Alcoholism as a defense in a disciplinary action

Alcoholism as a defense in a disciplinary action

OATH Index No. 0005/18

A New York City correction officer admitted that he brought alcohol onto his post, drank it through his tour of duty and falsely reported in the Department’s logbook that he conducted his required tours of the inmates. The correction officer, however, argued that he should not be fired because he was an alcoholic and that this condition caused his misconduct.

OATH Administrative Law Judge Susan J. Pogoda found that the correction officer did not show that his misconduct was caused by a disability and recommended termination of correction officer’s employment. Judge Pogoda's recommendation was adopted by the appointing authority and the correction officer was dismissed from his position.

As to alcoholism as a defense in a disciplinary action, in Murolo v Safir, Appellate Division, 246 A.D.2d 653, leave to appeal denied, 91 N.Y.2d 813, David Murolo challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had since overcome. He claimed that his firing violated the Human Rights Law, citing In McEniry v Landi, 84 NY2d 554.

In McEniry the Court of Appeals had held that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [see §292.21, Executive Law].

Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination terminating Murolo from his position. The Appellate Division distinguishing the situation in McEniry from Murolo’s. 

The court explained that in Murolo the disciplinary hearing officer found that Murolo called in a false alarm and while his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. The hearing officer determined that Murolo's status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.

In contrast, in McEniry the issue was whether alcoholism prevented the individual from satisfactorily performing the duties of his or her position.

In McEniry the Court of Appeals held that if an individual establishes a prima facie case that his or her discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.

The OATH Index No. 0005/18 decision is posted on the Internet as:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2417.pdf

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

Artiles v Kelly, 2018 NY Slip Op 01435, Appellate Division, First Department

Wilkyn Artileswas terminated from his position as a New York City police officer after he was found guilty of impersonating four individuals to file false complaints with the New York City Civilian Complaint Review Board [CCRB], and making a false report of police corruption to the police department's Internal Affairs Bureau [IAB].

The Appellate Division found that substantial evidence supported the administrative disciplinary determination dismissing Artiles, which included he following findings:

1. The fabricated complaints filed with the CCRB were sent from an IP address corresponding to Artils' home, at a time when he was off-duty;

2. The IAB's report indicated that the claims Artiles had filed were unsubstantiated as the alleged victim denied the allegations.

The hearing officer's determination was also in accord with due process, having been made after a seven-day hearing, at which [Artiles] was represented by counsel and had the opportunity to present evidence and cross-examine witnesses, and at which 17 witnesses testified and 28 exhibits were introduced.

In the course of the disciplinary proceeding Artils complained that "one box of evidence was lost and could not be produced" and that a proposed witness, who had moved to another state, refused to testify despite being served with a subpoena. The Appellate Division, however, determined that the missing evidence related to a prior IAB investigation that was not the basis for the decision terminating Artils and "was relevant only insofar as it gave [Artils] a motive to make the false complaints." In addition, said the court, Artils' motive was corroborated by his own testimony, and by the testimony of several other police officers. The Appellate Division concluded that Artils' rights to due process had not been violated by the omission of this evidence.

Ruling that the penalty of dismissal is not disproportionate to Artils' "serious misconduct so as to shock the conscience," the court observed that "[i]n matters of police discipline, [courts] must accord great leeway to the Commissioner's determinations concerning appropriate punishment, because [the Commissioner] ... is accountable to the public for the integrity of the Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01435.htm

Paid Leave available to public officers and employees undertaking screening for cancer

Paid Leave available to public officers and employees undertaking screening for cancer 

Statutory authority: New York State Civil Service Law §159-b

Effective March 18, 2018, §159-b of the New York State Civil Service Law, which provides public officers and employees of the State and its political subdivisions with excused leave to undertake a screening for cancer,* has been amended to read as follows:

§159-b of the New York State Civil Service Law, which provides public officers and employees of the State and its political subdivisions with excused leave to undertake a screening for cancer,* has been amended to read as follows:

"1. Every public officer,** employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service as such public officer or employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district, or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system for a sufficient period of time, not to exceed four hours on an annual basis, to undertake a screening for cancer.

"2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system is otherwise entitled to."

* N.B. §159-c, Excused leave to undertake a screening for prostate cancer, is repealed effective March 18, 2018

** Although not every public employee is a public officer, every public officer is a public employee.