Dep’t of Youth and Community Development v. Thomas OATH Index No. 1995/18 (June 7, 2019), modified, Comm’r Dec. (Aug. 8. 2019), appended

appeal dismissed, NYC Civ. Serv. Comm’n Case No. 2019-0900 (Nov. 25, 2019), appended

Petitioner alleged that respondent used her employment to secure

summer employment for her foster son and his friend and that

while doing so, she used Department resources and engaged in

non-DYCD business during business hours. ALJ found that

petitioner proved one of the charges and recommended a five-day

suspension.

Commissioner disagreed with ALJ recommendation to dismiss

charges 1, 2, 4, 5, and 7. Commissioner sustained those charges

and increased penalty to a 15-day suspension.

Civil Service Commission dismissed appeal because it was

untimely filed.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF YOUTH AND COMMUNITY DEVELOPMENT

Petitioner

- against -

LAFERNE THOMAS

Respondent

_____________________________________________________

REPORT AND RECOMMENDATION

JOYCELYN McGEACHY-KULS, Administrative Law Judge

Petitioner, the Department of Youth and Community Development (“Department” or

“DYCD”), brought this disciplinary proceeding under section 75 of the Civil Service Law,

alleging that respondent, Laferne Thomas, used her employment at DYCD to secure summer

employment for her foster son, B.R., and his friend, K.C.,1 that she engaged in non-DYCD

business during work hours, and that she used Department equipment for her personal benefit.

At trial, the Department presented documentary evidence and the testimony of three

witnesses: J. Breitman, director of youth employment at DYCD; D. DeAngelis, director of youth

1 Although the full names of B.R. and K.C. were used at trial, both individuals are minors and their names are

withheld from this Report and Recommendation to protect their privacy. 48 RCNY §1-49(d).

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employment services at the Queens Central YMHA/YWHA (“Central Queens Y”); and S.

Chance, program coordinator for the Wildlife Conservation Society (“WCS”). Respondent

presented documentary evidence, and the testimony of B.R., and testified on her behalf. For the

reasons set forth below, I find that petitioner established one of the charges of misconduct and

recommend a five-day suspension.

BACKGROUND

Respondent has worked for the Department for five years. She is an associate contract

specialist in the risk management unit and is responsible for making sure that providers have

insurance for their participation in DYCD events. Petitioner alleged that respondent used her

position with the Department to secure summer employment for her foster son and his friend and

that she did so during working hours, using the Department’s phone and email. It is further

alleged that she used New York City property for her personal benefit. While this tribunal

recognizes the seriousness of these allegations, petitioner did not prove most of the misconduct

that was pleaded and petitioner failed to plead charges that corresponded to the alleged

misconduct.

Ms. Breitman, offered an overview of the DYCD summer employment programs. The

Summer Youth Employment Program (“SYEP”) and Ladders for Leaders (“L4L”) are two

employment programs for youths administered by DYCD. SYEP is the oldest and largest

program of its kind in the country. The program is available to young people between the ages

14-24 who are residents of New York City. Within the program, there are program options

serving four categories of youth: younger youth ages 14-15, older youth ages 16-24, vulnerable

youth (youths in the criminal justice system, homeless, runaway, foster care, or receiving

preventative service from Administration for Children’s Services (“ACS”)), and school-based

initiatives (Tr. 23-24). In summer 2017, SYEP had over 147,000 applicants and placed 69,000 in

jobs. Selection for SYEP employment is by lottery.

L4L started in 2006 as a professional internship program offering participants summer

employment in the private sector. L4L is more rigorous that SYEP, requiring a 3.0 or higher

grade point average and previous work experience. Applicants must also submit a resume and a

writing sample. In contrast with SYEP, applicants accepted into L4L are not guaranteed

employment. Accepted applicants may submit their resumes for referral to employers who select

which candidates to interview. If the interview is successful, the candidate is offered

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employment. In summer 2017, there were 2,000 applicants for L4L and only 1,200 were

selected for interviews, and from those, only 700 were offered employment (Pet. Ex. 1; Tr. 31,

35-37).

