OATH Recent Decisions

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Personnel

ALJ Astrid B. Gloade recommended termination of employment for a correction officer who used excessive and unnecessary force when he threw urine on an incarcerated person. The ALJ found that the officer carried out a methodical and disturbing plan to retaliate against an incarcerated person for splashing him with an unidentified liquid. The officer found a bottle, emptied its contents, went to the restroom to relieve himself into the bottle, walked back to the intake area, knocked on a locked door to gain entry, pushed past a captain who attempted to stop him, and threw urine on the incarcerated person who was confined in a locked cell and did not pose an imminent threat. This series of steps showed a troubling degree of uncontrolled anger and calculated retaliation. Given this conduct, combined with the failure to submit a use of force report and prior disciplinary record, ALJ Gloade recommended termination of the officer’s employment. Dep’t of Correction v. Merilus, OATH Index No. 1821/23 (May 2, 2023).

Licensing

ALJ Astrid B. Gloade recommended lifting the suspension of a taxi driver who had been arrested for attempted criminal possession of a controlled substance. Respondent was off-duty and working as an employee at a store when personnel from New York State and city agencies conducted a tobacco inspection and found psilocybin (mushroom)-infused chocolate bars, psilocybin plants, and THC products on the premises. The ALJ found that there was no evidence that respondent had any controlled substances on him or that his responsibilities at the store involved their sale. Although the underlying conduct may satisfy the technical elements of the crime, it does not show that continuation of respondent’s license would pose a direct and substantial threat to public health and safety. Taxi & Limousine Comm’n v. Almasoodi, OATH Index No. 2897/23 (May 8, 2023), adopted, Comm’r Dec. (May 18, 2023).

Worker Protection

ALJ Faye Lewis found that a contractor and its controlling shareholder failed to pay prevailing wages and supplemental benefits to two workers on public works projects. The ALJ rejected respondent’s assertion that the workers were warehouse workers, crediting complainants’ testimony about their work in the field. Based on the contractor’s willful underpayments and deliberate falsification of its payroll records to conceal the underpayments, the ALJ recommended restitution for the complainants plus a 25% civil penalty and five-year debarment for the contractor and controlling shareholder. Respondents have filed a motion with the Comptroller to reopen the case. Office of the Comptroller v. Charan Electrical Enterprises, Inc. & Deol, OATH Index No. 2174/21 (May 16, 2023).

Contracts

The Contract Dispute Resolution Board, chaired by ALJ Faye Lewis, denied a contractor’s claim for anticipated profits on four bid items that the agency omitted before the work commenced. The contractor argued that it was entitled to collect payment because the Federal Highway Administration Funding Attachment, made part of the contract because the project received federal funding, contained a provision providing for adjustment of the contract price if there are significant changes in the character of the work. The Board rejected this argument, finding that neither the federal provision nor the contract terms entitled the contractor to collect anticipated profits. Judlau Contracting, Inc. v. Dep’t of Transportation, OATH Index No. 1560/22, mem. dec. (May 17, 2023).