The Movement Newsletter

New York City Employee Disciplinary Action - Expert Consulting Services, LLC

The Movement

Newsletter

October/November 2010

Volume 1, Issue 1

The Movement focuses on the Representation practices of the NYC Correction Officers’ Benevolent Association (or, “COBA”) in employee disciplinary cases.

While it is believed that this union, headed by Norman Seabrook, is a very powerful labor organization, correction officers have been terminated from City service in the NYC Department of Correction (DOC) in record numbers under Mr. Seabrook’s administration (some 15 years now): as if their union doesn’t even exist.

What is COBA doing for its members at OATH? In this issue, the Movement focuses on the representation practices of the NYC Correction Officers’ Benevolent Association (C.O.B.A.) in employee disciplinary cases.

COBA is the NYC Correction Officers’ Certified Employee Organization (or, ―UNION‖).

Why is this? Well, the Movement believes the evidence is clear: Unlawful employee disciplinary hearings! The Department of Correction directs that its employee disciplinary hearings be conducted at the city’s Office of Administrative Trials and Hearings (also called, OATH).

But what the Officers don't know, and COBA does is that DOC is required by State Law

to hold its employee disciplinary hearings pursuant to the procedures outlined in NYS Civil Service Law section 75.

These procedures that are mandated by state law must be followed when conducting a Section 75 hearing. See Matter of Wiggins v Board of Education. 60 N.Y.2d 385.

However, neither DOC nor OATH follows the legal requirements of Section 75 in the conduct of the disciplinary hearing due the Officer; and essentially, the Officers’ Constitutional right to due process of law is blatantly and utterly violated.

Are you a NYC Correction Officer or other civil servant in the DOC facing removal from service due to your being out on sick leave for an extended period of time? Has the Department’s Health Management Division (or, ―HMD‖) threatened you with medical separation if you didn’t return to full duty status within a specified period of time? Then you are

keenly aware of the abusive administrative practices of the HMD, in its pursuit to harass and oppress the officer into submitting to their discriminatory practices and tactics; which utterly cause the correction officer to return to work albeit they aren't fully recovered from the medical condition that caused them to report sick.

If this description fits you, or someone you know, and you are tired of the abusive treatment being perpetrated by the DOC, the HMD and the medical doctors assigned there then you should read

 Disciplinary Charges informal/formal.  New York City’s Trojan Horse brings death to its employees.  Medical Separation - can they do that?  The New York City Office of Administrative Trials and Hearings (’OATH‖).

So what is COBA doing about this egregious violation of the Officers’ State & Federal right to equal protection and due process of law… NOTHING!

Code Word for TERMINATION is “Medical Separation.”

In the NYC Department of Correction (DOC) there is a code word for termination of the City’s workforce employed in that department: ―MEDICAL SEPARATION.‖

Special points of interest:

this article. The Movement will challenge you to realize what your rights are in your position as a Civil Service employee. If you knew what laws and regulations give security to your Civil Service position from arbitrary attack by an abusive employer, then you could better protect your position from such an attack by your employer -or demand the proper protection from your Union.

And insist that they fight your case, or, defend your Civil Service position from arbitrary attack by your employer.

The City of New York.

Inside this issue: COBA’s Representation practices.

1

Medical Separation ???

1

Disciplinary Charges— Informal and Formal. / Does COBA really care for its own?

2

HMD & OATH

3

What is this Movement all about?

4

Page 2

The Movement Newsletter

Disciplinary charges— informal and formal. a uniformed member of the city’s Department of Correction is governed by one of two agency created Directives (#4257R-A; and #7502).

If and/or when you are charged with an alleged offence of the agency’s rules and regulations, you should familiarize yourself with the administrative procedures that your employer is required to perform in the course of taking disciplinary action against you. This will help you to ensure that the action taken against you is not arbitrary, in bad faith or, plainly illegal.

―Clearly, a just Union would defend its members from an employer’s illegitimate administrative actions regarding discipline.

But you too should take the steps necessary to defend yourself from unjust penalties that can KILL your ability to receive benefits that are due to you.‖

Disciplinary Penalties for City workers are extremely SEVERE!!!

Disciplinary charges lodged against

It is more encouraging to review these procedures prior to being charged; however, the Movement is of the opinion that most employees do not review policy & procedures

until after they have been charged with an offense. But by that time they are so enveloped in confusion as to the overall process, that the deceptive employer takes full advantage of their ignorance to the administrative process of the disciplinary action taken against them; and thereafter subjects the employee to arbitrary treatment and unjust penalties.

Clearly, a just Union would defend its members from an Employer’s illegitimate administrative actions regarding discipline taken against that employee. But you too should take the steps necessary to defend yourself from unjust penalties that can KILL your ability to receive benefits that are due to you.

