Recent Decisions - September 2015

The following is a summary of some recent OATH decisions decided in September 2015.  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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Licensing

In permit revocation proceeding, respondent, a child-care service provider, was charged with Health Code violations, including failure to properly supervise a group of infant-toddlers. Evidence, including a video, showed that a maintenance worker had left the entrance door open and two toddlers ran outside. The children were within 30 feet of the entrance and were outside for approximately two minutes before a teacher brought them inside. The children were never near traffic. ALJ Alessandra F. Zorgniotti sustained charges that respondent failed to: maintain constant supervision over the toddlers, report the incident, supervise the maintenance worker, and monitor the entrance. Taking consideration of respondent's history of violations, ALJ Zorgniotti recommended that the permit be revoked.    Dep't of Health & Mental Hygiene v. Wonderful Quality Time, Inc., OATH Index No. 46/16 (Sept. 30, 2015).

A taxi driver was charged with making sexual remarks, exposing himself and placing his arm around a female passenger's neck and grabbing her thigh. ALJ Faye Lewis found the complainant's testimony, which was consistent with the GPS records, more credible than the taxi driver's testimony that nothing improper occurred during the ride. License revocation and a $2,850 fine recommended.    Taxi & Limousine Comm'n v. Zakout, OATH Index No. 1599/15 (Sept. 23, 2015).

Campaign Finance Law

Candidate and campaign committee (respondents) were charged with 17 violations of the City Campaign Finance Act. After pre-trial conferences where respondents provided additional information, petitioner sought $111,195 for 11 alleged violations. The parties jointly presented a list of eight disputed legal issues and petitioner moved for summary judgment. ALJ Kevin F. Casey granted the motion in part. He found that petitioners were not required to release respondents from the Campaign Finance Program, that an unpaid loan was a contribution from the candidate, and costs to inform absentee voters that respondent was a candidate was not an exempt expense. ALJ Casey also found that respondents could be sanctioned for failing to respond to a draft audit report, that the candidate was personally liable for penalties and that petitioner was not required to award matching funds to offset penalties owed by respondents. ALJ Casey found that a hearing was necessary to resolve additional issues.   Campaign Finance Bd. v. Gerson & Friends for Gerson, OATH Index No. 2421/14 (Sept. 8, 2014).

Personnel

ALJ Tynia D. Richard found that City University of New York (CUNY) failed to prove that a campus peace officer was medically unfit to perform the duties of his position due to a heart condition. CUNY showed the officer has atrial fibrillation, but it did not show that he is unable to competently do his job due to the condition. ALJ Richard also found that CUNY did not show "exceptional circumstances" required by law to put the officer on emergency involuntary leave prior to the hearing. She recommended restoration of the officer's back pay and leave credits from the date the officer was put on pre-hearing leave.   City University of New York v. P.M., OATH Index No. 2523/15 (Sept. 1, 2015).

ALJ Ingrid M. Addison found that a computer specialist assigned to the IT Help Desk answered the phone in a robotic voice on two occasions, created and abandoned service desk requests, failed to timely resolve tickets, misdirected callers, inaccurately re-classified a ticket and failed to respond to supervisor inquiries. Respondent also force-closed petitioner's acceptable use policy on many occasions, to circumvent acceptance of the agreement. ALJ Addison found petitioner's request for termination of employment to be excessive and she recommended a thirty day suspension without pay.  Dep't of Health v. Dillon, OATH Index No. 2231/15 (Sept. 15, 2015).

ALJ Zorgniotti found that petitioner failed to prove that a correction officer arrested for assault engaged in misconduct. The complainant, the officer's former girlfriend, testified that she became enraged when she saw respondent with another woman and she attacked him. Respondent tried to restrain her and police were called. Respondent was arrested but criminal charges were dropped after the former girlfriend wrote to the District Attorney and explained that she was the aggressor. ALJ Zorgniotti also recommended dismissal of a charge that respondent failed to secure his firearm.    Dep't of Correction v. Phillips, OATH Index No. 1954/15 (Sept. 10, 2015).

A Sanitation Enforcement Agent (SEA) was charged with being AWOL when she refused to report to a new work location. The Department introduced a plan to reassign SEAs as an anti-corruption effort. SEAs were required to list three different work locations on a form or they could request an interview for personal hardship consideration. Respondent, who was assigned in Brooklyn, did neither. When she was ordered to report to her new location in the Bronx she refused to go. At trial, respondent argued that her seniority status entitled her to the work assignment she wanted in Brooklyn. Judge Susan J. Pogoda disagreed and sustained the AWOL charge. The assignment of personnel is within the employer's discretion and respondent did not show that the transfer would present an imminent threat to her health or safety. Taking into consideration respondent's prior disciplinary record, ALJ Pogoda recommended termination of employment.   Dep't of Sanitation v. Alston, OATH Index No. 1512/15 (Sept. 21, 2015).

A correction captain was charged with failing to obtain medical attention for an inmate and failing to file a use-of-force report. ALJ John B. Spooner found that the agency failed to prove that the employee did not obtain medical attention for the inmate “as soon as possible” as required by rule. The agency did prove that the employee had failed to submit a report involving an inmate found to have hidden contraband, a scalpel. The recommended penalty was a five-day suspension without pay.   Dep't of Correction v. Williams, OATH Index No. 2223/15 (Sept. 3, 2015).

Prevailing Wage

ALJ Lewis found that a contractor willfully failed to pay prevailing wages and benefits to 25 workers on public works projects at Kings County Hospital Center and Jacobi Medical Center. She recommended restitution to the workers with interest, and that the contractor be assessed a civil penalty of 25% and be barred from bidding on City or State public works for five years.   Office of the Comptroller v. Astro Communications of NY Corp., OATH Index No. 1981/15 (Sept. 10, 2015).

Practice and Procedure

An applicant in an appeal from a denial of a marriage license made a request that her name be removed from the published decision. ALJ Astrid B. Gloade noted that OATH proceedings are presumptively open and its decisions issued without redaction but here there was a legal basis to grant the request. The City Clerk had denied the license because it discovered a 1996 marriage license issued to a person with the same name and birth date as the applicant. To show that the person who presented her birth certificate to obtain the 1996 license may have obtained it from the applicant's birth mother, the applicant presented Family Court and foster care placement records, which are, by law, protected from indiscriminate public inspection. Given the nature of the documents submitted by respondent and the sensitive family issues they reflect, it was appropriate to remove her name from the decision.  Office of the City Clerk v. M.D., OATH Index No. 2620/15 (Sept. 29, 2015), adopted, City Clerk's Dec. (Sept. 30, 2015).

In a disciplinary case, ALJ Spooner denied a motion made by counsel for the agency to strike the testimony of two of employee's witnesses on the ground of collusion. Counsel noted that the two witnesses worked in the same facility and were supervised by the employee and were jointly interviewed by the employee's counsel. As represented by counsel for the employee, the pre-trial meeting consisted of a five-minute conversation in which counsel informed the witnesses about why they were there and to simply testify as to what they remembered about the incident. Further, there was virtually no possibility that the witnesses would alter their testimony to match one another since they testified about different stages of the charged incident. Their working relationship with the employee, while a proper issue to consider when assessing credibility, did not warrant precluding their testimony entirely.  Dep't of Correction v. Williams, OATH Index No. 2223/15 (Sept. 3, 2015).