Summaries of recent findings and recommendations of New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judges.

N.B. For information concerning the disposition of the matter by the relevant appointing authority, please telephone OATH's Calendar Unit at 1-212-933-3097.

                  

Former Deputy Commissioner classified certain agency employees improperly

A former Deputy Commissioner and staff analyst [Respondent] was charged with inaccurately designating 30 agency employees as performing exclusively Medicaid work. The improper designation resulted in the reimbursement of over $7 million from the State which had to be refunded. The analyst testified that he was aware that Medicaid-funded staff had to perform exclusively Medicaid duties, and conceded that between 2015 and 2017, most of the employees were improperly classified.

Administrative Law Judged [ALJ] John B. Spooner found the charges were not time-barred because the conduct charged would constitute a crime and thus fell under the crimes exception to limitations provision of §75(4) of the Civil Service Law.

Finding that the analyst’s motive for maintaining the falsehood was to protect his division from losing staff, ALJ Spooner sustained the charges and recommended termination of Respondent’s employment.

The full text of the decision, OATH Index No. 1236/19, is posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1236.pdf

Employee found guilty of submitting a misleading report

A special officer [Respondent] employed at a men’s shelter was charged with using excessive force to unlawfully restrain a shelter client and with submitting a false statement about the incident.

Video footage showed the client engaging in a prolonged verbal dispute with another special officer. Without justification, that second officer approached and shoved the client backwards. The client pushed back and a struggle ensued between the client, the second officer, and a third officer who had joined in to try to force the client to the ground. As the client was resisting attempts to wrestle him to the ground, Petitioner grabbed his leg. The client fell to the ground with the other two officers on top of him. Respondent let go of the client’s leg and did not physically touch him again except to help handcuff his hands behind his back.

ALJ Faye Lewis found that even though the initial force by the second officer was not justified, once the client began to resist, the Appointing Authority failed to establish that Respondent assisting in handcuffing him. This was limited force appropriate under the circumstances.

However, ALJ Lewis sustained the false statement charge. Respondent submitted a report in which she stated that the house manager requested that the client be detained as an emotionally disturbed person. Respondent admitted at trial that she did not hear the house manager say this, but relied upon information provided to her by another officer. By signing the report, she represented that the report contained her observations. Because this was not true, Respondent’s report was misleading. For the proven false statement charge, ALJ Lewis recommended a ten-day suspension with credit for time served. 

The full text of the decision, OATH Index No. 587/19, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-587.pdf

Using the agency’s mail system for personal correspondence

An associate contract specialist [Respondent] was charged with committing an act relating to her office which constitutes an unauthorized exercise of her official function, engaging in non-Department business during working hours and mailing personal correspondence using the Department’s mail system.

The charges arose from allegations that Respondentused her job with the Department and Department resources to secure summer jobs for her foster son and his friend.

A Department official responsible for overseeing youth employment programs testified that Respondent called her, identified herself as a Department employee, and asked to discuss her foster son’s status. The official testified that Respondent’s foster son had already been accepted to the program, and the official testified that she did not take any additional action on his behalf as a result of Respondent’s call.

Respondent later called a youth employer on behalf of her foster son’s friend, identified herself as a Department employee, and implied that she was calling on behalf of the Department. For several months, Respondentwas in contact via her work email and phone with the youth employer to correct issues with the friend’s time sheets. The employer testified that they would not have offered a job to the friend if the Respondent had not made the initial call.

ALJ Joycelyn McGeachy-Kuls recommended dismissal of the first charge, finding the Appointing Authority failed to prove respondent committed an act relating to her office which constituted an unauthorized exercise of her job function, because youth employment was not part of her job. She also recommended dismissal of the second charge because the Appointing Authority did not prove that Respondent made the phone calls or the emails during work hours.

ALJ McGeachy-Kuls, however, sustained the charge that Respondent used the agency’s mail system for personal correspondence, and she recommended a five day suspension in light of the fact that Respondent had no prior disciplinary record. 