Many youths apply for both L4L and SYEP but applicants cannot participate in both

programs; if an applicant accepts employment through SYEP, the applicant will be excluded

from selection in L4L and vice versa (Tr. 44). The pay offered for both SYEP and L4L is

minimum wage; however in some instances, private employers in L4L offer a higher hourly rate.

Ms. Breitman stated that SYEP participants must complete timesheets in order to be paid. The

timesheets are generated by SYEP and are prepopulated with the participant’s name, worksite,

and SYEP identification number (Tr. 39). She testified that to prevent fraud, timesheets are

never accepted with wite-out on them. She stressed that “even if there is a genuine mistake, if

there is wite-out [the timesheets] have to be redone” (Tr. 39).

Although both SYEP and L4L allow applicants to indicate whether they are in foster care

or receiving preventative services from ACS, Ms. Breitman asserted that this information does

not affect selection. She explained that the information is maintained so that the agency is aware

of the needs of the communities that they serve (Tr. 49). Ms. Breitman later testified that SYEP

had a “stand alone option” open only to vulnerable youth, including youths in foster care. She

stated that selection is by referral and not lottery and that these youths are recruited directly

through designated service providers (Tr. 25, 215). L4L does not prioritize applicants that are

vulnerable youths. Placement through L4L is based on qualifications (Tr. 58).

If an SYEP lottery offer is sent to an applicant, the applicant has three to five business

days to accept. An applicant may be selected by lottery three times. If the applicant does not

respond to these lottery offers, the applicant will be excluded from any further lotteries for the

summer (Tr. 29, 44, 46). An applicant who is accepted to L4L is required to complete a

workshop through the designated community based organization. According to Ms. Breitman,

when an applicant is invited to a workshop, the applicant is typically selected for employment.

B.R. was selected through the SYEP lottery and received an offer of employment at the

Research Foundation at LaGuardia Community College for summer 2017. He was selected three

times and notified by email each time, but did not respond (Tr. 37). DYCD does not place SYEP

participants directly with providers (Tr. 39).

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Employment of B.R.

B.R. is respondent’s 17 year-old foster son. He testified that he was “dropped off at her

house” when he was 14. Prior to his placement with respondent, B.R. had been in 37 foster

homes. He is a senior in high school, is on the varsity basketball team, and has a 3.0 grade point

average. He has been involved in SYEP since he was 14 and L4L since he was 15. B.R. was

knowledgeable about the L4L and SYEP application processes. Although B.R. applied for both

SYEP and L4L, he was aware that he could not accept employment in both programs. He

testified that he completed the applications in the library. He said that respondent offered

guidance on his application but she did not fill out the application (Tr. 124-25, 143).

B.R. testified that he did not have a phone when he applied for SYEP and L4L, so he

used respondent’s personal email address. Since he did not have access to respondent’s emails,

respondent printed any emails that she received for B.R. and gave them to him (Tr. 140). In

March 2017, he received an email notification that he was selected for an SYEP job (Resp. Ex.

A; Tr. 128). He completed and submitted his L4L application and received email confirmation

of receipt of his application on March 17, 2017 (Resp. Exs. B, C; Tr. 133). On April 6, 2017,

B.R. received an email confirming his attendance at an upcoming L4L workshop (Resp. Ex. D;

Tr. 135).

Respondent testified that as a foster parent, she is required to go to family court. She

learned about SYEP when the judge advised her that B.R. should look for employment and

referenced the program. Although SYEP is part of DYCD, respondent testified that she did not

have any contact with the program unless she had to verify insurance for an event. She found

out about L4L from a colleague. Because L4L had more rigorous eligibility requirements,

respondent hired a tutor for B.R. and also worked with him to improve his grades (Tr. 157).

When B.R. applied online for L4L, he used respondent’s personal email address. She testified

that she advised B.R. to use her address because he is a minor and she is his guardian. She also

stated that she was aware of the “rules and regulations of the City of New York” and advised the

foster placement agency that she did not want to use her DYCD email address (Tr. 158-59).

Respondent testified that B.R. has been with her since 2015 and that this was the longest

that he had been in one home. Respondent does not have any biological children and is in the

process of adopting B.R. (Tr. 154). As a foster child, B.R. has an assigned case worker, C.

