Did Peter Hotaling receive a hearing or an exit interview?

Peter Hotaling was in the hospital on Sept. 17 when the Westerlo Town Board voted to advertise the job of town assessor. Hotaling had held the job for 19 years. His six-year term expired on Sept. 30.

He had missed office hours at the town hall since he began a medical odyssey in June 2018 when he went in for double hip-replacement surgery.

He ended up with MRSA, Methicillin-resistant Staphylococcus aureus, a bacteria that causes difficult-to-treat infections. “It went to sepsis and I almost died,” he said. “They took it out in the ER,” he said of having his replaced left hip removed in the hospital emergency room. “I was in the hospital a couple of weeks and then three weeks in Sunnyview,” he said of the rehabilitation hospital in Schenectady.

When his course of antibiotics ended last September, Hotaling said of the infection, “Sure enough,  it came back again.” When he was scheduled to get his left hip back in, Hotaling said, “My right hip blew up … It busted my femur.”

He concluded, “I had no hips.”

Hotaling conceded that, during this time period, his office hours were “hit and miss.” Hotaling went on, “In today’s world, you can do a lot at home. I did my job from my hospital room.”

Hotaling said he was never late with assessment rolls and the office hours were always covered by a staffer, herself a former assessor, who relayed information to him.

Hotaling said he had his right hip put in on Sept. 17 and is on the mend.

We contacted the Albany County Department of Civil Service to see if Hotaling had protection under Civil Service Law.

“In the Town of  Westerlo, the position of Assessor I is a non-competitive title,” Deputy Personnel Officer David Walker emailed us in response to our query. “If the person has been in the position for 5 or more consecutive years they would have Civil Service Section 75 rights. This means they cannot be removed from the position except for incompetency or misconduct shown after a hearing upon stated charges pursuant to Section 75 of Civil Service Law.”

That section of Civil Service Law provides that a covered person “shall not be removed or otherwise subjected to any disciplinary penalty … except for incompetency or misconduct …”

While the law itself does not define those two terms, case law and arbitration decisions have led to these generally accepted definitions:

— Misconduct: An act of omission or intentional wrongdoing; deliberate violation of law, rule, or regulation; improper behavior; or refusal to obey or comply; and

— Incompetence: The inability to perform resulting from a lack of aptitude, a deficiency in knowledge, or a disregard for directions, procedures, or methods.

Mind you, we’re not arguing for or against Mr. Hotaling’s job performance here.

Rather, we’re pointing out that, as a matter of law, he is entitled to a hearing before he is replaced.

We called Javid Afzali, serving as Westerlo’s attorney, to ask him if he had been aware of Hotaling’s Civil Service protection, requiring that he have a hearing in order to be replaced. Afzali would not answer our questions, stating it would be a violation of attorney-client privilege.

So we turned to William Bichteman, the “client” in this case, the acting supervisor of Westerlo who put forward the idea that the assessor’s job be advertised.

Bichteman, unlike the town’s lawyer, was candid in answering questions. Both Bichteman and Hotaling indicated that Afzali had led a closed-door hour-and-20-minute session on Sept. 3, when Hotaling was questioned. Bichteman surmised this might have been the required hearing.

However, it was not. The town board’s session did not meet the law’s requirements. Hotaling was to have been provided with a written notice of discipline or charges, and to be given at least eight days to answer the charges.

For the hearing itself, a transcript is to be kept, and Hotaling had the right to representation by counsel and to call witnesses on his behalf. To sustain a charge of incompetency or misconduct, proof by a preponderance of evidence must be shown, according to the law.

“That’s all been done at his direction,” said Bichteman of Afzali. “I never asked why he chose the format he chose. His advice was to have that hearing ... A subcommittee interviewed all the people who surrounded the assessor and reported back to the entire meeting.”

Bichteman later called us back to say he had talked to Afzali and was told that Section 75 wouldn’t apply in Hotaling’s case because he “was not an hourly employee.”