The full text of the decision, OATH Index No. 1995/18, is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1995.pdf

A vested right to retirement benefit to be provided by a New York State public retirement system may neither be diminished nor impaired "retroactively"

A 1957 decision of the New York State Comptroller provided for the inclusion of cash payments for accumulated vacation credits* in determining a member's "final average salary" for the purpose of computing the member's retirement benefits. In 1971 the Retirement and Social Security Law [RSSL] was amended** and eliminated the inclusion of cash payments for accumulated vacation credits in determining a member's retirement allowance.

When the Comptroller thereafter applied RSSL §431.1, as amended, to certain retiring members [Plaintiffs] of the retirement system who joined the system prior to the effective of the amendment, they challenged to "retroactive application" of the amendment with respect to the calculation of their retirement allowances, contending that such action constituted a violation of §7(a) of Article V of the New York State Constitution if retroactively applied to the Plaintiffs and others similarly situated.

The Court of Appeals agreed,*** opining that the Comptroller's 1957 decision constituted "a valid contract between the State Employees' Retirement System and its members" and if retroactively applied to the Plaintiffs and others similarly situated would constitute a violation of Article V, §7(a)**** of the State Constitution. In other words, pre-amendment members of the retirement system acquired a vested right to the benefit flowing from the 1957 decision by the Comptroller and "that benefit may not now be constitutionally impaired."

In contrast, insofar as members joining the Retirement System on or after the effective of the 1971 amendment to the RSSL are concerned, the Court of Appeals noted that such new entrants "acquired contractual rights subject to any statutes then outstanding, whether or not by the terms of the statutes they applied to current or future events."

In the words of the court,  "subdivision 1 of section 431 of the Retirement and Social Security Law ... which eliminates inclusion of cash payments for accumulated vacation credits, violates section 7 of article V of our State Constitution if retroactively applied to the plaintiff and others similarly situated." In other words, the change could only be applied to individuals becoming members of the retirement system on or after the effective date of the change.

* Such payments, said the court, represented "compensation for services actually rendered and are, therefore, properly includable in the computation of a member's final average salary."

** Chapter 503 of the Law of 1971 amended §431.1 of the Retirement and Social Security Law.

*** Kranker v Levitt, 30 NY2d 574.

**** Article V §7(a) provides that "After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired."

The decision is posted on the Internet at:

https://www.leagle.com/decision/197260430ny2d5741493

Evaluating a public employer's duty to defend and indemnify an employee named as a defendant in an "underlying action"

The City of Buffalo [Respondent] appealed from a judgment of Supreme Court denying its motion to dismiss the petition of two police officers [Officer A and Officer B] seeking a court order directing the Respondent to provide for their defense and indemnification* in an underlying action brought against them by a nonparty to this CPLR Article 78 proceeding.

Petitioners commenced their Article 78 proceeding after Respondent determined that it would not provide them with a defense or indemnification in the underlying action. Supreme Court ordered the Respondent to provide for a defense and indemnification of both Officer A and Officer B in the underlying action, whereupon the Respondent appealed the ruling to the Appellate Division.

The Appellate Division said it agreed with the Respondent that Supreme Court erred in granting the petition with respect to Officer A by denying that part of the Respondent's motion seeking to dismiss the petition as to Officer A on the ground that he failed to timely commence this proceeding. Accordingly, the Appellate Division so modified the Supreme Court's judgment with respect to Officer A.

In contrast, the Appellate Division said Supreme Court "properly determined, however, that Respondent's determination not to provide [Officer B] with a defense was arbitrary and capricious, noting that the Respondent's determination concerning Officer B was based on its conclusion that Officer B was acting outside the scope of her employment at the time of the incidents concerning the plaintiff in the underlying action.

