Recent decisions by Administrative Law Judges of the New York Office of Administrative Trials and Hearings

Recent decisions by Administrative Law Judges of the New York Office of Administrative Trials and Hearings

Source: OATH

Underperforming assigned tasks

OATH Index No. 2077/17

An associate retirement benefits examiner was charged with incompetence for failing to complete the required daily number of cases. ALJ Noel R. Garcia found that the examiner was required to complete an average of three cases per day, but only averaged less than one case per day over a ten month period. He concluded that the examiner was consistently unable to perform her fundamental responsibilities. 30-day suspension recommended, agency imposed a 25-day suspension

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2077.pdf

Refusal to obey a supervisor's lawful order

OATH Index No. 926/1

ALJ John B. Spooner recommended a 15-day suspension for a job opportunity specialist who was insubordinate and discourteous towards a supervisor. The employee refused to obey an order to process benefits, and he threw paper and gestured with his fist at the supervisor. This conduct caused the supervisor, who suffered from a stroke-related disability, to request early retirement to avoid similar encounters which could adversely affect her health. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-926.pdf

Delay in addressing alleged misconduct denied employee an opportunity to correct his or her conduct

OATH Index No. 1420/17

A sanitation supervisor was charged with failing to carry out his supervisory responsibilities, failing to accurately prepare, record and maintain information, and with failing to cooperate with an official inquiry. ALJ Kara J. Miller found that many of the charges involved incidents that occurred five to six years ago, which ultimately deprived the supervisor of an opportunity to correct his conduct because petitioner did not timely address the alleged misconduct. ALJ Miller sustained some of the charges, finding that the supervisor failed to accept responsibility.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1420.pdf

Determining the validity of an employee's "release of claims" against an employer

Determining the validity of an employee's "release of claims" against an employer

Charlery v New York City Department of Education, USCA, Second Circuit, Docket No. 17-1888

Jacqueline Charlery filed an action against the City of New York Department of Education, Board of Education of the City School District of the City of New York [Education] alleging claims for unlawful discrimination and retaliation in violation of the Americans with Disabilities Act and the Rehabilitation Act. Education filed a motion for judgment on the pleadings, converted by the district court, after giving notice to the parties, into a motion for summary judgment.

The court then found that Charlery had released her federal discrimination and retaliation claims in an agreement settling an earlier personal injury lawsuit against Education, granted Education's motion and entered judgment in Education's favor. Charlery appealed the district court's action.

With respect to the effect of a "release" entered into in the course of judicial proceeding, the Circuit Court, citing Livingston v Adirondack Beverage Co., 141 F.3d 434, explained that “[T]he validity of a release is a peculiarly fact-sensitive inquiry.”

Noting that in Charlery's alleged release appearing directly above the signature line is language stating “THE UNDERSIGNED HAS READ THE FOREGOING RELEASE AND FULLY UNDERSTANDS IT”, the Circuit Court said that “[w]e employ a ‘totality of the circumstances’ test to determine whether a release of . . . claims is knowing and voluntary,” explaining that the relevant factors courts should consider include:

(1) the plaintiff’s education and business experience,

(2) the amount of time the plaintiff had possession of or access to the agreement before signing it,

(3) the role of plaintiff in deciding the terms of the agreement,

(4) the clarity of the agreement,

(5) whether the plaintiff was represented by or consulted with an attorney, and

(6) whether the consideration given in exchange for the waiver exceeds employee benefits to which the employee was already entitled by contract or law.

The Circuit Court opined that "The district court did not err when assessing these factors and concluding that Charlery’s waiver was knowing and voluntary."

Analyzing the first five factors listed above, the court noted that "Charlery, being a teacher, is a well-educated, trained professional." However, said the court, the time and role she played in deciding its terms - weigh in favor of a finding that the waiver was not knowing and voluntary. Although Charlery stated that she had read the agreement and signed the release the same day she received it and although she was represented by counsel in the settlement of the lawsuit, she played no role in negotiating the terms of the release.

However, continued the Circuit Court, the clarity of the agreement favors a finding that the waiver was knowing and voluntary as the agreement stated that Charlery was releasing Education from “any and all claims” for “any matter, cause or thing whatsoever that occurred through the date” the release was executed as Charlery was represented by counsel in that lawsuit.

The sixth factor, said the court, was inapplicable to this case because Charlery had not claimed that she was entitled by contract or law to receive "benefits" and  the issues involved alleged federal discrimination and retaliation claims.

