IN THE MATTER OF NANCY CAMPBELL ROSS COIB Case No. 97-76 OATH Index No. 538/98 December 22, 1997

SUMMARY: In January 1998, after a full trial, the Board imposed a $1,000 fine on a former Assistant District Attorney who issued a false grand jury summons to a police officer to interfere with his scheduled testimony against the Assistant District Attorney’s husband in traffic court on the same day. The Assistant District Attorney had previously been dismissed by the District Attorney’s office.

STIPULATION AND DISPOSITION

FINAL FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Upon consideration of all the evidence presented in this matter and upon the written comments of counsel for the parties, the Conflicts of Interest Board hereby adopts in full the annexed Report and Recommendation of the Office of Administrative Trials and Hearings dated November 13, 1997, in the above- captioned matter, for the reasons set forth therein. The Board finds that Respondent violated Section 2604(b)(3) of the New York City Charter.

WHEREFORE, IT IS HEREBY ORDERED, pursuant to New York City Charter § 2606(c), that Respondent be assessed a civil penalty in the amount of one thousand dollars ($1,000) to be paid to the Conflicts of Interest Board within 10 days of service of a copy of this Order.

Respondent has the right to appeal this Order to the Supreme Court of the State of New York.

Dated: December 22, 1997 New York, New York

Sheldon Oliensis Chair

Shirley Adelson Siegel Jane W. Parver Benito Romano Bruce A. Green Members of the Board

ATTACHMENT

In the Matter of

CONFLICTS OF INTEREST BOARD, Petitioner,

-against-

FORMER ASSISTANT DISTRICT ATTORNEY,

Respondent.

REPORT AND RECOMMENDATION

PRESENT: CHARLES R. FRASER

Administrative Law Judge

TO: SHELDON OLIENSIS Chair Conflicts of Interest Board

APPEARANCES: JOAN R. SALZMAN, ESQ. Attorney for the Petitioner Conflicts of Interest Board 2 Lafayette Street; Suite 1010 New York, New York 10007

CULLETON, MARINACCIO & FOGLIA Attorneys for the Respondent By: James J. Culleton, Esq. 245 Main Street White Plains, New York 10601

This is a civil penalty proceeding brought by the petitioner, the Conflicts of Interest Board, pursuant to section 2606(b) of the City Charter and section 2- 03(a) of title 53 of the Rules of the City of New York. The respondent is a former assistant district attorney in one of the counties of New York City.

The Board alleged that the respondent violated section 2604(b)(3) of the Charter. According to the Board, the respondent issued a grand jury summons to a police officer in a case about which the officer had no knowledge, for the purpose of interfering with the officer's scheduled testimony against the respondent's husband in traffic court. The respondent acknowledged that she issued the grand jury summons, and she acknowledged that she acted wrongly in so doing, but she denied that her conduct constituted a violation of section 2604(b)(3).

Trial was convened before me on October 22, 1997. As set forth below, I find the respondent guilty as charged. Based on the strong mitigating circumstances detailed below, I recommend that the respondent be assessed a civil penalty of $1,000. CONFIDENTIALITY

The identity of a person charged with violating the city's ethics rules is confidential unless and until the Board issues a final determination against such person. 53 RCNY § 2-05(f) (July 31, 1997). Therefore, in order to permit use of this report and recommendation for research and other public purposes, neither names nor other identifying data are used. Supplementing this report and recommendation is a confidential memorandum, identifying the respondent and stating my proposed findings of fact, conclusions of law and recommended disposition. See, e.g., Conflicts of Interest Board v. Four City Employees, OATH Index Nos. 142/97, 147/97, 150/97, 157/97 (Aug. 15, 1996).

ANALYSIS

It was undisputed that the respondent issued a grand jury summons to a police officer, on a case he had nothing to do with, returnable on the morning that the officer was scheduled to testify against the respondent's husband concerning a traffic infraction. Some review of the traffic infraction itself is necessary to an understanding of the factual issue underlying the respondent's defense.

On May 29, 1996, the respondent was a passenger in a car driven by her husband, who was then also an assistant district attorney. They were accompanied by a senior colleague of theirs, who needed a ride to work because his own car was undergoing repairs. During the drive, the car was pulled over by a police officer.

The officer asked the driver for his driver's license and automobile registration. While the driver was obtaining those papers from his wallet, the officer saw a badge that assistant district attorneys carry, and he asked what it was. The driver explained that he and his passengers were assistant district attorneys, and that they were on their way to work.

