Human Resources Admin



Human Resources Admin. v. Taylor

OATH Index No. 1436/04 (Nov. 28, 2005)

Respondent, a former deputy director of the Greenwood Job Center, is found to have violated various agency policies and rules for having implemented an eligibility pre-screening process which involved giving applicants for emergency public benefits assistance return appointments on altered agency forms, rather than the same-day interviews and benefits service which was mandated and to which they were entitled. No penalty recommended in light of respondent’s retirement from the agency before the completion of the hearing.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

HUMAN RESOURCES ADMINISTRATION

Petitioner

- against -

JUDY TAYLOR

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

RAYMOND E. KRAMER, Administrative Law Judge

This is an employee disciplinary proceeding referred by petitioner, the Human Resources Administration (“HRA”), pursuant to section 75 of the Civil Service Law. Respondent Judy Taylor, an administrative job opportunity specialist (M-1) and the former deputy director at the Greenwood Job Center in Brooklyn, is charged with failing to ensure same-day interviews and same-day service to participants applying for immediate need/emergency assistance grants, electronic benefits transfer same-day benefits issuance, and expedited food stamp services during the period June 16, 2003 through September 29, 2003; improperly establishing and utilizing during that period a pre-screening process which gave emergency assistance applicants return appointments on improperly altered agency forms; failing to properly supervise her subordinates, particularly with regard to ensuring that applicants for various benefits received same-day interviews and same-day service; improperly altering agency forms; and, as a result of all of the above, engaging in conduct detrimental to the agency (ALJ Ex. 1).[1]

A hearing on the charges was conducted on April 14, 2004 and June 2, 2004. Prior to commencement of the hearing, respondent, with the agency’s knowledge, filed for retirement. Respondent indeed retired from her position on May 1, 2004, after the start but prior to the completion of the trial. Despite the fact of respondent’s retirement, which the agency made clear it was not seeking to prevent, petitioner sought to proceed. Petitioner, although it may no longer sanction respondent, nevertheless has the legal authority to proceed with the hearing and to seek a fact-finding determination as to whether respondent committed any of the misconduct alleged in the charges, which determination can then be made a part of her permanent employment record.

At the hearing, petitioner presented three witnesses, Brenda Hannah, the first deputy regional manager for the Brooklyn region of petitioner’s Family Independence Administration (FIA), Christine Maloney, one of the FIA deputy regional managers in the Brooklyn region, and Marion Callendar, an associate job opportunity specialist (AJOS) level II who worked under respondent’s supervision. Because of her intervening retirement, neither respondent nor her counsel appeared on the second day of trial. Thus, she presented no direct case in her defense.

ANALYSIS

The question presented in this case is whether respondent, a ranking administrator at one of petitioner’s job centers during the five-month period in 2003 at issue, committed misconduct when, in an effort to deal with center overcrowding and increasing numbers of new applicants for public assistance benefits, she implemented procedures to process new applications for benefits which violated established agency mandates and procedures. For the most part, the facts in this case were undisputed. To the extent that respondent outlined a defense in her counsel’s opening statement and his cross-examination of the agency’s principal witness, it was that the unconventional procedures she implemented were required by the extraordinary circumstances that she faced and her director’s failure to provide her with any additional resources despite repeated requests for help. Some background regarding the benefits application process is helpful to an understanding of the charges.

The Benefits Application Process

As explained by the Brooklyn first deputy regional manager Brenda Hannah, petitioner’s Family Independence Administration operates all of the agency’s job centers throughout the five boroughs. The job centers, which were formerly welfare centers, food stamp offices or specialized centers, are the locations where applicants now go to apply for public assistance benefits, which can include emergency grants and cash assistance, Medicaid and food stamps. In the Brooklyn region, there are currently nine job centers and seven food stamp offices, the overall operations of which it is Ms. Hannah’s responsibility to oversee (Tr. 19-20).

Ms. Hannah described the process involved in applying for benefits. When an applicant appears at the center, he or she reports first to the reception desk to let the receptionist know whether the applicant is there to file a new or first-time application for benefits or is already receiving benefits and is there to be re-certified (Tr. 21). New applications are handled by a center’s case establishment unit (“CEU”), which is staffed by financial planners and job opportunity specialists who will interview applicants and determine their eligibility for various immediate and longer term benefits.

The receptionist registers the new applicant’s case by entering it into the Paperless Office System, or “POS,” an internal computer log, indicating the name of the applicant and the time and date when the applicant entered the center, along with certain preliminary information obtained from the applicant. The applicant is given an application kit with information about the benefits programs, center policies, and the clients’ rights and responsibilities, and an application form for the applicant to fill out. The receptionist checks the state maintained Welfare Management System (WMS) computer database to learn an applicant’s entire benefits history, including whether the applicant has had a prior case, whether there was an active case in another location, or whether there was another application pending somewhere else (Tr. 22-23).[2] Once the initial information is entered into the POS log, it is then electronically transmitted to a designated CEU person and a supervisor, who learn from the cue that appears in their computers that an applicant is waiting to be seen and his time of arrival (Tr. 24). The applicants wait until a job opportunity specialist or financial planner is assigned, who then enters the waiting area when he or she is ready, and calls the applicant in for an initial interview (Tr. 24-25).

