Jerold E. Levine, Attorney At Law

PSYCHOLOGICAL DISQUALIFICATION

Government job applicants can be disqualified from employment for various reasons, including character (honesty and trustworthiness), medical (physical) and psychological (mental). Of all these, psychological disqualifications are the most challenging, and unfortunately, they also can be the most damaging to your future employment if not handled correctly. A psychological disqualification has the real potential to ruin your job opportunities.

Psychological disqualification appeal cases involve a psychological or psychiatric expert witness, who provides an opinion about your mental suitability for employment. Commonly, the opinion also highlights any disagreement that the expert has with the agency disqualification.

It is very important that the psychological expert have sufficient experience in the field of related disqualifications. As example, if you are a police candidate then you should obtain the services of a psychologist who has experience with police psychological disqualification appeals.

You also should consult with an attorney who is knowledgeable about your kind of case. Many legal issues arise in the preparation of appeals, and it is very unlikely that you or your psychologist will be able to deal with these properly. The best representation for you will occur when an experienced lawyer and psychologist work together.

PSYCHOLOGICAL REVIEW,

MEDICAL REVIEW &

CHARACTER REVIEW

PSYCHOLOGICAL HOLD,

MEDICAL HOLD &

CHARACTER HOLD

Government employment candidates frequently are told that they are on "review" or "hold." Sometimes this occurs because the agency must gather more information about you before making a hiring decision. However, in many cases review and hold are just excuses to avoid giving any decision. This can happen when the agency does not wish to hire you, but also does not have a very strong reason to disqualify you.

Instead of issuing a disqualification which you can appeal---an appeal which you might win---the agency puts you on review. While on review, your Eligible List gets closer to expiring with each passing day, but you cannot appeal because there is no decision to appeal. In other words, you are left waiting until the Eligible List expires, after which time you cannot be hired.

This is a very abusive government practice, and it destroys your right to use the disqualification appeal process. Most unfortunate is that, by the time some candidates realize what has been done to them, it is too late to get legal help.

You should be in contact monthly with your investigator so that you are up-to-date about your employment application status. If you are told that you are on review or hold, then do not wait more than three months before seeking legal advice. With enough time remaining on the Eligible List, we may well be able to help you get off review or hold. Our office has done this many times for many job candidates.

NOTICE OF PROPOSED DISQUALIFICATION

& NOTICE OF DISQUALIFICATION

For many years, when a New York City agency wanted to disqualify you from employment, it would issue a "Notice of Disqualification" which could be appealed to the Civil Service Commission. However, this procedure was not correct under the Civil Service Law, which requires that candidates be told in advance why they are going to be disqualified, and be offered an opportunity to argue against a disqualification before it becomes final.

The Civil Service Commission advised agencies some years ago that they were not following the law, and the result is the "Notice of Proposed Disqualification" (NOPD). It notifies you that you have 30 days to ask the agency to "reconsider" the proposal to disqualify. Only after receiving your reconsideration appeal and supporting evidence will the agency then issue you a final decision; usually a Notice of Disqualification.

In practice, all that has changed is that most of what you previously had to do when appealing a Notice of Disqualification, now is done when you receive an NOPD Instead of appealing a disqualification to the Civil Service Commission, now a reconsideration appeal is sent to the agency first, and after final disqualification you appeal to the Civil Service Commission.

Nevertheless, while only a minor change in procedure has occurred, there is an important consequence. If you wait until the NOPD process is over before contacting an attorney, you may have hurt your appeal seriously. This is because all supporting papers and other evidence must be given to the agency during the NOPD process. Once the agency issues a final disqualification, the "administrative record" is closed, and further evidence that later you might want to submit to the Civil Service Commission can be ruled "inadmissible." So if you do not put your best foot forward during the NOPD process---using all legal resources available---then the case could be defective when it goes to the Commission.