Must your employer abide by its own Rules and provide to you due process of law before terminating you from your civil service position?

We’ve learned that most city workers mistakenly believe that the agency they work for (e.g., DOC, NYPD, HRA, DOE, SANITATION, etc.), can take disciplinary action against them as it pleases.

This is far from the truth. Your employer is legally bound by its own rules, which govern how disciplinary action is taken against its employees; (see NYS Court of Appeals’ decision, Matter of Frick v.

Bahou, 56 N.Y.2d 777).

If your employer deviates from their own rules on disciplining you, their actions could be deemed by a Court to be illegal! And to the extent that their actions causes you injury (e.g., loss of employment or other undue penalty), then you can bring an action-at-law against your employer or any other person operating under your employer that you can show to the court was the cause or participated in the act to discipline you unlawfully -or without due process of law.

This type of argument (i.e., the argument that an Employer is bound by its own rules) has already been decided by the New York Court of Appeals (the Highest Court in the State of New York), in the case cited earlier (Frick v Bahou).

The Movement submits that you too are entitled to the protections of this decisional law, and the statutes relied upon by the Court to make it.

Therefore, YES your employer is legally bound by its own rules.

Does the C.O.B.A. really care about its members???

Does the Correction Officer’s Benevolent Association (or, ―COBA‖) really care about its members? The Movement doesn’t think so! How can an Employee Labor Organization (or, ―UNION‖) claim to represent its members fairly when there are so many NYC Correction Officers being TERMINATED without due process of law, and in violation of their State and Federal Constitutional rights. A review of the City’s Office of Administrative Trials and Hearings (or, ―OATH‖) web site

shows just how many CO’s are recommended for termination…

NUMEROUS -while their union does nothing to fairly represent them under the Civil Service Law. Ask any Officer if they feel that they are fairly represented by COBA and the vast majority will say that they do not feel that the union is adequately representing them. Surely a Civil Service position is more secured and not that easily lost or taken than what the Members of

Does this Union President really care about the Members of COBA???

COBA have been experiencing.

Well, does he really care?

Page 3

Volume 1, Issue 1

DOC’s Health Management Division (“HMD”).

HMD is one of the Department’s more hellish units, and the most corrupt division in the agency when it comes to its illegal practice of violating Correction Officers’ basic human rights; i.e., to work without discrimination based on disability.

These agency doctors and nurses will violate ethic codes and laws for the City to put pressure on the officer to return to duty irrespective of their disability. Even when the COBA contract, Article X, §1; and the New York City Administrative Code, Section 9-117.1(a) provides entitlement to leave with pay for the full period of any incapacity due to illness, injury or mental or physical defect [cf. disability], whether or not service connected.

However, because most officers are totally unfamiliar with these provisions in law and their own contract, they suffer the abusive and illegal practices of the City through DOC and HMD; and utterly forfeit their rights and benefits –and even their jobs. Not to mention their peace of mind!

The Department of Correction’s Directive No. 2258R-A, entitled, ―Absence Control/Uniformed Sick Leave Policy‖ is legally defective: First, this directive conflicts with both the Correction Officers’ Contract and, the City’s Administrative Code.

In Directive 2258R-A, at page 4, under Section III, (D) and (E), it

states that an employee may be subject to termination if they report sick for twelve or more work days during a twelve month period; or who report sick forty or more work days within a twelve month period; or who report sick on fifteen or more occasions within a twelve month period.

At the beginning of this story we showed you the provisions in the COBA conHMD Doctor’s tract, and work for the the City’s…

City: Not 4YOU!

HMD’s Corrupt Practices continue….

Administrative Code that authorizes a Correction Officer to take leave from duty with pay for the ―full period‖ of any incapacity due to a disability. Do you now SEE the conflict between the DOC Directive/COBA Contract and, the City’s Administrative Code?

Secondly, Directive 2258R-A, conflicts with State Human Rights Law § 296(1); insofar as the DOC

Directive states imperatively that a Correction Officer may be subjected to termination for their authorized use of sick leave. What? Sounds like an oxymoron! How can you be ―subjected to termination‖ if your use of sick leave is authorized by your contract, a city ordinance; and protected by New York State Law? The fact is, DOC Directive 2258R-A is legally defective, and used as a

tool to deprive, deny, and utterly defraud NYC Correction Officers of their basic human right to work without discrimination based on disability. When you consider all of the Correction Officers that have been terminated under this agency created directive, and all those that suffer daily by HMD’s abusive administrative practices, we in the Movement ask the question: does COBA really care for its own???

