Admin. for Children’s Services v. Rios
OATH Index Nos. 1687/06 and 1985/06 (Nov. 1, 2006)
Motor vehicle operator arrested for possession of stolen license
plates. Over a two-year period respondent was convicted of
multiple moving violations and at the time of his arrest was
operating a motor vehicle with a suspended license. Termination
recommended.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
ADMINISTRATION FOR CHILDREN’S SERVICES
Petitioner
-againstRAYMOND RIOS
Respondent
____________________________________________________
REPORT AND RECOMMENDATION
DONNA R. MERRIS, Administrative Law Judge
This is a disciplinary proceeding referred by petitioner, the Administration for Children’s
Services (“Administration” or “ACS”), pursuant to section 75 of the New York Civil Service
Law. Respondent, Raymond Rios, is charged with misconduct arising out of his arrest for
possession of a stolen car license plate on November 9, 2005, and his subsequent conviction for
disorderly conduct. Respondent is charged with violating the ACS Code of Conduct for his
failure to report his arrest and pending criminal action, in writing, to appropriate personnel; his
failure to maintain a valid driver’s license; his operation of a motor vehicle while his driver’s
license was suspended; and, his absence from work without authorization on November 10,
2005, in violation of various sections of the ACS Code of Conduct (ALJ Ex. 1).
I have consolidated the two sets of charges brought by petitioner under these index
numbers pursuant to OATH Rule of Practice § 1-41 (“All or portions of separate cases may be
consolidated for trial… in the discretion of the administrative law judge.”). 48 RCNY § 1-41
(Nov. 18, 2005). Hearings on this matter were held before me on June 14, 2006, and July 28,
2006.
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For the reasons stated below, I find that the allegations have been sustained and
recommend that respondent be terminated from his position.
ANALYSIS
Respondent was hired in October 2003 as a motor vehicle operator for the “Instant
Response Teams” program at the Administration (Tr. II 21-22). Respondent was in charge of
driving staff and children in high risk cases to locations throughout the community including
courts, offices, foster care and the children’s center (Tr. II 21).
In October 2005, the Director of ACS Transportation Services, Nevin Cernobori, learned
through internal controls that respondent had received a number of motor vehicle violations,
including moving violations (Tr. II 23). Mr. Cernobori testified that he was mandated to suspend
respondent from operating city vehicles and sent respondent a Notice of Suspension of Driving
Duties on October 4, 2005 (Tr. II 23; Pet. Ex. 3). On October 24 and 25, 2005, respondent
applied for and received a restricted use license from the Division of Motor Vehicles (“DMV”)
on the recommendation of his direct supervisor, Inski Thomas (Tr. II 47; Resp. Ex. A).
Respondent provided Mr. Thomas and Mr. Cernobori with a copy of the restricted license (Tr. II
57-58).
On November 6, 2005, respondent’s full use driver’s license was suspended until
December 8, 2005, for “persistent violator” status in violation of the City of New York
Regulations for City Vehicle Drivers1 (Tr. II 48; Pet. Ex. 4). On November 9, 2005, Respondent
was arrested for possession of stolen property for having stolen license plates affixed to his
vehicle (Tr. I 8). Respondent was taken into custody after he failed to stop at a stop sign and the
arresting officer ran respondent’s vehicle plates and determined that they were stolen (Tr. I 10).
On November 10, 2005, respondent pleaded guilty to disorderly conduct subject to a conditional
discharge after one year (Pet. Ex. 2). Respondent testified that he understood this to mean that if
1
The regulations provide on page 8, B:
“No employee may be authorized to drive a City vehicle or a personally owned vehicle for City business/operations
if the employee has accumulated or been found guilty of
● Three (3) Speeding and/or Misdemeanor traffic violations within eighteen months….
● Eleven (11) violation Points based on NYS DMV Point System.
● A suspended or revoked license.
An employee shall be SUSPENDED IMMEDIATELY from driving duties for six months if convicted of any of the
above offenses.”
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he did not get into any trouble during the next year, the case would be closed (Tr. II 48-49).
Respondent testified that he was told by the District Attorney and/or Judge that his plea was a
misdemeanor and a “conditional discharge” and therefore there was no need to report the
incident to ACS (Id.). Respondent did not inform ACS of his November 9, 2005 arrest and Mr.
Cernobori was ultimately informed of the incident by the Employee Law Unit (Tr. II 31, 49).
On November 10, 2005, respondent failed to arrive at work. He concedes that he did not
inform any ACS personnel that he would be absent due to a pending criminal matter (Tr. II 49).
Respondent testified that, on that day, he was at an arraignment in criminal court as a result of
his arrest (Id.). Respondent did not notify Mr. Cernobori of his arrest and arraignment scheduled
for that day (Tr. II 31).