The initial or “I” interview, as it is known, is the interview to determine an applicant's eligibility for benefits, both on an ongoing and emergency basis. The information provided by the applicant in the interview, as well as in the written application, forms the basis for the determination as to the type and amount of benefits the client may qualify for. The interviewer is prompted to ask the client various questions regarding household composition, income, resources, childcare that may be needed, and similar items which are designed to provide a picture of the household circumstances. There are several different programs through which an applicant can apply for help, and throughout the interview, the worker gathers information while considering the existing programs and their eligibility guidelines.

The interviewer must also screen during the initial interview for emergency assistance, which can come in the form of cash grants or expedited food stamps. There are boxes on the application form for clients to check off to indicate any immediate or emergency needs, for example, a utility shut-off or lack of food. Several agency directives mandate the procedures to be followed in determining an applicant’s eligibility for emergency benefits.

Policy Directive No. 99-07R(4), issued August 1, 2000, provides instructions to staff on processing immediate needs/emergency assistance grants not related to general food needs (Pet. Ex. 2). The directive defines an “immediate need” as “those needs resulting from an emergency situation that must be met the same day to ensure the health and safety of individuals.” (PD 99-07(R)(4) at 1). There are two classifications of immediate needs. A “no food” immediate need is a need which is due to a lack of food in the household, which requires a same-day interview of the applicant and an immediate cash grant, if the applicant meets the eligibility requirement. A "non-food" related immediate need includes such situations as assistance for an applicant who is homeless, is facing eviction, received a utility disconnect notice or has had utility service terminated, has no fuel for heat in cold weather, is the victim of domestic violence or the victim of a fire or disaster. A non-food related immediate need also requires a same-day interview and timely benefit issuance to relieve the emergency. The immediate or emergency needs cash grants are one-shot deals for the client.

Whether or not an applicant is eligible for an immediate “no food” cash grant, all applicants must be evaluated for eligibility for expedited processing of the food stamp application. Policy Directive No. 01-33, issued June 1, 2001, deals with the expedited processing of food stamp benefits (Pet. Ex. 3). The directive requires that the pre-screening for eligibility for expedited issuance of food stamps occur on the same day that the applicant first appears at a center. Eligibility is based on an income-expense calculation that the interviewer must perform. If an applicant meets the expedited criteria, then the food stamp benefit will be issued the same day (Tr. 36-37).

Policy Directive No. 03-43-ELI deals with Electronic Benefits Transfer (“EBT”) same-day benefits issuance (Pet. Ex. 4). The program allows the same-day issuance of an immediate needs and/or food stamp grant through the Electronic Benefits Transfer (EBT) system. Through this system, an electronic account is created for a client and shortly after the relevant data is entered into the WMS system, money is authorized to be placed in that account. The applicant can then access it using a type of debit card, which can be used at participating food stores or as otherwise needed.

In addition to determining eligibility for emergency needs, the purpose of the initial interview is to determine an applicant’s eligibility for food stamps or other public assistance on an ongoing basis (Tr. 41). If additional documentation is needed to make that determination, a W-113K form is filled out (PD 1-33, Attachment A) and given to the applicant at the initial interview with a date to return with the additional needed documents (Tr. 38). The case is then carried as pending until the client returns with the rest of the information, at which point the application process is completed. The lack of documentation, however, does not prevent the initial interview from being conducted, nor is the W-113K form intended to be used to defer an initial interview until the return date for production of documentation (Tr. 40). The date that an initial interview is conducted is recorded on the POS log (or on PAL logs if there is no paperless system in that office) (Tr. 30).

While same-day screening interviews and benefits issuance were always required for emergency needs and expedited food stamps, the directives cited above allowed center staff to defer a full initial eligibility interview for longer term benefits for up to five days from when an applicant first reported to a center, by giving the applicant a return appointment within that time frame (See PD No. 99-07R(4) at 4; also, PD-No. 01-33 at 3). The five-day time frame was eliminated, however, on November 27, 2002, when the FIA Executive Deputy Commissioner, Seth Diamond, issued a memo addressed to all regional managers and job/food stamp center directors which required all job centers to provide a full initial eligibility interview for all applicants on the first day that the applicant appeared at the center to file an application for benefits (Pet. Ex.1; Tr. 25-26). The memo was sent to all regional managers and all job center and food stamp center directors and was to be presented to all staff at monthly training sessions (Tr. 28). At that time, respondent was the acting director at the Fulton Job Center, and she thus should have received the memo and been aware of the changed time frames. Under the modified procedure, a same-day interview on the entire application was required on the first day an applicant appeared, and if an applicant qualified for benefits, they were to start getting the benefits that same day (Tr. 124-125).