The officer took the paperwork back to his patrol car, where he spoke briefly to his partner. In one fashion or another, the officer mentioned to his partner that the driver was an assistant district attorney. According to the respondent - corroborated at trial by the senior ADA, whom I found to be credible - the second officer answered loudly, to the effect that he did not like "DAs" anyway. The remark was accompanied by a profanity. The second officer filled out a summons and gave it to the respondent's husband.

As they completed their drive to work, the respondent, her husband and their colleague discussed the encounter. The three were of the opinion that the second officer had answered his partner loudly because he meant for the driver and two passengers to hear his remark. The district attorney's office was in the midst of a criminal investigation of the officer's precinct, including indictments of some police officers, and they felt that the officer's remark was intended to convey to them not only that they were not getting a break on account of being ADAs, but that they were actually getting the ticket because they were ADAs.

According to the respondent, she and her husband did not discuss the incident until Friday, December 6, 1997. The traffic summons was returnable in the administrative adjudications bureau of the state's Department of Motor Vehicles on Monday, December 9, 1996. The respondent's husband, who had left the district attorney's office the month before, telephoned the respondent late in the day on December 6. At trial, the respondent recounted their conversation as follows:

I got a call from my husband, and he had said, remember that ticket that we got. And I'm like, what ticket? He goes, remember that ticket we got when we picked up Ed [the third assistant district attorney], and the cop that gave us that ticket. Well, the hearing's coming up. I want you to put a notification in. And I said, I'm not, what are you going to put a notification in for? What is that going to do? He was like, don't you remember how nasty that cop was and that he cursed at us? And I said, well, so what. What's a notification going to do? He said, just put it in. Let's bust his chops. Let's get even with him. He acted like such a jerk when he gave us that ticket. Let's try to do something to him.

And I remember talking to [the respondent's husband]. I'm saying, what, you know, what's the point of doing that, because what are you going to get out of it. I remember telling him, you're just going to be sitting at Traffic Court longer, because ... they tell you at Traffic Court that they wait for the police officer if he's late, and if he's not going to come to Court, they adjourn the case anyway. [The respondent's husband] said, it doesn't matter. Just put it in. Let's try to get even with this cop. Let's try to just, you know, bust his chops or whatever. (Respondent: Tr. 107 - 08).

The respondent testified that she hung up the telephone intending not to issue a grand jury summons to the officer. But after she thought about it, she filled out a notification form, then reconsidered and tore it up. Then she began to think about how hard she had worked as an assistant district attorney to convince jurors, many of whom came to jury service with preconceptions of police officers as "liars" who are "corrupt" (respondent: Tr. 109), of the truthfulness and integrity of police officers. Having worked so hard on behalf of police officers, the respondent felt betrayed by this particular police officer, who had, she felt, made a point of issuing her husband a traffic ticket for the very reason that he was an assistant district attorney.

Thus the respondent talked herself into writing a second grand jury notification for the police officer, selecting a case from the officer's precinct, but as to which he had no involvement. The grand jury summons was returnable at 9:00 a.m. on Monday, December 9, 1996.

The officer reported for duty at 6:00 a.m. on Monday morning, and was given the grand jury summons. He realized that he had nothing to do with the case, and he assumed that a mistake had been made in what was then a new notification system. He took no immediate action to have the notice cancelled, because, he testified, he knew he would be unable at that early hour to reach anyone at the district attorney's office.

The officer went about his ordinary duties until 9:35 a.m., when he returned from patrol to the precinct stationhouse. He began making telephone calls, first in order to identify the ADA who was presenting the grand jury case in which he had been summoned, and then, second, to locate and speak to that ADA. He ultimately reached the presenting assistant district attorney, who agreed that the officer did not have to report to the grand jury, and who agreed to put in the paperwork necessary to cancel the grand jury summons. The officer then left the precinct for the Department of Motor Vehicles office, arriving about 25 minutes late for the 10:30 a.m. calendar, for which he was admonished by the presiding judge.

The officer saw the respondent's husband in the courtroom, and remembered that he had been an assistant district attorney. (The officer did not know that the respondent's husband had left the district attorney's office in November 1996.) This prompted him to question his initial assumption that the grand jury summons had been an innocent mistake.

