OATH Recent Decisions

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Featured Agency Decision

The Conflicts of Interest Board adopted ALJ Julia H. Lee’s recommendation to impose a $10,000 fine for a NYCHA building maintenance supervisor who worked a second job during city work hours. Respondent worked at NYCHA’s Long Island City office in Queens from 8 a.m. to 4 p.m. or alternatively 8:30 a.m. to 4:30 a.m., but had a second job with Mount Sinai Hospital in Manhattan from 4 p.m. to 12 a.m. Respondent maintained the two jobs with overlapping work hours by taking his lunch hour at his city job at the end of the workday and using this time to commute to his second job. A comparison of his city timesheet and Mount Sinai access card swipe history showed overlapping periods of time during which respondent was working at Mount Sinai during his city job’s work hours. The ALJ rejected respondent’s argument that he had a flexible schedule at his city job which permitted him to start and end his work early and take his lunch hour at the end of the day. The ALJ found that respondent used his managerial flex time erroneously and liberally without supervisory approval on a regular basis. The ALJ determined respondent spent 109 hours working at Mount Sinai during city work hours, thus receiving $6,014.93 from the City that he did not earn. Conflicts of Interest Bd. v. Montgomery, OATH Index No. 0208/24 (Apr. 4, 2024), adopted, COIB Case No. 2022-585 (June 18, 2024).

Personnel

ALJ Joycelyn McGeachy-Kuls recommended a 50-day suspension for a correction officer who engaged in misconduct by using profanity during an altercation and activating two personal body alarms (“PBA”). Respondent had requested to not work overtime due to her health conditions. Despite her request, respondent was assigned to work overtime. When respondent attempted to leave at the end of her shift, another correction officer refused to open the gate because respondent had not been relieved from her post. The ALJ found that during the ensuing altercation, respondent used profanity toward another officer and a captain, activated two PBAs when there was no emergency, and left her post without proper relief. However, the Department failed to prove that respondent refused an order to submit a report or that she refused to identify herself to a captain. Because the Department did not prove all of the charges, the ALJ determined a lesser penalty is appropriate and recommended a 50-day suspension in lieu of the requested penalty of a 60-day suspension. Dep’t of Correction v. E.B., OATH Index No. 1879/24 (June 21, 2024).

ALJ Tiffany Hamilton recommended a 60-day suspension for a correction officer who engaged in misconduct by failing to cooperate with and threatening police officers during a traffic stop. Respondent was off-duty when she was pulled over for speeding. The ALJ found that respondent failed to obey the officers’ directives to promptly hand over her driver license and to step out of the vehicle. During the traffic stop, respondent was on the phone and made statements such as, “They lucky I don’t have a firearm” and “Just give me the ticket, before I slap one of them.” The ALJ rejected respondent’s argument that these statements were not threats because they were not directed at the officers, finding that indirect statements made in the presence of the intended recipient can constitute a threat for disciplinary purposes. Dep’t of Correction v. Francis, OATH Index No. 2362/24 (June 21, 2024).

Real Property

ALJ Michael D. Turilli recommended granting an application for a certificate of no harassment for a pilot program building. The current Building owner rebutted the presumption that the former Building owner harassed tenants during the inquiry period by not providing heat and hot water for an extended duration and repeatedly failing to correct “immediately hazardous” and “hazardous” violations, as defined by law. The evidence showed that the Department of Buildings shut down the boiler because of falling chimney bricks and the former owner promptly took the necessary action to obtain access to the neighboring property to perform the necessary chimney repairs. The ALJ found that these actions demonstrated an intent to remedy the lack of an essential service rather than an intent to cause tenants to vacate their units. Petitioner also did not establish that the estate of the former owner contacted two tenants with an offer of compensation to induce them to vacate their units without providing them with the mandatory written disclosures. Petitioner relied solely upon the executed settlement agreement and did not produce any evidence of the estate contacting the tenants. The evidence strongly suggested that the tenants, through their own counsel, initiated negotiations over a voluntary surrender of their units with a monetary demand and that the estate retained counsel to engage in negotiations with the tenants’ attorney, eventually resulting in an agreement. The ALJ found that such conduct does not fall within the statute’s unambiguous definition of harassment. Dep’t of Housing Preservation & Development v. Joseph, OATH Index No. 1550/24 (June 14, 2024).