Dep't of Correction v. Speights OATH Index No. 319/04 (Apr. 19, 2004), modified on penalty, Comm'r Dec. (Jan. 4, 2005), appended, modified on penalty, NYC Civ. Serv. Comm'n Item No. CD06-62-M (Apr. 27, 2006), appended
Records of telephone calls placed by inmates to an apartment correction officer shared with two other relatives were found to be insufficient to prove charge that officer engaged in undue familiarity with the inmates, where relatives credibly testified that the calls were placed to them. Correction officer's failure to report that a former inmate was residing with her cousin in a house she owned outside the City found to be violation of the Department prohibition against undue familiarity. See Rule 3.25.041. The officer's denials of being present during criminal court proceedings for the same inmate were found to be both inaccurate and knowingly false, and her attendance found to be improper. Officer's subsequent retraction of false statement when confronted with contrary statements from eyewitnesses did not preclude a finding of misconduct. The officer's refusal to permit a warrantless search of her house was not found to violate Department rules. Penalty of 50 days recommended, termination imposed. Commissioner imposed the penalty of termination, but on appeal, CSC finds that penalty to be too harsh and orders officers' reinstatement without back pay (time served suspension). ______
NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - THERESA SPEIGHTS Respondent ______
REPORT AND RECOMMENDATION
JOHN B. SPOONER, Administrative Law Judge -2-
This disciplinary proceeding was referred to me in accordance with section 75 of the Civil Service Law. Petitioner, the Department of Correction, charged respondent Theresa Speights, a correction officer, with undue familiarity, improper off-duty behavior and false statements.1 A hearing on the charges was conducted before me on January 5, 6, 28, and 30, 2004. Petitioner presented telephone records, a transcript of respondent's lengthy interview, and the testimony of a police officer and a court officer. Respondent denied any misconduct and called her cousin and sister to testify as to their own contacts with several inmates. For the reasons provided below, I recommend that the undue familiarity and the false statement charges be sustained and that the remainder of the charges be dismissed. I recommend that respondent be suspended for 50 days.
ANALYSIS Undue Familiarity (Specifications 2 and 3) The primary charge in this case alleges that respondent received numerous telephone calls from inmates at both a residence in Brooklyn and a home she owned in Peekskill. The principal evidence in support of the undue familiarity charge consisted of telephone records (Pet. Ex. 5) showing that some 900 telephone calls were made by inmates from City correctional facilities to three telephone numbers linked to respondent: 133 calls were made from April 1994 through June 2000 to 718-624-xxxx, the telephone number of the Brooklyn apartment shared up until early 2003 by respondent, her mother, her sister Ophelia, and her sister's daughter; 841 calls were made from April 1999 to June 2000 to 914-734-xxxx, the telephone number of respondent's cousin Daphne, who lived in a house in Peekskill owned by respondent; and 50 calls were made from December 1998 to June 2000 to 914-788-xxxx, another telephone number in the name of Daphne Speights at the Peekskill residence.2 Although the Department's evidence did not indicate the identity of all of the inmates who placed the telephone calls, the records did indicate that an inmate named Ryan Firth
1 Specification 4, alleging a failure to notify her command of her correct residential address, was withdrawn during the trial.
2 Although Investigator Sotomayer wrote in her report (Pet. Ex. 6) that her investigation found some additional calls going back to 1994, no records of these additional calls were ever introduced at the hearing. -3- made some 797 calls to the 914-734-xxxx number and that an inmate named Derrick Jackson made 1,512 calls to the two Peekskill numbers and 90 calls to the Brooklyn number from around March 2000 to May 2000. In her defense, respondent denied knowledge of the calls listed in the telephone records. She insisted that she "may have" received only one call from inmate Derrick Jackson, that she answered this call at the Brooklyn residence without knowing who the caller was, and that when she discovered the caller was Mr. Jackson, advised him not to call her residence again (Tr. II 87).3 Respondent's cousin Daphne Speights testified she rented the Peekskill house from respondent for approximately two years from 1999 to 2001 . The telephone number 914-734-xxxx was in her name and she paid the bills until 2002 (Tr. II 19; Resp. Ex. C). She also paid the telephone bills on 914- 788-xxxx (Tr. II 22). She initially moved into the house with her boyfriend Derrick Jackson, an ex- inmate. Mr. Jackson was later arrested and incarcerated at Riker's Island. During this time, he frequently called Daphne at the Peekskill house (Tr. II 21). Daphne also received frequent calls from her ex-boyfriend Ryan Frith (Tr. II 28-29). According to Daphne, it was common practice for both Mr. Jackson and Mr. Frith to buy time from other inmates and use their numbers to place calls, often right after calling using their own numbers (Tr. II 31). Daphne would also give both inmates the Brooklyn telephone number of her aunt and respondent's mother, Rebecca Speights, and receive calls at her aunt's Brooklyn apartment when she visited (Tr. II 22). Daphne recalled telling respondent about Mr. Jackson's criminal background in 1999 (Tr. II 44). Ophelia Speights, respondent's sister, testified that she resided with respondent at the Brooklyn apartment at Monument Avenue until September 2002. While she lived there, Ophelia testified that she received numerous calls from several inmates, including Derrill Bryan, Derrick Jackson, and Ryan Frith, at the Brooklyn apartment. These were friends from the neighborhood whom she had known most of her life (Tr. II 56-57). Ophelia did not tell respondent about receiving these telephone calls ( Tr. II 58). Respondent presented copies of four memos written to Deputy Warden Max Short (Resp. Ex. B) about Mr. Jackson living with her cousin at the house she owned in Peekskill. In the first memo,