Experience has shown that good attorneys almost always can make a case better and stronger if consulted early enough. You may understand some of the good evidence in your case, and medical experts should be able to identify relevant medical issues. But almost always, you will overlook helpful legal points, or worse, you will use evidence that actually hurts your case. Also, you might assume that your case is "good enough" to win, and decide that you will call a lawyer only if you lose the NOPD appeal. But by then, the damage already has been done. The best course is to contact counsel immediately upon receiving a Notice of Proposed Disqualification, or any other negative notice from an agency.

RIGHT TO OBTAIN PSYCHOLOGICAL FILE

If you are a New York government employment candidate who was disqualified for medical reasons, the New York Public Health Law provides that you have the right to obtain a copy of your medical file from the government agency. As example, a Police Officer candidate denied employment for psychological reasons has the right to get a copy of his psychological file.

Unfortunately, most agencies violate this law and refuse to release file copies to candidates. Usually the file is released only to a doctor who is assisting the candidate with a disqualification appeal, and the government directs the appeal doctor not to give the file to anyone else. That direction is wrong, but many doctors are scared by the warning and will not release the file to the candidate or even the candidateâ€™s lawyer.

Nonetheless, the law is clear and it has been upheld in court. Disqualified candidates have the right to obtain a copy of their medical file, and they can enforce that right by going to court.

PSYCHOLOGICAL INTERVIEW PREPARATION &
PSYCHOLOGICAL EVALUATION PREPARATION

Almost all police and public safety agencies will screen you for psychological suitability, and usually this involves three steps. First, questions about personal history. Second, psychometric tests (including the MMPI-2-RF and Cornell Index) and questionnaires. And third, a psychological interview; sometimes more than one.

You can make serious mistakes at all levels. With psychometric testing, the usual mistake is answering questions in a way that you believe will make you look better. But since the tests are geared to measure such "faking good," the result is a test score which hurts you. So the best advice regarding these tests simply is to answer all questions honestly.

However, far more important than test scores is your performance during the psychological interview. The interview is the culmination of the entire psychological evaluation process, and if you do poorly, then your fate is sealed. No amount of good personal history or test scores will compensate for a bad interview. Unfortunately, few candidates know how to present themselves well, and very often make significant errors that lead to disqualification.

Since candidates usually have no experience with psychological interviews, the failure rate is not surprising. And in New York City, the failure rate is higher than the national average. This means that the chance of psychological disqualification is greater than most other places, and many candidates who never imagine that they will be disqualified receive a nasty surprise in the mailbox.

Keep in mind, you do not need to have a mental illness to be disqualified, and disqualified candidates usually have no mental condition at all. What they almost always have in common is that they did badly during the interview.

The good news is that you can be well prepared for a psychological interview, but only if you are counseled by someone who understands the process---such as an attorney with many years experience in psychological disqualification cases. Just like taking an S.A.T. prep course, or a class that teaches job interview skills, you can learn how to handle a psychological interview also. Some candidates who received counseling later remarked about how easy the psychological interview seemed, and how difficult it would have been without preparation.

Do not "cast your fate to the wind" and pray for a good outcome. Maximize your chances of success by being prepared for the psychological evaluation.

HOW TO CHOOSE YOUR ATTORNEY

A case from some time ago highlights the importance of your selecting legal counsel very carefully.

The client had employed an attorney for representation on a police disqualification appeal. There were four reasons given for the disqualification, but the attorney mistakenly filed appeal papers with the civil service commission addressing only three. The fourth basis for disqualification was overlooked.

The commission considered the case, and reversed the three disqualification reasons appealed. However, since the fourth reason was not raised, the commission affirmed the disqualification on that single basis. Upon realizing his mistake, the attorney submitted an additional appeal to the commission, but it was too late, and the commission refused to re-open the matter. Thus, the client lost an almost certainly winning appeal merely because his lawyer was not careful.

While a situation like this seems incredible, unfortunately, it happens more than most people are aware. Many clients choose counsel on the basis of advertising alone, or even worse, price. Regret commonly is the result.

Legal services are like all others: You get what you pay for. Experienced lawyers with proven records of success charge more for their work, just as experienced doctors earn more than interns. You need to keep this in mind when retaining an attorney.