Balancing the totality of the circumstances, the Circuit Court concluded "as the district court did," that in executing the release Charlery knowingly and voluntary waived her federal discrimination and retaliation claims and held that the district court did not err when it entered summary judgment in favor of Education on Charlery's federal claims.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/75ced8f5-4a98-4ee5-8d7f-4b505db46141/11/doc/17-1888_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/75ced8f5-4a98-4ee5-8d7f-4b505db46141/11/hilite/

An employee welfare plan administrator may be held liable for unintentional misrepresentations made concerning the plan by its non-fiduciary agent

An employee welfare plan administrator may be held liable for unintentional misrepresentations made concerning the plan by its non-fiduciary agent

In  Re Derogatis v Board Of Trustees of the Welfare Fund of The International Union of Operating Engineers Local 15, 15A, 15C & 15D, AFLCIO, et al., USCA, 2nd Circuit, Dockets Nos. 16-977-cv, 16-3549-cv

Emily DeRogatis appealed a District Court ruling awarding summary judgment to the Welfare Fund on her claims for relief asserted under the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§1001 et seq. The genesis of these actions were certain "oral miscommunications" by Plan personnel to the DeRogatises before Mr. DeRogatis' death in 2011 involving [1] the Pension Plan governing the benefits payable to Mrs. DeRogatis as a surviving spouse after the death of her husband and [2] the Welfare Plan governing Mrs. DeRogatises’ entitlement to health benefits during and after Mr. DeRogatis' lifetime.

The Circuit Court agreed with the lower court's ruling that the Pension Fund trustees correctly denied DeRogatis’s request for an augmented survivor benefit following her husband’s death because the Pension Plan’s summary plan description adequately described the eligibility requirements for the benefits in question and thereby satisfied the trustees’ fiduciary duty to provide complete and accurate information to plan participants and beneficiaries and affirmed the lower court's granting the Fund's motion  for summary judgment in Docket No. 16-3549-cv.

Significantly, however the Circuit Court rejected the District Court's holding that "a plan administrator cannot be held liable for unintentional misrepresentations made about the plan’s operation by its non-fiduciary, 'ministerial' agent and on this basis denied the claim."

As to claims involving No. 16-977-cv, noting that the District Court granted summary judgment for defendants on this claim on the same “ministerial employee” ground, the Circuit Court rejected the District Court’s conclusion that the Welfare Plan summary plan description explained clearly its participants’ options to receive post-retirement health benefits."

Rather, said the court, given the evidence that Welfare Fund agents misstated material aspects of those same benefits when communicating with the DeRogatises, the Circuit Court identified as an open question of material fact "whether the Welfare Fund trustees breached their fiduciary duty to provide plan participants with complete and accurate information about their benefits" and vacated the judgment entered in favor of the Welfare Fund defendants by the lower court with respect to No. 16-977-cv.

Althought the Circuit Court opined that Welfare Fund defendants "may yet be entitled to summary judgment if they demonstrate that DeRogatis is not entitled to any equitable relief, thereby negating the final element of DeRogatis’s §502(a)(3) claim," the District Court's judgment with respect to No. 16-977-cv was vacated and the matter remanded to the lower court for further proceedings "consistent with this opinion." 

In contrast, the same is not always the rule where the administrative error is to the benefit of the individual. 

In Morley v Arricale, 66 N.Y.2d 665, the Court of Appeals said that "Estoppel is not available against a local government unit for the purpose of ratifying an administrative error ... made without compliance with formally adopted selection standards and procedures while in Galanthay v New York State Teachers' Retirement Sys., 50 NY2d 984, the court held that the retirement system "is obligated to correct errors in the computation of retirement benefits and the recoupment of funds erroneously paid is proper." 

The DeRogatis decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d01ecfd0-e2b2-4c48-bd15-87a0220c26c1/1/doc/16-977_16-3549_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d01ecfd0-e2b2-4c48-bd15-87a0220c26c1/1/hilite/

Complying with New York State mandatory sexual harassment training requirements

Complying with New York State mandatory sexual harassment training requirements*

By October 2018 employers in New York State either must have adopted the State's "Model Sexual Harassment Policy" or a similar policy and training procedure that meet or exceeds the State’s minimum standards.

In the event an employer does not adopt the State's model Sexual Harassment Policy, the policy adopted by the employer must: 

• prohibit sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• provide examples of prohibited conduct that would constitute unlawful sexual harassment
• include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws
• include a complaint form
• include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties
• inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially
• clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue
• clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful

In addition, every employer in New York State is required to provide employees with sexual harassment prevention training. An employer that does not use the model training developed by the Department of Labor and Division of Human Rights must ensure that the training that they use meets or exceeds the following minimum standards.

