Last Month's OATH Decisions - July 2012

Personnel


15-day suspension for employee who refused to remove her Bluetooth device.

A community coordinator was alleged to have refused to remove her Bluetooth earpiece when ordered to do so and to have responded disrespectfully to her supervisor. ALJ Alessandra F. Zorgniotti sustained the charges and after considering that respondent had already been disciplined twice for refusing to remove her Bluetooth earpiece, recommended a 15 work day suspension without pay.  Office of the Comptroller v. Martin (in PDF), OATH Index No. 1680/12 (July 17, 2012), adopted, Comm’r Dec. (July 24, 2012).

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Lobbying Law


New York State late fee caps apply to City lobbying law.

ALJ Kevin F. Casey found that a lobbyist failed to file annual registration statements and periodic reports for 30 clients timely over a two-year period. The City Clerk requested late fees at a rate of $25 per day for a total of $470,600. Respondent argued that under the City Lobbying Law, late fees must conform to the schedule established by the New York State Temporary Commission on Lobbying, which caps late fees at $1,000 for any filing more than 181 days late. ALJ Casey agreed with the respondent’s interpretation and recommended $70,550 in late fees.   Office of the City Clerk v. Constantinople & Vallone Consulting, LLC (in PDF), OATH Index Nos. 325/12 & 348/12 (July 9, 2012), adopted, Clerk’s Dec. (July 24, 2012).


Licensing


Marriage license granted after appeal.

Respondent’s application for a marriage license was denied by the Office of the City Clerk because its records indicated that someone with the same name and date of birth as respondent was married in 1993 and that the marriage had not been dissolved. After a hearing, ALJ Astrid B. Gloade found that the evidence did not support a finding that respondent was the same person who was issued a license in 1993. She recommended that the City Clerk expeditiously process respondent’s marriage license application.    Office of the City Clerk v. Ayabaca (in PDF), OATH Index No. 2034/12 (July 25, 2012), adopted, City Clerk’s Dec. (July 31, 2012).


Practice and Procedure


Stay of disciplinary case denied where time requested for completion of related criminal investigation was indeterminate.

ALJ Addison denied a pre-trial motion made by a civil servant to stay her disciplinary proceeding pending the outcome of a criminal investigation. Since there is no constitutional bar to moving forward with the disciplinary action, the motion was addressed to the ALJ’s discretion. Where, as here, criminal charges had not yet been brought, respondent was asking for an indeterminate stay. Such stays are disfavored because petitioner has an interest in the prompt resolution of misconduct allegations and having respondent, or someone else, fulfill her job responsibilities.    Dep’t of Homeless Services v. Simmons (in PDF), OATH Index No. 2042/12, mem. dec. (July 24, 2012).


Contracts


Contractor’s inability to calculate exact damages did not excuse late filing.

A contractor petitioned the Contract Dispute Resolution Board (“CDRB”), claiming additional compensation for extra work at Wards Island Pollution Control Plant. The CDRB, with ALJ Miller sitting as Chair, found that the contractor had not followed the dispute resolution process set out in the applicable City regulation and the contract. Specifically, the contractor filed its Notice of Claim late with the Comptroller, but claimed it should be excused because it had been unable to calculate damages any earlier, and filed as soon as it was able to do so. The CDRB found this was not good cause to file late, and that other reasons for the lateness put forth by the contractor were also without merit. The CDRB dismissed the petition.    Silverite Construction Co., Inc. v. Dep’t of Environmental Protection (in PDF), OATH Index No. 1723/12, mem. dec. (July 20, 2012).