ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

April 29, 2017

New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller


New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller
Source: Office of the State Comptroller

Links to the Internet highlighted in COLOR

Honoring OSC's Administrative Professionals

This past week, Comptroller DiNapoli, on behalf of the entire staff, honored and thanked the administrative professionals who work at the Office of the State Comptroller for their hard work and dedication that help this office run effectively and efficiently. Six of these administrative professionals were highlighted on the Comptroller's Facebook page. Pictured, clockwise from top left: Shannon Cirilli, Tori Jones, Donna Reed, Angela Houle, Glory Ciuro and Leah Boggs.


The Department's Facebook page includes updates, photos, event listings and more items readers may find of interest. OSC encourages engagement and feedback, and invites comment and sharing the page with associates, family and friends.


Far Rockaway Pre-School Provider "Investor" Pleads Guilty in Theft of Education Funds Intended for Special Needs Students

New York State Comptroller Thomas P. DiNapoli and Queens District Attorney Richard A. Brown announced that a self-described investor in Island Child Development Center, once one of New York City’s largest providers of special education services to preschoolers with disabilities, has pleaded guilty for his participation in a scheme that stole millions of dollars in city and state funding between 2005 and 2012—money that was intended for special needs students between ages three and five.


April 28, 2017

Determining an appropriate disciplinary penalty under the circumstances


Determining an appropriate disciplinary penalty "under the circumstances"
King v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03098, Appellate Division, Third Department
Figueroa v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03104, Appellate Division, Third Department

As the Court of Appeals explained in Pell v Board of Education of Union Free School District No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, commonly referred to as the "Pell Doctrine," a court may "set aside a determination by an administrative agency only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." A result is shocking to one's sense of fairness, said the court, when the "sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

Both the King and Figueroa decisions address the application of the Pell Doctrine in the context of the loss of a license or certification required to lawfully perform the duties of the position, thereby resulting in the automatic termination of the individual's employment.*

The King Case

King, an Addictions Counselor 2 employed by the Office of Alcoholism and Substance Abuse Services [OASAS), was required to maintain a valid Credentialed Alcoholism and Substance Abuse Counselor [CASAC] certification, which credential is issued by OASAS.

In response to an "official complaint" alleging that King had violated certain ethical provisions prohibiting a counselor from engaging in a sexual relationship or activity with an OASAS client, OASAS notified King of the complaint and his right to an administrative hearing. King elected to exercise his right to the hearing.

The Hearing Officer found that King and the client had a relationship that "far exceeded an appropriate and professional one" and that "it comprised potential, and actual, harm" to the client. The Hearing Officer also found that, while the relationship between King and the client had "sexual overtones," it was "debatable" whether they engaged in an actual sexual encounter. As a penalty, the Hearing Officer recommended a one-year suspension of King's CASAC credential.

The Commissioner of Alcoholism and Substance Abuse Services adopted the Hearing Officer's recommendation and subsequently notified King that his employment was being terminated due to the suspension of his CASAC credential. King initiated a CPLR Article 78 proceeding challenging the suspension of his CASAC credential and the termination of his employment.

The Appellate Division said that judicial review of an agency's administrative determination made following a hearing is limited to determining whether the decision is supported by substantial evidence. The court indicated that "[S]ubstantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably ... probatively and logically."

The court ruled that there was substantial evidence to support the suspension of King's CASAC credential, including the client's testimony that King bought her gifts such as "a glass rose and earrings, and they exchanged personal messages and pictures via text messaging." Further, King admitted that he had regular contact with the client that was unrelated to his professional relationship with her. The Appellate Division concluded that in view of this relationship, the administrative decision that King engaged in inappropriate behavior with the client was supported by substantial evidence.

As to the penalty imposed, the suspension of King's CASAC credential and the automatic termination of his employment, the Appellate Division ruled that "[e]ven though there was insufficient evidence to establish that an actual sexual encounter between the client and [King] occurred, in light of [King's] inappropriate behavior ... the penalty of suspending [King's] CASAC credential does not shock one's sense of fairness."