3 References to the transcript are indicated as "Tr. I" for January 5, 2004, "Tr. II" for January 6 and 28, 2004, and "Tr. III" for January 30, 2004. -4- dated December 17, 1999, respondent wrote that she rented the Peekskill house to her cousin, Daphne Speights, who told her that she lived with her fiancé, Derrick Jackson, who is on parole. The second memo, dated December 22, 1999, also stated that she rented the Peekskill house to her cousin, whose fiancé is on parole and "a friend of the family." The third letter, dated February 23, 2000, states again that her cousin "brought to my attention" that her fiancé is "on parole." The final memo, dated January 11, 2001, states that respondent rents the Peekskill house to her cousin "on a month to month basis" and that her cousin lives with her fiancé, Derrick Jackson, who is on parole. The memo ends, "This was learned by the writer on January 10, 2001, and I'm submitting this report on my next tour of duty which is January 11, 2001." Respondent testified that she personally delivered all four of these memos to Deputy Warden Short, who placed them in his desk (Tr. II 112). Captain Rachel Moore, the personnel captain at the Queens House of Detention, respondent's current command, testified that, on December 9, 2003, she approved respondent's request to review the contents of her personnel file. Captain Moore also supervised respondent's review of the file on the same date. The captain observed that first three memos (including the originals of two of the memos) were contained in the file, while the January 2001 memo was not there. Captain Moore also explained that, when officers are transferred to a different command, their personnel files are also transferred, unless the assignment is temporary (Tr. II 176-78). As of 1999, respondent was assigned to OBCC. She was temporarily transferred to the Brooklyn House of Detention on February 14, 2001, and then to the Queens House of Detention on November 17, 2002. According to the chronology of Investigator Sotomayor, when she examined respondent's personnel file at OBCC on May 8, 2001, she found no notifications about associations with inmates. Investigator Sotomayor indicated that officers who have pre-existing relationships with inmates need to notify their command, who place a copy of the notice in the officer's personnel file and in the security office. In addition, a copy of the notification is supposed to be sent to the investigation division (Tr. 48-50). Although the charges allege that respondent received some 2,657 telephone calls to inmates, petitioner's proof fell short of directly linking respondent to most of these calls. There was no evidence that respondent received any of the calls placed to the telephone number of another correction officer, Kim Jackson. The vast majority of the telephone calls were made to the two -5- telephone numbers at the Peekskill address. These Peekskill telephone numbers were not in respondent's name nor did respondent pay any of the telephone bills. Instead, respondent's cousin testified that the telephone numbers were both hers (Tr. II 22) and admitted that she used the numbers to receive numerous calls to her boyfriend and other inmates. The evidence also indicated that Mr. Jackson resided at the Peekskill house in 1999 and early 2000 and could also have received some of the calls. The only two links between these two telephone numbers and respondent were that respondent owned the house in which the telephones were installed and respondent's admission that, at one point, she "probably" used one of the Peekskill telephone numbers as a contact number during a period of illness due to the Department requirement that she supply a "land line" rather than a cell phone number (Tr. II 134). Neither of these tentative links between these Peekskill telephone numbers and respondent was sufficient to support the inference made by Department investigators that respondent received any of the inmate calls. The ownership of a house rented by someone else does not support an inference that the owner received any telephone calls placed to the house. This does not change merely because, on one date, respondent listed the Peekskill house as her sick residence. Notably, although respondent admitted that she "probably" provided this telephone number to HMD (Tr. 134), the Department failed to produce any records as to the date or time of respondent's call. As to the telephone calls made by Mr. Jackson to respondent's Brooklyn residence, respondent's sister Ophelia, who resided at the same address, and her cousin Daphne testified to receiving some calls from inmates, including Mr. Jackson, at the Brooklyn address. Respondent also admitted receiving one or two of these calls from Mr. Jackson. In this case, I found no inconsistencies or implausibilities between the testimony of Daphne, Ophelia, and respondent as to their knowledge of these calls. As summarized by respondent's counsel, they described their location in a poor residential neighborhood where an unusually high proportion of their male contemporaries were, at one time or another, incarcerated. It is true that their testimony was vague as to details of who they spoke with or what was said. However, given the passage of time since the calls were made, I did not find that this suggested untruthfulness on their part. On balance, I found the testimony of respondent, her cousin, and her sister plausible as to their contacts with a number of inmates whom they knew from their contacts in the community. -6-
The records of the telephone calls here offered little support to a finding that any of the inmates were contacting respondent rather than another family member. Comparing the records to respondent's time cards, counsel for petitioner concludes that respondent was not at work at the times that 100 of the 133 telephone calls took place. In addition, he speculates that the calls from Mr. Jackson to both the Brooklyn and the Peekskill residences within a few minutes of one another are inconsistent with the theory that he was speaking only with Daphne. It is true that the timing of the calls from Mr. Jackson suggest that he was regularly speaking with one of the residents of the Brooklyn apartment as well as with someone at the Peekskill house. On a number of days, there are long calls by Mr. Jackson to both the Peekskill house and then to the Brooklyn apartment, at times too close together for the same person to have received all of the calls. However, nothing in the telephone records is inconsistent with the testimony of Daphne and Ophelia, that they received calls from Mr. Jackson and other inmates or with respondent's testimony that she recalls receiving only two or three calls from Mr. Jackson. Prior cases decided by this tribunal support the conclusion that the proof in the instant case is insufficient to establish undue familiarity. In Dep't of Correction v. Smith, OATH Index No. 427/98 (May 5, 1998), telephone records of some 116 calls to a shared residence during a one-month period were found sufficient to establish that the officer should have known about the calls and had a duty to report them. In reaching this conclusion, Judge McFaul found a roommate's affidavit that she did not permit the officer to use the telephone and that she had received all of the calls from inmates to be incredible. In the instant case, unlike Smith, the telephone records constituted the sole evidence of inappropriate contact with the inmates. Moreover, the telephone at the shared residence in the instant case was not in the name of the officer and there were not one, but two other relatives who testified to receiving many telephone calls from inmates. In Dep't of Correction v. Patterson, OATH Index No. 1884/02 (Feb. 25, 2003), aff'd in part, rev'd in part, Comm'r Decision (May 7, 2003), telephone records showed that some 197 telephone calls were made to a residence shared by a correction officer and her son by an inmate who was housed in a facility where the