The Appellate Division, observing that "it is undisputed that [Officer B] was on duty and working as a police officer when the alleged conduct occurred," opined that the facts that Officer B pleaded guilty to a disciplinary charge in connection with her conduct that gave rise to the underlying action "cannot establish, as [Respondent] must, that [Officer B's] was acting outside the scope of her employment at the time of the incidents concerning the plaintiff in the underlying action" by showing that Officer B's actions were "wholly personal" in nature.

Accordingly, the Appellate Division concluded that Supreme Court's determination that Officer B is entitled to indemnification was "premature at this time" and then elected to "further modify the [Supreme Court's] judgment accordingly."

* Presumably Officers A and B sought the Respondent's providing for their "defense and indemnification" pursuant to Public Officers Law §18, a provision in a collective bargaining agreement or as otherwise authorized by law, rule or regulation. §18 provides for the defense and indemnification of officers and employees of public entities which are defined as "(i) a county, city, town, village or any other political subdivision or civil division of the state, (ii) a school district, board of cooperative educational services, or any other governmental entity or combination or association of governmental entities operating a public school, college, community college or university, (iii) a public improvement or special district, (iv) a public authority, commission, agency or public benefit corporation, or (v) any other separate corporate instrumentality or unit of government; but shall not include the state of New York or any other public entity the officers and employees of which are covered by section seventeen of this chapter or by defense and indemnification provisions of any other state statute taking effect after January first, nineteen hundred seventy-nine."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05877.htm

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Determining the date on which the four month statute of limitations for filing a timely CPLR Article 78 action begins to run

The Court of Appeals has defined "final and binding" in terms of completeness and exhaustion of administrative remedies as follows: "[f]irst, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party."*

Petitioner [Plaintiff] commenced this CPLR Article 78 proceeding seeking to compel the New York State Department of Education [DOE] to issue a school building leader certificate for which he had applied in 2014. DOE, contending that Plaintiff had not paid a necessary fee before the applicable deadline, had declined to issue the certificate and issued a notice of uncompleted requirements for certification on July 23, 2014. Plaintiff was also advised that he would be required to meet newly-enacted examination requirements.

In June 2016 inquiry Plaintiff contacted DOE concerning the status of his application. DOE responded, citing its July 2014 notice of uncompleted requirements. Ultimately DOE, in response to Plaintiff additional inquiry and request for "an official appeal," sent Plaintiff two documents dated December 9, 2016 entitled "Notice of Uncompleted Requirements for Certification" explaining that Plaintiff's application had been disapproved and restated that there was "no legal means by which [DOE could] overlook" the initial missed deadline for the required payment.** Plaintiff was also advised that should he wish "to further pursue the certification, he would need to reapply and meet all additional requirements."

DOE moved to dismiss Plaintiff's petition as untimely because the proceeding was commenced on April 28, 2017, more than four months after DOE's issued its December 9, 2016 determination. In rebuttal, Plaintiff contended that the statute of limitations began to run when he received the second, identical, notice dated January 3, 2017. Supreme Court granted DOE's motion to dismiss the petition, and Plaintiff appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining that the definitive position stated in DOE's January 2017 notice is no different from that DOE expressed in its initial December 2016 notice. Further, said the court Plaintiff "does not argue that he was attempting to pursue further administrative remedies or took any additional action after the December 2016 notice was issued."

Accordingly, the Appellate Division ruled that Supreme Court's dismissal of Plaintiff's petition as untimely was correct, noting that DOE's determination became final and binding and the statute of limitations period began to run on December 9, 2016. Further, said the court, although there is a potential for prejudice in a case where a petitioner receives a subsequent, additional notice and then provides that postdated determination to his or her attorney, in this instance the Appellate Division opined "that no such prejudice has been alleged, nor was any justification for petitioner's failure to commence a proceeding based upon the December 2016 notice provided."

* See Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.

** The Appellate Division's decision notes that "for reasons still unknown and unexplained within the record or briefs," DOE issued the second identical notice dated January 3, 2017.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05610.htm