DiBello from Children’s Village, who advised respondent to follow up with Ms. DeAngelis to

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confirm any necessary documentation or upcoming interview dates (Tr. 162). Respondent

testified that she was also waiting to hear from SYEP and thought that B.R. would get an offer

because she believed that the program prioritized placement for children in foster care second

only to placement for homeless youth (Tr. 165).

Ms. DeAngelis is responsible for overseeing all youth employment programs at the

Central Queens Y and oversees SYEP, L4L, and other public and privately funded programs.

She testified that B.R. was enrolled and accepted into L4L in the summer of 2017 and that

respondent called her to discuss B.R.’s status. Ms. DeAngelis testified that respondent identified

herself as a DYCD employee and she believed that respondent was calling as a representative of

DYCD. According to Ms. DeAngelis, respondent did not indicate that she had any relationship

with B.R. (Tr. 68). Ms. DeAngelis testified that B.R. had already been referred to Technical

Career Institute (“TCI”) for placement, but after her call with respondent, Ms. DeAngelis called

TCI to “follow up” (Tr. 66-67). Ms. DeAngelis conceded that respondent’s call did not secure

B.R.’s placement and maintained that she would have placed the same call to TCI if B.R. had

contacted her directly about his status. She said that although she felt a sense of urgency, she did

not take any additional action on B.R.’s behalf because of respondent’s call (Tr. 72, 73).

B.R. was selected for L4L in spring 2017 and received several emails with employment

opportunities within the public and private sectors (Pet. Ex. 1; Resp. Exs. E, F; Tr. 166-67). Ms.

DiBello emailed respondent advising her that she had been in touch with Ms. DeAngelis, the

contact person for L4L, who told her that there was an opportunity for B.R. at TCI (Resp. Ex. H;

Tr. 174-75). Respondent testified that she reached out to Ms. DeAngelis using her personal

phone and left a voicemail following up on information from Ms. DiBello. Respondent

ultimately had a telephone conversation with Ms. DeAngelis on her personal phone and sent an

email to the case worker, using her personal email account, informing her of their conversation

(Tr. 179; Resp. Exs. H, I).

Respondent testified that that she told Ms. DeAngelis that she worked for DYCD because

her employment is listed on B.R.’s application and she also wanted to avoid the appearance of a

conflict of interest. She credibly explained that she had previously submitted an application for

B.R. and when the reviewer saw respondent’s paystub listing her employer as DYCD, the

reviewer thought that respondent was a site visitor and accused respondent of “scoping” or

secretly auditing them because she did not initially disclose that she worked for DYCD (Tr. 196).

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Contrary to Ms. DeAngelis’ recollection, respondent asserted that she mentioned that she was

B.R.’s foster mother. She testified that she did so because this was her usual practice and she

wanted to avoid confusion because she and B.R. have different last names and they are different

races (Tr. 180, 194-95).

Respondent denied that she tried to use her employment at DYCD to gain placement for

B.R. She testified that she believed that as a foster child, B.R. was given priority so there was no

need for her to influence his placement. She believed that B.R. was “second on the list” for

SYEP or L4L placement behind homeless and vulnerable youth and she indicated B.R.’s foster

care status on his SYEP application (Tr. 181, 182; Resp. Ex. B).

Employment of K.C.

Ms. Chance oversees workforce development and implements SYEP for WCS. She

testified that in mid-June 2017, respondent contacted her and that respondent’s “exact words”

were that she was “calling on behalf of DYCD Summer Youth Employment Program” and that

she had a few participants who had missed the deadline and that she wanted to place them at

WCS (Tr. 79). Ms. Chance said that respondent called her five times and that she placed K.C. at

WCS as a result of those calls. Ms. Chance testified that because respondent stated that she was

calling on behalf of SYEP, she was under the impression that the youths employed at WCS

would be placed through SYEP (Tr. 92). On cross examination, Ms. Chance admitted that she

assumed that respondent was referring to SYEP when she mentioned DYCD and that respondent

did not mention SYEP during their calls (Tr. 96). Respondent did not disclose that she had a

personal relationship with K.C. during those calls (Tr. 79, 95).