Respondent contends that he was not aware that the plates on his car were stolen because
his friend who made repairs to his car earlier that day informed him that they were “alright” (Tr.
II 46). Respondent testified that on the morning of his arrest he had “turned his plates in”
because his insurance was canceled for nonpayment (Tr. II 50). On cross examination,
respondent admitted that, at the time of his arrest, he was driving an unlicensed vehicle, without
insurance, and while his full use license was suspended (Tr. II 51).
February 8, 2006 Charges2
Charge II specifies that respondent was in possession of stolen license plates, which
resulted in his arrest on November 9, 2005, for Criminal Possession of Stolen Property in the
Fifth degree, New York Penal Law section 165.40, and subsequent conviction after a guilty plea
to Disorderly Conduct, New York Penal Law section 240.20. Charge II alleges further that
respondent engaged in off-duty conduct which may reflect unfavorably upon his fitness to serve
as an ACS employee, or which may bring discredit to ACS and the City of New York.
On November 9, 2005, Police Officer Oscar Rivas and his partner observed a red Honda
Civic fail to stop at a stop sign (Tr. I 8; Pet. Ex. 1). Officer Rivas contacted the police dispatcher
with the vehicle’s plate numbers and the dispatcher informed him that the plates were stolen (Tr.
I 8). Officer Rivas pulled the vehicle over and asked respondent for his license and registration.
The officers then ordered respondent out of the vehicle and placed him under arrest for
2
The first allegation in the Charges and Specifications from February 8, 2006, was withdrawn at the hearing on July
28, 2006 (ALJ Ex. 1; Tr. II 52).
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possession of stolen license plates (Tr. I 9). At the police station, Officer Rivas confirmed that
the license plates were stolen (Id.).
Respondent contends that he did not know that the license plates were stolen because his
friend, who was making repairs to his car that day, had placed the license plates on his vehicle
and did not inform him that they were stolen (Tr. II 45-46).
Ordinarily, a guilty plea is sufficient to establish the facts leading to an arrest, however,
where respondent pleads guilty to a lesser offense, this tribunal must examine the underlying
conduct to which respondent pled guilty. Meades v. Spinnato, 138 A.D.2d 579, 526 N.Y.S.2d
161 (2d Dept 1988); Housing Preservation and Development v. Carey, OATH Index No. 114/90
(Aug. 9, 1989). Here, while I do not credit respondent’s testimony that he did not know that the
plates were stolen, even if respondent was unaware that the plates were stolen, he allowed his
friend to affix unauthorized license plates to his vehicle undoubtedly aware that this conduct was
improper, if not illegal.
I find that the admission of respondent that the license plate was on his car in conjunction
with the criminal Complaint and Certificate of Disposition from the Supreme Court in Bronx
County prove by a preponderance of the credible evidence that respondent was in possession of a
stolen license plate and was then convicted of disorderly conduct (Pet. Exs. 1, 2).
Accordingly, the allegation has been sustained.
Charge III alleges that respondent failed to maintain a valid driver’s license that is
required for his position, and that respondent failed to report, in writing, to the appropriate
personnel, that his license was suspended, in violation of the ACS Code of Conduct, Section III
(B) (18) (sic)3(ALJ Ex. 1). Specifically, petitioner charges that, from on or about October 25,
2005 to on or about December 7, 2005, respondent’s driver’s license was suspended, and he
failed to report the suspension, as required (ALJ Ex. 1).
As noted above, respondent’s supervisor, Mr. Cernobori suspended respondent’s driving
duties based on a routine examination of his driving record which revealed that respondent’s
The section of the Code of Conduct which addresses the issue of maintaining valid drivers’ licenses is Section III
(B) (17) and provides:
3
Employees required to have a license for employment in their position or for performance
of their duties must ensure that the license remains valid and appropriately renewed on a
timely basis throughout their employment. Should a required license lapse, or be revoked
or restricted, such lapse, revocation or restriction must be reported immediately in writing
to ACS’ Office of Personnel and the employee’s supervisor.
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license was “pending suspension effective 11/06/05” (Pet. Ex. 3). After receiving the
memorandum from Mr. Cernobori, respondent, on October 24, 2005, applied for a restricted use
license before his full use license was suspended on November 6, 2005. On October 25, 2005,
respondent received a restricted use license from the Department of Motor Vehicles (Resp. Ex.
A). Thus, after his full use license was suspended, respondent had in place, a valid restricted use
driver’s license that allowed him to drive to and from his place of employment and to drive
during the hours of his employment if his occupation required the operation of a motor vehicle
(Resp. Ex. A, “Restricted Use License/Privilege Information”).
The evidence establishes that, from October 25, 2005 up to the November 9, 2006 arrest,
respondent had a valid restricted use driver’s license that allowed him to complete the duties of
his position. There has been no evidence presented to this tribunal to establish whether
respondent lost his restricted use license following his arrest. According to the Department of
Motor Vehicle record, respondent’s restricted license was issued on October 25, 2005 and his
full license restored on December 7, 2005 (Pet. Ex. 4).