For the Greenwood Job Center, which services clients on weekdays between 8:30 a.m. and 5:00 p.m., the modified procedures meant that as long as an applicant entered the center by 5:00 p.m., he or she had to be interviewed and serviced that same day.[3] That requirement is only excused for reasons outside the agency's control, for example, if an applicant gets sick or has to leave early for child care reasons. If the computer system breaks down, the office should go to the paper system (Tr. 31).

Ms. Hannah testified that, for legal and funding reasons, it is important to have a complete initial interview on the first day an applicant appears. The information provided by an applicant in the initial interview allows staff to calculate the amount of an applicant’s grant and food stamp allotment. The agency cannot issue payments without a case being registered and an interview being conducted (Tr. 29).

The Processing of New Applications at Greenwood Job Center during the Period June 2003 to October 2003

Respondent, a veteran administrative job opportunity specialist, was appointed as the deputy director of the Greenwood Job Center in Brooklyn, after a brief stint as the acting director at the Fulton Job Center, from November 2002 through March 2003, where she facilitated the closing of that center. At Greenwood, respondent was primarily responsible for supervising the center’s case establishment unit (“CEU”), which was the unit responsible for processing all new applications for assistance. Respondent remained the deputy director through October 2003, when she was reassigned as a result of the allegations which were leveled against her in this proceeding.

There was no dispute that beginning sometime in June 2003, respondent altered the procedures being followed in the processing of new applications by the case establishment unit under her supervision at the Greenwood Center, in response to ever increasing numbers of new applicants and limited resources. Instead of conducting same-day full initial interviews on the day a new applicant first appeared at the Center, and issuing same-day benefits, the unit, under respondent’s direction, started to turn away applicants toward the end of each day and to give them return appointments to come back for an initial interview. Respondent further approved the alteration of form W-113K such that instead of simply being used to give a return date for applicants to come back with certain required documentation, the form was now used to give new applicants a return date to come back to the center for the initial interview. These procedures implemented by respondent remained in place throughout the summer and into September 2003, when they were uncovered by regional management.

Ms. Hannah testified that throughout the summer of 2003, she spoke almost daily with respondent regarding the case establishment unit’s operations at Greenwood and how things were progressing, and monitored respondent’s efforts to stay on top of the backlog in processing those cases where interviews had been conducted (Tr. 44). Respondent reported backlog numbers to Ms. Hannah daily. To address the backlog, respondent identified certain staff to work on it almost exclusively, while the rest of the staff in the unit saw clients. Respondent reported that it was very crowded at the center every day and that there was a lot of activity (Tr. 45). Some days there were as many as 90 applicants coming in. In their various conversations that summer, respondent never gave Ms. Hannah specifics as to how she was managing such a high caseload or how she was handling all that activity. Respondent never told Ms. Hannah how she was processing the applicants and never mentioned that she was sending clients away without an interview. She would only say that she was doing the best she could with limited staff and that she would work it out. She never asked Ms. Hannah about getting additional staff, although she apparently made that request to her director, Mr. Dickerson. All the centers in the Brooklyn region though, were short staffed (Tr. 45-46, 80).

Ms. Hannah testified that upper management at the agency monitored the centers through regular reports which ranked the centers' productivity and processing of cases using a point system. Meetings were held every two months or so for each center, where the director and deputy director of a center would come to the central office and meet in a round table format with upper management, including the commissioner and deputy and executive commissioners, to discuss their “job stats.” The center managers would be asked questions about what was happening at their respective locations, how things were going, what the problems were and how they might be corrected (Tr. 48). The job stats are HRA-created indicators for job centers with certain thresholds that need to be met. In particular, various applications information is measured, including the timeliness of the processing of new applications and the processing of expedited food stamps, which workers are required to screen for on the first day an application is filed. Certain employment indicators are also tracked.

A job stat meeting was held on September 25, 2003, involving the Greenwood and Euclid Centers. Mr. Dickerson, the Greenwood director, and respondent were present on behalf of Greenwood. At the meeting, problems were noted with Greenwood’s same-day issuance statistics - seeing clients and making benefits available on the same day clients appeared at the center - which were very low (Tr. 126-127). Numbers regarding the same-day issuance of expedited food stamps, which were supposed to be processed on the first day, were also very low. Indeed, only thirty percent of the benefits issued were being provided on the same day that the application was filed, as required, in the preceding month of August. The numbers were around the same as they were at the prior job stat meeting for Greenwood some three or four months earlier. An upper level regional manager, Ms. MacAlevey, asked Mr. Dickerson what had happened since the last meeting and why he had not carried through on what he said he would do to improve the numbers. No clear explanations were forthcoming and respondent volunteered at one point that they were not monitoring the processing of expedited food stamps.

In order to find out what was happening, regional management sent Christine Maloney, a deputy regional manager in Brooklyn, along with a Mr. Baldwin, to the Greenwood Center the next day, September 26, 2003, to look at Greenwood’s handling of new applications, in an effort to figure out where the bottleneck was and to correct it (Tr. 128).

