OATH Recent Decisions

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Personnel

ALJ Kara J. Miller recommended termination of employment for a community coordinator charged with violating a previously issued warning memo and making threats of harm or violence. The ALJ dismissed the charge for violating a warning memo, finding that petitioner failed to properly introduce the warning memo into evidence and failed to allege specifics as to how respondent violated the memo. The ALJ found that respondent made threatening comments to his supervisors and colleagues, including referencing his access to guns and repeated attempts to find out when an office gathering would take place. Respondent’s therapist had also expressed concerns about respondent’s anger toward his workplace and forwarded a threatening text message from respondent to the EEO officer. The text message referenced an upcoming office holiday party, instructed the therapist to look for him on the news, and stated, “The System has failed me so it will be punished.” Office of the Comptroller v. Anonymous, OATH Index No. 1867/23 (Aug. 10, 2023).

ALJ Tiffany Hamilton recommended termination of employment for a correction officer who engaged in undue familiarity and other related misconduct. Respondent passed notes between a male person in custody and a female person in custody occupying separate holding pens. Another correction officer then placed the female person in custody inside the pen occupied by the male person in custody. When respondent removed the female person in custody several minutes later, she failed to look inside the pen for the male person in custody. Respondent also failed to submit a report regarding sexual contact between the two persons in custody. The ALJ found that although respondent demonstrated remorse and lacked a prior disciplinary record, termination was warranted because her conduct demonstrated several fundamental lapses in judgment, an inefficient performance of duties, and untrustworthiness. Dep’t of Correction v. Kitt, OATH Index No. 1829/23 (August 7, 2023).

Vehicle Seizure

ALJ Julia H. Lee ordered the release of a vehicle seized by the police as an alleged instrumentality of crime. Respondent was arrested in 2020 and charged with possession of a weapon when a gun was recovered from the trunk of his car during a traffic stop. The ALJ credited respondent’s testimony that he had purchased the gun lawfully in Florida but had forgotten to remove it when he drove to New York, along with several cartridges of ammunition he had used for a gun he rented at a shooting range. Since his arrest and guilty plea nearly three years ago, respondent has not been arrested or convicted of a crime, and he has been gainfully employed. The ALJ found that petitioner failed to establish that release of the vehicle would pose a heightened risk to the public. Police Dep’t v. Garcia, OATH Index No. 0214/24, mem. dec. (Aug. 8, 2023).

Procedure

ALJ Susan J. Pogoda granted a motion by respondent’s attorney to be relieved as counsel. The attorney had actively represented respondent in a Loft Board proceeding since 2019 and through numerous settlement conferences and motion practice. The proceeding was on the sixth day of trial when respondent’s counsel requested to be relieved. The ALJ found withdrawal was warranted because communications between client and attorney had broken down to the point where the attorney could no longer effectively represent respondent, and respondent consented to the withdrawal. Further, concerns over unnecessary delays in the proceeding were ameliorated by respondent’s assurances that they would be prepared to proceed with a new attorney within 30 days of the decision’s issuance. Matter of Various Tenants of 5-7 Mercer Street, OATH Index No. 2445/19, mem. dec. (August 9, 2023).