officer was assigned. Despite the testimony of the officer's son and nephew that all of the calls had been made to them, Judge Merris found that the son's and nephew's inconsistent accounts as to whether the inmate accompanied respondent on a family outing, the fact -7- that all of the calls were made when respondent was off duty, the incredible nature of respondent's alleged recognition of the inmate's voice during the one call she admitted to having received, and the general "pervasiveness"of the calls supported a finding that respondent was aware the telephone calls were being made to her residence and failed to notify the Department. Both Smith and Patterson are distinguishable from the instant case because in those cases no credible evidence was presented supporting a finding that the telephone calls were in fact received by someone other than the officer charged and the proof of inmate contacts did not rest upon telephone records alone. Furthermore, neither of these prior cases concerned telephone records which were not in the name of the charged officer. For all of these reasons, I conclude that the telephone records of the 133 telephone calls made over the course of several years to an apartment where respondent lived with two other adult family members were insufficient to establish that respondent spoke to the inmates who made the calls or was otherwise associating with the inmates. The further issue is whether, in light of respondent's admission that she became aware that inmate Jackson was residing in her Peekskill house with her cousin Daphne in 1999, respondent was obliged to report this association to the Department pursuant to Department rules. According to the Department rule 3.25.041, officers are obliged to report any pre-existing relationship with an inmate to their command. The rules expressly state that officers may not "make or maintain contact with or in any way associate" with former inmates without approval of their command. As to what constitutes "contact" or "association," within the meaning of the rule, officers are presumably left to interpret for themselves. As pointed out by counsel for petitioner, the interpretation of this rule is particularly difficult for officers living in poor communities where many of their acquaintances, particularly male acquaintances, may at one time or another have been incarcerated. The intent of the rule seems to be to prohibit officers from fostering relationships with former inmates which might conflict with their obligations as correction officers or otherwise imperil institutional security of the jails. On the other hand, it is unrealistic to expect these officers to report to the Department every casual contact, such as the exchange of a "hello" on the street, with either a former inmate or a member of a former inmate's family. Nor would the Department's ignorance of such innocent and accidental contacts undermine the security of the Department facilities. -8-
In the case of respondent, her ongoing association with Mr. Jackson from at least 1999 was more than casual or accidental and should have been brought to the attention of her command. Despite the arguments made by her attorney, respondent's association with Mr. Jackson went beyond her acquaintance with him as a member of the community where she grew up. Mr. Jackson was both the boyfriend of her cousin and a co-occupant of her house in Peekskill from 1999 until his arrest in 2000. The fact that respondent herself ultimately supplied written notice of this association demonstrates that she was aware that the relationship fell within the prohibitions of the rule. According to Investigator Sotomayor's investigation report (Pet. Ex. 6), Mr. Jackson was in and out of prison repeatedly from 1985 through 2001. He was convicted of first degree robbery in 1985, of second degree assault in 1986, and of first degree robbery and criminal possession of a weapon in 1988, receiving prison sentences from one year to six to 12 years. In her interview statement, respondent stated that she knew Mr. Jackson from her neighborhood, was best friends with his mother, and was also friendly with his sister, Kim, who was also a correction officer (Pet. Ex. 16, 10-13). Furthermore, respondent testified that she was aware that Mr. Jackson may have been a "parolee" at the time he began living with Daphne. This evidence established convincingly that, as of 1999, Mr. Jackson was a "former inmate" with whom respondent could not associate under the Department's undue familiarity rules without providing notice to her command. Respondent offered an unconvincing rendition of her contacts with Mr. Jackson during the time he resided at the Peekskill house. Faced with the undisputed evidence that Mr. Jackson lived with her cousin Daphne in the Peekskill house from around 1999 until his incarceration in approximately March 2000, respondent denied speaking with Mr. Jackson while he resided there, insisting that she telephoned the house only on rare occasions. She also denied seeing Mr. Jackson at the house, even though she admitted that she occasionally visited there to collect the rent or to see her cousin. In fact, respondent was at the house in March 2000 when the police officers visited the house looking for Mr. Jackson. The notion that respondent rarely telephoned the Peekskill house and never saw Mr. Jackson there over the course of a year seemed implausible. The copies of the four memos from respondent to Deputy Warden Short raise a number of issues as to when they were submitted. Most importantly, the memos were never mentioned by respondent during her lengthy Department interview pursuant to Mayor's Executive Order No. 16 -9-
("MEO 16") on January 10, 2001. According to Investigator Sotomayor, none of the memos were in respondent's personnel files at OBCC as of May 2001. Nor are any of the memos date-stamped by the Department to indicate when they were filed. Although Deputy Warden Short was apparently subpoenaed to testify at the hearing, he did not appear for unexplained reasons. There was also no convincing explanation from respondent as to why she wrote three of the memos, when one would presumably have been sufficient. The fact that the memos apparently appeared in respondent's file sometime after May 2001 raises the possibility that respondent may have written all of them well after the time they were dated, dating one January 11, 2001, and post-dating the other three in 1999 and 2000. As pointed out by counsel for respondent, it is not unheard of for Departmental records to be lost or misplaced. However, given this volume of evidence contradicting respondent's testimony that she filed the memos prior to 2001, I decline to credit her testimony on this issue. Instead, I find that, despite being aware that a former inmate was living with her cousin in her Peekskill house as early as December 1999, she did not notify the Department of this fact until sometime after May 2001, in violation of Department rule 3.25.041. Specification 3 should therefore be sustained as to the allegation that respondent failed to notify her command of her association with Mr. Jackson as a co-occupant of a house which she owned.