Ms. Maloney testified that when she arrived at the center that morning, at about 8:40 a.m., it was already jammed with people. Many of them had W-113K forms in their hands, which had apparently been altered to reflect that they had return appointments. The forms had names but no case numbers. A number of the applicants were upset because they had been to the center several days earlier, and some were there for the second or third time, and they still had not had their initial interviews (Tr. 129-130). Ms. Maloney took several of the altered W-113K forms from applicants and checked the names in the WMS system in respondent's office, only to learn that nothing had yet been entered into the computer system regarding those applicants, either to indicate that a new application had been filed or that any action had been taken to assist the applicants. Indeed, she discovered that the cases had not even been registered. Ms. Maloney testified that if a case is not registered, cash grants or food stamps cannot be issued because there is no record of it. In checking the WMS and POS systems regarding applicants in the center that day with return appointments, Ms. Maloney discovered that many of them had first come in to the center a week before, on September 19, 2003.

Ms. Maloney approached respondent and asked her what was going on. Respondent acknowledged that they were not registering all of the new cases (Tr. 131). She explained that due to a heavy increase in new applications throughout the summer and staffing problems as the summer progressed, including absences for vacations and other reasons, they were having trouble seeing everyone who came in. She noted for example, that people applying for food stamps after the blackout in mid-August of that summer doubled at a time when it was the height of staff summer vacations.

Respondent told Ms. Maloney that, in order to alleviate overcrowding in the center and deal with the excess numbers of applications, she gathered the supervisors working under her in the case establishment unit and came up with a plan whereby each day staff would figure out how many of the new applicants they would be able to see before the day was out, and the excess, they would pull aside for quick interviews to determine whether they were eligible for expedited food stamps or emergency cash assistance. They would then give those folks return appointments for anywhere from three to five days later, using a W-113K form which they modified for that purpose, to come back for a full eligibility initial interview on a later date. They followed that plan for awhile, but it soon made things even more difficult, because in addition to dealing with the daily high number of new applicants, they also then had to deal with applicants coming back for return appointments. As the summer wore on, the numbers snowballed and staff simply could not keep up. In the beginning they tried to register the cases, but as the number of applicants appearing at the center dramatically increased, they stopped doing even that, and thus no benefits were being issued (Tr. 135-136). Respondent stated that she had asked Mr. Dickerson for more staff but that he had refused to provide any (Tr. 133). Mr. Dickerson acknowledged to Ms. Maloney that he told respondent to handle the problem with the staff that she had, but he also claimed that he did not know how dire the situation was or that the CEU was turning people away without interviews.

Ms. Maloney and Mr. Baldwin interviewed CEU staff and supervisors on September 29, 2003, who confirmed that under respondent's direction, they had implemented a process during the summer, after recognizing that they could not fully interview everyone, where the supervisors took clients into a room to do an expedited pre-screening and then gave out return appointments. They tried to issue benefits where they could (Tr. 137). Those applicants still had to come back for a full interview, however, and the returns caused the number of applicants coming to the center each day to swell to the point where it got out of control. Mr. Connally, one of the receptionists in CEU, was the one who altered the W-113K form and showed it to respondent and Mr. Dickerson. Mr. Dickerson told Ms. Maloney that he thought the CEU staff was using the form for legitimate returns to bring documentation and that they had modified the form just to make it look nicer (Tr. 138).

Ms. Thomas, another receptionist, told Ms. Maloney that in September 2003, respondent and Denise Scott instructed her that at 11:00 a.m. each day she was to do an assessment of who was in the reception area and if there were "a lot" of people, she was supposed to start giving out the altered forms to people who came in after that and tell them to come back in five days (Tr. 138).

Marion Callendar, a senior supervisor in CEU working under respondent at the time, also testified at the trial. She confirmed that the summer of 2003 was horrendous in terms of caseload at Greenwood. The center added a new zip code or area to those it serviced that summer, adding to the increased caseload (Tr. 192). The center received the most applicants Ms. Callendar had seen in a long time. There was no standing room in the center most days, and clients were fighting with one another. CEU also shared the waiting room with the case management unit (“CMU”), which handled the clients appearing at the center for face-to-face recertification interviews. The large crowds affected the entire operations. In response to a major fight one day, Mr. Dickerson and Ms. Dareeda came over and decided to do something about getting people out of the waiting area. Mr. Dickerson gathered respondent and the CEU supervisors, and they all tried to figure out how to assess clients and get them out as fast as possible. They came up with a kind of pre-screening process where they would call ten applicants at a time, take them into a classroom and do a quick assessment to see why they were there (Tr. 193). They got the cases registered, and then called in another ten applicants. At that time, the applicants were receiving interviews. The one-on-one interviews were continued at the same time. Ms. Callendar then went out sick for a period of time, followed by jury duty and vacation, so she was not at work for much of the summer.

