New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

NYC Human Resources Administration v. Barnes

 This Office of Administrative Trials and Hearings (OATH) case was decided by ALJ Alessandra Zorgniotti on November 15, 2007.   Human Resources Administration (HRA) filed charges under Section 75 of the Civil Service Law against the respondent Barnes. Ms. Barnes had been involuntarily committed by her son and did not appear at the hearing. 

The issue was whether the misconduct which resulted in charges being filed by HRA against Ms. Barnes was the result of a mental disability.  Trial testimony revealed that after the death of her child’s father and her mother Ms. Barnes behavior took a radical turn for the worse.  Respondent had been previously described as “warm; soft spoken and respectful.” 

The Court held that the evidence proved that the misconduct was the result of a mental disability and that HRA should have filed an action under Section 72 of the Civil Service Law rather than Section 75. Finally, the ALJ held that OATH could not convert a disciplinary hearing to a disability hearing  in the respondent’s absence but left HRA the option to proceed under Section 72 for a disability leave. 

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Solomon v. The Department of Buildings of the City of New York

 This was an Article 78 Petition decided by the Appellate Division, First Department which sought:

An order directing respondent to either grant the petitioner’s master electrician license without any further hearing or that new rules be promulgated or barring the Master Electricians Licensing Board (MELB) from investigating the quality of petitioner’s supervision by a master electrician for the requisite statutory period of time. The petition was denied.

 The Court found that MELB did not act in excess of its jurisdiction when it considered the sufficiency of the license applicant’s supervision by a licensed electrician. Citing Administrative Code 27-3009(c) the Court held that the MELB is empowered to “investigate the character and fitness…” and report such findings. Neither was MELB required to write rules of procedure in investigating applicants. The applicant did not have a right to the license similar to a present license holder who was facing revocation or suspension of his/her license.

 Accordingly, the Court denied this Article 78 petition. 

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Matter of Curtis Marshall v. Martin Horn

Index No.: 100879/07   SUPREME COURT, NEW YORK COUNTY

 In this Article 78 proceeding, Petitioner sought a judgment annulling the determination of Mr. Martin Horn, which terminated his employment as a correction officer. Respondent sought to dismiss the petition for failure to state a cause of action.  

Petitioner was a probationary correction officer with DOC. He stopped at a local bodega and bought a straight edge razor in order to make an opening inside the stitched area of the upper left side of his new regulation shirt so that he could affix his shield to the shirt. After using the razor, Mr. Marshall placed it in a small plastic container which he put in his gym bag. He then reported to work to begin his 7:OO a.m. to 3:OO p.m. tour of duty.

Upon entering his work site, Petitioner placed his gym bag on the x-ray scanner and proceeded to walk through security.  The correction officer manning the security post, noticed the razor in Petitioner’s gym bag and instructed him to put it in the amnesty box outside. The officer on dutyinformed Petitioner that she would have to report the incident.

 After being transferred to a different assignment the Petitioner was terminated from his position.

Petitioner then commenced this Article 78 proceeding by the filing a notice of petition and

verified petition on January 19,2007, challenging DOC’S determination that he be discharged on the

grounds that DOC’S actions were arbitrary, capricious and made in bad faith.

Petitioner asserts in his petition that DOC’S decision to terminate him for mistakenly placing the razor in the gun box instead of the amnesty box lacked a rational basis because his

 “unfamiliarity with the amnesty box does not violate any rule or regulation and the only directive pertaining to amnesty boxes makes clear that it exists for individuals visitingthe correction facilities.”

The Court wrote that :

“Inasmuch as the petition fails to “allege evidentiary facts suggesting that the dismissal was motivated by an improper purpose or bad faith,” the petition must be dismissed for failure to state a cause of action.

The cross motion to dismiss the petition was granted.

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  Smith v. Board of Education of the City School District of the City of New York,

118947/06

 Ms Eileen Smith, a Social Studies teacher at Far Rockaway High School given unsatisfactory
rating on  June 24, 2004, for the 2003-2004 school year due to an incident occurred on October 21, 2003, the first day of the implementation of a new policy at school. Smith filed an Article 78 proceeding.

One minute after the late bell had rung signaling that classes had changed, teachers were required to lock their classroom doors. In Ms. Smith’s class, the ones locked out banged on her door to compel the teacher to let them in. Ms. Smith then attempted to leave the room to get help, but two students in the classroom held the door closed.

Ms. Smith acknowledged having used inappropriate language during the chaotic time. Ms. Smith allegedly had said: "This 'fucking' language has to stop. I do not want abusive or profane talk in the class." Ms. Smith had also reportedly said: "I will not continue until the stupids stop," and then presumably in an effort to clarify added: "I mean the stupid remarks. I am not calling anyone stupid."

Ms Smith was found to have "committed acts which are prohibited by the Chancellor's Regulation A-420 Corporal Punishment and Chancellor's Regulation A-420 Verbal Abuse which constitutes unacceptable teacher deportment." The letter concluded that the finding "may lead to disciplinary action, including an Unsatisfactory rating and termination."

Ms. Smith filed a grievance. An arbitrator ruled that the letter should be deleted from Eileen Smith's file because it is unfair and inaccurate as these terms have been defined by the parties. Also Ms. Smith had received an "Unsatisfactory" rating and immediately appealed it. That hearing was held on May 31, 2006 before the Chancellor's designated Chairperson. 

It was recommended that the appeal be denied and rating of "Unsatisfactory" be sustained.  This Article 78 followed. The Court held that:

The Commissioner and the courts have held that a U-Rating cannot be sustained where, as here, the Chairperson improperly relies on documents which should have been excluded from consideration at the teacher's appeal. The A-420 (report prepared regarding alleged foul language) are not based on any personal observation by any administrator; instead, they are based solely on the hearsay statements written by the students. Thus, the A-420, by itself, cannot support the U-Rating.

Without the various documents, the only evidence left is the undisputed fact that Ms. Smith made the above-quoted statements in the midst of an extremely difficult time in class. The Chairperson's reluctance is revealed by her finding that the evidence "leaves many questions," by her emphasis on Ms. Smith's repeated calls for help.

Thus, while it may well be that Ms. Smith could have achieved her goal by using different language, it cannot reasonably be said that the language she used qualifies as prohibited verbal abuse as defined in the Regulations sufficient to support an Unsatisfactory Rating.
 

The Court reversed the denial of the appeal and directed that the Department remove the unsatisfactory rating from the teacher’s file.

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