Evaluating the credibility of testimony given at a disciplinary hearing

Three New York City correction officers were served with disciplinary charges alleging that each had submitted false or misleading reports concerning retaliatory force used by a captain against an inmate. 

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade found that two of the correction officers were in positions whereby they were able to observe the use of force by the captain and did not credit their claims that they did not witness the event. 

The third correction officer testified that he did not include the captain's use of force in his report because the inmate was able to prevent the captain's blows "from landing." Judge Gloade rejected the third correction officer's explanation, finding that the New York City Department of Correction’s "Use of Force Directive" requires that an attempted use of force by another officer on an inmate be reported regardless of whether the attempted use of force against the inmate was successful or not. 

The ALJ found that the three correction officers' failure to include the captain’s use of force  on an inmate in their respective incident reports rendered their reports incomplete and inaccurate and recommended that each officer be suspended without pay for 15 days as the disciplinary penalty to be imposed for their filing incomplete and inaccurate reports of the event. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-156.pdf

Appointments to Governor Andrew M. Cuomo's administration confirmed by the Senate

On July 21, 2020 Governor Andrew M. Cuomo announced that the following nominations for appointments to his administration were confirmed by the Senate:

Steven M. Cohen was nominated by Governor Cuomo and confirmed by the Senate as a Member of the Urban Development Corporation and he will be designated Chair, and a member of the Financial Control Board. Mr. Cohen previously was General Counsel and Chief Administrative Officer of MacAndrews and Forbes Incorporated. Prior to that, Mr. Cohen served as Secretary to New York Governor Andrew M. Cuomo, in addition to serving as Counselor and Chief of Staff in the Office of the New York Attorney General under Attorney General Cuomo. In private practice, Mr. Cohen represented a wide array of corporations and individuals in complex commercial, criminal, and regulatory matters. He previously served as the Chief of the Violent Gangs Unit in the U.S. Attorney's Office for the Southern District of New York. Mr. Cohen received his B.A. from New York University and his J.D. from the University of Pennsylvania Law School. He is a member of the New York University Board of Trustees, University of Pennsylvania Law School Board of Advisors, Bank Leumi USA Board of Directors and Whole Earth Brands Board of Directors. He currently serves as a New York Trustee of the Gateway Development Corporation and previously served as the Vice Chairman of the Port Authority of NY and NJ. 

Howard Zemsky was nominated by Governor Cuomo and confirmed by the Senate as Chair Emeritus of the Urban Development Corporation where he will continue his great work on upstate economic development. Mr. Zemsky previously served as President and CEO of Empire State Development Corporation (ESDC) and Commissioner of the Department of Economic Development. He also co-chaired the Western New York Regional Economic Development Council for four years and worked closely on the Governor's Buffalo Billion initiative. Zemsky has a bachelor's degree from Michigan State University and an M.B.A. from the University of Rochester.

Lola Brabham was nominated by Governor Cuomo and confirmed by the Senate as Commissioner and President of the New York State Civil Service Commission. She currently serves as the Acting Commissioner of the New York State Department of Civil Service. In 2019, Governor Cuomo appointed Ms. Brabham as a member of the Civil Service Commission and was named President of the Commission. Ms. Brabham previously served as Acting Commissioner and Executive Deputy Commissioner of the Department of Civil Service. Prior, she served as Deputy Commissioner for Administration and Chief Financial Officer for the State Department of Labor and was Assistant Chief Budget Examiner for the State Division of the Budget. She was Assistant Secretary for Health, Medicaid and Oversight and Director of Human Services in the Executive Chamber under Governor David Paterson. She was also a Legislative Budget Analyst for the Assembly Committee on Ways and Means and, early in her career, was Chief of Staff to Assemblyman N. Nick Perry. Ms. Brabham has a dual B.A. in Criminal Justice and Sociology from the State University of New York and an M.P.A. from Rockefeller College of Public Affairs and Policy.