When she returned in mid-September, the process had changed even further. Ms. Callendar learned that cases were not being registered and applicants were being given return appointments. She observed that the W-113K forms had been altered and were being used as the new return sheet (Tr. 195). Respondent had a stack of these preprinted forms on her desk. She also learned that Mr. Escort, another job opportunity specialist in CEU, was issuing benefits based on old case numbers, if a client was known to the old system (Tr. 197-198). Some of those old case numbers were from a former food stamp or Medicaid case, and meant that the client could not access the benefits. Ms. Callendar found out that CEU staff was not doing full assessments and in some cases not even interviewing applicants at all, yet still issuing benefits (Tr. 198). Ms. Callendar understood from Mr. Escort that respondent told him to just start giving out returns at one point, and he did and then did the benefits later. He did not even really know what they were applying for, because he was figuring out benefits after they left. He would tell applicants that they were not able to see the person that day, but would give them food stamps to hold them over. If they were not in the old system though, he could not issue them any benefits and there had to be an old case number of a certain type or the client could not access the benefits (Tr. 199).

The backlog in handling new applications had also increased. Ms. Callendar checked and saw that Ms. Scott, for example, a supervisor under Ms. Callendar’s supervision, had some 60 cases. When Ms. Callendar tried to speak to Ms. Scott about it, the latter got very upset and stormed off to respondent’s office. Respondent then told Ms. Callendar not to bother Ms. Scott, who was doing an assessment of people that had to return. Ms. Callendar told respondent that she thought that the new applications were being handled incorrectly and that some applicants were not going to get their benefits. Respondent told her not to focus on it and that she, respondent, was handling it. Ms. Callendar then went to Mr. Dickerson to report her concerns.

In the meantime, Ms. Maloney reported back to Ms. Hannah the results of her investigation - that the center was turning away clients in mass numbers and giving them altered W-113K forms for return appointments for anywhere from three to five days later (Tr. 50). As a result, Ms. Hannah went to the center shortly thereafter and spoke to respondent. Respondent told her that she had spoken to her director, Mr. Dickerson, on several occasions and asked for help, because she could not keep up with the activity. When the requested help was not forthcoming, she decided to brainstorm with her staff to develop a mechanism to handle the caseload that they were getting and they came up with the process described above (Tr. 51-52). The process started sometime in the summer and started out small, like one or two a day, but then grew in numbers (Tr. 52). As the center continued to get daily crowds, combined then with return applicants as well, the center had trouble handling the increased numbers.

Ms. Hannah identified several problems with the system respondent implemented. For one thing, the center was issuing benefits to clients who had not had an interview and therefore had no signed application on file (Tr. 52). The applicants provided no history and thus staff did not really know their needs. They did not know if the real immediate need was money to avoid a utility shut-off or deal with an eviction notice. Instead, the center was simply issuing these clients one-shot cash grants and expedited food stamps and then telling them to come back another day (Tr. 53). In many instances, they were simply telling applicants to return without determining their need for emergency benefits at all. Ms. Hannah noted that the agency gets audited all the time by the Inspector General's office, the State and the Federal government, and if benefits are issued without supporting documentation to substantiate them, the City could be sanctioned (Tr. 107).

Respondent sent an email to Ms. Maloney on October 1, 2003 (Pet. Ex. 40) and copied Ms. Hannah and Mr. Baldwin, in which she indicated she realized it was a mistake to issue code 44 (emergency cash assistance grants) and code 54 (expedited emergency food stamps) without registering cases (Tr. 140).

Once the circumstances at Greenwood Center were uncovered, regional management took several corrective measures. For one thing, in October 2003, staff was assigned from other Brooklyn locations (ten workers) on fifteen-day loan to Greenwood (Tr. 73). One initial interview was assigned to every CMU worker, which are the workers that maintain the ongoing cases. Every worker on a daily basis had to do at least one initial interview to assist with the volume of work. New management was sent to Greenwood and staff reassignments were made in CEU. With oversight from regional management, the staff at Greenwood slowly worked through the backlog and eliminated it by February 2004 (Tr. 73). They were also given additional staff, in that new staff was ultimately hired at the Center.

Ms. Hannah testified that she knew respondent for about three years and knew her as someone who always tried to get the job done. She noted that while respondent's intentions may have been well placed, the implementation of this altered process was wrong because it contravened agency policies and mandates. Ms. Hannah admonished respondent that if she got no relief from Mr. Dickerson after making a request, she should have come to her or to regional management for help and they could have taken corrective measures (Tr. 89-90). Respondent apparently felt that she could handle the matter. According to Ms. Hannah, respondent had no underlying reason or agenda for her actions, but was simply trying to get her job done. However, she made an extremely poor decision in implementing a system that violated agency directives (Tr. 53, 92-94).

The Charges

Charge 1 alleges, in 43 specifications, that respondent violated the provisions of PD 99-07R(4), by failing to ensure that her staff in the case establishment unit provided same-day evaluation interviews and same-day benefits to participants applying for immediate need/emergency assistance grants.