HOW YOU CAN USE AN ARTICLE 78

The New York Civil Practice Law and Rules (CPLR) gives you the right to sue a government agency for various reasons, and many cases involve Article 78 of the CPLR.

An Article 78 proceeding is used, among other reasons, when you want to challenge a government agency decision, or force an agency to do something. As example, when an agency issues a bad decision about you, usually it can be challenged in court under Article 78. Or, the agency might be refusing to issue a decision at all. To force the agency to act, you can use an Article 78 proceeding.

However, you must use all available agency procedures before filing an Article 78. This means that any internal agency appeals, or other available appeals, must be used before going to court. If those procedures are not used, then you lose the right to file an Article 78.

Also, you must usually file the Article 78 proceeding within four months of the final agency determination. This means that once the agency has made its final decision about you, an Article 78 must be filed within four months of the date of that decision.

The four month period is not 120 days, as many attorneys (and even some judges) mistakenly believe. Four months means the same day in the month four months later. As example, if the government notice is dated June 5th, then the four month Article 78 filing deadline is October 5th, not 120 days later on October 3rd. If the deadline month does not have the same numbered last day as the date of the government notice, then the deadline is the last day of the deadline month. As example, if the government notice is dated the last day of December, December 31st, then the Article 78 deadline is April 30th, because April does not have 31 days.

Additionally, if the deadline date falls on a weekend or legal holiday, the deadline is extended to the next business day. As example, if the deadline falls on a Saturday or Sunday, the deadline becomes Monday, unless Monday is a legal holiday, in which case the deadline becomes Tuesday.

Whatever the deadline date, as you can see, the Article 78 filing period only is a few months, and if your case is not filed by the deadline then usually you lose the right to go to court. This is called being "time barred." So it is very important that you contact an attorney as soon as you receive any unfavorable decision from an agency, or as soon as you realize that the agency is refusing to give you a decision. This is so you can find out if any agency appeals must be used, and also to make sure that your Article 78 time deadline is not missed.

PORT AUTHORITY DISQUALIFICATION

Employment disqualifications from city and state agencies in New York routinely are appealed to various civil service commissions. However, disqualifications from public authorities, like the Port Authority of New York & New Jersey, are not covered by the Civil Service Law, and so cannot be appealed. This is because the Port Authority is not an agency of either New York or New Jersey, but an entirely separate entity created by agreement between both states.

The Port Authority acts, essentially, like an independent government, and has vast powers normally exercised only by a state. It is for this reason that such public authorities commonly are referred to as "shadow governments," and the laws which apply to city and state agencies often do not apply to authorities. The result is that job disqualifications from the Port Authority ordinarily cannot be successfully challenged. The only exception is perhaps a rare case of civil rights violation, where a Federal lawsuit might be filed.

However, while Port Authority employment disqualifications usually cannot be challenged, the candidate still has a right to obtain the reasons for the disqualification, which are contained in the Authorityâ€™s employment investigation file. As example, a candidate disqualified for psychological reasons has a right to obtain a copy of the psychological file. A demand for the file must be made, and if the Authority refuses to release the file, an Article 78 court proceeding can be used to compel release.

Candidates interested in obtaining such files should contact an attorney as soon as the candidate receives notice of a Port Authority disqualification.

NEW YORK GUN ARREST
HANDGUN ARREST
ASSAULT WEAPON ARREST
KNIFE ARREST
AIRPORT ARREST

New York weapon laws are different from most other places, and the gun laws truly are terrifying. Your mere possession of a loaded handgun, with no criminal intent at all, results in a mandatory 5-15 year prison sentence upon conviction. Further, almost every case of unlicensed handgun possession now is a felony offense, including possession in the home which formerly only was a misdemeanor.

This is true also for rifle and shotgun possession, particularly if your gun meets the definition of an "assault weapon." Many rifles and shotguns which are legal most everywhere else are considered assault weapons in New York, and the same mandatory sentence applies as with handguns. Additionally, gun magazines are included in the felony category if they can hold more than 10 rounds of ammunition.