Dr. Merryl Tisch was reappointed as the Chair of the SUNY Board of Trustees. In 2019, Governor Cuomo appointed Dr. Tisch as the Chair of the Board of Trustees. Prior to that, she had served as Vice Chairman of the SUNY Board of Trustees since March, 2018. Previously, Dr. Tisch was a member of the Board of Regents for 20 years and held the position of Vice Chancellor from 2007 to 2009. As Chancellor of the New York State Board of Regents, Dr. Tisch was responsible for setting the state's education policy and overseeing both public and private education throughout New York. Her policies were informed by years of experience in the fields of education, community service, and philanthropy, including her work as a first-grade teacher at New York City's Ramaz School and the B'nai Jeshurun School. She holds a B.A. from Barnard College, an M.A. in Education from New York University, and received an Ed.D from Teacher's College, ColumbiaUniversity.

Camille Varlack was appointed as a Trustee on the SUNY Board of Trustees. Ms. Varlack is currently Chief Operating Officer and Deputy General Counsel at Pierce Bainbridge Beck Price and Hecht LLP. She previously served as Deputy Director of State Operations for Governor Cuomo. In 2017, she was appointed New York State Chief Risk Officer and Special Counsel. Ms. Varlack has served as deputy director for ethics, risk and compliance in the Executive Chamber and as a principal law clerk for the New York State Supreme Court. She has also served as Assistant Vice President and Counsel at AXA Financial, Inc. and as an Assistant District Attorney for the Kings County District Attorney's Office. Ms. Varlack holds a B.A. from the State University of New York at Buffalo and a J.D. from Brooklyn Law School.

James Haddon was appointed as a Trustee on the SUNY Board of Trustees. Mr. Haddon is currently a Managing Director of Strategic Marketing at Ramirez Asset Management (RAM). He joined RAM in January 2015 and has worked over 36 years in the asset management and investment banking business. At RAM he is responsible for marketing RAM's fixed income products and services to pension funds, state and local governments and corporations. Prior to RAM, Mr. Haddon was employed for 5 years at PFM Asset Management where he was a Managing Director responsible for National Account marketing. Prior to PFM Asset Management he worked at Citigroup in various asset fundraising and investment banking roles. He earned a bachelor's degree in economics from Wesleyan University and an MBA from Stanford University.

Marcos A. Crespo was appointed as a Trustee on the SUNY Board of Trustees. Previously, Mr. Crespo was a member of the New York State Assembly - one of the youngest members of the New York State Legislature when first elected in 2009 - representing the 85th Assembly District, which includes the Soundview, Clason Point, Longwood, and Hunts Point sections of the South Bronx. While in office, Assemblyman Crespo served on a number of committees, including the Committee on Alcoholism and Drug Abuse; Cities; Energy; Environmental Conservation; Insurance; and Transportation. He was also a member of the Black, Puerto Rican, Hispanic and Asian Legislative Caucus, Chair of the Puerto Rican/Hispanic Task Force, and Co-Chair of the Legislative Task Force on Demographic Research and Reapportionment. Mr. Crespo is a graduate of John Jay College of Criminal Justice, is married and has two young daughters.

William Thompson, Jr. was nominated by Governor Cuomo and confirmed by the Senate as a member of the Financial Control Board. Mr. Thompson's extensive experience in successfully managing the finances of one of the nation's largest cities has afforded him unique insight into the needs of local municipal issuers. As Comptroller, Mr. Thompson also served as custodian and investment advisor to the five New York City Pension Funds, where he managed a combined portfolio amounting to more than $100 billion at the close of his tenure. In this role, Mr. Thompson invested hundreds of millions of dollars in affordable housing and commercial real estate in New York City. During his tenure, Mr. Thompson also worked with leaders of the financial services industry to reform the operations of the New York Stock Exchange, and spearheaded the City's innovative Banking Development District program. Prior to his work as Comptroller, he had served as Brooklyn Deputy Borough President and as a Member and five-term President of the New York City Board of Education. Mr. Thompson also served as a Senior Vice President in Public Finance in the mid-1990s. Mr. Thompson is a graduate of Tufts University.