In particular, specification 1 of charge 1, broadly alleges that respondent, during the period from June 16, 2003 through September 29, 2003, improperly established a pre-screening process for emergency assistance applicants that violated agency policies and mandates by failing to give required same-day interviews to evaluate applicants for public benefits assistance, and instead, giving them return appointments for their initial interviews for anywhere from three to eight days later on improperly altered agency W-113K forms. As a result, according to the charge, agency clients were denied timely receipt of public assistance for which they were otherwise entitled.

There was no dispute, as noted, that respondent in conjunction with members of her staff in the case establishment unit, did in fact develop and implement a type of pre-screening process for emergency assistance applicants during the period alleged, which resulted in many applicants being given return appointments and sent from the center without an initial interview or determination of their eligibility for benefits on the first day they appeared at the center. Respondent admitted as much to Ms. Maloney and Ms. Hannah in September 2003, when those two administrators investigated the Greenwood Center to determine why its same-day issuance statistics were so low and its backlog high. Ms. Maloney also learned as much from interviewing applicants in the center and staff members in Greenwood’s CEU.

There was also no dispute that one of respondent’s subordinates, with respondent’s knowledge and approval, altered agency form W-113K so that it could be used to give applicants return dates for their initial interviews. The form was meant to be used only for those applicants who needed to return with requested documentation and was not meant to be used in a process that involved wholesale deferment of initial interviews.

As Ms. Hannah pointed out there were numerous serious problems with this unauthorized pre-screening process, including the almost blind issuance of benefits to some applicants without an initial interview and a signed application on file and the turning away of other applicants without benefits and/or an interview. Worse, as applicants returned on dates provided, they joined new applicants in waiting to be interviewed, causing the numbers of applicants handled by CEU on any given day to swell to a point where it resulted in increasing numbers of applicants being given return appointments, and for some, more than one such appointment.

The pre-screening process clearly violated agency policies and mandates as noted above. Respondent’s defense, to the degree it was suggested or articulated here, appeared to be that her conduct in creating this process was not sanctionable misconduct but an exercise of managerial discretion that she was forced to make in order to service an unusually heavy caseload of applicants with limited resources.[4] This defense, however, was not adequately established in these circumstances. While there may be many decisions respondent might be entitled to make as an upper level supervisor, a decision which resulted in wholesale violation of agency mandates, which mandates in turn stemmed from litigation against the agency, was not among them. Indeed, respondent’s implementation of a system on her own which disregarded agency mandates risked subjecting the agency to potential liability. See Reynolds v. Giuliani, 35 F.Supp.2d 331 (S.D.N.Y. 1999) (Pauley, J.), modified, 43 F.Supp.2d 492 (S.D.N.Y. 1999), modified, 118 F.Supp.2d 352, 2000 U.S. Dist. LEXIS 10339 (S.D.N.Y. 2000) (injunctive relief granted on behalf of individuals who were improperly denied food stamps and other public benefits).

Simply put, respondent, as deputy director of the Greenwood Job Center, did not have the discretionary authority to implement the pre-screening process she implemented in the CEU and to thereby randomly defer certain applicants’ initial interviews and opportunity to receive benefits beyond their first contact with the center. Respondent did not assert, nor was there any evidence, that this pre-screening process had the approval of the Greenwood Center’s director, Mr. Dickerson, who in any event, did not have the discretionary authority to approve such an alteration of agency mandates either. It is undisputed that respondent never once discussed the system she implemented with Ms. Hannah or higher level regional management, despite having plenty of opportunity to do so. Indeed, although respondent claimed without contradiction that she asked her director, Mr. Dickerson, for additional resources to cope with the overwhelming number of applicants coming into the center that summer and was refused, she never brought the issue up with Ms. Hannah, even though she spoke with Ms. Hannah on almost a daily basis throughout the summer. Ms. Hannah made clear in her testimony that there were temporary ways to clear up backlogs and provide additional manpower, as were employed after Ms. Hannah and regional management became aware of the probes at Greenwood. Respondent failed to address the problem with Ms. Hannah, however, and instead adopted a process on her own that was clearly beyond her authority. Ms. Hannah testified that, respondent, who was a knowledgeable deputy director and in charge of CEU, should have been very familiar with the various policy directives and procedures, including the same-day initial interview requirements. Indeed, respondent did not claim to be unaware of the policy directive requirements.