Ms. Chance’s assistant, J. Torres, met with K.C. who informed Ms. Torres that

respondent reviewed her SYEP application. Ms. Torres contacted respondent to request

timesheets for K.C. and respondent told her that K.C. did not have SYEP timesheets and that

respondent would handle K.C.’s timesheets (Pet. Ex 5). Ms. Chance testified that while she was

out of the office on vacation, respondent asked Ms. Torres to wite-out timesheets for another

employee and submit them for K.C. at the end of the program. Ms. Chance noted that SYEP

participants usually documented their time on their own timesheets and the completed timesheets

were picked up by an SYEP worksite monitor (Pet Ex. 5; Tr. 79-82).

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On July 26, 2017, E. Prada, manager of youth development at WCS, emailed Ms. Chance

advising her that K.C. had submitted a timesheet for SYEP wages (Pet. Ex. 2). Ms. Chance told

Ms. Prada that K.C. was placed at WCS by a DYCD representative and she assumed that K.C.

was an SYEP employee. Ms. Prada emailed Ms. Chance later that day stating that respondent

contacted her about K.C.’s timesheets (Pet. Ex. 2; Tr. 83). Ms. Chance testified that respondent

contacted her and instructed her to send K.C.’s timesheets to the Queens Central Y. Ms. Chance

informed respondent that she was not able to do that because WCS did not contract with them for

summer youth placement. Respondent then asked Ms. Chance to send the timesheets directly to

her (Tr. 86).

On August 8, 2017, Ms. Chance emailed K.C.’s timesheets to respondent at her DYCD

email address (Pet. Ex. 3; Tr. 88). Respondent then contacted M. Patterson, the administrative

assistant to C. Lewis, director of SYEP, to ask about K.C.’s paychecks. Ms. Patterson testified

that she advised respondent that she would need to review K.C.’s timesheets. She explained that

when an applicant is enrolled in SYEP, a timesheet, pre-populated with the applicant’s name and

identification number, is automatically generated. She testified that the timesheet for K.C. that

she received from respondent had wite-out on it and the identification number corresponded to

another participant (Tr. 107-08). She looked for K.C.’s information in their database and

realized that K.C. did not have an application on file (Tr. 106-07).

Ms. Patterson contacted Ms. Chance and told her that she had made a mistake in allowing

K.C. to work at WCS (Pet. Exs. 4, 6, 7; Tr. 90). Ms. Chance emailed Ms. Patterson explaining

how K.C. was placed at WCS (Pet. Ex. 5). She advised Ms. Patterson that if respondent had not

contacted her at the beginning of the program, she would not have offered employment to K.C.

She further explained that at the time of K.C.’s placement, she was recently hired and was not

familiar with WCS summer placement process and she otherwise would not have placed K.C. at

WCS (Tr. 92).

Respondent testified that B.R. and K.C. are close friends and that B.R. refers to K.C. as

his cousin. However, respondent maintained that she did not have a personal relationship with

K.C. who was not “personally known to” her (Tr. 200-01). Respondent testified that she knew

that K.C. had filed an application with SYEP but was having some difficulties. Respondent said

that she spoke with one of her directors who advised that K.C. should send her application to

respondent. Respondent then spoke to “someone” at the Bronx Zoo (WCS) and provided them

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with her work email address in order to forward the timesheets and application. Respondent

explained that in this instance she did not use her personal email because this was not “personal

business.” She used her agency email because she considered these communications “agency

business because [K.C.] was working for SYEP” (Tr. 183-84; Pet. Ex. 2). However, respondent

acknowledged that her involvement trying to resolve the issues with K.C. and her timesheets

were not part of her responsibilities within her unit (Tr. 184).

Respondent said that she called Ms. Chance at WCS from her work phone regarding K.C.

and that Ms. Chance forwarded the timesheets and application to respondent at her work email

address. Respondent denied discussing how the documents should be filled out and instructing

Ms. Chance or her assistant on how to fill out the timesheets. Respondent related that she did not

have blank timesheets but offered that Ms. Chance could make a copy of a similar timesheet and

fill in K.C.’s hours (Tr. 186, 204-05). Respondent asserted that she did not know who completed

K.C.’s timesheets (Tr. 186).