Conduct Unbecoming (Specifications 1 and 6) Petitioner presented proof as to two off-duty incidents in which respondent, allegedly while displaying her Department shield, behaved in ways which were allegedly improper for a law enforcement officer. New York City Police Detective Kenneth Campbell of the 79th Precinct in Brooklyn testified that, in March 2000, he was investigating Derrick Jackson as a suspect in a recent shooting. Mr. Jackson's parole records indicated that he was residing at a house on Hemlock Circle, Peekskill, New York, which was later determined to be owned by respondent. On March 13, Detective Campbell, accompanied by other New York City police officers as well as two Peekskill police officers, went to respondent's house. Daphne Speights opened the door and told the officers that Derrick Jackson lived there but was at work. Just then respondent came running downstairs. She identified herself as a "law enforcement officer," displayed her shield, and loudly asked the -10- officers whether they had a search warrant. Upon discovering that they did not, she told them to get out. When they asked whether Mr. Jackson was there, she said that he was not and again told the officers to leave (Tr. I 22-26). In Detective Campbell's view, respondent's actions were "unreasonable" in that she wouldn't answer their questions or otherwise assist in the investigation (Tr. I 34-35). Respondent and Daphne admitted that respondent was present during the officers' visit, but denied that respondent displayed her shield or ordered the officers out of the house (T. Speights: Tr. II 82; D. Speights: Tr. II 47). Kings County Court Clerk William Aviles testified that respondent was present in Kings County Supreme Court on at least three occasions when Derrick Jackson appeared as a defendant on a criminal case. On the first of these dates, he recalled seeing a female displaying a silver shield sitting in the front row behind the assistant district attorney's table. The front row is reserved for the press, lawyers, and officers, and has a sign indicating this displayed on the end of the bench. Mr. Aviles asked respondent whether she was "on the case," and she said "Yes." He then notified the assistant district attorney on the case that his officer was here, only to discover that no officer was expected (Tr. II 9-10). According to Mr. Aviles, respondent also sat in the front row during one of Mr. Jackson's subsequent appearances. At a third appearance by Mr. Jackson, respondent was present but sat in the back with the other spectators (Tr. II 14). Respondent admitted attending several of Mr. Jackson's court proceedings in order to support her cousin Daphne, but insisted that she never sat in the front row or displayed her shield (Tr. II 103; see also D. Speights: Tr. II 37, 48). Respondent was not a credible witness. In addition to her obvious motive to avoid being disciplined, her testimony displayed a selective lack of recall and embellishment which undercut her believability. Even though she recalled many details about other incidents in 2000, she insisted she could not remember who occupied the Peekskill house from 2001 when Daphne left until January 2003 when she testified that she herself moved in. She asserted that Mr. Jackson was a "family friend" whom she had known all her life, yet insisted that she was unaware of his criminal history until Daphne told her in 1999. She asserted that, during the MEO 16 interview, the investigators were "literally screaming" at her (Tr. II 105). This assertion was belied by the interview tape (Pet -11-
Ex. 4), which indicated that, while the examiners were extremely aggressive in their questioning, they did not shout or scream at respondent. Even though, as of the time of the interview, she had purportedly supplied three separate written notices to Assistant Deputy Warden Short with regard to Mr. Jackson living in the Peekskill house, and kept copies of these notices, at her January 2001 interview she denied providing any notification to her command with regard to interactions with Mr. Jackson (Pet. Ex. 16: II 41). Both Detective Campbell and Mr. Aviles were impartial and reliable witnesses and I generally credited their account over that of respondent. As to some details, however, I did not fully credit the testimony of Detective Campbell as to what respondent said to the police. Although in his testimony Detective Campbell indicated that respondent said "get out" in a loud voice, this is inconsistent with the account related in Investigator Sotomayor's report (Pet. Ex. 6), in which she wrote that the officers told her only that respondent "offered no assistance and requested that they leave her home."4 In light of this inconsistency, and other indications that Detective Campbell was irritated at respondent's refusal to assist in apprehending Mr. Jackson, I find that respondent asked the police to leave but decline to find that respondent shouted at the police officers to "get out." Based upon the testimony of Detective Campbell, I find that, on March 13, 2000, respondent asked the police officers whether they possessed a search warrant to search her cousin's residence. Upon being told that they did not, she asked them to leave. She also told the detectives that Mr. Jackson was not there. Based upon the testimony of Mr. Aviles, I further find that, on three occasions, respondent accompanied her cousin Daphne to court proceedings and, on two of these occasions, displayed her shield and sat in the front row designated for police officers. There was no proof that, during the court appearances, respondent had any contact with Mr. Jackson. For these two charges, the rules cited include the three general rules that officers avoid being "undignified, indecent, abusive or profane" (Department rule 3.20.010), may be subject to discipline for any rule violations (Department rule 3.20.030) and should avoid "behavior which threatens the good order and discipline" or "brings discredit upon" the Department (Department rule 3.20.300). It is evident that respondent's behavior during the encounter with the police officers angered the
