Dep’t of Correction v. Price
OATH Index No. 1103/07 (May 1, 2007), modified, NYC Civ. Serv. Comm’n Item No.CD0808-M (Jan. 23, 2008), appended
Correction officer failed to submit a use of force report as directed
and falsely claimed that he was unable to write the report due to
his medically monitored status.
Based on respondent’s
disciplinary record and his persistent refusal to conform to agency
rules, the ALJ recommended termination.
On appeal, the Civil Service Commission rejected the ALJ’s
finding that respondent falsely alleged he was unable to write due
to his medically monitored status and that he likely concocted the
excuse because he was determined not to write a report. Finding
the penalty to be excessive, the CSC ordered reinstatement (time
served suspension).
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF CORRECTION
Petitioner
- against JOHN PRICE
Respondent
______________________________________________________
REPORT AND RECOMMENDATION
ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge
This employee disciplinary proceeding was referred by petitioner, the Department of
Correction, pursuant to section 75 of the Civil Service Law. Respondent John Price, a correction
officer, is charged with failing to file a written report concerning a use of force incident and
engaging in conduct unbecoming in that he alleged he was unable to write the report due to his
medically monitored status in violation of the Department’s Rules and Regulations (ALJ Ex. 1).
A hearing was conducted before me on March 13, and April 10, 2007. In support of the
charges, petitioner presented Captain Reginald Patterson, Captain Anthony Williams, and
Deputy Warden Rose Agro. Respondent presented Correction Officer Bernard Cherry, Assistant
Deputy Warden Livingston Major, and testified on his own behalf. I find that petitioner has
-2demonstrated that respondent failed to submit a use of force report as directed by Captain
Williams and falsely alleged he was unable to do so because of his medically monitored status.
Based on his disciplinary record and his persistent refusal to conform to agency rules, I
recommend that respondent be terminated.
PRELIMINARY MATTERS
On the first day of trial, respondent sought an adjournment to obtain new counsel. For
the following reasons, the request was denied and the trial proceeded as scheduled.
This matter has been on the OATH calendar since December 12, 2006. A conference
was held on January 10, 2007, and Luis Serrano, an associate from Koehler & Isaacs, LLP
appeared and represented respondent. No settlement was reached and the matter was scheduled
for trial on March 13, 2007.
During petitioner’s case, respondent stated that he no longer wanted Mr. Serrano to
represent him and that he wanted an adjournment to get another attorney from Koehler & Isaacs.
Respondent claimed that Mr. Serrano had not conducted sufficient discovery and that he was not
asking questions of petitioner’s witnesses that should have been answered on cross-examination
(Tr. 94-96). Petitioner objected to the application (Tr. 96). Mr. Serrano stated that he had met
and spoken with respondent “several times,” that he was trying to elicit the information
respondent wanted, and that he was prepared to go forward with the trial (Tr. 93).
The rules of this tribunal dictate that adjournments shall be granted for good cause only,
and that delay in seeking an adjournment shall militate against granting the request. 48 RCNY §
1-32 (Nov. 18, 2005). Last minute adjournment requests are heavily disfavored, and are subject
to the most rigorous scrutiny. Transit Auth. v. Merrit, OATH Index No. 963/97, at 3 (Oct. 30,
1997). While a respondent has a statutory right under Civil Service Law section 75 to counsel,
the right to counsel of choice is not absolute. Id. Even in a criminal proceeding, where a
defendant’s interests are far more substantial, the right to counsel of choice is qualified. Dep’t of
Correction v. Rodriguez, OATH Index No. 761/91 (June 28, 1991); see also McDowell v.
Koehler, 159 A.D.2d 424, 553 N.Y.S.2d 116 (1st Dep’t 1990). Substitution of counsel will be
permitted only where there is “good cause” such as a conflict of interest, a complete breakdown
in communication, or an irreconcilable conflict which may lead to an unjust verdict. United
-3States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1997). The burden is on the moving party to
demonstrate that the adjournment has been necessitated by forces beyond his control and is not
simply a dilatory tactic. Dep’t of Sanitation v. Garcia, OATH Index No. 1140/98 (May 1, 1998).
Here, respondent did not demonstrate good cause for seeking new counsel. Respondent’s
only asserted basis for the adjournment was his sudden loss of confidence in his attorney. Such
assertion, without more, is insufficient to warrant an adjournment. Dep’t of Correction v.
Rodriguez, OATH No. 761/91 at 7-8. Moreover, an adjournment at such a late juncture would
have inconvenienced petitioner, who was prepared and had produced seven Department
witnesses. Based upon the insubstantial reasons offered by respondent for his desire to change
attorneys, I concluded that this was a delaying tactic and denied the request.
