Recent Decisions

The following is a summary of some recent OATH decisions decided in *August 2018*.  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 correction captain was charged with using unauthorized force against an inmate and making false statements. The inmate claimed that he was secured and not resisting when the captain jabbed him with his baton; the captain and the escort officer contended that the inmate was unsecured and struggling with the officer when the captain jabbed him. A surveillance video of the incident was not produced at trial because the Department failed to preserve it and it was purged. The investigator, based upon review of the video and witness statements, concluded that the inmate was not resisting and the force used by the captain was unauthorized. ALJ Joycelyn McGeachy-Kuls recommended dismissal of the charges. The captain’s testimony was more credible than the inmate’s, which contained unsubstantiated allegations regarding his injuries and of being placed in a chokehold. The investigator’s report contained significant inconsistencies, inaccuracies and omissions, which called its reliability into question. ALJ McGeachy-Kuls took a negative inference against the department for failing to preserve the video. The false statement charge was based upon the captain’s report on the number of jab strikes against the inmate as “one or two” in one instance and “several” in another. At trial, the captain explained that he believed several to mean an unspecified number. ALJ McGeachy-Kuls recommended dismissal of the charge, finding the language to be imprecise, but not false or misleading. Dep’t of Correction v. Virola, OATH Index No. 181/18 (Aug. 31, 2018).

Licensing

Taxi driver was charged with unfitness based upon a positive drug test result. The toxicologist initially certified that the sample was positive for cocaine. Nearly two weeks later, the same toxicologist crossed out the initial certification and stated that it was incorrect, that the correct result was positive for marijuana. In the absence of any testimony, documents or explanation for the change, ALJ Kevin F. Casey found the drug test results to be flawed and contradictory. He recommended dismissal of the charge. Taxi & Limousine Comm’n v. Diaw, OATH Index No. 267/19 (Aug. 22, 2018).

Earned Safe and Sick Time Act

A company was charged with not providing its employees with notice of their rights, not maintaining a written sick leave policy, not complying with record-keeping requirements and with not paying sick leave to, and retaliating against, two workers. The company admitted its non-compliance with notice and record-keeping requirements but it denied the other allegations. ALJ Casey found that the company violated the law when it did not pay one worker when he took a sick day and also when it insisted on a doctor’s note for payment for a single day’s absence. ALJ Casey sustained charge that the company retaliated against that worker, but he dismissed the charges relating to the other worker, finding petitioner did not show that employee had accrued sufficient sick time to cover his absence or that he was retaliated against. Respondents were ordered to pay a fine of $2,600 and $21,750 to the worker who was denied sick time. Dep’t of Consumer Affairs v. Excel Interior Contracting, Inc., OATH Index No. 174/18 (Aug. 2, 2018).

Campaign Finance

Candidate, campaign committee, and treasurer were charged with violating campaign finance law and rules. Campaign Finance Board (“CFB”) also sought repayment of $32,492 in public funds from the committee or the candidate for failure to show that the money was spent on qualified expenditures in furtherance of the campaign. ALJ Astrid B. Gloade sustained charges that respondents accepted and failed to timely refund contributions from prohibited corporate sources and failed to properly document spending for employment contracts, office space, and gas, to show that the expenditures were in furtherance of the campaign. She recommended civil penalties of $10,500 and repayment of public matching funds of $32,459, with the candidate jointly and severally liable for $23,259 of the matching funds. Campaign Finance Bd. v. Sierra, OATH Index No. 1030/18 (Aug. 2, 2018).

Real property

Property owner moved pre-trial for summary judgment and dismissal of Loft Law coverage application on the ground that the application was defectively filed because it did not include proof of service on all affected parties before the statutory limitation period for coverage applications had expired. ALJ Susan J. Pogoda denied the motion. She noted that the law only required that the application be filed by June 26, 2017, which it was. That the self-represented applicant did not comply with a Loft Board rule which required proof of service be included when the application was filed, was not a basis to bar a determination of the coverage application on the merits. Matter of Marticorena, OATH Index No. 576/18, letter to counsel (Aug. 1, 2018).