Kohn v. Cnty. of Sullivan
| Docket Number | 535241 |
| Decision Date | 02 March 2023 |
| Citation | 214 A.D.3d 1058,185 N.Y.S.3d 361 |
| Parties | In the Matter of Burt KOHN, Petitioner, v. COUNTY OF SULLIVAN, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Sussman and Associates, Goshen (Michael H. Sussman of counsel), for petitioner.
Michael McGuire, County Attorney, Monticello (Khalid Bashjawish of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Lynch, Pritzker and McShan, JJ.
Proceeding pursuant to CPLR article 78 () to review a determination of respondent terminating petitioner's employment.
Petitioner was the administrator of the Sullivan County Adult Care Center (hereinafter ACC) – a County-based nursing home – between October 2020 and October 2021. In July 2021, petitioner was notified pursuant to Civil Service Law § 75 that he was being charged with 11 counts of misconduct and one count of incompetence due to alleged violations of respondent's code of conduct and ethics policy. These charges were amended in August 2021 to include additional allegations against petitioner. Petitioner answered and denied the charges.
Following a disciplinary hearing, a Hearing Officer found petitioner guilty of eight charges and recommended that he be dismissed from service. The Commissioner of respondent's Division of Health and Family Services (hereinafter the Commissioner) sustained the Hearing Officer's findings with respect to seven charges and terminated petitioner's employment. Petitioner commenced this CPLR article 78 proceeding challenging the determination, and the proceeding was transferred to this Court (see CPLR 7804[g] ).
"Pursuant to Civil Service Law § 75(1), a civil service employee ‘shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges’ " ( Matter of Blamah v. New York Off. of the State Comptroller, 207 A.D.3d 905, 906, 172 N.Y.S.3d 509 [3d Dept. 2022] [], quoting Matter of Scuderi–Hunter v. County of Delaware , 202 A.D.3d 1309, 1314, 163 N.Y.S.3d 664 [3d Dept. 2022], lv denied 39 N.Y.3d 903, 2022 WL 16984425 [2022] ). " ‘The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence’ " ( Matter of Blahmah v. New York Off. of the State Comptroller, 207 A.D.3d at 906, 172 N.Y.S.3d 509, quoting Matter of Scuderi–Hunter v. County of Delaware, 202 A.D.3d at 1314, 163 N.Y.S.3d 664 ). This is " ‘a minimal standard that requires less than [a] preponderance of the evidence and demands only the existence of a rational basis in the record as a whole to support the findings upon which the determination is based’ " ( Matter of Blamah v. New York Off. of the State Comptroller, 207 A.D.3d at 906, 172 N.Y.S.3d 509, quoting Matter of Wales v. City of Saratoga Springs, 200 A.D.3d 1262, 1264, 160 N.Y.S.3d 389 [3d Dept. 2021] ).
The findings relative to charges Nos. 3, 4, 6 and 16 – which were sustained by the Commissioner – pertain to allegations that petitioner either suggested to or directed1 a subordinate to share her login credentials for a database maintained by the Centers for Disease Control and Prevention (hereinafter CDC) with another employee to enable that employee to fulfill ACC's COVID–19 reporting requirements while the subordinate was on vacation. Respondent alleged that such behavior constituted misconduct in violation of its rules and ethics policy, and also displayed incompetence insofar as petitioner failed to recognize that his behavior could have resulted in ACC incurring penalties.
The record contains a copy of respondent's written code of conduct and a certification by petitioner, dated October 26, 2020, acknowledging receipt thereof. The code of conduct provided, in relevant part, that Correspondingly, respondent's ethics policy provided:
During the disciplinary hearing, Cynthia Hathaway, ACC's director of nursing, explained that ACC was required by law to log in to the CDC's National Health Safety Network (hereinafter NHSN) on a weekly basis to submit COVID–19 data. ACC could incur fines and penalties if it did not comply. By the spring of 2021, Hathaway was the only ACC employee who had the login privileges necessary to do the COVID–19 reporting, with petitioner having a lower level of access that did not grant him reporting privileges. Hathaway began the process of obtaining a higher-level access for both petitioner and Tara Hunt – the assistant director of nursing – in or around May 2021.
The record evidence generally confirms as much, containing a June 28, 2021 email from the CDC to petitioner inviting him to register with CDC's partner portal to begin the process of obtaining access to the NHSN database. The email advised that petitioner was being invited "based on [his] specific role in public health" and that online registration with the partner portal would "take[ ] about 5 minutes." The email further advised that the process of obtaining access to the NHSN database would require online registration, identity verification (if required) and access approval. Petitioner was provided with temporary login credentials to access the portal and was informed that the registration invite was valid for 30 days. During the hearing, Hathaway explained that the June 28 email was inviting petitioner to apply to get a "grid card," which, if approved, would grant him privileges to input data into the NHSN database.
On July 6, 2021, Hathaway sent an email to petitioner asking whether he had logged into the portal, advising that she would be on vacation from July 16 through July 27 and would not be able to report ACC's COVID–19 data during that time. Petitioner responded that he never logged on to the partner portal and was relying on Hunt to do the COVID–19 reporting in Hathaway's absence. In a reply email that same day, Hathaway informed petitioner that Hunt did not have access to the database, he should not rely on Hunt to have access by the time of her vacation, and he should have logged in to the CDC portal with the temporary login information he had received on June 28 to apply for his own access to the database. Hathaway testified that, rather than heeding such advice, petitioner suggested during a meeting on July 9 that Hathaway could "just give [her] login information to [Hunt] so she could log in to complete the surveys while [Hathaway] was on vacation." When Hathaway refused to share her login information – fearing that doing so would violate respondent's rules and amount to a crime – petitioner became angry and purportedly stated, "I don't know why everything is such a big deal here."
The rules of behavior governing the NHSN website, a copy of which was admitted into evidence during the hearing, specifically prohibited users from sharing accounts and passwords, stating that "[n]on-compliance will be addressed through sanctions imposed under existing policy and regulation." Hunt generally corroborated Hathaway's testimony about the July 9, 2021 meeting, testifying that petitioner suggested that she log in to the NHSN database using Hathaway's information. When Hathaway left the room after petitioner made this suggestion, petitioner asked Hunt why Hathaway was so upset, to which Hunt responded, "you asked us to, you know, break the law in regards to ... reporting under someone else's credentials." Petitioner allegedly replied, "why is everyone so uptight here."
At the hearing, petitioner maintained that the COVID–19 reporting mandate was a clinical report, meaning that ACC's nursing unit was responsible for completing it. He was adamant that, rather than giving Hathaway an order to provide Hunt with her login credentials, he merely made a suggestion to that effect. According to petitioner, when Hunt explained why Hathaway was upset by his suggestion, he responded, "I'll work on it and see what I can do." Petitioner emphasized that this...
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