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.

NICS FIREARM APPEALS AND
THE SAFE ACT - CERTIFICATE OF RELIEF

In 2013, the New York Secure Ammunition and Firearms Enforcement Act (SAFE Act) was created, and one part of that law changed the New York Mental Hygiene Law (MHL) to require that certain people be reported to the State. If a mental health professional believes that you are â€œlikely to engage in conduct that would result in serious harm to self or others,â€ then you must be reported to the State, and once reported you lose your right to own firearms.

Also, when New York puts you into the State MHL reporting system, you will not be able to buy a gun legally, and if you go to a gun store and try to purchase a firearm, the FBI National Instant Check System (NICS) will deny the purchase.

The reporting system has been severely criticized, and rightfully, because mental health providers and hospitals routinely report people who are not a threat to anyone. Doctors and hospitals are frightened that if a person they treat later harms themself or another person, then the doctor or hospital will be blamed for not reporting. And so, people are being reported, and are losing their gun rights, even when they are not dangerous.

The only way to restore your rights is by getting a Certificate of Relief from Disabilities. When that Certificate is issued by New York, FBI NICS then no longer should deny gun purchases. However, the Certificate of Relief process has many steps, and must be completed carefully so that you can have the greatest chance of getting back your rights.

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.)

LICENSING

The Taxi and Limousine Commission (â€œTLCâ€) can immediately suspend a license â€œfor good cause shown relating to a direct and substantial threat to public health or safetyâ€. The TLC summarily suspended a driverâ€™s TLC license alleging he discontinued a ride because of the passengerâ€™s and her girlfriendâ€™s sexual orientation and that he grabbed the passengerâ€™s arm, and yelled at her. An OATH trial was held to determine whether to continue the suspension until a revocation hearing was scheduled. After hearing testimony from the complainants and the driver, and reviewing the complainantâ€™s cell phone video, ALJ Joycelyn McGeachy-Kuls found that TLC had not shown that restoration of the driverâ€™s license would pose a direct and substantial threat to public safety. The evidence, including the video, did not show that the driver grabbed anyone, yelled at or mentioned the sexual orientation of either passenger. She recommended that the suspension be lifted. (Taxi & Limousine Commâ€™n v. El Boutari, OATH Index No. 2729/18.)

A TLC driver was charged with being unfit to retain his license because he tested positive for marijuana. At trial, the driver contended that the charge should be dismissed because he did not knowingly ingest the drug. ALJ Noel R. Garcia noted that the burden is on the driver to prove the affirmative defense of innocent or unknowing ingestion. He credited the driverâ€™s testimony that he ate a chocolate candy given to him by a customer at a bar where he worked and then he felt dizzy. That testimony was corroborated by a bar patron who was present at the time, and by a friend that the driver called the next morning. Dismissal of the unfitness charge recommended. (Taxi & Limousine Commâ€™n v. Fall, OATH Index No. 2302/18.)

PERSONNEL

Respondents, two correction officers, were charged with making false reports about a use of force incident. They were part of a team sent to search for contraband in a housing area. During the search, another officer sprayed an inmate with a chemical agent. In their reports, respondents wrote that the inmate, who was facing a wall, turned around or spun away from the wall in an aggressive manner before he was sprayed. Video of the incident showed that the inmate turned his head to look at a struggle involving another inmate. But the inmate did not aggressively turn his body or spin away from the wall. ALJ Faye Lewis sustained the false statement charges relating to the characterization of the inmate acting aggressively. One of the officers was also charged with making a second false statement in his use of force report, relating to another inmate. ALJ Lewis dismissed that portion of the charge as insufficiently supported by the evidence. ALJ Lewis also denied a request by petitioner, made on the second day of trial, to expand the scope of its redirect examination of its primary witness and amend the charges to conform to any testimony derived from the expanded questioning. She concluded that amendment of the charges at that juncture would cause substantial prejudice to respondents who had already spent a full day defending against the charges. A 15-day suspension recommended for one respondent and a 45-day suspension for the other, based upon the second officerâ€™s prior disciplinary record involving similar misconduct. (Depâ€™t of Correction v. Hamil & Villodas, OATH Index Nos. 1213/18 & 1215/18.)

A correction officer who tested positive for morphine and codeine denied that he had used illegal drugs and claimed that the test result was a false positive. ALJ John B. Spooner found the officer had made out the defense and he recommended dismissal of the charge. He credited the officerâ€™s testimony that he had eaten poppy seed bagels prior to the drug test. ALJ Spooner found the qualifications of the officerâ€™s expert, a toxicologist, were superior to those of petitionerâ€™s expert, the lab manager. The toxicologist testified that the relatively low levels of the drugs found in the officerâ€™s urine could only be explained by eating poppy seed bagels because the quantities were at non-therapeutic doses and the relative proportions were inconsistent with heroin or morphine or codeine ingestion. (Depâ€™t of Correction v. Paz, OATH Index No. 1717/18.)