The training must:

• be interactive
• include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights
• include examples of conduct that would constitute unlawful sexual harassment 
• include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment
• include information concerning employees’ rights of redress and all available forums for adjudicating complaints
• include information addressing conduct by supervisors and any additional responsibilities for such supervisors

Each employee must receive training on an annual basis, starting October 9, 2018. A number of organizations such as Paragon Compliance, LLC at https://www.paragoncompliancellc.com/, offer online interactive anti-sexual harassment training. 

* See §201-g of the New York State Labor Law.

Also note the following: 

1. New York City has adopted a Local Law, Local Law 96 of 2018, amending the administrative code of the City of New York in relation to anti-sexual harassment training mandating that all private employers with 15 or more employees conduct annual anti-sexual harassment training for all its employees, including supervisors and managerial employees of such employer. See New York City Administrative Code § 8-107 and New York City Charter § 815.1. ;

2. §5-336 of the General Obligations Law provides as follows: 

"Nondisclosure agreements. Notwithstanding any other law to the contrary, no employer, its officers or employees shall have the authority to include or agree to include in any settlement, agreement or other resolution of any claim, the factual foundation for which involves sexual harassment, any term or condition that would prevent the disclosure of the underlying facts and circumstances to the claim or action unless the condition of confidentiality is the complainant's preference. Any such term or condition must be provided to all parties, and the complainant shall have twenty-one days to consider such term or condition. If after twenty-one days such term or condition is the complainant's preference, such preference shall be memorialized in an agreement signed by all parties. For a period of at least seven days following the execution of such agreement, the complainant may revoke the agreement, and the agreement shall not become effective or be enforceable until such revocation period has expired."; and

3. §139-l of the State Finance Law provides, in pertinent part, for the inclusion of a statement on sexual harassment in bids pursuant to which:

"Every bid hereafter made to the state or any public department or agency thereof, where competitive bidding is required by statute, rule or regulation, for work or services performed or to be performed or goods sold or to be sold, shall contain the following statement subscribed by the bidder and affirmed by such bidder as true under the penalty of perjury: 'By submission of this bid, each bidder and each person signing on behalf of any bidder certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that the bidder has and has implemented a written policy addressing sexual harassment prevention in the workplace and provides annual sexual harassment prevention training to all of its employees. Such policy shall, at a minimum, meet the requirements of section two hundred one-g of the labor law.'"

 

Former Croton-On-Hudson village fire department treasurer pleads guilty in theft of fire department funds

Former Croton-On-Hudson village fire  department treasurer pleads guilty in theft of fire department funds

Source: Office of the State Comptroller

Comptroller Thomas P. DiNapoli, Westchester County District Attorney Anthony A. Scarpino, Jr. and Village of Croton-on-Hudson Police Chief Russel H. Harper announced that Gerald Munson, a former Croton-On-Hudson Fire Department Chief and a former Croton-On-Hudson Police Officer who most recently served as the fire department treasurer, has pleaded guilty to Grand Larceny in the Second Degree as a crime of Public Corruption, a class B felony. The charge is related to the theft of more than $300,000 from the Croton-on-Hudson Fire Department.

Munson appeared in Westchester County Court Wednesday before Judge Michael Martinelli. At the time of his plea, he also paid $124,383 in restitution, added to the $25,000 he paid upon arraignment. Munson is scheduled for sentencing Oct. 29, 2018 at which time he is expected to pay the remainder of restitution.

As fire department treasurer, Munson was responsible for maintaining the Croton-on-Hudson Fire Department bank account and financial records despite having no prior qualifications or background in accounting or financial matters. The felony complaint alleges that he used his position as treasurer to steal and conceal his theft of approximately $312,925 from the Fire Department.

The money he stole included portions of the so-called “2 Percent Money” paid annually to the Fire Department by New York State in connection with the State’s two percent tax on fire insurance. For years, Munson was able to conceal his ongoing theft by altering and manipulating the Department’s bank records. Those alterations and manipulations included his underreporting of the amount of “2 Percent Money” received by the Department in order to balance the books and hide what he stole for himself.

In February 2018, members of the Fire Department’s internal Audit Committee discovered that Munson had provided them with false 2017 bank statements. When confronted by the Audit Committee, Munson admitted he had created the false statements on his home computer; that he had stolen money from the Department’s account for his own personal use; and that he had used the Fire Department’s debit card as if it were his own.