Respondent maintained that she was merely acting to assist K.C. She stated that if she

had known who was in charge of SYEP or if there were phone numbers for assistance she would

have referred K.C. to those resources (Tr. 188). Respondent testified that she did not know how

K.C. was placed at WCS and denied helping K.C. get an SYEP placement. Respondent testified

that she did not call Ms. Patterson to secure payment for K.C. She maintained that she called to

refer K.C.’s timesheets so that Ms. Patterson could process them appropriately. Respondent

stressed that she emailed Ms. Chance and Ms. Patterson from her DYCD address because she

was acting to assist K.C. and her assistance was not a personal matter (Tr. 184).

ANALYSIS

In this disciplinary proceeding, petitioner “has the burden of proving its case by a fair

preponderance of the credible evidence . . .” Dep’t of Correction v. Hall, OATH Index No.

400/08 at 2 (Oct. 18, 2007), aff’d, New York City Civ. Serv. Comm’n Item No. CD 08-33-SA

(May 30, 2008) (citation omitted). Preponderance has been defined as “the burden of persuading

the triers of fact that the existence of the fact is more probable than its non-existence.” Prince,

Richardson on Evidence § 3-206 (Lexis 2008); see also Dep’t of Sanitation v. Figueroa, OATH

Index No. 940/10 at 11 (Apr. 26, 2010), aff’d, NYC Civ. Serv. Comm’n Item No. CD 11-47-A

(July 12, 2011).

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Charge 1 – Committing an act relating to respondent’s office which constitutes an unauthorized

and abusive exercise of the respondent’s official function.

Based on the plain language of this provision, respondent is prohibited from committing

any act relating to her office that is unauthorized and abusive of her official function. This

language is identical to Penal Law § 195.00 which states in pertinent part that a public servant is

guilty of official misconduct when he or she “commits an act relating to his office but

constituting an unauthorized exercise of his official functions.” Although respondent is not

being charged with criminal conduct, the interpretation of this statute in prior cases in instructive.

This tribunal has held that the elements necessary to establish official misconduct are that

1) respondent is a public servant, 2) the act must relate to respondent’s official duties, 3) the act

must be unauthorized.2 Dep’t of Correction v. Battle, OATH Index No. 1052/02 at 58 (Nov. 12,

2002). Likewise, the courts have held that the misconduct must arise from or relate to the

functions of the individual’s role or responsibilities. See People v. Volpicello, 72 Misc. 2d. 641,

643 (Co. Ct. Nassau Co. 1972); People v. Malki, 56 Misc. 3d 961 (Crim. Ct. Bronx. Co. 2017)

(where defendant’s official function was to assist in an investigation, the court found that the

unauthorized exercise of his official function was becoming romantically involved with a subject

of the investigation). Likewise, cases adjudicated at OATH alleging this type of misconduct

have involved respondents whose alleged unauthorized acts related to the functions of their

positions. See Dep’t of Correction v. Wells, OATH Index No. 1421/96 (Dec. 5, 1992)

(correction officer’s gift of a watch to an inmate constituted an unauthorized act committed by

the officer relating to his position as a correction officer, thereby satisfying an element of the

charge); Health & Hospitals Corp. (Elmhurst Hospital Ctr.) v. Yusupova, OATH Index No.

1124/16 (Mar. 30, 2016), aff’d, HHC Pers. Rev. Bd. Dec. No. 172/16 (Oct. 14, 2016) (patient

care associate accessed electronic patient records to order medical test for herself); Human

Resource Admin. v. Anonymous, OATH Index No. 2596/10 (Jan. 31, 2011) (benefits eligibility

specialist used his access to confidential records to review his family’s records); Human

Resources Admin. v. Jones, OATH Index No. 1675/99 (May 7, 1999), aff’d NYC Civ. Serv.

Comm’n Item No. CD 00-27-SA (April 10, 2000) (assistant responsible for keeping supply room

stocked forged supervisor’s signature on supply order forms); Human Resource Admin. v. Heras,

2 Official misconduct under the Penal Code would also require that respondent undertake such act with intent to

obtain a benefit.