However, the law describes five classes of workers that are protected by Section 75, labeled “a” through “e.” According to Walker, Hotaling’s job falls in category “c”:

“[A]n employee holding a position in the non-competitive or labor class … who since his or her last entry into service has completed at least five years of continuous service in the non-competitive or labor class in a position or positions not so designated in the rules as confidential or requiring the performance of functions influencing policy.”

“I’m not a lawyer,” Bichteman told us, indicating he relies on Afzali’s advice.

In the neighboring town of Knox, where Afzali also serves as the town’s attorney, three transfer-station workers were replaced, in a split vote, by the town board on New Year’s Day. Two of those employees had worked for Knox for more than five years and have since been reinstated since their dismissal was against the law. They had Civil Service protection.

Questioned by a crowd at the Knox Town Hall in January, Afzali said he was, indeed, the son-in-law of one of the newly appointed transfer-station workers, who had replaced the fired workers. He said, though, that he had no part in the board’s decision to fire the workers.

We believe it is a town attorney’s duty to advise board members if they are breaking the law.

Afzali certainly was actively involved in the Sept. 3 closed-door session where Hotaling was questioned.

According to Hotaling, he was asked during that session for proof he was to have health insurance. Hotaling correctly points out that his health insurance over the last 19 years was part of the town’s budget, approved by the town board members, so the expenditure was no secret. The newly advertised job offers no health insurance.

Bichteman said that the town has received several applications for the assessor’s job, but none from Hotaling. The town advertised an Oct. 11 deadline for applying. Hotaling told us he plans to apply to keep his job.

We strongly advise all of the town board members to read the Civil Service Law before breaking the law and hiring someone else for the job. If the board still wants to remove Hotaling, it must go through the required hearing process.

In advertising to fill the assessor’s job, the board specified certain office hours with 80 percent attendance required as well as requiring quarterly reports. Hotaling says he was never, in his 19 years as Westerlo’s assessor, given a formal job evaluation, nor was he reprimanded.

Last December, Councilman Richard Filkins recommended six resolutions that were supported by himself and the other Republican on the board, Amie Burnside, but not by the Democrats — so the resolutions went nowhere.

Two of those resolutions were to write detailed job descriptions for town employees and to have their time on the job be tracked. Another was to have monthly reports given to the board. If the town board were to follow through with these, workers would know what was expected of them, the town board and the public would be informed about the work accomplished, and the current situation might have been avoided.

Regular job evaluations are a fair way to instruct workers so they can improve. It’s good for the town and good for the workers. It also gives the town a legal leg to stand on — records it can point to — if it ever decides workers aren’t doing their jobs and need to be replaced.

As we’ve written here before, Civil Service protection was a hard-fought battle, both nationally and in New York State. President James A. Garfield spent most of his short tenure as president appointing political supporters to fill the thousands of government jobs he’d emptied when elected. After he was assassinated in 1881 by a disappointed job seeker, the country was shocked into action. Civil Service reform began in earnest.

In New York State, city political machines had great power — New York City had William Tweed, and Albany had Dan O’Connell. Boss Tweed met his downfall after The New York Times published stories documenting the corruption in the construction of the New York Courthouse, started in 1862 and not completed a decade later. Tweed was convicted in 1871 and died in prison in 1878.

But it wasn’t until the New Deal legislation, coming out of the Great Depression, weakened the hold of the old-time district leaders on the poor — poor people could finally get government help as a right instead of a favor — and most municipal jobs became Civil Service jobs, that the power of the city machines were cut.

The movement for reform grew as social services increased; government began providing what the old political machines had offered. The Civil Service system in New York has grown, too, over the years. The state’s Department of Civil Service now reports that nearly 400,000 local-government employees and over 160,000 state employees are part of the system.

Peter Hotaling is one of them, and he is entitled to the protection the law provides.

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