Recent Decisions - January 2014

The following is a summary of some recent OATH decisions decided in January 2014.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at (347) 820-4954.

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Contracts

Comptroller brought proceeding against a contractor and its president (respondents), alleging that they failed to pay prevailing wages and benefits to two employees who performed electrical work at the Brooklyn Academy of Music (BAM) and the Fort Washington Armory (Armory). Respondents moved to dismiss on the ground that neither the BAM nor the Armory project is a public work for which the payment of prevailing wages is required. ALJ Astrid B. Gloade denied the motion, finding that the projects are public works. ALJ Gloade found that respondents willfully failed to pay prevailing wages and benefits to two employees, falsified payroll records, and engaged in a kickback scheme relating to the benefits of one of the employees. She recommended an award of 16% interest, an assessment of 25% civil penalty, and that respondents be barred from bidding on all governmental projects within New York State for five years. Office of the Comptroller v. Mackey Reed Electric, Inc., OATH Index No. 1950/13 (Jan. 3, 2014).

Discipline

Two job center directors and a deputy director were charged with improperly transferring cases from other job centers in order to increase their own center’s job placement statistics. Respondents admitted that they participated in the scheme but that they did so under pressure of meeting agency-wide goals. ALJ John B. Spooner found that the respondents violated agency rules. He denied respondents’ motion to dismiss a portion of the charges as time-barred, finding respondents’ conduct fell within the crimes exception to the 18-month limitations period in section 75 of the Civil Service Law, i.e, respondents committed the crimes of official misconduct and computer tampering. ALJ Spooner recommended dismissal of charges that respondents violated the Conflicts of Interest Law since there was no proof that they gained a private or personal advantage from the transfers. He recommended termination of respondents’ employment as their participation in the scheme for as long as three years “was an egregious violation of the trust placed in them as managers, as well as their fundamental responsibility as civil servants.”   Health & Hospitals Corp. (Harlem Hospital Ctr.) v. Wise, OATH Index Nos. 1679/13, 1680/13, 1681/13 (Jan. 3, 2014).

Respondent is a maintainer at the Verrazano Bridge, whose duties include driving tow trucks and assisting disabled vehicles. He was charged with several acts of dangerous and insubordinate behavior, and making false statements. ALJ Alessandra F. Zorgniotti credited a driver’s testimony that respondent tailgated her car, cursed her over a loudspeaker, and threw a water bottle into her vehicle, while he was en route to assist a disabled car. Based on video footage, ALJ Zorgniotti also found that respondent intentionally caused a wrecker to make contact with a co-worker in order to intimidate him. Even though respondent had no prior disciplinary record, ALJ Zorgniotti found that respondent’s “reckless and unpredictable behavior renders him unreliable”, and recommended termination of employment. Triborough Bridge & Tunnel Auth. v. Louisa, OATH Index No. 266/14 (Jan. 15, 2014), adopted, Pres. Dec. (Jan. 30, 2014).

Practice and Procedure

In a complaint brought by the City Commission on Human Rights against several store owners, ALJ John B. Spooner denied the parties’ motion in limine to preclude testimony and reports from adversary’s experts. Evidentiary issues and objections raised by the parties can be best addressed at the hearing by timely objections and thorough cross-examination. Comm’n on Human Rights v. Tiv-Tov Stores, Inc., OATH Index Nos. 1443-1458/13, mem. dec. (Jan. 17, 2014).

Petitioner moved to preclude respondent from offering a defense to disciplinary charges, based upon respondent’s purported unresponsive answers to interrogatories. ALJ Faye Lewis denied petitioner’s motion. Interrogatories are an extraordinary discovery device, permissible only upon application for good cause shown. Under OATH’s rules of practice, the failure to comply with a discovery order may result in sanctions, including preclusion of evidence. Here, respondent did not fail to comply with a discovery order. She voluntarily answered the interrogatories, albeit not to petitioner’s satisfaction. Dep’t of Consumer Affairs v. Mirro, OATH Index No. 876/14, mem. dec. (Jan. 31, 2014).

Firefighter’s application to stay or adjourn disciplinary hearing pending the outcome of a state court proceeding was denied by ALJ Lewis, as the existence of a pending civil action does not generally provide a basis for a stay of an administrative disciplinary proceeding and the issues raised in the disciplinary proceeding were not preclusive of the issues raised in the Notice of Claim filed by respondent in state court. Additionally, firefighter’s application that petitioner produce witnesses and documents, was denied in large part as it was based upon firefighter’s defense of selective enforcement, which is not a proper defense in an administrative proceeding but can be asserted only upon judicial review of an adverse decision. ALJ Lewis also denied respondent’s motion to suppress statements made at investigatory interview on the ground that the questioning went beyond the scope of the interview notice. Respondent was represented by counsel at the interview and it does not appear that his statements were made involuntarily. If the questioning violated respondent’s contract, the remedy would be to file a grievance, not suppression.   Fire Dep’t v. Harper, OATH Index No. 503/14, mem. dec. (Jan. 21, 2014).

Licensing

Under Commission rule, a taxi medallion owner must notify potential tort claimants when the owner intends to transfer an interest in the medallion. The owner must post a bond or establish an escrow account if viable tort claims exceed insurance coverage. OATH has been designated to conduct a hearing when a claimant timely objects to the owners’ proposed escrow amount. Petitioners objected to a proposed taxi medallion transfer, seeking escrow proceeds from the sale for a potential excess claim as compensation for injuries they allegedly sustained as passengers in the taxi. ALJ Tynia D. Richard ruled that petitioner waived their right to a hearing when they failed to appear at the scheduled hearing. The notice of hearing expressly warned petitioners that the failure to appear as scheduled may result in a waiver of their right to a hearing. Herrera v. Yiota Taxi, Inc., OATH Index No. 757/14, mem. dec. (Jan. 23, 2014).

For-hire vehicle driver was charged with using physical force against a passenger and uttering racial slurs to her. An argument ensued when respondent could not provide change for a $100 bill. The passenger, who acknowledged that she was the initial aggressor and was physically restrained by witnesses, claimed that respondent punched her several times in return. Respondent admitted to striking the passenger only once, after she slapped him and struck him with her heavy bag, causing injury to his hand. Noting inconsistencies in the passenger’s prior statement and her testimony, and the absence of evidence that she sustained any injuries after being punched on multiple occasions as claimed. ALJ Ingrid M. Addison found the driver’s testimony to be more credible than the passenger’s. Nevertheless, his use of force in retaliation was impermissible under Commission rules. Given the extreme provocation by the passenger, ALJ Addison found that the penalty of license revocation which petitioner requested was excessive, and instead recommended a fine of $1,500 and a 45-day suspension. Taxi & Limousine Comm’n v. Diallo,  OATH Index No. 654/14 (Jan. 31, 2014), modified on penalty, Dep. Comm’r Dec. (Mar. 3, 2014) (Deputy Commissioner imposes penalty of license revocation and $1,500 fine).

Vehicle Retention

ALJ Kevin F. Casey ordered the Police Department to return a car that it had seized pursuant to the arrest of the owner’s son. ALJ Casey found that the Department did not establish reasonable suspicion for the stop of the car, which had led to the arrest. He also found that the respondent was an innocent owner of the car. Police Dep’t v. Collins, OATH Index No. 1221/14, mem. dec. (Jan. 9, 2014).