Secretary of State Rossana Rosado was nominated by Governor Cuomo and confirmed by the Senate as a member of the Financial Control Board. Secretary Rosado brings a depth and diversity of experience as New York Secretary of State. Governor Cuomo appointed Secretary Rosado to the position on February 3, 2016 and she was unanimously confirmed by the New York State Senate on June 15, 2016. Her leadership has helped make the Department of State one of the most dynamic agencies in State government. Secretary Rosado is best known for her successful tenure as the Publisher and CEO of El Diario La Prensa, where she spent 18 years, overseeing more than $22 million in annual revenue. Secretary Rosado also served on the board of the Port Authority of New York and New Jersey from 2012 to 2015. Secretary Rosado was a Distinguished Lecturer at the John Jay College of Criminal Justice prior to joining the Cuomo administration, and has been a member of the College's Foundation Board of Trustees since 2012. A native New Yorker, Secretary Rosado received her B.A. in Journalism from Pace University.

Kelly Cummings was nominated by Governor Cuomo and confirmed by the Senate as a member of the Olympic Regional Development Authority and will be designated Chair. Ms. Cummings currently serves as the Director of New York State Operations and Infrastructure. Previously, she served as Senior Advisor and Deputy Chief of Staff to Governor Cuomo. Prior to working in the Governor's administration, she served as the Director of Communications for the Senate Majority. In that position she managed overall communications and press for the Senate Majority Conference and acted as chief spokesperson for the Senate Majority Leader. In her more than 20 years in the State Legislature, Ms. Cummings has held a number of communications and policy positions in both the Senate and Assembly. Ms. Cummings previously served as director of policy development for the Senate Minority where she assisted senators and their staff in developing, drafting and publicizing new legislative initiatives. Prior to that, Ms. Cummings was chief of staff to Senator Charles Fuschillo where she managed operations, developed legislation and directed press and communications. Ms. Cummings also worked as communications director and director of public affairs for the Assembly Minority from 2002-2005. She holds a Bachelor of Arts degree from St. Lawrence University.

Senator Betty Little was nominated by Governor Cuomo and confirmed by the Senate as a member of the Olympic Regional Development Authority. Currently, she is serving her ninth term as a New York State Senator representing the residents of the 45th Senate District, which is comprised of Clinton, Essex, Franklin, Warren and parts of St. Lawrence and Washington Counties. Prior to first winning election to the State Senate in November 2002, Senator Little served in the New York State Assembly for seven years. A former teacher, Senator Little is pleased to serve as the ranking Minority member on the Senate's Education Committee. She also serves on the following committees: Cultural Affairs, Tourism, Parks and Recreation; Environmental Conservation; Finance; Health; Housing, Construction and Community Development; New York City Education; and Rules. Born in Glens Falls, Senator Little is a graduate of St. Mary's Academy and the College of Saint Rose with a degree in Elementary Education. A former teacher and realtor, she resides in Queensbury. Senator Little is the mother of six children, Elizabeth, David, Robert, Thomas, Carolyn and Luke, and the proud grandmother of eighteen.

Brigadier General Michel A. Natali was promoted to Major General of the New York Army National Guard. Prior to his current assignment, he served as the Commanding General of the 53rd Troop Command of the New York National Guard. Major General Natali also served a combat tour in Iraq as Deputy Intelligence Officer in the 42nd Infantry Division from 2004 to 2005. He is a graduate of Norwich University, received his Masters of Public Administration from Marist College, and received his Master of Strategic Studies from the U.S. Army War College.

