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