The traffic summons against the respondent's husband was tried as scheduled, and the respondent's husband was convicted and fined $65.00. Thereafter, the officer made some inquiries into the improperly issued grand jury summons, ultimately reporting the matter to the Police Department's internal affairs bureau. The matter was apparently reported to the district attorney's office in January 1997. The respondent was confronted with the improper grand jury summons during January, and she immediately acknowledged that she had issued it, albeit in another ADA's name. She was fired the next day, effective about a week thereafter.

At trial, as she had more than once before trial, the respondent acknowledged that her issuance of the grand jury summons was "wrong" and "stupid" (opening: Tr. 10, 12). However, she maintained that her purpose in issuing the summons was not to beat the traffic ticket, or otherwise to gain a benefit for herself or her husband, but to impose some inconvenience on the police officer, in effect as revenge for the officer's issuance of a ticket to them. Therefore, in her view, her concededly improper conduct did not violate section 2604(b)(3) of the Charter, pursuant to which the instant charges were brought.

The Board contended that, notwithstanding her denials, the respondent must have intended that the traffic ticket be dismissed, or at least adjourned, upon the officer's failure to appear. Alternatively, even if the respondent intended only to "hassle" or inconvenience the officer, the Board contended that section 2604(b)(3) was violated.

Section 2604(b)(3) provides:

“No public servant shall use or attempt to use his or her position as a public servant to obtain any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.” (City Charter, § 2604(b)(3) (N.Y. Legal Publ. Corp. 1989).

I conclude that section 2604(b)(3) was violated, and that the charge should be sustained, for three independent and alternative reasons.

First, as a factual matter, I reject the respondent's description of her subjective intentions in issuing the grand jury summons. I do not conclude, as the respondent urged, that her intentions were solely to impose some inconvenience on the officer. The Board quite persuasively argued that, if the respondent intended only to inconvenience the officer, she could have issued the grand jury summons for any date and time. The fact that she issued the summons for the very morning on which the officer was scheduled to testify against her husband showed, in the Board's view, that she intended more: she must have intended to influence the case against her husband.

I think it obvious that the respondent did not expect the officer to be able to get out of the grand jury notice and to get to traffic court in time to testify against her husband. I conclude that she expected the officer to fail to appear against her husband, and that some consequence would follow from that failure. The respondent argued that her husband's ticket could not have been dismissed upon the officer's first failure to appear, and therefore no benefit could have accrued to the respondent or her husband by virtue of the respondent's actions. However, even if there was no significant possibility of a dismissal, and even if the respondent knew as much, at least an adjournment would have resulted from the officer's failure to appear. Even just an adjournment would increase the prospects of an ultimate dismissal. See 15 N.Y.C.R.R. 124.9 (July 1995). I have no doubt that even merely increased prospects of dismissal of the traffic ticket would constitute precisely the sort of benefit covered by section 2604(b)(3). See Conflicts of Interest Board v. Holtzman, COIB Case No. 93-121, decision and order at 33 (Apr. 3, 1996) (action "reasonably likely to result in a private gain" violates section 2604(b)(3)), aff'd, 659 N.Y.S.2d 732 (1st Dep't 1997), Iv. granted, N.Y.L.J. 10/20/97 at 25 col. 5 (Ct. Apps. Oct. 16, 1997).

Second, as a matter of law, even if the respondent intended only to inconvenience the officer, as a matter of petty revenge, I conclude that the satisfaction of such revenge is, at least under the present circumstances, within the scope of section 2604(b)(3). The Board has construed section 2604(b)(3) broadly, consistent with its language: "Any financial gain, contract, license, privilege or other private or personal advantage, direct or indirect." The advantage need not be financial, but can consist, for instance, of information. Advisory Opinion No. 92-3 (Jan 9, 1992). The Board has generally characterized prohibited advantages as any "special treatment" (Advisory Opinion No. 97-2, p. 3 (Sept. 22, 1997)) that is obtained by "use of City equipment and other City resources for private reasons." Advisory Opinion No. 95-9, p. 5 (Apr. 10, 1995).

As conceded by the respondent, she had no governmental purpose whatever for her issuance of the grand jury summons. Her purpose was purely private, and she furthered that purpose by use of governmental resources. Inside information not generally available to the public was among the governmental resources she used: information concerning the schedule of grand jury cases. She used those resources to inconvenience the officer in a fashion beyond the means of private citizens generally. At least where there is no colorably proper purpose for a purportedly official action, I hold that the taking of that action for the purpose of inconveniencing or taking petty revenge against a private adversary constitutes a violation of section 2604(b)(3).