Knives too are criminalized in New York, and the knife statute is so vague that carrying almost any knife is chargeable as a crime. In New York City, your carrying even a simple pocket knife can result in arrest.

If you are unaware, you unknowingly can be ensnared by these laws, and many people traveling with guns at airports and by car are arrested regularly. You would be shocked by the severe penalties, and become even more shocked when facing a prosecutor determined to obtain a jail sentence, even though you were not aware of the law.

Your case will require representation by counsel experienced with New York gun and weapon laws, and who understands every argument that can be raised for you against the government. In many cases, not only can police and prosecution errors be used as a defense, but also technical issues regarding weapon specification. A defense attorney must be skilled in all these areas to give you the greatest advantage. If you are charged with violating the firearm, pistol, rifle, shotgun, assault weapon or knife laws, please contact our office immediately.

NEW YORK ASSAULT WEAPON LAW BOOK

Mr. Levine's latest book, New York Assault Weapon Laws, has been published by LawTech Publications Company and now is available for purchase. The book contains detailed analysis of the New York assault weapon law, various local assault weapon codes, gun-related terminology, and is heavily illustrated with many photographs. It is a must-have resource for persons interested in this very complex and confusing legal subject.

The book can be purchased by using the order form below, or by telephoning LawTech Publications at 212-482-8830. The cost is $49.95 which includes tax and shipping.

An online review of the book by TheGunMag.com can be viewed at:

http://www.thegunmag.com/real-skinny-new-yorks-vaunted-assault-weapons-laws/

NEW YORK OPMC ATTORNEY
NEW YORK OPD ATTORNEY
MEDICAL LICENSE DEFENSE
MEDICAL LICENSE RESTORATION
PROFESSIONAL LICENSE DEFENSE
PROFESSIONAL LICENSE RESTORATION

Professional misconduct proceedings have become an ever-larger area of legal involvement in recent years. With the increased level of regulation in the medical and other professions, it was inevitable that government agencies responsible for overseeing professional conduct would initiate more regulatory actions. The results largely have been unwelcome in the professional community, for while a few dangerous actors have been removed from the scene, others who have engaged in relatively minuscule acts of misconduct---some unintentionally---have had the full weight of the government fall upon them.

It is most important that affected professionals seek guidance without delay from a professional misconduct attorney in any matters involving OPMC (Office of Professional Medical Conduct) or OPD (Office of Professional Discipline). Misconduct allegations frequently balloon into full-blown investigations, and this activity can be tremendously injurious to the operation of a professional practice. Government investigators rarely are concerned with the business interests of professionals, and will pursue misconduct cases with relentless tenacity. Any who doubt this need only ask a professional who has been the target of such an investigation.

Competent attorneys are available to help medical and other professionals in OPMC and OPD cases, but they are of use only when consulted, and are of most use when consulted early in the process.

RECENT DECISIONS FROM OATH

The following are summaries of recent decisions of the Administrative Law Judges at the New York City Office of Administrative Trials and Hearings.

(Note: These are not cases involving clients of Mr. Levine.)

PERSONNEL

A highway transportation specialist was charged with being unfit to perform the duties of his position due to singing in the workplace and other disruptive behavior. ALJ Joycelyn McGeachy-Kuls found that petitionerâ€™s proof was insufficient to prove respondentâ€™s unfitness. The evidence established that respondent had been singing on the job for over 30 years, and when he was instructed to stop, he complied. In regard to the other allegations, ALJ McGeachy-Kuls determined that an isolated outburst in a meeting and an unsubstantiated complaint of unsafe operation of a city vehicle were not sufficient grounds to find respondent unfit. Dismissal recommended. (Depâ€™t of Transportation v. M.S., OATH Index No. 2524/17.)