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OATH Index No. 1114/15 (Mar. 11, 2015) (jobs opportunity specialist fraudulently issued

assistance checks to fictitious landlords in exchange for a portion of the funds); Admin. for

Children’s Services v. Lowe, OATH Index Nos. 1342/16 & 1904/16 (Oct. 19, 2019) (child

protective specialist accessed confidential child welfare records without authorization); Dep’t of

Consumer Affairs v. Thomas, OATH Index No. 880/13 (June 28, 2013) (clerical associate in

license renewal unit accessed and viewed confidential records of family members without

authorization); Human Resource Admin. v. Wong, OATH Index No. 316/15 (Dec. 1, 2014), aff’d,

NYC Civ. Serv. Comm’n Case No. 2015-0836 (Nov. 4, 2015) (staff analyst accessed a unit’s

headcount database without authorization).

Similarly, this tribunal has not found misconduct where respondent’s charged conduct

was not an unauthorized or official act. See Dep’t of Correction v. Caldwell, OATH Index No.

2702/14 (May 27, 2015), modified on Penalty, Comm’r Dec. (Apr. 19, 2016), modified on

Penalty, NYC Civ. Serv. Comm’n Case No. 2016-0444 (Feb. 21, 2017) (correction officer’s act

of posting bail for a family member was not an official act and therefore not a predicate for

official misconduct).

Here, respondent is employed as an associate contract specialist in the risk management

unit. Based on the allegation, as well as precedent, petitioner must establish that respondent

committed an unauthorized or abusive act related to her official function as a contract specialist

in order to sustain this charge.

Petitioner established that respondent contacted Ms. DeAngelis regarding the status of

B.R. in the L4L program and that respondent identified herself as a DYCD employee. However,

there are no allegations that this act was related to her function as a contract specialist and that

such act was an unauthorized exercise of her official function as a contract specialist. Further,

petitioner did not establish that respondent had any responsibilities related to SYEP or L4L.

Credible testimony established that respondent contacted Ms. Chance at WCS regarding

K.C. and identified herself as an employee of DYCD and inquired about summer placement for

K.C. However there are no allegations that this act was related to respondent’s function as a

contract specialist and that such act was an unauthorized exercise of her official function as a

contract specialist. Petitioner did not establish that respondent had any responsibilities related to

SYEP or L4L.

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Petitioner did not prove the Specifications related to this Charge. Accordingly, Charge 1

should be dismissed.

Charge 2 – Engaging in non-Department business during working hours.

As stated previously, petitioner, in bringing these charges against respondent, bears the

burden of producing evidence sufficient to establish that the alleged misconduct occurred. Here,

the Department has alleged that respondent committed misconduct during working hours. In

order to prevail on this charge, the Department must prove each element of the charge, including

that respondent’s alleged activity occurred during working hours. It is not appropriate for the

Administrative Law Judge to relieve the Department of its burden of proving the alleged

misconduct by presuming facts not in evidence or using personal experience as a substitute for

evidence that the Department failed to produce.

According to the Department’s Code of Conduct work hours are an “employee’s assigned

hours of work as determined by the Department’s needs and/or an authorized Alternative Work

Schedule.” However, the Department failed to produce any evidence of respondent’s assigned

hours. The Department also failed to establish the time that some of the alleged misconduct

occurred or whether respondent was required to be working at the time of such misconduct.

Because the Department did not produce evidence sufficient to sustain this charge, Charge 2

should be dismissed.

Charge 3 – Mailing personal correspondence using the department’s mailing system or related

equipment.

Respondent testified that she used her agency email, rather than her personal email, to

correspond with Ms. Chance and Ms. Patterson regarding K.C. because she did not consider her

assistance to K.C. a personal matter. However, it has been established that respondent was

employed as a contract specialist responsible for reviewing vendor contracts. She had no prior

contact with SYEP. Therefore, respondent’s involvement in K.C.’s compensation was not a

matter relating to her job nor was it a matter about which she was knowledgeable. Respondent

also testified that K.C. was a close friend of her foster son. Accordingly, respondent’s use of the

agency’s email to intervene on K.C.’s behalf was a personal matter. Based on the evidence

presented, this charge should be sustained.

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Charge 4 – Using property or equipment owned or leased by the City of New York for personal

benefit.

Petitioner did not present evidence to establish that respondent used the City’s equipment

in connection with B.R.’s application or placement with L4L. In fact, the evidence presented

confirmed that respondent used her personal phone and email when communicating about B.R.’s

applications.