Office of Administrative Trials and Hearings (“OATH”).

The City’s Office of Administrative Trials and Hearings (―OATH‖), is by far the most corrupt tribunal of its kind in our entire Nation.

This is not simply the opinion of the Movement. We have incontrovertible facts that will prove to any person or entity that OATH violates the very local law that created it anew (Local Law #49/1991); and after its original establishment under Mayoral Executive Order #32 of 1979.

You may ask ―so what does that have to do with me, I’m just a Civil

Service employee‖?

OATH is the City’s trier-of-fact in employer-employee controversies or, whenever your agency charges you with misconduct, OATH acts as the judge over the matter and settles by recommending to your agency head the penalty he/she should impose against you.

Most employee disciplinary hearings held at OATH, particularly, Correction Officers’, are reported as being pursuant to Civil Service Law §75; however, OATH is forbidden (by NYC Charter Chap. 45-A,

§1048) from conducting a hearing such as the hearing provided for by Section 75 of the Civil Service Law. Therefore, we see OATH as a type of Trojan Horse that brings death (or, termination of service) to city employees by New York City’s their Trojan Horse unlawful brings death to recommen- its employees!! dations.

HMD doctor’s routinely break multiple rules and even laws for the DOC and the City; and just to get the Officer back to work, even while they are still injured!

New York City Employee Disciplinary Action Expert Consulting Services, LLC South Ozone Park, New York

Phone: 347-286-8142 Fax: 718-835-3067 E-mail: wayneatatum@gmail.com

waynetatumandthe movement.blogspot. com

Our Company was created out of a heart profoundly concerned with the unfair treatment of Public Workers employed in the City of New York. And which unfair treatment is in fact being perpetrated utterly „by the City of New York.

We offer and provide representation for city workers in disciplinary proceedings before the City‟s central tribunal: the Office of Administrative Trials and Hearings (“OATH”). OATH hears employee disciplinary cases for most of the city‟s agency‟s, and then forwards a report and recommendation to the Head of the agency the employee works for; the Head then acts by imposing the recommended penalty on the employee.

Our Company, New York City Employee Disciplinary Action—Expert Consulting Services, LLC will defend you in your Civil Service position against any attack by your employer to discipline or remove you from that position. We have exceptional experience and knowledge in all of the required processes regarding disciplinary action taken against a civil servant.

For us, loosing is not an option! We will fight diligently for you until the end!!

Moving Toward Necessary Change!

Call us! Consultation on your documented disciplinary matter is free on a schedule basis.

NYCE DA ECS

What is this MOVEMENT all about?

In a word, Enlightenment.

A famous man once said, ―I for one believe that if you give people a thorough underJUSTICE! That is standing the underlying of what cause of action: confronts JUSTICE!! them and the basic causes that produce it, they’ll create their own program, and when the people create a program, you get action.‖ (X). The Movement seeks to do just that –give people, in this case, (all) Civil Service employees, and other persons who will take a listen to and act on the information we provide -that thorough understanding of what confronts them and the basic causes that produce it.

You ask, what is it that ―confronts‖ the Civil Service employee to such a

degree that someone would create a company who’s core purpose is to enlighten this class of workers, and offer to provide them exceptional representation in disciplinary cases?

Well, what confronts this class of employees is a barrage of attacks by their employer (City of New York) against the security of their jobs.

And the average worker, if not, all of the City’s employees aren’t aware of the attacks, because they are silent, and have the surface appearance of being legitimate agency actions.

We will try in this limited space to give you an illustration, and using the NYC Department of Correction as our model agency.

NYC Correction Officers are disciplined pursuant to Civil Service Law section 75. And subdivision 2 of this statute provides the basic procedure for hearing charges levied against a civil servant. Moreover, if these procedures aren’t followed by the agency Head to the letter when disciplining an employee, then the hearing used to penalize that person is, according to the New York State Court of Appeals, null and void.

One of the most critical facts the Movement is seeking to enlighten Civil Service employees protected by Section 75 of the Civil Service Law is, that one of the requirements prescribed by this law, i.e., the method mandated for conferring power to the person that acts as Hearing Officer over their disciplinary hearing –is not being performed by the Head of their agency as the law directs.

In Supreme Court cases, far to many to number here, the courts have consistently overturned agency decisions that were shown to be without the required method prescribed by law to confer power to the Hearing Officer that conducts the Section 75 disciplinary hearing.

Unlike the many Unions in the City that have not raised this issue in the defense of a Civil Service employee, our Company is not connected to nor subject to any political favor.

We pledge to fight diligently for your legal rights by any lawful means necessary. To that end, we will tactfully defend your case, demanding your due fair treatment.