An associate retirement benefits examiner was charged with incompetence for failing to complete the required daily number of cases. ALJ Noel R. Garcia found that the examiner was required to complete an average of three cases per day, but only averaged less than one case per day over a ten month period. He concluded that the examiner was consistently unable to perform her fundamental responsibilities. 30-day suspension recommended, agency imposed a 25-day suspension. (Employees Retirement System v. Murthy, OATH Index No. 2077/17.)

A civil engineer failed to report for a mandatory overtime shift and a medical assessment of her fitness for duty, and refused to submit documentation when directed to do so. ALJ Astrid B. Gloade recommended a 40-day suspension without pay, with credit for any pre-trial suspension served. Petitioner contended that respondent should not be paid for pre-trial delays resulting from her adjournment request. The Civil Service Law limits an unpaid pre-trial suspension up to 30 days and an employee may recover back pay for any pre-trial suspension exceeding 30 days, provided that the delay is not the employeeâ€™s fault. ALJ Gloade concluded that it was unclear from the record whether the respondent was entitled to back pay and declined to undertake an accounting to determine how much, if any, back pay respondent would be entitled to receive as it was beyond the purview of the tribunal. (Transit Auth. v. M.K., OATH Index No. 1355/17.)

ALJ John B. Spooner recommended a 15-day suspension for a job opportunity specialist who was insubordinate and discourteous towards a supervisor. The employee refused to obey an order to process benefits, and he threw paper and gestured with his fist at the supervisor. This conduct caused the supervisor, who suffered from a stroke-related disability, to request early retirement to avoid similar encounters which could adversely affect her health. (Human Resources Admin. v. Dixon, OATH Index No. 926/18.)

A sanitation supervisor was charged with failing to carry out his supervisory responsibilities, failing to accurately prepare, record and maintain information, and with failing to cooperate with an official inquiry. ALJ Kara J. Miller found that many of the charges involved incidents that occurred five to six years ago, which ultimately deprived the supervisor of an opportunity to correct his conduct because petitioner did not timely address the alleged misconduct. ALJ Miller sustained some of the charges, finding that the supervisor failed to accept responsibility. A 19-day suspension without pay was recommended. (Depâ€™t of Sanitation v. Chau, OATH Index No. 1420/17.)

Emergency medical technician ("EMT") twice struck a handcuffed, emotionally disturbed patient after the patient had spat at her. The EMT also failed to report the incident to a supervisor. ALJ Kevin F. Casey found that the EMT was provoked but that did not excuse her reaction. He credited EMTâ€™s testimony that she did not intend to injure the patient and found the act to be an aberration. Recommended penalty is sixty-day suspension without pay with credit for pre-hearing suspension time served. (Fire Depâ€™t v. Serrano, OATH Index No. 584/18.)

A carpenter was charged with disobeying supervisorsâ€™ instructions for filling out timesheets, not properly documenting overtime availability, failing to report for an overtime assignment, and disobeying orders to refrain from making non-work related comments on work forms. ALJ Joycelyn McGreachy-Kuls sustained most of the charges. Since the carpenter had previously been disciplined for similar misconduct, a 45-day suspension without pay was recommended. (Fire Depâ€™t v. Toner, OATH Index No. 2310/17.)

PRACTICE AND PROCEDURE

Petitioner must notify the charged worker with the date, time and place of the trial. ALJ Susan J. Pogoda dismissed charges without prejudice where the notice gave the wrong address for the trial location. The notice informed the worker, incorrectly, that the trial would be held at 40 Rector Street in Manhattan. Neither the worker nor any representative appeared. ALJ Pogoda noted that OATH moved from the Rector Street address to 100 Church Street, in Manhattan, more than three years ago. (Depâ€™t of Sanitation v. Gaudin, OATH Index No. 1676/18.)

Evidence of prior discipline is not admissible to prove an employee engaged in the charged misconduct. However, prior discipline may be used to rebut employeeâ€™s testimony that he was unaware of work rules. ALJ McGreachy-Kuls admitted evidence of prior discipline for failure to complete forms in accordance with procedure to rebut employeeâ€™s testimony that he lacked notice of the procedure. The evidence was admitted solely for that purpose and not to prove that the employee had committed the charged misconduct. (Fire Depâ€™t v. Toner, OATH Index No. 2310/17.)

