The personnel associate said that a letter of resignation was required and, upon Lust's request, prepared a letter of resignation on his behalf stating that "This letter serves as my intent to resign for purposes of retirement on March 30, 2015 close of business."  Lust reviewed and signed the letter without making any changes. The Director of Human Resources and, by letter dated February 11, 2015, she informed petitioner that his resignation had been accepted.*

On February 16, 2015, Lust informed the Director that, "due to financial reasons, he would not be able to retire as intended and, therefore, his earlier letter of resignation was "no longer valid." Lust's letter seeking to withdraw his resignation was rejected and he was told that his last day of employment would be, and was, March 30, 2015.

Lust initiated a CPLR Article 78 proceeding asserting, among other things, that the denial of his request to rescind his letter of resignation was arbitrary and capricious, an abuse of discretion or affected by an error of law. Supreme Court dismissed the petition and Lust appealed.

The Appellate Division agreed with the Supreme Court decision, holding that Lust was required to obtain the consent of the appointing authority before he could withdraw his resignation. The court said that 4 NYCRR 5.3(c ) of the Rules for the Classified Service, provides that a resignation tendered by an employee of the State as the employer in the classified service "may not be withdrawn . . . after it is delivered to the appointing authority, without the consent of the appointing authority."**

In this instance the Appellate Division concluded that the appointing authority had lawfully delegated its power of appointment to the chief executive officer [CEO] of the facility, who, in turn, by letter lawfully authorized the Director of Personnel to be his designee on "all matters related to employee relations and concerns" with "full authority to make decisions regarding whether to accept a resignation and, likewise, whether to deny a request to rescind a resignation from any such employee of the facility.

Accordingly, said the court, Lust's delivery of his letter of resignation to the Director on constituted delivery to CEO and, thus, petitioner could not unilaterally withdraw his resignation.

Holding that the question of "Whether to permit the withdrawal of a delivered letter of resignation is a matter committed to the sound discretion of the appointing authority, and such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious," the Appellate Division dismissed Lust's appeal.

* Acceptance of a letter of resignation is not required for the resignation to be operative, all that is required is its timely delivery to the appointing authority or the appointing authority's designated representative.

** Many local civil service commissions have adopted a similar rule or regulation.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_01742.htm