Recent Decisions - July 2014

The following is a summary of some recent OATH decisions decided in July 2014.  To ascertain whether the OATH judges' recommendations were adopted by the referring agency, please call OATH's calendar unit at 1-844-628-4692.

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Personnel

Respondent was charged with being absent without leave and insubordinate when she mistakenly appeared for an OATH hearing at 10:00 a.m. instead of 2:00 p.m. ALJ Kevin F. Casey recommended dismissal of the charges because the proof did not show that respondent was given a clear directive to report to her worksite in the morning and for trial in the afternoon. He found there was some miscommunication and respondent made an honest mistake, which is not misconduct.  Dep't of Environmental Protection v. Moriates, OATH Index No. 1633/14 (July 8, 2014).

Petitioner established that respondent, an eligibility specialist, falsified her daily case submission report by including ten cases that were processed on dates other than the date of the report, reporting one case that had not yet been processed, and including duplicate entries for three cases. In sustaining those charges, ALJ Astrid B. Gloade rejected respondent’s claim that she had confused the documents and found that respondent intended to manipulate the appearance of her productivity. ALJ Gloade dismissed the remaining charges, and she recommended a 20-day suspension.  Human Resources Admin. v. Li, OATH Index No. 1497/14 (July 17, 2014).

Conflicts of Interest Law

Conflicts of Interest Board (COIB) adopted in full ALJ Kara J. Miller’s finding that a former clerical associate at the Staten Island District Attorney's Office violated the Conflicts of Interest Law by offering confidential information to a drug dealer as to whether he was under investigation in exchange for providing cocaine to respondent's husband; and later by showing her DA's office identification to detectives in an attempt to prevent her husband's arrest. COIB adopts Judge Miller's recommended penalty of $10,000 fine. By law, an OATH report and recommendation in an enforcement action brought by the Conflicts of Interest Board is confidential until the Conflict of Interest Board determines that a violation has occurred.  Conflicts of Interest Bd. v. Collins, OATH Index No. 556/14 (Feb 11, 2014), adopted, Bd. Dec. COIB Case No. 2013-258 (July 30, 2014).

Vehicle Retention

The Police Department sought to retain respondent's vehicle, seized in connection with his arrest for driving while under the influence of alcohol and causing an accident. ALJ Faye Lewis ordered the Department to return the vehicle, finding that the Department has failed to demonstrate respondent posed a heightened risk to public safety such that it was necessary to retain the vehicle pending resolution of the civil forfeiture action. In so finding, ALJ Lewis noted the accident appeared to be of relatively minimal severity, that the incident seemed isolated and aberrational, and that respondent, who had suffered from a stroke, needed the vehicle to attend to medical appointments, making it unlikely that he and his wife would fail to be prudent in their future use of the car.  Police Dep't v. Serrano, OATH Index No. 2759/14, mem. dec. (July 11, 2014).

Practice and Procedure

Respondent, firefighter, was charged with misconduct for wearing in the firehouse, on multiple occasions, a t-shirt with an allegedly offensive message, and for disobeying orders on 20 occasions to change the shirt. Respondent made a pre-trial motion to dismiss, alleging petitioner violated his rights under the collective bargaining agreement (CBA) and the First Amendment. Respondent alleged that he was not given written notice of his investigatory interview, nor was he given notice of his right to union representation at the start of the interview, as required by the CBA. ALJ Alessandra F. Zorgniotti noted that respondent and his union were advised of the interview and that respondent appeared with union-retained counsel. She ruled that to the extent that respondent alleges petitioner violated the CBA, OATH does not have jurisdiction to hear such violations. ALJ Zorgniotti found it was premature to make a determination on whether respondent could be disciplined for wearing an offensive t-shirt or whether wearing such a shirt in the firehouse constitutes protected speech. The motion was denied but may be renewed at the conclusion of the evidentiary hearing.  Fire Dep't v. Buttaro, OATH Index No. 2430/14, mem. dec. (July 17, 2014).

Licensing

The City Clerk denied a marriage license to an applicant based upon a record of a 1994 marriage of a person with the same name and birthdate. Evidence submitted by the applicant, including birth certificates, Medicare cards, and signed acknowledgements of paternity, supported a finding that the applicant is not the same person who was issued a license in 1994. Furthermore, the 1994 applicant misspelled his last name on the 1994 marriage application. ALJ Kara J. Miller granted the appeal and stated that the application for a marriage license should be processed expeditiously.  Office of the City Clerk v. Gonzalez, OATH Index No. 2631/14 (July 31, 2014).

The Taxi & Limousine Commission (TLC) proved that a taxi driver acted against the best interests of the public by getting out of the taxicab and approaching his passenger with the intent to use physical force, that he used physical force against the passenger by snatching money from her hand and grabbing her by the hood of her jacket to usher her out of the cab, and that he drove recklessly. TLC failed to prove that the taxi driver used racial slurs against the passenger. ALJ Tynia D. Richard recommended revocation of the taxi driver's license and the maximum fine.  Taxi & Limousine Comm'n v. Warren, OATH Index No. 1874/14 (July 25, 2014).