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.