The court also rejected King's argument that he was denied due process because OASAS did not proceed under the disciplinary procedures set forth in the relevant collective bargaining agreement, explaining that in this instance King's termination from OASAS "stemmed from his failure to maintain a qualification critical to his employment and, therefore, the provisions of the collective bargaining agreement did not apply."


The Figueroa Case

Figueroa was also an employee of OASAS, serving in the position of Addictions Counselor I. In accordance with a procedure set out in the relevant Collective Bargaining Agreement, OASAS interrogated Figueroa about her decision to go jogging alone with a patient on five separate occasions. Although Figueroa was not formally disciplined for this conduct, her supervisor issued a counseling memorandum concerning the event.

As an Addictions Counselor I, Figueroa was required to be a CASAC. In the course of a subsequent, unrelated investigation at the facility, Figueroa jogging incident and another incident involving her record keeping activities were raised. As a result OASAS filed two complaints alleging that Figueroa had violated certain CASAC canons of conduct.

After an investigation, OASAS advised Figueroa that it was recommending that her CASAC credential be suspended for three years -- one year for the jogging complaint and two years for the record-keeping complaint. Figueroa requested a hearing on both complaints, which were consolidated and an administrative hearing was held.

The Hearing Officer issued a report finding that Figueroa did engage in the conduct set forth in the two complaints, but recommended lesser penalties — a six-month suspension of Figueroa's CASAC credential for the jogging incident and a reprimand for her record-keeping discrepancies. OASAS issued a final order accepting the Hearing Officer's findings and recommendation with regard to the jogging complaint. As to the record-keeping complaint, OASAS suspended Figueroa's credential for six months — to run concurrently with the six-month suspension for the jogging complaint.

OASAS then advised Figueroa that she was terminated "as a result of [her] failure to maintain a valid, statutorily required qualification for [employment in her] position." Figueroa commenced a CPLR Article 78 proceeding challenging both the suspension of her credential and the determination to terminate her employment based on the suspension.

The Appellate Division said that given Figueroa's concession during the hearing that she went jogging with a patient and postdated certain records, it found that substantial evidence supported the Hearing Officer's determination with respect to the alleged acts of misconduct. Notwithstanding this holding, the court then considered the question of whether OASAS abused its discretion by imposing the concurrent suspensions that effectively compelled Figueroa termination for failing to have a "valid credential" in place.

Applying the Pell Doctrine, the Appellate Division concluded that "[u]nder the circumstances presented, [it found] that OASAS's determination to impose a six-month suspension of [Figueroa's] credential for each of the complaints was disproportionate to the offenses charged."

Due to the unique circumstance that Figueroa was employed by OASAS in a classified position in the Civil Service of the State, the Appellate Division said that OASAS knew that the practical effect of the suspension was that she would be rendered temporarily unqualified to hold her civil service position and, indeed, OASAS summarily dismissed her for failing to maintain her credential. The court concluded that this result makes little sense as:

1. Figueroa had been employed by OASAS as a CASAC for more than six years with no apparent disciplinary record and consistently satisfactory performance reviews;

2. Considering the jogging complaint, there was neither an allegation nor any evidence that Figueroa was engaged in an inappropriate relationship with the patient or that the patient was harmed in any way;

3. OASAS, with full knowledge of the regulations governing CASAC credentials, initially decided to simply counsel Figueroa about the jogging events and Figueroa testified that she did not engage in the same or similar conduct after being counseled;

4. With respect to the record-keeping complaint, when OASAS explained its determination to reject the Hearing Officer's penalty recommendation, it erroneously claimed that the Hearing Officer did not have the authority to recommend the penalty of reprimand;

5. The Hearing Officer noted the uncontroverted evidence was that, in accord with the then prevailing practice, Figueroa's supervisor directed her to postdate the records in question knowing that she was going to be out of the office and it was only after the complaint was lodged was this practice changed; and

6. There was no showing that the agency or the public was harmed or that Figueroa was personally enriched by her conduct.