PAID SICK LEAVE LAW

In a default proceeding, ALJ Spooner found that an employer violated the Paid Sick Leave Law by failing to respond to two document demands and by failing to provide an employee with requested sick leave. He ordered the employer to pay a $2,000 civil penalty and compensation to the employee in the amount of three times the wages due, $1,296. (Depâ€™t of Consumer Affairs v. RHCG Safety Corp., OATH Index No. 1027/18.)

LICENSING

A taxi driver who tested positive for codeine claimed that he did not knowingly use the drug. At trial, the driver and his girlfriend presented credible testimony and evidence that he suffered from a chronic toothache and had inadvertently ingested Tylenol with codeine that had been prescribed for his girlfriend. The driver testified that his girlfriend had mistakenly given him her medication, which was stored in the same location as his over-the-counter medicine. ALJ Gloade found that the driver established that he innocently consumed codeine, and therefore did not knowingly use a controlled substance. She recommended dismissal of the charge. (Taxi and Limousine Commâ€™n v. Wakefield, OATH Index No. 1315/18.)

In a default proceeding, respondent taxi driver was charged with punching the complainant, also a taxi driver. Complainant testified that respondent overtook his car and they exchanged profanities. Stopped at a traffic light, respondent exited his car and punched complainant in the face before returning to his car and driving off. Complainant followed respondentâ€™s car and called the police. Respondent was subsequently arrested and his license was suspended for four months. ALJ Ingrid M. Addison found respondent violated TLC rules. Because of the lengthy pre-trial license suspension, she recommended a $1500 penalty. (Taxi and Limousine Commâ€™n v. Norbu, OATH Index No. 1230/18.)

VEHICLE RETENTION

The Police Department seized a vehicle in connection with the ownerâ€™s arrest for firearm possession. The owner sought return of the car following his conviction and sentence of five yearsâ€™ probation. The owner admitted to the crime, but argued that the Police Department did not show that returning the car would pose a heightened risk to public safety. ALJ Alessandra F. Zorgniotti noted that possession of a weapon, standing alone, does not result in an automatic finding of heightened risk; such a policy would be contrary to the case-by-case analysis required by the Krimstock Order. She found that the evidence showed that the owner accepted responsibility for his crime, and led a law-abiding life with no criminal history or prior arrests before this incident. She also noted that the issuance of a certificate of relief from disabilities from the criminal court gave rise to a presumption of rehabilitation. Therefore, the owner did not pose a heightened risk to the public. The Police Department was ordered to release the vehicle. (Police Depâ€™t v. Nurse, OATH Index No. 1729/18.)

Respondent sought return of car seized by the Police Department following his arrest for driving while ability impaired by alcohol. Reports indicated that the arresting officer saw him strike another car while driving the wrong way down a one-way street. Respondent refused to take a breath test but when he exited his car, he was unable to stand up straight, had bloodshot eyes and had the odor of alcohol on his breath. Respondent also had a prior record of alcohol-related offenses. ALJ Ingrid M. Addison ruled that the Department proved that it is entitled to retain the car. (Police Depâ€™t v. Bernard, OATH Index No. 1838/18.)

NOTICE TO POTENTIAL CLIENTS: The Law Offices of Jerold E. Levine does not represent the following companies or their employees: Allied Van Lines, Amalgamated Bank, American Federation of Teachers, Avis Budget Group, Best Western Hotel Group, Bloomberg L.P., Citigroup/Citibank, Chubb, Delta Airlines, Enterprise Holdings (Enterprise, Alamo, National), First National Bank of Omaha, Google, Hertz, JP Morgan Chase, MetLife, North American Van Lines, Paramount Rx, PayPal, SimpliSafe, Starkey Hearing, Symantec, TrueCar, United Continental Airlines, Wyndam Hotel Group, YouTube.