In sum, this was not a simple error of judgment on respondent’s part for which she cannot fairly be sanctioned. See Ryan v. New York State Liquor Authority, 273 A.D 576, 79 N.Y.S.2d 827 (3d Dep't 1948); Dep't of Correction v. Maldonado, OATH Index No. 1005/01 (May 31, 2002); Dep't of Correction v. Rivera, OATH Index No. 1249/96 (Oct. 4, 1996); Dep't of Correction v. Messina, OATH Index No. 738/92 (July 9, 1992). This was instead a violation of clear agency mandates without sufficient justification. While there is no reason to believe that her motives were anything but well-intentioned, her judgment in this regard was so seriously flawed that her conduct is subject to sanction. See Admin. for Children's Services v. Gold, OATH Index No. 585/05, at 10 (Apr. 13, 2005) (supervising child welfare specialist’s failure to follow agency reporting procedures for adolescent’s AWOL from a group home was such a gross error in judgment that it constituted negligence); Human Resources Admin. v. Bellamy, OATH Index No. 1665/03, at 8 (Jan. 9, 2004) (eligibility specialist’s judgment in refusing immediate needs benefits to homeless client with no food or money, on the stated grounds that his children had no identification, violated agency procedures and was so unreasonable as to be sanctionable); Fire Dep’t v. Guerrero, OATH Index No. 2240/01, at 20 (Aug. 9, 2002) (emergency medical technician’s failure to classify patient as a trauma patient and to strictly follow Basic Lifesaving Protocols, was such a gross error of judgment in the circumstances as to constitute misconduct). This is particularly true given respondent’s position as a center deputy director and the principle that supervisors are generally held to a higher standard of conduct. See Dep't of Sanitation v. Green, OATH Index No. 1329/02, at 13 (Aug. 20, 2002), aff'd, NYC Civ. Serv. Comm'n Item No. CD03-35-SA (Apr. 16, 2003); Dep't of Transportation v. Coppola, OATH Index Nos. 1566/03, at 14 (June 30, 2003); Transit Authority v. Coaxum, OATH Index No. 1565/97, at 20 (Sept. 5, 1997); Dep’t of Housing Preservation and Development v. Silverman, OATH Index No. 210/86, at 26 (Dec. 15, 1986). Eligibility specialists have been disciplined for turning away emergency assistance applicants without service in individual instances and telling them to come back another day. See Human Resources Admin. v. Green, OATH Index No. 1231/05 (June 21, 2005); Human Resources Admin. v. Daughtry, OATH Index No. 1713/99 (Aug. 4, 1999), aff'd, NYC Civ. Serv. Comm'n Item No. CD 00-75-SA (July 6, 2000). Clearly then, a deputy director and ranking supervisor who authorized such improper practice on a widespread basis, must be held accountable. Moreover, the fact that Mr. Dickerson, as the center director, may have been aware of, or condoned respondent's actions, was not a defense to the charge. Respondent was the supervisor in charge of processing new applications. Specification 1 is therefore sustained.

Specification 2 alleges that for the week from June 16, 2003 through June 20, 2003 in particular, respondent, or her staff under her supervision, improperly gave return appointments to approximately 130 emergency assistance applicants. The POS log submitted by petitioner (Pet. Ex. 5), along with the credible and unchallenged testimony of Ms. Hannah and Ms. Maloney, established this charge. Specification 2 is therefore also sustained.

Specifications 3 through 43, minus the seven specifications withdrawn at the outset of the hearing (see footnote 1), allege that during the one-week period from September 18, 2003 through September 24, 2003, the CEU, acting under respondent’s supervision, gave thirty-four named clients (one client is named in each specification) improper return appointments on altered W-113K forms, and the clients either failed to receive a same-day initial interview and/or failed to receive benefits on the first day that they appeared at the center.

The evidence against respondent on these specifications consisted of the testimony of the three agency witnesses as summarized above, the WMS tracking log for the relevant time period (Pet. Ex. 6), and the altered form W-113K forms distributed to many of the applicants at issue in the specifications (Pet. Exs. 7-39). A review of the documentary evidence submitted revealed that no proof was submitted to substantiate specification 10 (Vernon A.), and that specification must therefore be dismissed.

The documentary evidence, however, which again was uncontroverted by respondent, was sufficient to establish that thirty-three applicants during the period from September 18, 2003 through September 24, 2003, were not provided same-day interviews on the first day they entered the center, but were instead given return appointments (specifications 3, 5, 7-9, 11-28, 30-34, 36, 38-39, 42-43). The evidence further established that sixteen of those applicants apparently received emergency assistance despite not having had an initial interview (specifications 3, 5, 7-9, 12, 17, 19-20, 22, 30, 33-34, 38, and 43). Ms. Hannah noted the impropriety and potential repercussions of issuing benefits without recording the necessary eligibility information in the system. The proof further established that at least twenty-eight of the applicants at issue during this period were given their return appointments on improperly altered W-113K forms (specifications 11-28, 30-34, 36, 38-39, and 42-43). Finally, the proof established that eighteen of the applicants at issue not only did not receive same-day interviews, but did not receive same-day benefits to which they were apparently entitled (specifications 11, 13-16, 18-23, 26, 28, 31-32, 36, 39, 42). Although respondent did not specifically handle or interact with the applicants at issue in these specifications, she is nevertheless responsible for the misconduct of her subordinates in all these instances, since they acted under her auspices and with her knowledge and approval, and in accordance with the pre-screening return appointment process that she implemented.

