Recent Decisions - September 2014

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

ALJ Alessandra F. Zorgniotti recommended dismissal of a charge that a sanitation worker parked his vehicle on the sidewalk in front of a department facility in violation of previous orders not to. It was not shown that respondent was given an unambiguous order as the record showed that workers were told to "try" not to park on the sidewalk. Further, the charge should be dismissed as de minimis since respondent moved the car within four minutes and there was no showing he inconvenienced the public or the garage. Finally, the charge should be dismissed under the doctrine of waiver and condonation because the supervisor regularly told those who parked on the sidewalk to move their cars rather than issue a complaint.  Dep't of Sanitation v. Kaplan, OATH Index No. 035/15 (Sept. 18, 2014), adopted, Comm'r Dec. (Oct. 3, 2014).

A Captain and five Correction Officers were charged in a use of force involving an inmate who refused to move to another cell. ALJ Tynia D. Richard found that the Captain violated procedure when he directed staff to carry the rear hand-cuffed inmate in a hog-tied position, as depicted by video, rather than on a gurney. ALJ Richard also found that the Captain and two Officers used excessive force against the inmate after he was placed inside the cell. Respondents claimed that because the inmate was compliant, they removed his handcuffs while inside the cell with him rather than through the cuffing port, in violation of procedure, that the inmate then attacked, and they used force defensively to free an officer who was being choked by the inmate. ALJ Richard found that contention to be incredible and in conflict with other evidence, including the inmate's injuries. The severity of injuries suffered by the inmate, was more consistent with the inmate's testimony that he remained in handcuffs and could not ward off blows to his face and head inflicted by three of the respondents. ALJ Richard found that all six respondents submitted false statements and reports about the nature of the force used against the inmate. She recommended termination of employment for all of the respondents.  Dep't of Correction v. Behari, OATH Index Nos. 781-786/14 (Sept. 25, 2014).

A revenue coordinator was charged with deleting e-mails sent by her supervisor without having read them and disobeying an order not to do so. ALJ Astrid B. Gloade found that misconduct was not proven and recommended dismissal of the charges. The evidence did not establish an order to retain the e-mails and 27 of the 29 of the emails were deleted on a Sunday morning, yet petitioner presented no evidence respondent was at work or had remotely accessed her e-mail account at that time.  Dep't of Transportation v. Aleksandrova, OATH Index No. 2553/14 (Sept. 17, 2014).

Respondent, a case management supervisor, was charged with disclosing confidential information about juvenile residents in an email to supervisors that she had copied to her attorney. Respondent acknowledged that the email contained confidential information but she argued that her communication with her attorney was privileged and confidential. ALJ Ingrid M. Addison found that the email was not privileged because it was directed to her supervisors, not her attorney. Nor did the disclosure meet the exception under the City Charter for reporting waste or inefficiency. Respondent was found to be insubordinate when she walked out of a meeting with supervisors after being warned not to. A second insubordination charge was not sustained. 23-day suspension was recommended.  Admin. for Children's Services v. Silverman, OATH Index No. 2614/14 (Sept. 4, 2014), adopted, Comm'r Dec. (Oct. 20, 2014).

A Captain was charged with undue familiarity with an inmate based upon a 45 minute conversation between them. ALJ Zorgniotti recommended dismissal of the charge. Although the length of the conversation raised suspicion, the matter was fully investigated, and there was no basis to charge respondent with undue familiarity. She also recommended dismissal of neglect of duty charge. The inmates were locked in their cells, all was secure and the Captain was available to respond if a problem arose. Erroneous log entry charge was sustained and a three-day suspension was recommended.  Dep't of Correction v. Santiago, OATH Index No. 2704/14 (Sept. 19, 2014).

Contracts

The Contract Dispute Resolution Board (CDRB), chaired by ALJ Kevin F. Casey, denied contractor's petition for additional compensation due to subsurface conditions encountered when installing well points. The CDRB found that petitioner should have reasonably anticipated the conditions encountered.  DeMatteis/Darcon, J.V. v. Dep't of Design & Construction, OATH Index No. 2271/14, mem. dec. (Sept. 5, 2014).

The CDRB, chaired by John B. Spooner, dismissed a petition as waived because the contractor failed to reserve the claim when it made a time-extension request. ACS System Assocs., Inc. v. Dep't of Design & Construction, OATH Index No. 2041/14, mem. dec. (Sept. 4, 2014).

Licensing

A fitness hearing was brought against a for-hire vehicle driver who tested positive for marijuana. The driver presented evidence that the test result was caused by his ingestion of a prescribed drug, Dronabinaol, which is the generic form of Marinol. Petitioner argued that respondent was not prescribed Dronabinaol until after the drug test, and thus failed to prove that the positive test was the result of the legal ingestion of a controlled substance. ALJ Faye Lewis disagreed. She found, based upon the respondent's testimony as well as a letter from the respondent’s doctor, that the test result was likely caused by the ingestion of prescribed medication. Thus, ALJ Lewis concluded that petitioner did not establish that respondent was unfit to retain his license, and recommended that the petition be dismissed.  Taxi & Limousine Comm'n v. Ilizirov, OATH Index No. 2677/14 (Sept. 3, 2014), adopted, Comm'r Dec. (Oct. 21, 2014).

Vehicle Retention

Police Department seized car from owner in the course of arresting the owner for possession of controlled substance with intent to sell. ALJ Raymond E. Kramer ruled that the Police Department may continue to retain owner's car during the pendency of the civil forfeiture proceeding against him. Documentary evidence including the arrest and complaint report, the criminal court complaint and a sworn statement from the arresting officer proved that the arresting officer had a reasonable basis to stop the car and probable cause to arrest respondent. Heightened risk to public safety was shown by the substantial quantity of narcotics recovered and respondent's criminal history. Respondent did not testify or offer evidence in mitigation.  Police Dep't v. Castellanos, OATH Index No. 448/15, mem. dec. (Sept. 5, 2014).