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New pro bono provider: The New York Legal Assistance Group has begun providing representation to pro se respondents in certain cases before the OATH Hearings Division. NYLAG attorneys represent one-, two-, and three-family homeowners facing summonses issued by the Department of Buildings in Queens and the Bronx. NYLAG joins the Brooklyn Bar Association Volunteer Lawyers Project, Mobilization for Justice, and Staten Island Legal Services as regular pro bono legal services providers in cases at OATH, coordinated by OATH Special Counsel Vincent Gentile.
Hearings Division deputy chief clerk appointed: OATH welcomes JoAnna Kelly, previously a supervisory attorney with the Administration for Children’s Services, as the new Hearings Division deputy chief clerk. Ms. Kelly practiced before OATH in a prior position with the Taxi and Limousine Commission.
Pursuant to an order of the Chief Administrative Law Judge, hearings, trials, and other OATH operations are being conducted by telephone, videoconferencing, online, or mail, and OATH will only allow in-person appearances in limited, pre-approved circumstances. Individuals may only enter OATH offices if the agency has approved your or your representative’s request. For more information, visit OATH’s website at www.nyc.gov/oath.
The New York City Civil Service Commission (“CSC”) affirmed decisions from the Department of Correction (“DOC”) which imposed thirty-day suspensions against three correction officers found to have written incomplete and inaccurate use of force reports which failed to include a captain’s retaliatory use of force against an inmate.
At the close of the trial conducted by OATH ALJ Astrid B. Gloade, DOC asked for 30-day suspensions, citing to the DOC Use-of-Force Disciplinary Guidelines issued pursuant to federal litigation in Nunez v. City of New York. Judge Gloade found the requested penalty to be excessive and she instead imposed a 15-day suspension for each officer, following the principles of progressive discipline under section 75 of the New York State Civil Service Law. The DOC Commissioner modified the penalty and imposed a 30-day suspension for each officer.
The DOC Use-of-Force Disciplinary Guidelines direct DOC to seek thirty-day suspensions for incomplete and inaccurate reports, absent extraordinary circumstances. In its decisions in these cases, the CSC held that the absence of prior discipline does not constitute extraordinary circumstances, and found the penalties imposed by DOC to be appropriate.
Dep’t of Correction v. Royster, OATH Index Nos. 156/20, 157/20, 460/20 (June 26, 2020), adopted in part, rejected in part, Comm’r Dec. (Sept. 8, 2020),aff’d, NYC Civ. Serv. Comm’n Case Nos. 2020-0643, 2020-0644, 2020-0645 (July 9, 2020).
ALJ Kevin F. Casey recommended a penalty of 60-day suspension without pay for a correction officer’s excessive use of force against an inmate who failed to comply with an order, stepped towards the officer, and threatened to knock him out. The Department of Correction proved that the officer impermissibly punched the inmate in the face and also struck him after he was restrained on the floor. ALJ Casey found that the department failed to prove that the officer submitted a false or misleading report about the incident. Finding that termination of employment would be unduly harsh given the circumstances and the officer’s employment record ALJ Casey noted that the officer was a long-time employee who admitted to making an error in judgment, acknowledged his wrongdoing, and did not engage in deception. Dep’t of Correction v. Fontane, OATH Index No. 694/21 (June 18, 2021).
ALJ Joan R. Salzman recommended termination of employment for a correction officer for two uses of excessive force. In the first incident, an inmate being escorted to a DOC medical clinic was arguing with the officer, used a sexualized insult, and stepped towards him, and the officer punched the inmate in the face. In the second incident, an inmate in a medical clinic was grabbing a DOC telephone and other electronic equipment and disobeying the officer’s orders, and the officer pinned the inmate to the bed by his neck. ALJ Salzman found that termination was appropriate based on these incidents and DOC’s proof that these were not the first incidents of discipline for use of force by the officer, including multiple uses of prohibited neck holds. Dep’t of Correction v. Antoine, OATH Index No. 228/21 (June 16, 2021). The same officer was also found liable for grabbing another inmate by the neck in a third incident and for pulling him forcefully by his ponytail in a Rikers Island medical clinic, for submitting a false report minimizing his conduct, and for attempting to cover up the incident. Dep’t of Correction v. Antoine, OATH Index No. 873/21 (June 16, 2021) (termination recommended).