4 In his report (Pet. Ex. 3), Detective Campbell wrote that respondent "stated to us to get out of her house" and later stated that Mr. Jackson lived at the house, that he was at work, and she did not know where he worked. -12- officers, prompting one of them to complain to the Department about respondent's lack of cooperation. However, angering another law enforcement official is not always misconduct. According to Detective Campbell, all respondent did was ask the police officers whether they had a search warrant and, when they replied that they did not, asked them to leave. There was no evidence that respondent used profane or inappropriate language in communicating this refusal. Petitioner's argument appears to be that Department rules prohibit a correction officer from declining to consent to a warrantless search of a private home, at least where the requesting officers announce that they are seeking the suspected perpetrator of a crime. It is irrational to conclude that the three general department rules cited were intended to force all members of the Department to waive fundamental constitutional rights, including the fourth amendment protections against unreasonable search-and-seizures. Indeed, to interpret the rules in this way would run afoul of court decisions holding that public employees cannot be sanctioned for refusing to relinquish constitutional rights. Uniformed Sanitation Men Assoc. v. Commissioner of Sanitation, 392 U.S. 280, 88 S. Ct. 1917, (1968) (discharge of city employees for refusal to sign waivers of immunity before grand jury or for invoking their constitutional privilege against self-incrimination held to be unconstitutional); Dep't of Correction v. McGroarty, OATH Index No. 273/85 (Feb. 28, 1986) (correction officer's awareness of agency rules permitting department unfettered discretion to order drug tests was insufficient to establish blanket waiver by officer of Fourth Amendment rights). Other than respondent's refusal to consent to the search and request that the officers leave, there is no other basis upon which to find that her interaction with the police officers was improper. According to Detective Campbell, Daphne truthfully told the officers as soon as they arrived that Mr. Jackson was not at the house but was "at work." According to Detective Campbell's report (Pet. Ex. 3), respondent then confirmed that Mr. Jackson resided at the house and was not currently there but at work. She indicated she did not know where Mr. Jackson worked. There was no indication that she lied to the officers about Mr. Jackson's whereabouts or that she refused to answer any of their questions. In sum, there is no proof that respondent's actions during the March 13, 2000 encounter with the police constituted misconduct. As to respondent's attendance at Mr. Jackson's court appearances, one theory of petitioner's case seems to be that respondent used her status as a correction officer improperly, by seating herself -13-
in a front row reserved for law enforcement officers connected with calendared cases. However, there is little proof to conclude that respondent's seating herself in the front row was calculated to advance the interests of Mr. Jackson or anyone else. It is conceivable that respondent misinterpreted the sign, indicating seating for "press, lawyers, and officers," as applying to her, by virtue of her employment as a correction officer. There was no indication that, after taking a seat, respondent communicated with Mr. Jackson or any court or prosecution personnel in seeking any special treatment for herself, Mr. Jackson, or Daphne. Nor was there any indication that, by seating herself in the front row, respondent intended to achieve any benefit for Mr. Jackson or for herself, since there was no indication that the courtroom was crowded or that other seats were not available. Her response that she was "on the case" was also ambiguous, since respondent could have intended to tell Mr. Aviles only that she was present for the next case being heard. However, even assuming that respondent's presence resulted in no benefit to her or to the inmate, her repeated attendance at the criminal proceedings while displaying her shield constitutes an "association" with an inmate in violation of the undue familiarity rule. Even though the evidence failed to demonstrate that respondent had any physical contact with Mr. Jackson during these court appearances or addressed the court or any of the court officers, her act of attending Mr. Jackson's criminal proceedings, of displaying her Department of Correction shield, and of generally making it known to court personnel that she was present in support of the inmate were inappropriate, in the absence of Department approval. See Department rule 3.25.041 (officers may not "make or maintain contact with or in any way associate" with inmates without approval of their command); see also Department rule 3.20.300 (officers must avoid "behavior which threatens the good order and discipline" or "brings discredit upon" the Department). The fact that court officials remembered respondent's presence and notified the Department of it demonstrates that they found it remarkable that a City correction officer would make behave in this way on behalf of an inmate. Under these circumstances, I conclude that specification 6 must be sustained.
