Posted on November 9, 2008 by Kevin Sheerin

OATH judge dismisses charges against Environmental Police Officers

DEP v. Nuccio and Williamson  OATH Index #s 2360/08 &2361/08 (9/26/08)

Response to 911 call without supervisory approval was proper. 

Nuccio and Williamson were experienced officers who patrolled watershed areas in upstate New York. In May of 2007 the DEP issued an interim order directing officers not to respond to 911 calls without supervisory approval.  This directive was to avoid DEP officers responding to routine calls in local jurisdictions. In Ulster County a 911 call generates a 911 "poll" seeking response from local law enforcement.  When a 911 "poll" is transmitted the DEP supervisor would authorize a DEP response.  

On 10/2/07 when Nuccio and Williamson were patrolling near the Ashokan Reservoir Ulster County received a 911 call for a domestic violence complaint across from the Reservoir.  Respondent's were 2 to 3 miles away at the time of the call.  No units responded to the first poll and it was retransmitted. Thereafter, respondents picked up the call.  They called their base and asked the officer assigned to desk duty to get the supervisors approval.  Sergeant Wood called the base and denied the officer request to handle the domestic violence 911 call. Inspector Milazzo overturned the Sergeant's disapproval after learning that the officers had already comitted to pick up the job to the 911 operator.

ALJ Kevin Casey analyzed the "obey now, grieve later" principal as it applied to the respondents action.  Common sense dicates that the "obey now, grieve later" concept does not apply and common sense dictates that orders do not apply when adherence would pose a threat to health and safety of employees or others. Officers must show that an imminent threat justifies disobedience of an order.  eg.  officer with allergies, asthma, heart disease justified not reporting to site near Ground Zero;  failure to inspect justified not operating vehicle.  HRA v. Dottin OATH Index 1260/02 and DOS v. Jones OATH Index 2186/99 respectively. 

Judge Casey ruled that the respondents proved that the health and safety exception applied and dismissed the charges against the officers.

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Posted on October 23, 2008 by Kevin Sheerin

OATH decision to demote respondent for incompetence

Transit Authority v. Wong

This Article 75 disciplinary proceeding was brought about by Petitioner, NYC Transit Authority, against Respondent, Sze Tung Wong, alleging incompetence and misconduct and seeking termination. Respondent was accused of being unable to complete tasks appropriate to his position and title of Computer Specialist II, being uncooperative and unwilling to complete assignments in a timely manner.

 

Respondent’s incompetence charges include being unable to retrieve files from a shared library, failing at completing basic Oracle-related assignments, and not completing an analysis of data error log. He was also accused of misconduct for refusing to participate in a scheduled roll-out, purposefully delaying a work assignment, and being uncooperative and confrontational during the roll-out of a new program.

 

After reviewing all of the evidence and testimonies, the OATH judge dismissed the misconduct charges but agreed with the allegations of incompetence. She felt that Respondent clearly was not able to perform certain aspects of his job without intensive instruction and supervision. In light of his lengthy tenure with the City, the judge felt that termination was too harsh of a punishment. Instead, she recommended demotion as a more fitting penalty that would give Respondent another chance to prove himself in a less demanding position.

 

Accordingly, the Judge ordered Respondent demoted from his position of Computer Specialist II to a position better suited to his skills and knowledge.

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Posted on December 27, 2007 by Kevin Sheerin

Section 75 case dismissed- Misconduct due to Mental Disability Section 72 applies

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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