ALJ Joycelyn McGeachy-Kuls recommended termination of employment for a correction officer for use of impermissible, unnecessary, and excessive deadly force against an inmate, submitting a false report, and making false statements about the incident. ALJ McGeachy-Kuls found that the officer had kicked and used a baton to hit an inmate in the head when the inmate was already cuffed and on the ground after having been sprayed with a chemical agent, during a security response to inmates who refused to be locked in to their cells for the night. Because the inmate was restrained at the time of the use of force, ALJ McGeachy-Kuls found that the use of force was not justified by a threat of imminent death or serious injury to the officer or any other person, and was therefore excessive. She also found that the officer made false and misleading statements in his incident report when he denied using any force and, in a later interview, when he said that he was only adjusting his position while restraining the inmate. Considering the officer’s past use of force violations, the egregious nature of this incident, and his repeated false and misleading statements, ALJ McGeachy-Kuls recommended that he be terminated from his employment. Dep’t of Correction v. Black, OATH Index No. 231/21 (June 22, 2021).
ALJ Joan R. Salzman recommended that a child protective specialist with the Administration for Children’s Services be kept on involuntary leave as she was mentally unfit to perform her duties handling mail relating to adoptive parents, financial support, and guardians. Based on ACS’s psychiatric evidence that the specialist suffered from a debilitating psychotic disorder and posed a danger to herself and others, and on coworkers’ testimony that they did not feel safe around her as she would talk incessantly about non-existent odors and voices she heard only in her own head and berate coworkers in angry outbursts that frightened them and disrupted their work, ALJ Salzman held that ACS had established that the respondent was mentally unfit to perform her duties. ALJ Salzman also determined that there had been probable cause to place the specialist on an emergency, pre-hearing involuntary leave of absence, and therefore, she was not entitled to restoration of leave time or backpay for the period of pre-trial leave. Admin. For Children’s Services v. Anonymous, OATH Index No. 1969/21 (June 30, 2021), adopted, Comm’r Dec. (July 6, 2021)
ALJ Noel R. Garcia recommended that an accountant with the Office of the Chief Medical Examiner, in the Department of Health and Mental Hygiene, be suspended for three days for sending discourteous emails to his supervisor and others. The agency sought to suspend the accountant for ten days for several incidents of insubordination for failing to complete tasks as assigned by his supervisor, sending disrespectful emails, and undermining his supervisor’s authority. ALJ Garcia found one instance of conduct prejudicial to good order and discipline and recommended a three-day suspension. Dep’t of Health and Mental Hygiene v. Pepple, OATH Index No.1505/20 (June 22, 2021).
The Conflict Dispute Resolution Board, chaired by ALJ Kevin F. Casey, denied two claims for payment filed by a construction company against the Department of Transportation. The construction company had contracted with DOT to perform work on an Atlantic Avenue bridge over railroad tracks, and sought additional payment of $449,610.38 related to its work on the road median and temporary barriers. The Conflict Dispute Resolution Board denied both claims, finding that the contract did not in fact require the additional work that had been performed. The Board held that the company had a duty to seek pre-bidding clarification to resolve any ambiguity in the contract. John Civetta & Sons, Inc. v. Dep’t of Transportation, OATH Index No. 1184/20, mem. dec. (June 11, 2021).
The Appeals Division reversed a hearing officer’s decision and dismissed a charge that a company had failed to obtain an outdoor advertising company registration. The Appeals Division held that the City’s laws only require an outdoor advertising company to register signs “under the control” of the company, and the company in this case was only responsible for painting the sign, which remained under the control of the business that had contracted for the painting work. DOB v. Overall Mural, DOB v. Overall Mural, Appeal No. 2100380 (June 24, 2021).
The Appeals Division reversed a hearing officer’s decision and dismissed a Department of Buildings charge that a general contractor company failed to comply with the Governor’s Executive Orders and guidance published by the New York State Department of Health for construction during the COVID-19 emergency. The company did not dispute that measures required by NYSDOH’s guidance were not in place but contended that, at the time of inspection, the jobsite was not open, and two employees were only there to assess it for COVID-19 re opening requirements. The Appeals Division found that the DOB had not offered any evidence of active construction activity at the time of inspection, and found that the company’s assessment of the jobsite in preparation for re-opening and complying with NYSDOH’s guidance did not constitute “construction activities.”. DOB v. Bin R Eng, DOB v. Bin R Eng, Appeal No. 2100346 (June 24, 2021).
The Appeals Division reversed a hearing officer’s decision sustaining a charge for idling a truck’s engine for longer than three minutes. The truck company had argued that truck’s refrigeration unit was being utilized at the time of occurrence, and provided a printout from the Department of Environmental Protection’s website on the Citizen’s Air Complaint Program stating that “trucks that use the motor vehicle engine to run a piece of equipment such as the refrigeration unit on a delivery truck . . . are allowed to keep that engine running.” The hearing officer credited the driver’s statement but found that refrigeration equipment was not a processing device and therefore did not fall within the exemption for idling longer than three minutes. The Appeals Division found that the definition of “process” had been amended to include operations by which materials are “conveyed or stored without changing the material(s),” and concluded that the refrigeration unit was a processing device and the truck’s running engine was permissible. DEP v. Dora’s Naturals Inc, Appeal No. 2100203 (June 24, 2021).