ALJ Kara J. Miller sustained a charge of excessive absence for an eligibility specialist who was absent 149 days during a 15-month period. ALJ Miller noted that even if the employeeâ€™s absences were authorized or documented, they still counted towards her total number of absences because she was charged with excessive absenteeism, not unauthorized absences. Although the agencyâ€™s rules do not define what constitutes excessive absence, relevant factors, such as: the employeeâ€™s absentee rate was 61 percent, many of her absences were unplanned, she exhausted her leave balances, she received warnings about her attendance, and her absences had a negative impact on her unit, established the charge of excessive absenteeism. Since the employee was previously disciplined for similar misconduct, termination of her employment was recommended. (Human Resources Admin. v. McCaskill-Bourdeau, OATH Index No. 108/18.)

A sanitation worker was charged with submitting a substituted urine sample during a random drug test because no creatinine was detected in his sample. The federal government has determined that when creatinine drops below 20 milligrams per deciliter, it is a diluted sample; when it drops below two milligrams per deciliter, it is a substituted sample. Petitionerâ€™s expert noted that the worker had six prior negative/dilute results and she opined that he was trying to beat the test by drinking lots of water. ALJ Alessandra F. Zorgniotti sustained the charge. The worker was also found to have committed time and leave violations and insubordination. Termination of employment recommended. (Depâ€™t of Sanitation v. Anonymous, OATH Index No. 1880/18.)

Respondent, traffic device maintainer was found to have failed to secure his tools and failed to keep his truck clean. ALJ McGeachy-Kuls dismissed a charge that respondent failed to timely report to his field work assignment. She found his testimony regarding routes taken and time worked, corroborated by GPS evidence, was credible. A three-day suspension was imposed for the proven misconduct. (Depâ€™t of Transportation v. Rabuse, OATH Index No. 1417/18.)

A sanitation worker was charged with refusing an order to take a drug test following an accident, under Department rules which require a test after an accident causing â€œsignificant equipment or property damage.â€ The evidence showed that the worker drove a front-end loader which hit a salt spreader. The spreader had to be taken out of service and was repaired by two metal repair technicians. Four supervisors examined the damage and all concluded it was significant. ALJ Spooner found the Department had a sufficient basis to order the drug test. He also credited a supervisorâ€™s testimony that after he ordered the worker to take the test, the worker left the garage. The worker also failed to submit documentation for emergency leave, used an ethnic slur in a report, and failed to report to the clinic. Termination of employment recommended. (Depâ€™t of Sanitation v. Rudden, OATH Index No. 1566/18.)

PAID SICK LEAVE LAW

A cleaning service and its manager were charged with violating the Cityâ€™s Earned Sick Time Act (â€œESTAâ€) by failing to provide workers with paid sick leave, failing to pay an employee for the use of sick time, and failing to post or distribute a written sick time policy and required notices. Respondents were also charged with retaliating against a worker for asserting his rights under ESTA. ALJ Garcia sustained charges that respondents failed to distribute the required Notice of Rights and written sick time policy and failed to provide paid sick time to 82 qualified employees. Petitioner also proved charge that respondents failed to pay one qualified employee for her use of sick time. He dismissed a charge of failure to provide sick leave to another employee because petitioner did not prove that employee had worked enough days to be eligible for leave. ALJ Garcia also found that petitioner did not prove that respondents retaliated against that employee. ALJ Garcia imposed a civil penalty of $26,100 and he ordered $250 relief for the qualified employee who was not paid when she took sick leave. ALJ Garcia denied petitionerâ€™s request that each of the 82 eligible employees be awarded $500 in the absence of proof that any of them had requested sick leave that was denied or that any had taken sick leave but were not compensated. (Depâ€™t of Consumer Affairs v. PCC Cleaning Service, Inc., OATH Index No. 0088/18.)

Respondent restaurants were charged with multiple violations of ESTA. After a trial at which respondents defaulted and the complaining witness testified via video, ALJ Ingrid M. Addison sustained charges that respondents violated ESTA by failing to provide employees with a Notice of Employee Rights, failing to post or distribute a written sick time policy, by not permitting employees to use accrued sick time and by retaliating against the complainant who attempted to assert his rights under the law. Respondents were ordered to pay $3287.50 in relief to the complainant and $5500.00 in civil penalties to petitioner. (Depâ€™t of Consumer Affairs v. Smoke BBQ Pit Restaurant & Merrick Blvd. BBQ Restaurant & Catering, Inc., OATH Index No. 944/18.)

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.