Respondent acknowledged that she used her DYCD phone to call Ms. Chance regarding

K.C. Exhibits submitted by petitioner established that respondent used her work email to

correspond with Ms. Chance and Ms. Patterson about K.C. The term personal benefit is fairly

common and is not defined in petitioner’s Code of Conduct. In the absence of such definition,

this tribunal will refer to any legal definition as well as common usage for guidance. Black’s

Law Dictionary did not define the term “personal benefit” but defines benefit as “an advantage,

privilege, profit, or gain” and personal as “pertaining to the person or individual.” Black’s Law

Dictionary at 178 (9th

ed. 2004). Similarly, Merriam-Webster defines personal as “of, relating to,

or affecting a particular person” and benefit as “an advantage or profit gained from something.”

www.Merriam-Webster.com/dictionary. Using these definitions as guidelines, petitioner failed

to establish that respondent derived any advantage, profit, or gain, from placing K.C. at WCS or

assisting K.C. with her timesheets. This charge should be dismissed.

Charge 5 – Pursuing personal and private activities during times when the employee servant is

required to perform services for the City in violation of Rules of the Conflicts of Interest Board.

The New York City Charter provides that when an agency determines that a violation of

this chapter may have occurred, the agency must refer such matter to the board for investigation

or other action. NYC Charter § 2603(g)(2) (Lexis 2019). The Charter further states that if the

board determines that there is probable cause to believe that a violation occurred, the board shall

hold or direct a hearing to be held on the record to determine whether such violation has

occurred, or shall refer the matter to the appropriate agency . . . provided that when the matter is

referred to the agency, the agency consults with the board before issuing a final decision. NYC

Charter § 2603(h)(2). Therefore it was necessary for petitioner to establish that it has jurisdiction

to prosecute the alleged violation.

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Petitioner did not submit any evidence demonstrating that it referred this alleged violation

to the Conflicts of Interest Board (“COIB”) or that the COIB referred the matter to petitioner for

prosecution as a disciplinary matter. As such the department did not establish that it had the

authority or jurisdiction to prosecute this alleged violation of Conflicts of Interest Laws. This

charge should be dismissed.

Charge 73 – Using City equipment, resources, or supplies for a non-City purpose in violation

Rules of the Conflicts of Interest Board.

For the reasons previously stated regarding the petitioner’s authority to prosecute

violations of conflicts of interest rules, this charge should be dismissed.

Charge 8 – Engaging in conduct prejudicial to the good order of discipline of the Department.

The Department defines conduct prejudicial to good order and discipline as:

a. The use of profane language or obscene gestures towards a superior,

co-worker, subordinate and/or the public at any time on the

Department of Youth and Community Development premises,

program sites, and other sites where the Department’s business is

conducted.

b. Conduct construed as assaultive behavior towards a superior, co-

worker, subordinate and/or the public either physical or verbal; or

threatening to engage in assaultive behavior toward a superior, co-

worker, subordinate and/or the public.

c. Harassment of another by engaging in unwelcome or offensive

behavior, either physical or verbal, of sexual or racial nature, which

embarrasses, humiliates or intimidates a superior, co-worker, or

subordinate.

d. Discrimination based on race, color, creed, religion, sex, age, national

origin, sexual orientation, affectional preference, physical disability,

marital status, or prior arrest and/or conviction record.

e. Retaliation against an employee for making a complaint of

discrimination or sexual harassment.

f. Failure to obey work related orders of supervisors and/or Department

Managers.

g. Conviction for a crime or offense which relates to the employee’s

office or employment; or which involves violence, dishonesty, or

indecency; or which bears upon the employee’s fitness or ability to

perform his/her duties or responsibilities.

DYCD Code of Conduct, Chapter 1, section III (8).

3 Charge 6 was withdrawn by the Department prior to trial.

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Petitioner did not allege that respondent engaged in any of the conduct described in the cited

provision. Moreover, none of the proved charges against respondent involve any of the conduct

described in this provision. This charge should be dismissed.

Charge 9 – Engaging in conduct disruptive to the furtherance of the Agency’s business.

Petitioner alleges that respondent disrupted or hindered the furtherance of the

Department’s business as evidenced by respondent’s alleged conduct in the specifications

contained in Charges 1-5 and 7.