False Statements (Specification 5) Specification 5 alleges that, during respondent's MEO 16 interview, she provided "false and misleading testimony." The specification asserts that "she made contradictory statements regarding -14-
her unauthorized involvement with inmates and continued to deny her unauthorized involvement with inmates even after reviewing evidence that contradicted statements" she had made earlier. Prior to examining the charges, some further discussion of the interview itself is necessary. Two Department investigators conducted the MEO 16 interview with respondent on January 10, 2001, with respondent represented by an attorney. The interview lasted approximately three hours.5 It was clear that two other correction officers, Kim Jackson and Monique Bell, were also the targets of the investigation and much of the questioning concerned respondent's conversations and knowledge as to Officers Jackson's and Bell's relationship with Mr. Jackson. During the increasingly aggressive questioning by the two investigators, respondent acknowledged having had several conversations with both Officer Bell and Officer Jackson about Mr. Jackson. She admitted that she knew Mr. Jackson from growing up with him in the neighborhood and that he was her cousin Daphne's boyfriend. As the questioning focused upon communications between respondent herself and either Mr. Jackson or law enforcement personnel seeking Mr. Jackson, respondent repeatedly indicated that she "could" or "might" have taken some of the actions, such as receiving telephone calls from Mr. Jackson or telling the police that she was a correction officer. At the close of the hearing, counsel for petitioner elaborated upon the specific interview statements which are alleged to be false. According to the closing argument made by counsel for petitioner, the following interview statements were "evasive" and therefore false: (1) that respondent had not spoken to Mr. Jackson since the shooting of Lindsay Applewhite; (Pet. Ex. 16: I, 55); (2) that Officer Kim Jackson "could have" mentioned the shooting of Mr. Applewhite to respondent (Pet. Ex. 16: I, 77-78); (3) that respondent "could have" spoken to Mr. Sheinberg (Pet. Ex. 16: I, 127); (4) that respondent "could have" spoken with Derrick Jackson on the telephone (Pet. Ex. 16: II, 17); (5) that, upon being shown telephone records showing many phone calls from Mr. Jackson, she indicated, "He's spoken to my mother and sister" (Pet. Ex. 16: II, 23-24); (6) that respondent knew Mr. Jackson was in jail at the time he called her (Pet. Ex. 16: II, 26); (7) that respondent was not present during Mr. Jackson's criminal court proceedings (Pet. Ex. 16: II, 34-36); and (8) that
5 At various portions of the hearing, both respondent and her attorney alleged that the interview lasted some seven hours. In fact, the total interview time was approximately three hours. For unexplained reasons, the interviewers used three 90-minute cassette audio tapes to record the interview, meaning that the total capacity of these audio tapes was over four and one-half hours, even though the recorded interview itself lasted for less time. -15- respondent notified the Department about Mr. Jackson residing in her Peekskill house (Pet. Ex. 16: III, 4). Obviously, the charge as written, alleging false statements concerning "unauthorized involvement with inmates," rests primarily upon petitioner's proof of specification 3 with regard to the allegation of undue familiarity in receiving telephone calls from Mr. Jackson and other inmates. As indicated above, these telephone calls failed to establish that respondent violated the Department rules on undue familiarity. It follows that respondent's general denials of receiving the majority of the telephone calls were not proven to be false. I must also reject two of the false statements theories contained in counsel's closing as uncharged, since they are not similar enough to the denial of "unauthorized involvement with inmates" contained in the original charge. Thus, theories 2 and 3 have nothing to do with inmate contact and, because respondent was not placed upon notice of these allegations of misconduct, must be rejected. See Human Resources Admin v. Beckles, OATH Index No. 119/03, at 7 (Feb. 11, 2003), citing, Murray v. Murphy, 24 N.Y.2d 150, 157, 299 N.Y.S.2d 175, 181 (1968) ("[ N]o person may lose substantial rights because of wrongdoing shown by the evidence, but not charged."); Brown v. Saranac Lake Central School District, 273 A.D.2d 785, 709 N.Y.S.2d 706 (3d Dep't 2000). Moreover, some of petitioner's assertions of false statements, such as theories 2, 3, and 4, seem to rest upon counsel's general assertion that statements which are qualified by words such as "could have," "probably," or "might have" are punishable as false statements. Counsel contends, without legal support, that such "evasive" statements constitute misconduct even where the literal meaning of the statement may be truthful. Admittedly, extensive qualification of statements may be the mark of an evasive witness. However, it does not follow that qualification always indicates deception or evasiveness. Conditional statements such as those made by respondent may be produced by a witness with a feeble or faded memory, or with a syntactical affection for adverbs. In any event, there is no basis to find that an otherwise truthful statement becomes false solely due to this type of qualification and the three theories of falsity based upon this argument must be rejected. There was also no proof to support theories 1, 5, and 6, regarding respondent's knowledge about the shooting of Mr. Applewhite, about her mother and sister receiving calls from inmates, or -16- her knowledge of Mr. Jackson's incarceration at the time she spoke with him. The alleged falsity as to respondent's denial that she notified the Department about Mr. Jackson residing in her Peekskill house is also unsupportable. As indicated above, due to various inconsistencies in the evidence, there can be no finding that respondent actually filed any notices prior to her MEO 16 interview. To the contrary, the evidence supports a finding that respondent did not supply such notice prior to May 2001, and that, although four notices were filed and placed in the Department files, the actual submission dates of these notices cannot be determined. For this reason, respondent's interview statement about not supplying notice as of January 10, 2001, would not appear to have been false. Only one of petitioner's arguments as to false statements requires extended analysis. Respondent initially denied that she was ever present at a court proceeding for Mr. Jackson: Q. Okay, have you had any other involvement other than visiting the attorney's office in this group setting and the interaction with the police at Peekskill? Have you had any other interest in this case? Have you gone anywhere to listen to this case or to find out information on this case with anyone at any other time? A. No. Q. Okay. For the record I'd like to enter a statement from the office of the District Attorney's office in Kings County. We have a statement signed by William Ovilaz [sic]. I will read this statement and then I will pass it on to you. [ Text of Pet. Ex. Read by investigator] . . . . A. That's not true. Attorney Marshall: What is Mr. Ovilaz . . . Q. What, just a second, what's not true? A. This is not true. I wasn't present at any of Derrick's court appearances, that's not true. . . . . Q. So you're denying that you were inside the courtroom? You never entered the Supreme Court, at any time, during proceedings involving the case against Mr. Jackson. You were never in Supreme Court County of Brooklyn. A. No. Q. Okay, for the record Assistant District Attorney Officer D'Angelou has called and informed our division that Teresa Speights has been present in Derrick Jackson's hearing. How do you respond? A. That's not true.