The Appellate Division said that, in its view, OASAS should not disregard its role as employer where it is exercising its credentialing oversight, but that is essentially what occurred here. As an employer, OASAS chose only to counsel Figueroa, but, as the credentialing authority, it imposed an administrative penalty that mandated her termination, the ultimate disciplinary penalty.

Considering the nature of the misconduct, Figueroa's otherwise satisfactory employment record and the known impact of the penalty imposed, the Appellate Division found that the effective penalty of suspension of Figueroa's credential, which resulted in her termination from her employment, too severe and annulled the imposed the penalty of suspending Figueroa's credential and the resulting termination of her employment.

* With respect to the loss or failure to obtain or renew a required license or permit or certification, courts have viewed such individuals as “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make a reasonable inquiry to determine if the employee, in fact, possess the required document and thus may lawfully perform the duties of the position. An employee charged with failing to possess such a document required to perform the duties of his or position is only entitled to notice of the allegation and a reasonable opportunity to produce the required document. Relevant court rulings include Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain his Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspensions of teachers was lawful upon their teaching licenses expiring); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator did not suffer unlawfully discrimination when a private sector employer terminated him after his driver’s license was suspended).

The King decision is posted on the Internet at:

The Figueroa decision is posted on the Internet at:


http://www.nycourts.gov/reporter/3dseries/2017/2017_03104.htm
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April 27, 2017

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law


Assigning law enforcement personnel to perform light duty while receiving benefits pursuant  to §207-c of the General Municipal Law
Barkor v City of Buffalo, 2017 NY Slip Op 02270, Appellate Division, Fourth Department

A City of Buffalo police officer [Petitioner] was receiving benefits pursuant to General Municipal Law §207-c as the result of his having suffered a disability in the line of duty. While receiving such benefits, Petitioner returned to work in a light-duty capacity.

Petitioner while at work in such light duty employment status reported that he "twisted his ankle exiting the restroom and allegedly exacerbated the prior injuries." In the course of the administrative hearing that followed, Petitioner presented evidence, in the words of the Appellate Division, "suggesting that he was not able to work at all." The Hearing Officer, however, credited other evidence and determined that Petitioner could perform light-duty assignments.

Petitioner challenged the Hearing Officer's determination by initiating an Article 78 action seeking a court order vacating the Hearing Officer's decision.

The Appellate Division said that it agreed with the employer that the Hearing Officer's determination that Petitioner could continue to perform the light duties assigned to him was supported by substantial evidence. The court explained that ""The Hearing Officer was entitled to weigh the parties' conflicting medical evidence" and "[a court] may not weigh the evidence or reject [the Hearing Officer's] choice where the evidence is conflicting and room for a choice exists."

As to Petitioner's claim that "he was not able to work at all," it should be noted that in the event an individual otherwise eligible for benefits pursuant to §207-c of the General Municipal Law is "permanently disabled," §207-c.2 of such law provides as follows:

2. Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his duties if such policeman is granted an accidental disability retirement allowance pursuant to section three hundred sixty-three of the retirement and social security law, a retirement for disability incurred in performance of duty allowance pursuant to section three hundred sixty-three-c of the retirement and social security law or similar accidental disability pension provided by the pension fund of which he is a member. If application for such retirement allowance or pension is not made by such policeman, application therefor [sic] may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed.

The decision is posted on the Internet at:

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April 26, 2017

An employee's resigning his or her position to continue his or her education deemed a voluntarily separation "without good cause"


An employee's resigning his or her position to continue his or her education deemed a voluntarily separation "without good cause"
Matter of Delgado-Agudio (Commissioner of Labor), 2017 NY Slip Op 03095, Appellate Division, Third Department

An applicant for unemployment insurance benefits [Claimant] worked full time as a social work assistant for approximately 2½ years. She enrolled in a graduate program while she was working and requested the employer to modify her work schedule to enable her to complete an internship that was part of the program. When the employer denied her request, she resigned from her position.