Since this charge repeated the factual allegations addressed in previous charges and

specifications, it is cumulative and sustained in part and dismissed in part consistent with the

preceding analysis of the charges and specifications. Where charges are sustained, there would

be no additional penalty. See Savello v. Frank, 48 A.D.2d 699 (2d Dep’t 1975) (petitioner

should not receive two punishments for one offense when the two departmental rules cited

covered identical conduct and were duplicative); Human Resources Admin. v. Mays, OATH

Index No. 1299/11 at 2 n.1 (Mar. 16, 2011), modified on penalty, Comm’r Dec. (Apr. 19, 2011),

rev’d, NYC Civ. Serv. Comm’n Item No. CD 12-8-R (Jan. 31, 2012) (“This tribunal has held

that if the same conduct violates multiple provisions of petitioner’s executive order, such conduct

will only exact a single penalty”); Fire Dep’t v. Feret, OATH Index No. 885/00 at 37 (Mar. 10,

2000).

FINDINGS AND CONCLUSIONS

1. Petitioner did not prove that respondent committed misconduct

by committing an act relating to respondent’s office which

constitutes an unauthorized and abusive exercise of the

respondent’s official function as alleged in Charge 1.

2. Petitioner did not prove that respondent engaged in non-

Department business during work hours as alleged in Charge 2.

3. Petitioner proved that respondent used the department’s mailing

system or related equipment for personal correspondence relating

to K.C. as alleged in Charge 3.

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4. Petitioner did not prove that respondent used property or

equipment owned or leased by the City of New York for personal

benefit as alleged in Charge 4.

5. Petitioner did not show that it had authority to enforce the rules

of the Conflicts of Interest Board for the misconduct alleged in

Charges 5 and 7.

6. Petitioner did not prove that respondent engaged in conduct

prejudicial to the good order of discipline of the Department as

alleged in Charge 8.

7. Charge 9 is a cumulative charge. This charge is sustained in part

and dismissed in part consistent with the analysis of the charges

and specifications in the previous section.

These findings of fact are final pursuant to section 1046(e) of the New York City Charter.

Charter § 1046(e) (Lexis 2019) (“hearing officer shall make final findings of fact”).

RECOMMENDATION

Upon making the above findings and conclusions, I reviewed an abstract of respondent’s

personnel record provided to me by petitioner. This personnel record included respondent’s

prior discipline and written evaluations for the past five years. Respondent has been employed

by the Department since 2013. This abstract revealed no disciplinary history for respondent

during her tenure. Respondent’s unblemished work record mitigates any penalty imposed.

In this matter, petitioner requested a penalty of termination. Based on the seriousness of

the allegations, this might have been appropriate. However, I find termination excessive given

that only one of the substantive charges against respondent was sustained. Petitioner established

that respondent used the Department’s email to communicate with SYEP and WCS employees in

an effort to secure compensation for K.C. These communications were not related to

respondent’s job and were therefore personal. Under the circumstances, I find that the loss of

employment would be disproportionate to the established misconduct. See Dep’t of

Environmental Protection v. Donas, OATH Index No. 781/09 (Feb. 13, 2009), aff’d, NYC Civ.

Serv. Comm’n Item No. CD 09-70-SA (Nov. 12, 2009) (any loss of time was excessive where

misconduct involved a short email to a small group of people in response to a personal attack.

ALJ considered respondent’s tenure, nature of the email, and its context and recommended

reprimand). It is appropriate, however to consider the context and nature of the emails. Based

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on the email responses received by respondent, it is clear that respondent had requested K.C.’s

altered timesheets and requested that those timesheets be sent to another provider to circumvent

SYEP scrutiny. In light of these aggravating factors, a greater penalty is warranted.

Accordingly, I recommend that respondent serve a five-day suspension for this misconduct.

Joycelyn McGeachy-Kuls

Administrative Law Judge

June 7, 2019

SUBMITTED TO:

BILL CHONG

Commissioner

APPEARANCES:

PENNEY VACHIRAPRAPUN, ESQ.

Attorney for Petitioner

JEAN O’HEARN, ESQ.

Attorney for Respondent