Third, even if the respondent did not intend to affect the case against her husband, and even if the purpose of private revenge did not constitute a benefit within the prohibition of section 2604(b)(3), I would still hold that the respondent violated that section. The Board has on at least one occasion stated that a mere "appearance that [a public official] was using his or her public office to secure a personal advantage" would constitute a "violation of Charter Section 2604(b)(3)." Advisory Opinion No. 93-21, p. 7 (July 12, 1993); see also Advisory Opinion No. 94-17 (July 11, 1994) (official obligated under section 2604(b)(3) to avoid action that "could be perceived" to confer a prohibited advantage). Similarly, the Board has held to be prohibited an official action taken by a public official who "should have known" that the action would accrue to her private benefit. Conflicts of Interest Board v. Holtzman, decision and order at 34.

Here, there can be no question that the respondent's attempted diversion of the police officer from testifying against her husband would likely be perceived by one who learned of it as an action taken for the furtherance of her husband's private benefit. Moreover, the respondent should have known that the action might foreseeably have actually achieved some furtherance of her husband's private interests. Therefore, the respondent's actions violated section 2604(b)(3).

FINDINGS AND CONCLUSIONS 1. On December 6, 1996, while employed as an assistant district attorney, the respondent issued a grand jury summons to a police officer, returnable at 9:00 a.m. on December 9, 1996, in a case in which the respondent knew the officer had no involvement.

2. In so doing, the respondent intended either to interfere with the officer's traffic court testimony against the respondent's husband, scheduled for 10:30 a.m. on December 9, 1996, or to inconvenience the officer or take petty revenge against him.

3. In either event, the respondent's conduct violated section 2604(b)(3) of the Charter.

RECOMMENDATION

The respondent's conduct constituted a corrupt abuse of her position. A criminal prosecutor is vested with a great deal of power, and is required to exercise that power with disinterested discretion. In a cynical world where many are inclined to believe that those in power seek only to further their own interests, it is simply intolerable that any public servant acts in a way that substantiates that cynicism. It is not enough that 99 percent of public servants are honest; the dishonest one percent taint the perception of the rest, and of government itself.

The Board asked that I recommend imposition of a civil penalty between $2,500 and $8,000 (closing: Tr. 125; letter, October 29, 1997, p. 5). Given the severity of the offense, I would certainly make such a recommendation, but for the mitigating factors outlined below.

As noted above, the respondent lost her job essentially immediately upon discovery of her actions. She was subjected to a criminal investigation, although charges were not filed. She remains the subject of professional disciplinary action, and I think it quite likely that she will receive a penalty at least as severe as a suspension from practice. As of now, she is unemployed. The repercussions of respondent's misconduct will probably be lasting; to be blunt, she may well have ruined her legal career.

The respondent's husband is also the subject to pending disciplinary action. It is quite likely that the outcome of that action will have significant and probably lasting effects on his career as well.

In addition to the more tangible consequences the respondent has suffered, she was subjected to extensive press coverage of her case when it first came to light. Indeed, it appears that at least some of her family and friends learned what she had done and that she had been fired by reading it in the newspapers. The resulting embarrassment and humiliation induced sufficient stress to endanger a pregnancy that was then in its sixth month.

Finally, the respondent's genuine contrition warrants mention. She acknowledged at trial that she had acted improperly, and she quite clearly has learned her lesson. From the moment she was first confronted with the grand jury summons, she acknowledged that she had issued it, and she made no effort to excuse her actions. The conflicts of interest rules, including the civil penalty provision, are primarily deterrent or coercive in their purpose, and only secondarily punitive. See, e.g., Conflicts of Interest Board v. Nine Public Servants, OATH Index Nos. 363/95 et al., report and recommendation at 6 (Nov. 14, 1994); Conflicts of Interest Board v. Seventeen City Council Candidates, OATH Index Nos. 142/93 et al., report and recommendation at 7 - 8 (Oct. 5, 1992). The respondent lost her job, her income, her reputation, and quite possibly her profession. In this context, mitigation of the civil penalty to be assessed will do no damage to the Board's deterrent purposes. Given these very strong mitigating circumstances here - without which, I wish to be clear, I would recommend a substantially sterner penalty - I recommend that the Board impose a civil penalty against the respondent in the amount of $1,000.

Charles R. Fraser Administrative Law Judge Dated: November 13, 1997