Further investigation and analysis conducted jointly by the New York State Comptroller’s Office, the Village of Croton-on-Hudson Police Department and the Westchester County District Attorney’s Office confirmed that between January 2011 and February 2018, the defendant stole approximately $312,925 from the Fire Department. This joint investigation lead to Munson’s arrest and felony charge.

The Village of Croton-on-Hudson Police Department arrested Munson in June 2018.

“Mr. Munson stole more than $312,000 from his fire department and abused his duty to the public. As a former police officer and fire department chief, his behavior is particularly egregious," said Comptroller DiNapoli, thanking Westchester District Attorney Scarpino and the Croton-on-Hudson Police Department for working with his office to bring Mr. Munson to justice.

“Stealing public money is a crime against all of us. It is also a breach of trust that hurts a community and those dedicated to its safety,” said Westchester County District Attorney Anthony A. Scarpino, Jr. “Rooting out corruption takes thorough investigation on the part of many departments. We are proud of this collaboration between our Office, the Village of Croton-on-Hudson Police Department and the New York State Comptroller’s Office which was able to shed light on this misuse of public funds.”

“I want to thank Westchester District Attorney Anthony Scarpino and the Investigations Division Public Integrity Bureau, New York State Comptroller Thomas P. DiNapoli and the Croton Volunteer Fire Department Audit Committee for assisting the Croton Police Department in conducting this investigation. It was through this collaborative effort that justice will be served,” said Village of Croton-on-Hudson Police Chief Russel H. Harper.

Assistant District Attorney Brian Fitzgerald, Deputy Bureau Chief of the Westchester District Attorney’s Office Investigations Division Public Integrity Bureau, is prosecuting the case.

Since taking office in 2007, Comptroller DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law

Providing a disabled police officer with home health care pursuant to §207-c of the General Municipal Law

Vassenelli v City of Syracuse, 2018 NY Slip Op 02957, Appellate Division, Fourth Department

This decision arose in the course of an appeal from an order of the Supreme Court that vacated a temporary restraining order [TRO] and denied the application of Nicholas L. Vassenelli to waive the requirement of an undertaking in consideration of the granting of a preliminary injunction.

Vassenelli, a City of Syracuse [City] disabled and retired police officer, sustained a spinal cord injury in 2003 and was awarded benefits pursuant to General Municipal Law §207-c.* From March 2013 to March 2016, City paid Dignity Plus, Inc. [Dignity], a home healthcare agency, assigned home health aides to provide assistance to Vassenelli in his home. While nurses also assisted home health aides as necessary, neither registered nurses nor licensed practical nurses were assigned to care Vassenelli in his home 24 hours per day.

In February 2016, Dignity notified the City that Vassenelli was in need of a heightened level of care that would approximately double the cost of Vassenelli 's services from Dignity and Dignity notified the City that it intended to terminate providing Vassenelli  with services on March 20, 2016unless the City agreed to the increased level of care and cost. The City and Dignity were unable to reach a new agreement, and Vassenelli brought this action alleging that the City wrongfully denied the payment of and obstructed him from receiving certain medical care.

Supreme Court scheduled a hearing on Vassenelli's application for a preliminary injunction and granted a TRO, requiring the City "to continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home."

At the conclusion of the hearing on a preliminary injunction, Vassenelli made an oral motion alleging that the City had failed to provide him with the nursing services required by the TRO and requesting "that the [the City therefore] be found in contempt." After the hearing, the Supreme Court granted the preliminary injunction on the condition that Vassenelli post an undertaking pursuant to CPLR 6312 and stated that the City was entitled to a hearing on the oral motion alleging contempt.

Vassenelli then filed another order to show cause seeking a waiver of the undertaking and, in accordance with the prior oral motion alleging contempt, a finding that the City  had willfully disobeyed the TRO.

The City cross-moved seeking leave to reargue Vassenelli 's prior application for a preliminary injunction, denial of that application upon reargument and vacatur of the TRO to the extent necessary. Supreme Court issued an order denying the relief sought in Vassenelli 's second order to show cause and granting that part of the City's cross-motion seeking vacatur of the TRO.

The Appellate Division affirmed the Supreme Court's action, explaining that "[i]nasmuch as [Vassenelli] expressly requested injunctive relief under CPLR Article 63 based on the alleged failure of the City to act in accordance with the General Municipal Law,** [it] conclude that the [Supreme] court properly applied CPLR §6312(b)." The Appellate Division said the lower court "did not improvidently exercise its discretion in fixing the amount of the undertaking."

