Recent Decisions

The following is a summary of some recent OATH decisions decided in *June 2019*.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

Personnel

A former Deputy Commissioner and staff analyst 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. 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 section 75(4). 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. Dep’t of Social Services (Human Resources Admin.) v. Colon, OATH Index No. 1236/19 (June 13, 2019).

A special officer 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, respondent 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, petitioner failed to establish that respondent used excessive force or improperly restrained the client by grabbing his leg or 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. Dep’t of Social Services (Dep’t of Homeless Services) v. Deane, OATH Index No. 587/19 (June 19, 2019).

An associate contract specialist 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 respondent used 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, respondent was 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 petitioner 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 petitioner did not prove that respondent made the phone calls or the emails during work hours. ALJ McGeachy-Kuls 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. Dep’t of Youth and Community Development v. Thomas, OATH Index No. 1995/18 (June 7, 2019).

Vehicle Retention

The Police Department sought to retain a car seized in connection with the owner’s arrest. The self- represented owner testified that he was not served with the required notice of the right to a hearing at the time of arrest or by mail within five business days. The Department provided a copy of the vehicle seizure form signed by the arresting officer, who had checked a box for “defendant refused signature” at the time of his arrest. The Department conceded that the service by mail was untimely, but argued that this was “harmless error” because the owner was incarcerated and would not have received the notice within five business days even if it was mailed in a timely manner. ALJ Kara J. Miller found the Department’s evidence was insufficient to rebut the owner’s testimony and that the Department did not have the discretion to decide when to mail the notice informing respondent of the right to a hearing. Finding the Department failed to comply with the notice provisions required by federal court order, ALJ Miller ordered the vehicle be returned to the owner. Police Dep’t v. Coulanges, OATH Index No. 2494/19, mem. dec. (June 14, 2019).

Human Rights

The management agent of a housing development moved pre-trial to dismiss a discrimination claim on the ground that it was not a proper party. The complaint alleges that a tenant informed the agent that his disability made it difficult for him to access his third-floor apartment in a non-elevator building, and the agent failed to accommodate him by moving him to a lower-floor apartment or to a building with an elevator. The agent argued that it had no authority to transfer the tenant without following the building owner’s specific procedures. ALJ Astrid B. Gloade found that City Human Rights Law extends to managing agents and that the complaint alleges facts which, if proven, would subject the agent to liability. The motion to dismiss was denied. Comm’n on Human Rights ex rel. Bryant v. Shinda Management Corp., OATH Index No. 1400/19, mem. dec. (June 13, 2019).

Licensing

The City Clerk denied a marriage license application after discovering a license had been issued in 1996 to an individual using the same name and birth date as the applicant. On appeal, the applicant denied that he was the same person who applied for the prior license and argued that he was a victim of identity theft. Reliable evidence showed that the prior applicant fraudulently used respondent’s identity. ALJ Kevin F. Casey recommended that his application for a marriage license be accepted and processed expeditiously. Office of the City Clerk v. Orona, OATH Index No. 1401/19 (June 6, 2019).

A licensed taxi driver was charged with testing positive for marijuana. Petitioner presented a toxicology report and supporting documents from a drug testing company showing that respondent’s urine, which had reached the lab through a verified chain of custody, had tested positive for marijuana metabolite. Respondent appeared at the hearing without representation by counsel and speculated that the test was tampered or interfered with. Respondent testified that prior to taking the test, he injured his shoulder and had been prescribed pain medications including oxycodone. He reasoned that those medications should have been revealed in the test, but did not submit any evidence relating to how much oxycodone would need to be ingested in order to be detected. He also did not submit evidence rebutting the documented chain of custody of the urine sample. ALJ Susan J. Pogoda found that respondent failed to present credible evidence that the sample was tampered with or switched and recommended that his taxi driver’s license be revoked. Taxi & Limousine Comm’n v. Stokes, OATH Index No. 1283/19 (June 4, 2019).

Contracts

A contractor who was engaged to install main sewer pump upgrades and controls and piping replacements at a wastewater treatment plant, sought an additional $198,048 in compensation after respondent insisted that oil-lubricated motors be used instead of grease-lubricated motors. The contractor argued that the oil-lubricated motors were not required by the contract and therefore constituted additional work. Respondent argued that the claim was time-barred because contractor had failed to file a notice of dispute within thirty days of the denial of its request, as required by the contract and that the contractor waived the claim when it failed to reserve it with particularity in its time-extension requests. The Contract Dispute Resolution Board, chaired by ALJ Ingrid M. Addison, found that the claim was time-barred because the contractor failed to file a notice of dispute within 30 days, and it was waived because the contractor did not reserve it in either of its extension applications. Picone-Schiavone Bowery Bay v. Dep’t of Environmental Protection, OATH Index No. 140/19, mem. dec. (June 3, 2019).