After a 10-minute break, the investigators repeated their questions concerning respondent being present during some of Mr. Jackson's court appearances: -17-
Q. Okay, officer when we left off we were talking about when your relationship changed with the Derrick Jackson case, please respond. A. My relationship never changed with him because like I said before, Derrick Jackson dated my cousin and I've been friends of their family for years well over 15, 20 years. Q. Okay. You're stating that this sworn document by Mr. Ovilez from the District Attorney's office [sic] is a false statement. You are saying, you were never present at any court hearing for Derrick Jackson? A. I'm saying that I don't remember. Maybe I did go for one or two hearings but I was there with my cousin.
(Pet. Ex. 16, 34-39). Petitioner apparently concedes that respondent's second version of her attendance at Mr. Jackson's court appearances, which was consistent with her testimony at trial, was truthful. However, it asserts that respondent's initial denials of being present for any of Mr. Jackson's court proceedings are false. There are various factors which suggest that respondent's denials of attendance at the court proceedings were knowingly false, rather than inadvertently inaccurate. First, although respondent repeatedly qualifies her answers to other questions by indicating that something "could" have occurred, she does not do so here. Instead, she flatly denies ever being present. She persists in this denial even after she was told two individuals have identified her as being present. Then, some 10 minutes later, she contradicts her denial and insists that she doesn't remember and "maybe" was present. Thus, the manner in which respondent changed her statement upon being presented with proof that it was inaccurate also supports a finding that she was aware that the original statement was inaccurate when she made it. Respondent's subsequent amendment of her initial denial does not preclude a finding that she is responsible for committing misconduct. By analogy, it is well settled that the retraction of a false statement may preclude criminal prosecution for perjury, but only if the retraction is purely voluntary and not prompted by presentation of proof that the falsity can be proven. See Penal Law § 210.25 ("In any prosecution for perjury, it is an affirmative defense that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed."). In Dep't of Correction v. Battle, OATH Index 1052/02 (Nov. 12, 2002), an officer's -18- defense of retraction was rejected because she corrected her answers only after persistent questioning and when it became obvious that her prior false statements would be exposed. Similarly, in the instant case, respondent twice denied attending Mr. Jackson's court proceedings, then admitted that she "maybe" did attend once or twice after being confronted with statements of two eyewitnesses that she was present. I therefore find that respondent's initial denial of having been present at Mr. Jackson's court proceedings was intentionally false and a violation of her obligation to tell the truth during an official interview by her employer. In sum, I find that only one of the allegations of false statements can be sustained and that the remainder must be dismissed.
FINDINGS AND CONCLUSIONS
1. Specification 1 should be dismissed in that petitioner failed to prove by a preponderance of the evidence that respondent committed misconduct during an encounter with police officers or during attendance at certain proceedings in criminal court.
2. Specification 2 and 3 should be sustained in that, from 1999 to 2000, respondent was aware that Derrick Jackson, a former inmate, was residing with respondent's cousin Daphne Speights at a house in Peekskill, New York, owned by respondent and respondent failed to notify the Department of this relationship as required by Department rules. Department rule 3.25.041.
3. Specification 5 should be sustained in that, during an interview pursuant to Mayor's Executive Order No. 16 on January 10, 2001, respondent falsely denied having attended criminal court proceedings for Derrick Jackson.
4. Specification 6 should be sustained in that, during three proceedings in criminal court concerning Derrick Jackson, respondent was in attendance displaying her Department shield in violation of Department rule 3.20.300. -19-
RECOMMENDATION Upon making the above findings, I requested and received a summary of respondent's personnel file. She was initially appointed in 1990 and has no disciplinary record. She received "unit citations" in 1994, 1996, and 1997. All three of these factors suggest that respondent has been a very good officer and mandate that leniency be shown. Respondent's misconduct of failing to provide notice about her association with Mr. Jackson and of falsely denying having attended the criminal court proceedings are deserving of a significant penalty. The undue familiarity violation concerned faulty judgments as to whether the relationship between respondent and Mr. Jackson invoked the rule against contact and association with former and present inmates. I concluded that the combined legal and social nature of the relationship strongly supported the conclusion that these associations with Mr. Jackson would provide at least the appearance, if not the reality, of a correction officer fraternizing with former inmates. Indeed, neither respondent nor her attorney challenged this interpretation, focusing their defense instead on demonstrating that the required notice was provided. Cf. Dep't of Correction v. Page, OATH Index No.1358/96 (Mar. 17, 1997) (Department rules did not clearly prohibit bailing out boyfriend from non-City facility after minor arrest); Dep't of Correction v. Boyce, OATH Index No. 789/97, at 24-25 (July 9, 1997), aff'd, NYC Civ. Serv. Comm'n Item No. CD 99-75-SA (July 19, 1999) (undue familiarity charge dismissed where petitioner failed to prove respondent was aware that his uncle had been incarcerated in New York). Considering these factors, I therefore conclude that respondent's undue familiarity violation warrants a suspension of 30 days. The false statements made during respondent's interview are also serious and are deserving of a severe penalty. As found above, I have no doubt that the statements were made in a direct effort to avoid any further liability for undue familiarity violations. That being said, other factors suggest that false denials were not as deceitful as they might first appear. During the lengthy interview, respondent provided a significant amount of accurate and somewhat inculpatory information. She admitted knowing that Mr. Jackson had criminal convictions and that she herself had spoken to him once or twice on the telephone. She provided a great many details about conversations she had had with the other two officers being investigated. Finally, when confronted with statements from court -20- personnel, respondent admitted having been present at the court proceedings, thus preventing the initial false statements from having any real impact upon the progress of the investigation as a whole. The false statements represented a lapse of judgment, which was almost immediately corrected. In light of all these factors, I find that penalty of 20 days' suspension should adequately punish respondent for lying about her attendance at Mr. Jackson's criminal court proceedings. Petitioner has requested that respondent be terminated for the misconduct which occurred here. Such a penalty is unsupportably harsh, given prior cases on similar issues. See Dep't of Correction v. Allen, OATH Index No. 1722/03 (Apr. 6, 2004)(60-day suspension recommended for undue familiarity where inmate was respondent's son); Dep't of Correction v. Hawkins, OATH Index No. 988/99 (Apr. 9, 1999) (45-day suspension for correction officer who engaged in calls and visits to inmate in upstate facility); Dep't of Correction v. Wells, OATH Index No. 1421/96 (Dec. 5, 1996) (20-day suspension for officer who falsely denied giving gift to inmate); Dep't of Correction v. Santiago, OATH Index No. 2163/96 (Nov. 1, 1996) (45-day suspension imposed where there was a verifiable pre-existing relationship with the inmate, acknowledgment of inmate contacts to Department investigators when interviewed, and no rules infractions in the three years since conduct engaged in); Dep't of Correction v. Boyce, OATH Index Nos. 505/89 & 510/89 (Oct. 25, 1989), aff'd., NYC Civ. Serv. Comm'n Item No. CD 90-88 (Oct. 16, 1990) (30-day suspension for officer who used excessive force against an inmate and submitted a false report about the incident, and 15-day suspension for second officer who made false statements about the incident); Dep't of Correction v. Harris, OATH Index No. 280/89 (June 29, 1989) (30-day suspension for correction officer who destroyed Department property and falsely denied any knowledge of the incident). For these reasons, I recommend that respondent be suspended a total of 50 days.