The Department of Labor issued an initial determination disqualifying Claimant from receiving unemployment insurance benefits on the ground that she voluntarily left her employment without good cause. The determination was sustained by a Department of Labor Administrative Law Judge [ALJ] following a hearing. Claimant appealed the ALJ's ruling and the Unemployment Insurance Appeal Board affirmed the ALJ's decision.

Claimant appealed the Board's ruling. The Appellate Division affirmed the administrative determination, explaining that "[r]esigning from a position in order to pursue educational opportunities constitutes a personal and noncompelling reason for leaving employment disqualifying a claimant from receiving unemployment insurance benefits."

As it was undisputed that Claimant resigned from her job because the employer declined to modify her work hours, the Appellate Division held that substantial evidence supported the Board's decision and that it found no reason to disturb it.

The decision is posted on the Internet at:



An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"


An employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"
Redfern-Wallace v Buffalo News, CWA Local 81, CA2nd Circuit, Docket #16-3007-cv

The Petitioner in this action claimed that she was the victim of race discrimination, retaliation, and a hostile work environment by her employer, the Buffalo News Co., in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. §2000e]. She also contended that CWA Local 81 had breached its duty of fair representation with respect to her advancing her claims against Buffalo News.

Petitioner contended that she had been disciplined and terminated from her position by Buffalo News, while a co-worker, who was similarly situated in all material respects to her, was neither disciplined nor terminated.

Although Petitioner had admitted to Buffalo News that she had sent inappropriate text messages to the co-worker, she failed to provide any evidence to Buffalo News, or to the court in the course of the litigation, to corroborate her allegation that the co-worker had sent her inappropriate text messages in the same exchange.

The Circuit Court of Appeals said that Petitioner "thus failed to show that she and [the co-worker] were 'similarly situated in all material respects' because she did not demonstrate that they both 'engaged in' conduct of comparable seriousness.”

Petitioner had also claimed that the conduct that resulted in her dismissal from her position occurred outside of work and therefore did not violate any of Buffalo News’ rules or policies. The court disagreed, commenting that Buffalo News’ anti-harassment policy was not limited to conduct occurring at work but covered [employee] conduct outside of work that affected the workplace as well.*

Finally, Petitioner claimed "ineffective assistance of counsel." However, the Circuit Court dismissed this contention, explaining that such a claim "is not cognizable in a civil case," citing United States v. Coven, 662 F.2d 162.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer. 

The decision is posted on the Internet at:

April 25, 2017

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace


Assessing the appropriate penalty to be imposed on an employee found guilty unprofessional conduct and using disrespectful language at the workplace
OATH Index No. 0073/17

A New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] found that an Eligibility Specialist employed by the City's Human Resources Administration [HRAHHRA] inefficiently performed her duties by holding seven cases for 22 or more days and delaying the processing of a client’s application for months.

In addition, Judge Ingrid M. Addison found that the Eligibility Specialist violated multiple rules of HRA's Code of Conduct by being verbally abusive to co-workers at her workplace; failed to efficiently perform her duties; was insolent to, and refused to meet with, HRA's deputy director when directed to do so, was discourteous to a client in the presence of other clients and failed to follow a supervisor’s instructions.

Finding that HRA, however, failed to prove other Charges and Specifications of misconduct alleged in the notice of discipline served upon her.

Considering the record made at the Civil Service Law §75 disciplinary hearing, the ALJ recommended that the Eligibility Specialist be suspended from her employment without pay for 30 days, the penalty urged by HRA, commenting that "Even though [HRA] did not prove the five charges [preferred against the employee] in their entirety, I find [HRA's] request to be appropriate."

The decision is posted on the Internet at:

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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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