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BenchNOTES Newsletter

BenchNOTES - July 2014

Last Month's OATH Decisions

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ALJ recommends dismissal of charges where employee made honest mistake.

Respondent was charged with being absent without leave and insubordinate when she mistakenly appeared for an OATH hearing at 10:00 a.m. instead of 2:00 p.m. ALJ Kevin F. Casey recommended dismissal of the charges because the proof did not show that respondent was given a clear directive to report to her worksite in the morning and for trial in the afternoon. Dep't of Environmental Protection v. Moriates, OATH Index No. 1633/14 (July 8, 2014).

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Conflicts of Interest Law

D.A's office employee violated City conflicts law.

Conflicts of Interest Board (COIB) adopted in full ALJ Kara J. Miller's finding that a former clerical associate at the Staten Island District Attorney's Office violated the Conflicts of Interest Law by offering confidential information to a drug dealer as to whether he was under investigation in exchange for providing cocaine to respondent's husband; and later by showing her DA's office identification to detectives in an attempt to prevent her husband's arrest. Conflicts of Interest Bd. v. Collins, OATH Index No. 556/14 (Feb 11, 2014), adopted, Bd. Dec. COIB Case No. 2013-258 (July 30, 2014).

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Vehicle Rentention

ALJ orders return of seized car.

The Police Department sought to retain respondent's vehicle, seized in connection with his arrest for driving while under the influence of alcohol and causing an accident. ALJ Faye Lewis ordered the Department to return the vehicle, finding that the Department has failed to demonstrate respondent posed a heightened risk to public safety such that it was necessary to retain the vehicle pending resolution of the civil forfeiture action. Police Dep't v. Serrano, OATH Index No. 2759/14, mem. dec. (July 11, 2014).

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Practice and Procedure

Pre-trial motion to dismiss denied with opportunity to renew.

Respondent, firefighter, was charged with misconduct for wearing in the firehouse, on multiple occasions, a t-shirt with an allegedly offensive message, and for disobeying orders on 20 occasions to change the shirt. Respondent made a pre-trial motion to dismiss, alleging petitioner violated his rights under the collective bargaining agreement (CBA) and the First Amendment. Fire Dep't v. Buttaro, OATH Index No. 2430/14, mem. dec. (July 17, 2014).

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ALJ recommends marriage license application be processed quickly.

The City Clerk denied a marriage license to an applicant based upon a record of a 1994 marriage of a person with the same name and birthdate. Evidence submitted by the applicant, including birth certificates, Medicare cards, and signed acknowledgements of paternity, supported a finding that the applicant is not the same person who was issued a license in 1994. Office of the City Clerk v. Gonzalez, OATH Index No. 2146/14 (June 31, 2014).

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