Respondent did fail to maintain a valid full use driver’s license during the charged period.
The restricted use license, however, authorized respondent to perform the duties required by his
employment. Therefore, while the Administration chose to suspend respondent’s driving duties,
the allegation that he failed to maintain a valid license from October 25, 2005 to December 7,
2005 cannot be sustained.
Charge III alleges also that respondent failed to notify, in writing, “the ACS Office of
Personnel and the employee’s supervisor that his license was suspended.” ( ALJ Ex. 1). There is
no evidence in the record that respondent reported his license suspension, in writing, to the
Office of Personnel. However, respondent’s testimony that he provided a copy of his restricted
use license to his immediate supervisor, Mr. Thomas, (Tr. II 47), is corroborated by Mr.
Cernobori’s testimony that he was notified that respondent had obtained a restricted use license
(Tr. II 37).
Accordingly, to the extent that respondent failed to notify the Office of Personnel that his
full use license had been suspended, the allegation has been sustained.
Charge IV alleges that respondent failed to immediately report his arrest, in writing, to
the ACS Commissioner and the New York City Office of the Inspector General, in violation of
ACS Code of Conduct Section II (E) (3). Charge V alleges that respondent failed to notify the
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ACS Commissioner, in writing, that he was the subject of a pending criminal action. Respondent
admitted that he did not inform ACS as to these events (Tr. II 48-49). Respondent testified that
he was told by the District Attorney and the Judge in his case that he was not required to report
the arrest and subsequent events because he pleaded guilty to a misdemeanor and because it was
a “conditional discharge” (Tr. II 49).
The reliance on the advice of the District Attorney and/or Judge in respondent’s criminal
matter does not provide a defense to the requirement that respondent report the arrest and
pending criminal action to the Commissioner and to the Inspector General of the agency.
Respondent is charged with knowledge of the rules in the Code of Conduct and the failure to
report is a violation that can lead, as here, to disciplinary action. See Admin. For Children’s
Services v. Camara, OATH Index No. 285/04 (Feb. 2, 2004), modified on penalty, Comm’r Dec.
(May 20, 2004); Dep’t of Correction v. Hodges, OATH Index No. 222/82 (June 30, 1983)
(employees on constructive notice established by proper posting or publishing of rules in manner
reasonably calculated to give notice). Here, respondent does not challenge the existence of the
rule. Moreover, it is well settled that the failure to report arrests and convictions to the public
employer, when required, rises to the level of misconduct. Fire Dep’t v. Mangravito, OATH
index No. 499/92 (May 6, 1992) (failure to notify agency of arrest is violation of rules).
Accordingly, Charge IV, specifications 1 and 2 and Charge V have been sustained.
Charge VI alleges that respondent was absent from his assigned work location without
authorization on November 10, 2005, when he was in Bronx Criminal Court for an arraignment
on the stolen property charges. Respondent testified that he did not inform anyone at ACS of his
court date and that he was absent from work without authorization (Tr. II 49-50).
Therefore, I find that respondent was absent without authorization from his assigned
work location on November 10, 2005.
Charge VII alleges that respondent conducted himself in a manner prejudicial to good
order and discipline and engaged in conduct that would undermine his effectiveness in the
performance of his duties in violation of sections III (B) (1) and III (B) (42) of the
Administration code of conduct (ALJ Ex. 1).
considered for penalty purposes.
This charge is duplicative and will not be
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May 17, 2006 Charges
On May 17, 2006, the Administration brought three additional charges against respondent
based on the same factual premise set forth above. These specifications allege that, on November
6, 2005, respondent’s driver’s license was suspended because respondent was convicted of three
or more speeding and/or misdemeanor traffic violations within eighteen months, and that on
November 9, 2005, respondent operated a motor vehicle while his driver’s license was
suspended, in violation of New York State Vehicle and Traffic Law section 512 (ALJ Ex. 1).
Charge I alleges that respondent engaged in off duty conduct which reflected unfavorably
upon his fitness to serve as an ACS employee and on his capacity to serve in his position.
Charge II alleges that respondent conducted himself in a manner prejudicial to good order and
discipline in violation of the ACS Code of Conduct. Charge III alleges that respondent engaged
in conduct detrimental to the Agency or which would undermine his effectiveness in the
performance of his duties.
