OATH Recent Decisions

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Personnel

ALJ Charlotte E. Davidson recommended termination of employment for a correction officer charged with conduct unbecoming of a member of service and of a nature to bring discredit upon the Department, and undue familiarity with a person in custody. The ALJ found that respondent, while escorting a person in custody, permitted him to visit another cell where he obtained contraband. Respondent also permitted the person in custody to violate numerous rules while under her supervision, including touching her on several occasions, repeatedly ignoring her commands, and wearing prohibited clothing. The ALJ credited the correction officer’s explanation that her behavior was driven by a desire to avoid physical harm to herself but found that respondent violated the rules against undue familiarity by permitting the person in custody to engage in the misconduct. However, the evidence did not support a finding of repeated interactions in a sexual manner, and the ALJ dismissed a charge related to sexual contact. The ALJ also found that respondent inefficiently performed her duties by failing to note infractions in the facility logbook. Despite respondent’s minimal disciplinary history, the ALJ found that by indulging the inappropriate behavior of a person under her custody, respondent committed misconduct warranting a penalty of termination. Dep’t of Correction v. Parson, OATH Index No. 315/24, mem. dec. (Dec. 29, 2023).

ALJ Julia Davis recommended dismissal of charges for a correction officer charged with excessive absences. Respondent reported sick on approximately 92 days from January 2021 to December 2021, and approximately 114 days from January 2022 to September 2022. Respondent’s August 25, 2021 through June 13, 2022 sick leave was the first time respondent reported sick for injuries he sustained in a September 11, 2020 use of force incident. Under the Department’s rules, when calculating sick days, an officer’s first absence for a line of duty injury sustained as a direct result of a use of force incident is excluded. The ALJ rejected the Department’s argument that the first absence must be taken immediately following the use of force incident, finding the Department’s rule does not contain the word “immediately” nor impose any time period. After excluding the sick days from August 25, 2021 to June 13, 2022, the ALJ found petitioner failed to prove respondent was excessively absent. Dep’t of Correction v. D. Q., OATH Index No. 324/24 (Dec. 11, 2023).

ALJ Michael D. Turilli recommended dismissal of charges for an administrative procurement analyst charged with discourteous and insubordinate conduct towards his supervisor and failure to satisfactorily perform his work. The ALJ held that respondent did not willfully refuse an order to attend a meeting with his supervisors, finding that although respondent was a few minutes late, he went to the meeting and his supervisors granted his request for a postponement so his union representative could be present. Although respondent was argumentative and defensive during the meeting, his conduct did not exceed the bounds of decorum and discretion. The ALJ also found that petitioner failed to establish that respondent was incompetent in the performance of his duties because there was insufficient evidence respondent persistently fell below the minimally acceptable threshold of time to complete his assignments. Dep’t Dep’t of Housing Preservation & Development v. Vrine, OATH Index No. 108/24 (Dec. 26, 2023).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Faye Lewis, awarded $499,860.49 to a contractor for costs it incurred in implementing a forced air cooling system for line reactors at a wastewater treatment plant, plus overhead and profit. The contract specified a temperature rise requirement that was technically impossible to meet due to DEP’s reactor design. DEP rejected two no cost or low cost solutions proposed by the contractor and directed it to implement a forced air cooling system. The contractor’s entitlement to relief turned on whether the specification was one of performance, which sets a standard for the contractor to meet without specifying its means and methods, or design, which details the design, materials, and methods to be followed by the contractor without deviation. The Board found it was a design specification because it contained stringent requirements and restrictions characteristic of a design specification, there was no evidence the contractor was involved in drafting the specification, and the contractor did not have any discretion in how it performed the work.

The Board also rejected DEP’s argument that the contractor’s notice of dispute was untimely because it was not filed within 30 days of the Engineer’s comment that implementation of forced air cooling systems “shall be at no additional cost to the City.” Although the Board held that the Engineer’s comment was a final determination that might ordinarily trigger the contractor’s time to file a dispute, the Board concluded that here the record supported a finding that the contractor was “lulled into inaction” by DEP and reasonably relied on its understanding that the issue of costs would be deferred until a later time. Therefore, DEP did not establish that the contractor’s claim was untimely where it was filed within 30 days of DEP’s denial of the contractor’s request for extra compensation. Yonkers Contracting Co. v. Dep’t of Environmental Protection, OATH Index No. 2972/22, mem. dec. (December 27, 2023).