Addressing Vassenelli motion to hold the City in contempt, the Appellate Division, noting that the TRO required the City to "continue to pay and provide [Vassenelli] with 24-hour skilled nursing care at home," opined that "[i]nasmuch as the City had never previously paid for or provided [Vassenelli] with 24-hour skilled nursing care in his home, that language was unclear and equivocal, and it therefore could not serve as the basis for a finding of contempt."

* Subdivision 2 of §207-c of the General Municipal Law provides that "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 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."

** Subdivision 1 of §207-c of the General Municipal Law, with respect to the payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties, in pertinent part, provides as follows: "1. Any ... member of a police force ... who is injured in the performance of his [or her] duties or who is taken sick as a result of the performance of his [or her] duties so as to necessitate medical or other lawful remedial treatment shall be paid by the municipality by which he [or she] is employed the full amount of his [or her] regular salary or wages until his [or her] disability arising therefrom has ceased, and, in addition such municipality shall be liable for all medical treatment and hospital care necessitated by reason of such injury or illness. Provided, however, ... the municipality shall not be liable for salary or wages payable to such policeman, or for the cost of medical treatment or hospital care furnished after such date as [certain] health authorities or physician shall certify that such injured or sick policeman has recovered and is physically able to perform his regular duties. Any injured or sick policeman who shall refuse to accept medical treatment or hospital care or shall refuse to permit medical inspections as herein authorized, including examinations pursuant to subdivision two of this section, shall be deemed to have waived his [or her] rights under this section in respect to expenses for medical treatment or hospital care rendered and for salary or wages payable after such refusal.... Notwithstanding any provision of law to the contrary, a provider of medical treatment or hospital care furnished pursuant to the provisions of this section shall not collect or attempt to collect reimbursement for such treatment or care from any such policeman ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02957.htm

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

Employer failed to prove the disciplinary charges and specifications filed against the employee by a preponderance of the credible evidence

New York Office of Administrative Trials and Hearings, OATH Index No. 181/18

A correction captain was charged with using unauthorized force against an inmate and making false statements.

The inmate claimed that he was secured and not resisting when the captain jabbed him with his baton; the captain and the escort officer contended that the inmate was unsecured and struggling with the officer when the captain jabbed him. A surveillance video of the incident was not produced at trial because the Department failed to preserve it and it was purged.

The investigator, based upon review of the video and witness statements, concluded that the inmate was not resisting and the force used by the captain was unauthorized.

OATH Administrative Law Judge Joycelyn McGeachy-Kuls, however,  recommended dismissal of the charges, finding that the captain’s testimony was more credible than the inmate’s, which contained unsubstantiated allegations regarding his injuries and of being placed in a chokehold. Further, the ALJ found that the investigator’s report contained significant inconsistencies, inaccuracies and omissions, which called its reliability into question. Judge McGeachy-Kuls viewed the department for failing to preserve the video as a "negative inference"

The employer's failure to preserve the video tape referred to in this decision might be viewed as an aspect of "spoliation of evidence." Spoliation of evidence is the destruction or alteration of evidence that makes it unavailable for use in a judicial or quasi-judicial proceeding. Spoliation is presumed to be damaging to the spoliator's interest with respect to proving its claims or defenses when it is intentionally changed, modified, deleted or destroyed.

In Burke v Queen of Heaven R.C. Elementary Sch., 151 AD3d 1608, the Appellate Division addressed allegations of spoilation of evidence, noting that "Where the evidence is determined to have been intentionally or wil[l]fully destroyed, the relevancy of the destroyed [evidence] is presumed."

In contrast, in Thomas v Mt. Vernon P.D., 249 A.D.2d 483, motion to appeal denied, 94 N.Y.2d 763, the employee contended that the appointing authority  failed to preserve tape recordings of telephone calls that an employee believed would helpful to the employee's defense in a disciplinary hearing.

The Appellate Division found that the record failed to show that the loss of this tape was due to bad faith on the part of the appointing authority and that the tapes in question were routinely reused after 30 days, which was “well before any disciplinary charges were brought against the individual." The court also noted that “contrary to [the employee's] contention that the tape recording was the best evidence as to whether the subject telephone call was ever made, direct evidence on that issue was offered at the hearing from the alleged parties to the conversation."

Addressing the false statement charge brought against the correction captain, the ALJ said that the charge was based upon the captain’s report on the number of jab strikes against the inmate as “one or two” in one instance and “several” in another. At the disciplinary hearing the captain explained that he believed several to mean an unspecified number. ALJ McGeachy-Kuls recommended dismissal of the charge, finding the language to be imprecise, but not false or misleading.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-181.pdf