I find that respondent’s DMV Driver History report proves by a preponderance of the
evidence that respondent’s license was suspended on November 6, 2005, because respondent was
convicted of three or more speeding and/or misdemeanor traffic violations within eighteen
months (Pet. Ex. 4). Between February 2003 and April 2005, respondent had been convicted of
six moving violations and had been involved in two traffic accidents. The moving violations
included speeding over thirty miles per hour in excess of the posted limit; failure to yield to
pedestrians; improper turn; obstruction of an intersection; failure to stop at a stop sign; and,
passing on the right (Pet. Ex. 4). On May 3, 2003, respondent was involved in an accident in
Bronx County. On April 1, 2005, respondent was involved in an accident in New York County
(Id.). In March and April 2005, respondent’s driver’s license was twice suspended for his failure
to pay fines and answer a summons (Tr. II 48; Pet. Ex. 4). Respondent does not contest the
allegation.
As noted above, on November 9, 2005 when respondent was arrested, his driver’s license
had been suspended. While he had obtained a restricted use license which was valid from
October 25, 2005 to December 7, 2005, the restricted use license allowed respondent to drive
only to and from work and to drive during working hours when required to do so (Resp. Ex. A).
Respondent, admittedly, was driving from his friend’s repair shop on November 9, 2005. Thus,
he was in technical violation of the restricted use license.
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For these reasons, Charge I, specifications 1 and 2 of the May 17, 2006 allegations have
been sustained.
Charges II and III of the May 17, 2006 charging document are duplicative.
FINDINGS AND CONCLUSIONS
1.
On November 9, 2005, respondent was in possession of a
stolen license plate, which resulted in his arrest and
subsequent conviction after a guilty plea to disorderly
conduct.
2.
Petitioner failed to prove that respondent did not maintain a
valid driver’s license that is required for his position.
3.
Respondent failed to notify the Office of Personnel that his
full use license had been suspended.
4.
Respondent failed to notify, in writing, Commissioner John
B. Mattingly of his arrest on November 9, 2005.
5.
Respondent failed to notify, in writing, Inspector General
Benjamin DeFibaugh of his arrest on November 9, 2005.
6.
Respondent failed to immediately notify, in writing,
Commissioner John B. Mattingly that he was the subject of
a pending criminal action, in violation of ACS Code of
Conduct, Section II(B)(2)(b).
7.
On November 10, 2005, respondent was absent from his
assigned work location without authorization, in violation
of the ACS Code of Conduct, Section III(B)(8).
8.
On November 9, 2005, respondent operated a motor vehicle
while his full use New York State driver’s license was
suspended.
9.
On November 6, 2005, respondent’s New York State
Driver’s License was suspended because respondent was
convicted of three or more speeding and/or misdemeanor
traffic violations within an eighteen month period.
THEEFORE: The allegations have been sustained by a preponderance of the credible evidence
to the extent noted. As to the February 8, 2006 allegations, Charge II, specification 1; Charge
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III, specification 1; Charge IV, specifications 1 and 2; Charge V, specification 1; and, Charge VI,
specification 1 have been sustained.
Concerning the May 17, 2006 allegations, Charge I,
specifications 1 and 2 have been sustained.
RECOMMENDATION
Upon making these findings, I requested and reviewed an abstract of respondent’s work
history in order to make an appropriate penalty recommendation.
Respondent was appointed to his position as a motor vehicle operator on October 20,
2003 and has no prior disciplinary history. Respondent’s two performance evaluations, one from
the period October 20, 2003 to September 30, 2004 and the second from October 20, 2004 to
September 30, 2005 rate respondent as “conditional” based on his motor vehicle history.
Although progressive discipline is the preferred method of penalizing employee
misconduct, there are instances where termination is warranted where the employee shows
himself to be undependable, considers himself to be above agency rules or where the action
endangers the well-being of others. See Human Resources Admin. v. Deas, OATH Index No.
616/88 (Mar. 24, 1989), aff’d, NYC Civ. Serv. Somm’n Item No. CD 90-79 (Oct. 1, 1990);
Tyson v. Hess, 66 N.Y.2d 943, 498 N.Y.S.2d 778 (1985); Pollman v. Fahey, 106 A.D.2d 771,
483 N.Y.S.2d 705 (3rd Dep’t 1984). Here, respondent’s short tenure with the Administration does
not serve to mitigate a penalty recommendation. Most important, respondent’s failure to abide
by the driving rules seriously impedes his ability to safely transport children and adults, the
primary purpose of his employment with the Administration. Respondent’s failure to recognize
the seriousness of his conduct and his failure to be forthcoming with the Administration
concerning his status with the Department of Motor Vehicles in addition to the acceptance of an
unauthorized license plate from his car repair person leads only to the conclusion that he should
be terminated from his current position as vehicle operator.
Accordingly, I recommend that respondent be terminated from his position as a motor
vehicle operator for the Administration for Children’s Services.
Donna R. Merris
Administrative Law Judge
November 1, 2006
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SUBMITTED TO:
JOHN B. MATTINGLY
Commissioner
APPEARANCES:
SUSAN STARKER, ESQ.
Attorney for Petitioner
ROBERT SIMS, ESQ.
Attorney for Respondent