John B. Spooner Administrative Law Judge April 19, 2004
SUBMITTED TO:
MARTIN F. HORN Commissioner -21-
APPEARANCES:
DAVID KLOPMAN, ESQ. Attorney for the Petitioner
JACQUELINE MCMICKENS, ESQ. Attorney for Respondent
Department of Correction's Decision, January 4, 2005
MARTIN F. HORN, Commissioner
DISPOSITION
OATH Judge found the Officer guilty of all of the above Specifications excluding Specification #1 and the section of Specification #3 that alleges undue familiarity for receiving phone calls. The Judge recommended a penalty of a fifty (50) day suspension. I adopt the findings of the Judge. I do not adopt the penalty recommended by the Judge instead the penalty to be imposed is Termination from the Department.
MARTIN F. HORN, Commissioner, Department of Correction
The City Civil Service Commission's Decision, April 27, 2006
THE CITY OF NEW YORK CIVIL SERVICE COMMISSION
In the Matter of THERESA SPEIGHTS Appellant - against - NYC DEPARTMENT OF CORRECTION Respondent
Pursuant to Section 76 of the New York State Civil Service Law -22-
STATEMENT
On Thursday, June 16, 2005, the City Civil Service Commission heard oral argument in the appeal of THERESA SPEIGHTS, Correction Officer, New York City Department of Correction, from a determination by the New York City Department of Correction, finding her guilty of charges of misconduct and imposing a penalty of DISMISSAL following an administrative hearing conducted pursuant to Civil Service Law Section 75.
DECISION THERESA SPEIGHTS appeal from a determination of the New York City Department of Correction ("DOC") finding her guilty of engaging in conduct unbecoming an officer and of a nature to bring discredit upon the Department and engaging in a pattern of undue familiarity with an inmate and imposing a penalty of dismissal following disciplinary proceedings conducted pursuant to Civil Service Law Section 75. The Commission conducted a hearing on June 16, 2005. Appellant, a correction officer, was charged with: DR # 135/01 1) being uncooperative with two N.Y.C. Police Department detectives who visited said officer's residence on March 12, 2000 looking for a parolee; 2) admitting that during a Mayoral Executive Order # 16 interview on January 10, 2001, a known convicted felon on parole was residing at her residential address; 3) receiving numerous telephone calls from inmate Derrick Jackson to the officer's residence during the period of April 1994 through April 2000 and failing to notify the Department of any pre-existing relationship with inmate Jackson or any other inmate and failing to obtain approval from her Commanding Officer before associating with an inmate or former inmate; 5) giving false and/or misleading testimony regarding: being present at a court proceeding for inmate Jackson, speaking to inmate Jackson on the telephone and notifying the Department that inmate Jackson was residing at a residence she rented to her cousin; 6) appearing in Supreme Court, Kings County wearing her Department shield and sitting in designated seating for officers on official business during a proceeding involving inmate Jackson and failing to obtain the approval of the Commanding Officer before such contact or association. The Administrative Law Judge ("ALJ") dismissed Specification 1 and sustained 2, 3, 5 and 6. Specification 4 was withdrawn. The ALJ recommended fifty days suspension. -23-
The Commission has carefully reviewed the record adduced below and considered the arguments on appeal. We note that the appellant had been with DOC since 1990 and had no prior disciplinary record. We further note that appellant's record includes "unit citations" in 1994, 1996 and 1997. The ALJ found that these three factors suggest that appellant "has been a good officer and mandate that leniency be shown". Considering the circumstances, together with her tenure, the Commission finds the penalty to be excessive. Therefore, the Commission hereby modifies the determination of DOC to a suspension of time served from the date of dismissal to the date of this decision. Appellant is to be restored to her position within 45 days from this determination.
RUDY WASHINGTON, Commissioner/Acting Chairman, Civil Service Commission
CONCURRING:
STANLEY K. SCHLEIN, Commissioner/Chairman, Civil Service Commission
NICHOLAS A. LAPORTE, Commissioner, Civil Service Commission