Human Resources Admin. v. Palmer-Davis

Human Resources Admin. v. Palmer-Davis

OATH Index No. 2968/10 (Dec. 2, 2010), aff'd, NYC Civ. Serv. Comm'n Item No. CD 11-95-A (Dec. 27, 2011)

Respondent, a supervisor who reviews eligibility determinations, defrauded New York City Housing Authority of more than $18,000 by submitting fraudulent documents and failing to disclose that she was a City employee. Termination of employment recommended. ______________________________________________________

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of HUMAN RESOURCES ADMINISTRATION

Petitioner - against CECILIA PALMER-DAVIS Respondent ______________________________________________________

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge The Human Resources Administration brought this disciplinary proceeding under section

75 of the Civil Service Law, charging supervisor Cecilia Palmer-Davis with defrauding the New York City Housing Authority (NYCHA) from January 2007 to November 2008, by submitting false affidavits of income, failing to disclose her City employment, and falsely claiming that her sole source of income was money earned as a babysitter (ALJ Ex. 1).

At a hearing on September 8, 2010, petitioner relied upon documentary evidence and testimony from two witnesses. Respondent testified on her own behalf and offered documentary evidence. Following receipt of post-hearing submissions, the record was closed on October 6, 2010. For the reasons below, I find that petitioner proved the charges and recommend termination of respondent's employment.

ANALYSIS Petitioner hired respondent 16 years ago. She is presently assigned to a Brooklyn office where she supervises four employees who determine whether applicants are eligible for food

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stamps and other public benefits. As a supervisor, respondent reviews applications and supporting documentation to make final eligibility determinations. Petitioner alleges that from January 2007 to November 2008, respondent committed off-duty misconduct by submitting false affidavits of income and other documents to NYCHA. As a result of her failure to disclose her full-time employment to NYCHA, along with her deceptive claim that she merely worked as a baby sitter, respondent paid substantially lowered rent.

Robin Jacknow, an assistant inspector general with the Department of Investigation, testified that respondent received NYCHA rent subsidies from January 2007 through November 2008 (Tr. 11). During those two years, respondent paid approximately $154 to $250 in monthly rent and she received more than $900 per month in housing subsidies (Tr. 11).

A tenant folder maintained by NYCHA included affidavits submitted by respondent in support of her request for rent subsidies (Tr. 14-15). On January 24, 2007, respondent signed an affidavit of income for her 2007 rent subsidy (Pet. Ex. 4). Respondent also provided NYCHA with a notarized statement from Arnisher George. According to that written statement, respondent worked full-time every weekday as "a baby sitter/nanny" for a salary of $150 per week (Pet. Ex. 1).

In support of her 2008 rent subsidies, respondent submitted an affidavit of income dated December 20, 2007 (Pet. Ex. 3). Under the heading "Employment and Income," respondent wrote that she had been working since January 2006, her salary was $250 per week, and her employer was Tanya Ricketts (Pet. Ex. 3). Respondent supported her application with a notarized statement from Ricketts. According to that document, respondent worked full-time on weekdays as a "baby sitter/nanny" and her salary was $250 per week (Pet. Ex. 2).

After discovering respondent's deception, NYCHA recalculated the rent that she should have paid (Tr. 17). Because of respondent's failure to disclose her City employment from 2007 to 2008, her total underpayment exceeded $18,000 (Tr. 18). The matter was referred to the King's County District Attorneys Office (Tr. 18). Respondent was arrested in December 2009 and she pleaded guilty in March 2010 to petit larceny (Pet. Ex. 5). The court imposed three years' probation and respondent signed a confession of judgment and agreed to repay NYCHA more than $18,000 (Pet. Ex. 6).

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At the hearing, respondent did not dispute that she submitted false affidavits to NYCHA. Instead, she offered mitigating evidence. Respondent testified that her husband died from a sudden heart attack on September 25, 2006 (Tr. 39; Resp. Ex. B). Later that year, respondent underwent major surgery and was hospitalized for two weeks (Tr. 37). On January 7, 2007, respondent's mother died after suffering from Alzheimer's disease for nearly a decade (Tr. 39; Pet. Resp. Ex. C).

According to respondent, she did not "remember anything" about submitting affidavits claiming that she worked as a baby sitter or signing any documents to obtain rent subsidies (Tr. 42). Respondent testified that was not mentally stable or functioning properly after the deaths of her husband and mother (Tr. 42-43). She sought professional help and testified that she probably should have sought more assistance (Tr. 48).

Respondent testified that she is presently attending college and expects to complete the requirements for a degree later this year. She also noted that she is active in her church ministry (Tr. 46). Several co-workers submitted letters on respondent's behalf. They described her as dedicated and willing to help others (Resp. Exs. D, I). Former supervisors wrote that respondent is dependable and a hard worker (Resp. Exs. D, H). Her pastor wrote that respondent "is passionate about making positive change in her life" (Resp. Ex. J). An associate pastor wrote that respondent is a valuable part of her church's justice ministry (Resp. Ex. F). Another person from her congregation described how respondent has been an active member for many years, she has a good work ethic, and she has demonstrated her willingness to help others while balancing college, work, family, and religious activities (Resp. Ex. E). Respondent also obtained a certificate of relief from disabilities (Resp. Ex. A).