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Court of Claims:

Veronica G. Hummel

Hon. Charles M. Troia

Hon. Adrian N. Armstrong

Adam W. Silverman

The following individuals were also nominated by Governor Cuomo and confirmed by the Senate to the Olympic Regional Development Authority:

Diane Munro

Elinor Tatum

Thomas Keegan

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Minority Health Council:

Ngozi Moses

Guillermo Chacon

LaRay Brown

Tandra LaGrone

Mecca (Santana) Mitchell

Dr. Luis Freddy Molano

Rev. Diann Holt

Helen Arteaga Landaverde

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Behavioral Health Services Advisory Council:

Glenn Liebman

Chacku Mathai

Michael Orth

Carlee Hulsizer

Brianna Gower

Debra Pantin

Ian Shaffer

Yiu Ng

David Woodlock

Kerry Whelan-Megley

Patrick Seche

Constance Wille

Hilda Rosario Escher

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the New York State Bridge Authority:

Lou Lanza

Michael O'Brien

IIan Gibert

Joan McDonald

Alexander Berardi

Maria Bruni

Colin Jarvis

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the Niagara Frontier Transportation Authority:

Jennifer Persico

Rev. Mark Blue

Stephen Tucker

The following individuals were nominated by Governor Cuomo and confirmed by the Senate to the Ogdensburg Bridge and Port Authority:

Toni Kennedy

Jennifer Quirk-Pickman

Nicole Terminelli

Megan Whitton

Vernon "Sam" Burns

The following individual was nominated by Governor Cuomo and confirmed by the Senate to the Stewart Airport Commission:

Roger Higgins

Placing an employee on leave without pay upon the initiation of a disciplinary action against the employee

Civil Service Law §75.3-a, suspension pending determination of charges and penalties relating to police officers of the Police Department of the City of New  York [Department] served with disciplinary charges, provides that a New York City police officer may be placed on leave without pay for a maximum of 30 days while awaiting a hearing on the disciplinary charges. Thereafter the police officer's name must be restored to full pay status on the payroll. 

However, in the event of a delay in the disciplinary hearing beyond the 30-day maximum is occasioned solely by the police officer's own conduct, the police officer may be placed on, or continued on, leave with out pay or again removed from the payroll, as the case may be, until such time as the appointing authority is otherwise able to go forward with disciplinary hearing. 

In contrast, where the appointing authority is solely responsible for the delay, or the parties are equally responsible for the delay, the police officer's name is to be restored to the payroll after the 30-day period of leave without pay authorized by §75.3-a has been exhausted.

In this action the Appellate Division said it agreed with the Department that the police officer [Petitioner] was not entitled to reinstatement to the payroll, or eligible for back pay, for any time he was taken off the payroll in excess of 30 days, because Petitioner was solely responsible for the delay in the disciplinary hearing going forward. 

The Appellate Division, citing Gerber v New York City Housing Authority, 42 NY2d 162, explained that because Petitioner failed to take certain necessary action "the entire period of delay in holding the [disciplinary] hearing resulted from his dilatory tactics."

In the alternative, in the event an individual served with disciplinary charges fails or refuses to participate in the disciplinary hearing without good cause, the appointing authority may elect to proceed to conduct the disciplinary hearing as scheduled "in absentia."

It is well-settled that should the employee fail to appear at the disciplinary hearing as scheduled, the appointing authority may elect to proceed with the disciplinary action and actually hold a hearing in absentia rather then merely proceed to impose a penalty on the individual simply because of the employee's failure to appear as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. 

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that in the event the employee fails to appear at the disciplinary hearing as scheduled, the appointing authority make a diligent effort to contact the employee to inform him that the scheduled disciplinary hearing would take place even if he did not participate and determine if the individual had a reasonable explanation for his failure to appear at the disciplinary hearing as schedule.. 

Further, the charging party must prove its case by presenting substantial evidence of the employee’s incompetence or misconduct in the course of a disciplinary hearing held in absentia.

On the other hand, there is case law holding that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority or its representative and make a final, binding determination and award. The appointing authority had boycotted a scheduled arbitration hearing because it believed that the employee was not entitled to submit the matter to arbitration. In Matter of Hall, 235 AD2d 75, the Appellate Division sustained the arbitrator’s award in favor of the employee.

The instant decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_04103.htm