The remaining charges in this matter, charges 2 through 7, simply re-allege all of the misconduct set forth in charge 1 as violations of other specified agency rules and procedures. Thus, petitioner alleges that, in addition to violating Policy Directive No. 99-07 R(4), the misconduct alleged and established in charge 1 also violated: Policy Directive No. 03-42 ELI, requiring same-day interviews and same-day service to participants to determine their eligibility for electronic benefits transfer, same-day benefits issuance (charge 2); Policy Directive No. 01-33, which requires same-day interviews and same-day service to participants to determine their eligibility for expedited food stamp services (charge 3); Executive Order No. 651 (Human Resources Administration Code of Conduct), section III, no. 21, which requires employees to perform all duties and assignments as imposed by law or by the employee’s tasks and standards or as assigned by a supervisor (charge 4); no. 19, which requires supervisors to be responsible for their subordinates’ proper performance of their duties and assignments (charge 5); no. 4, which prohibits among other things, the unauthorized alteration of official agency records or documents (the altered W-113K forms) (charge 6); and no. 36, which prohibits conduct detrimental to the Agency (charge 7).

I find that respondent’s misconduct, as established in the specifications sustained as part of charge 1, also constitutes violations of the agency’s procedures and rules as specified in charges 2 through 7, and thus those charges are sustained as well.

FINDINGS AND CONCLUSIONS

1. During the period from June 16, 2003 through September 29, 2003, respondent, as the deputy director of the Greenwood Job Center, in charge of the center’s case establishment unit, improperly established a pre-screening process for emergency assistance applicants that violated agency policies and mandates by failing to give required same-day interviews and same-day benefits-issuance service as appropriate, to many of the applicants, and instead giving them return appointments on altered agency forms.

2. For the week from June 16, 2003 through June 20, 2003, respondent, or her staff, improperly gave return appointments to approximately 130 emergency assistance applicants.

3. During the period from September 18, 2003 through September 24, 2003, respondent’s staff, with respondent’s knowledge and approval, and acting consistently with respondent’s improperly implemented pre-screening process, gave thirty-three applicants return appointments on altered W-113K forms, resulting in those clients failing to receive same-day initial interviews and/or emergency benefits on the first day that they appeared at the center.

4. Respondent's misconduct, as noted above, further constituted a failure to properly perform her duties, a failure to properly supervise her staff, unauthorized alteration of agency records, and conduct detrimental to the agency.

THEREFORE:

I find that petitioner has proven charge 1, specifications 1-3, 5, 7-9, 11-28, 30-34, 36, 38-39, and 42-43, and charges 2 through 7 to the extent of the same specifications.

RECOMMENDATION

Respondent filed for retirement and retired prior to the completion of the trial in this matter. In light of respondent's retirement, no penalty recommendation can be made, see Bd. of Education v. Telepan, OATH Index No. 262/87 (Oct. 8, 1987), since an employer cannot convert a voluntary resignation to a dismissal, People v. Harris, 294 N. Y. 424, 434, 63 N. E. 2d 17, 22 (1945), and no other penalty would be enforceable. Dep’t of Sanitation v. Crutch, OATH Index No. 1330/98 (June 3, 1998). The courts have held that "it is clear beyond peradventure that a person has the right to resign his position and that there need be no acceptance of such resignation to give effect to it. This right to resign a public office may even be exercised pending removal proceedings." Vito v. DiCarlo, 52 Misc. 2d 205, 206, 275 N. Y. S. 2d 412, 414 (Sup. Ct. N.Y. Co. 1964); Christie v. Dep’t of Parks and Recreation, NYC Civ. Serv. Comm'n Item No. CD 85-50 (July 19, 1985), citing DiCarlo; see also Admin. for Children's Services v. Pritchard, OATH Index No. 1756/00 (June 22, 2000); Human Resources Admin. v. Singleton, OATH Index No. 909/96 (Mar. 1, 1996).

Accordingly, no penalty is recommended in this matter.

Raymond E. Kramer

Administrative Law Judge

November 28, 2005

SUBMITTED TO:

VERNA EGGLESTON

Commissioner

APPEARANCES:

CATHERINE A. KENDRICK, ESQ.

Attorney for Petitioner

ROBERT N. FELIX, ESQ.

Attorney for Respondent

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[1] At the outset of the hearing, petitioner withdrew with prejudice, charge 1, specifications 4, 6, 29, 35, 37, 40 and 41. In addition, the agency amended, without objection, charge 1, specifications 3, 5, 7, 8, 9, 17, 24, 25, 27, 30, 33, 34, 38 and 43, by dropping the words "or benefits." Finally, charge 1, specification 2 was amended to narrow the allegations to a claim that respondent improperly gave return appointments to approximately 130 emergency assistance applicants during the week from June 16, 2003 through June 20, 2003 (Tr. 5-7).

[2] If the applicant has an active case elsewhere, he can be turned away, or, if the applicant lives in a different geographic area than the one covered by that center, he may be redirected to the appropriate center, as long as no emergency need exists.

[3] The cut-off time for a grant to be issued through POS on any given day is 6:45 p.m. (TR. 95).

[4] In an email to Ms. Hannah dated October 1, 2003, respondent noted that the caseload increased substantially prior to the summer of 2003 because of the addition of two new zip code areas to the areas already covered by the center (Pet. Ex. 40).

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