Petitioner alleged that respondent submitted false documents to obtain more than $18,000 worth of rent subsidies to which she was not entitled. There was ample evidence to support the charges. Respondent's actions demonstrate a lack of integrity that is incompatible with her responsibilities as an eligibility specialist. See Villanueva v. Simpson, 69 N.Y.2d 1034 (1987) (employee subject to discipline under the Civil Service Law if there is a sufficient nexus between off-duty conduct and employee's job responsibilities); Dep't of Correction v. Roman, OATH Index Nos. 1026/05, 1296/05 at 19 (Feb. 10, 2006), app. dism., NYC Civ. Serv. Comm'n Item No. CD 07-22-D (Mar. 5, 2007) (disciplinary charges sustained where employee committed

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larceny by accepting public housing benefit based upon submission of fraudulent affidavits). I did not credit respondent's suggestion that she was so distraught by the deaths of her loved ones in September 2006 and January 2007, that she was mentally unstable when she applied for public housing subsidies.

Respondent's misconduct was not merely an error of omission or neglect of paperwork. When she first applied for a subsidy in January 2007 respondent affirmatively misled NYCHA and supported her fraudulent claim by falsely claiming that she was a full-time babysitter. And respondent repeated her fraud nearly a year later in December 2007 when she again applied for a subsidy and re-asserted that she was a babysitter. Without minimizing the anguish that respondent underwent beginning in September 2006, she was physically and mentally well enough to work as a supervisor, evaluating eligibility determinations, for nearly two years while she continued to receive an improper rent subsidy. During her plea allocution in the criminal case, respondent admitted that she knowingly received a benefit to which she was not entitled. Viewed in its entirety, the evidence established that respondent knowingly engaged in fraud. Accordingly, the following charges should be sustained: Charge IV (conduct that reflects unfavorably on the fitness of employee or may bring discredit to the agency); Charge V (stealing, misappropriating, or converting the property of the City, the Agency, or another); Charge VI (submitting or causing to be submitted, a false document); Charge VII (conduct prejudicial to good order and discipline); and Charge VIII (behavior that is detrimental to the Agency or undermines employee's effectiveness).

At the hearing and in a post-hearing submission, respondent's counsel objected to petitioner's characterization of NYCHA as a "city agency" (Tr. 74-75). Counsel noted, for example, the City and NYCHA are considered separate entities for purposes of filing a notice of claim. See Gagliardi v. New York City Housing Auth., 88 A.D.2d 610 (2nd Dep't 1982). Respondent's claim lacks merit.

NYCHA is a public benefit corporation established to provide housing to low-income New Yorkers. Blatch v. Hernandez, 360 F.Supp. 2d 595, 601 (S.D.N.Y. 2005). As a public benefit corporation, NYCHA is independent of the City for some purposes, but it is "deemed to be an agency of the municipality in which it is established." Bass v. City of New York and New York City Housing Auth., 38 A.D.2d 407, 409-410 (2nd Dep't 1972). The NYCHA governing

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board consists of three mayoral appointees, including the board chair who reports to the mayor. (accessed Dec. 2, 2010).

Even if NYCHA was completely separate from the City that would not help respondent. The fact remains that she made false statements and stole money from a publicly funded entity whose mission is to provide affordable housing. Respondent's dishonesty was detrimental to her agency, prejudicial to good order and discipline, and reflected poor moral character

Charges I, II, and III, do not refer to the agency's disciplinary rules. Instead, they allege that respondent violated the Penal Law (ALJ Ex. 1). Review of the Penal Law is required to determine whether disciplinary charges are time-barred. However, upon finding that the underlying acts constitute misconduct under the Civil Service Law, it is neither necessary nor appropriate for this tribunal to make an additional finding, based upon the same facts, that respondent committed crimes. These charges should be dismissed. See Office of Comptroller v. Lattanzio, OATH Index No. 1029/04 at 11, 13 (Oct. 13, 2004) (noting that administrative tribunal lacks jurisdiction to find violations of the Penal Law, ALJ sustained allegations of misconduct but dismissed charges alleging that same misconduct constituted crimes).

FINDINGS AND CONCLUSIONS 1. As alleged in Charges IV-VIII, petitioner proved that

respondent intentionally defrauded the New York City Housing Authority by signing and submitting false affidavits of income to obtain more than $18,000 of public housing benefits to which she was not entitled.

2. Charges I, II, and III are dismissed.

RECOMMENDATION Upon making the above findings, I reviewed respondent's personnel history. Petitioner hired respondent in 1994 and she has no prior formal disciplinary history. As noted above,

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