However,
respondent was granted leave to renew his request, after consultation with counsel’s firm, to
substitute a new attorney for the following trial date. In addition, respondent was advised that if
he and counsel determined that any of the Department witnesses needed to be recalled for further
testimony, such an application would be considered (Tr. 97-99, 115). On April 10, 2007,
respondent appeared with Mr. Serrano and proceeded without further motion.
Between the hearing dates, respondent also sought a mistrial or, in the alternative, that the
testimony of Captain Patterson, Captain Williams, and his own witness, ADW Major be struck
from the record. In the motion dated March 21, 2007, respondent’s counsel argued that relief
should be granted because the underlying use of force investigation was flawed. Petitioner
opposed the motion. The motion was denied because respondent failed to demonstrate how an
allegedly flawed investigation concerning a use of force on April 1, 2006, warranted dismissal of
charges or the striking of testimony concerning respondent’s failure to submit a report on June
14, 2006. Respondent was allowed to raise issues, at trial, concerning irregularities in the
underlying use of force investigation and the related documents, as they pertained to the instant
charges. These claims are addressed below.
ANALYSIS
Respondent works in the visitor area of the Anna M. Kross Center (“AMKC”)
supervising inmate visits with friends and family. On April 1, 2006, respondent and Correction
Officer Cherry were involved in a use of force incident with an inmate. Immediately following
-4the incident, Captain Patterson interviewed respondent, Officer Cherry, and the inmate. The
Captain, acting as the Investigating Supervisor (Tr. 75), took notes of his interviews on a memo
pad and wrote that the incident occurred during an inmate “strip search.” Several hours later,
Captain Patterson drafted the inmate infraction on the same piece of paper (Tr. 15-20; Pet. Ex.
1). Respondent and Officer Cherry testified that Captain Patterson wrote their verbal statements
on a memo pad and that they each signed at the bottom (Tr. 117-120, 159-62). Captain Patterson
denied this allegation (Tr. 54).
According to Captain Patterson, he subsequently gave his
interview notes to Officer Hicks who summarized the officers’ oral statements in a written use of
force report which the Captain signed (Tr. 20-21). The report provided that when respondent
and Officer Cherry went to “pat frisk” the inmate, he hit Cherry in the face and that’s when
respondent attempted to place the inmate in a control hold, they fell to the floor (Pet. Ex. 2). As
a result of the incident, both officers injured their right hands and were sent to the clinic for
medical attention.1
Section E(2)(a) of the Department’s Use of Force directive, in effect at the time of the
incident, provides:
Staff who employ or witness force or receive use of force
allegations shall immediately report the incident to their immediate
supervisor . . . . All staff required to prepare reports shall do so
prior to leaving the facility unless medically unable to do so.
Necessary medical attention shall not be delayed in order to obtain
an immediate report.
Section E(3) provides that staff who witness or are involved in a use of force:
Shall prepare a written report concerning the incident based on
their own observations and written independently from other staff
that were involved or were alleged to have been involved in the
incident.
This same section sets forth what details the report should contain.
Captain Patterson’s notes of his conversation with the officers reflect that they were attempting to strip search the
inmate. The use of force report and the Captain’s notes reflecting the inmate infraction state that the officers were
conducting a pat frisk (Pet. Exs. 1 & 2). Captain Patterson testified credibly that when he spoke to the officers after
the incident, they advised him that they were conducting a strip search and that they later told him that it was a pat
frisk. He stated that the subsequently prepared documents reflect this change (Tr. 30-34). Whether the inmate was
pat frisked or strip searched, is irrelevant.
1
-5(ALJ Ex. 2).
Because of their injuries, neither respondent nor Officer Cherry prepared a written use of
force report on April 1, 2006. Respondent and Officer Cherry testified that when they came back
from the clinic and advised Captain Patterson they were on medical leave, the Captain got upset
that he was losing two reliable men and he stated “suck my nuts” (Tr. 121, 130, 163).
Captain Patterson considered the use of force to be appropriate (Tr. 20) and forwarded
the force package to his Tour Commander, ADW Major. All use of force incidents must be
investigated and evaluated by various supervisors (ALJ Ex. 2). Since there was no use of force
report from the officers involved, the package could not be forwarded along the chain of
command and ADW Major referred it back to the Captain to obtain the reports (Tr. 22-26, 40-48,
133-38, 146-47).
When respondent returned to duty on April 12, 2006, he was placed on medically
monitored status and was given light duty (Tr. 164). According to Captain Patterson, on the day
of respondent’s return, he asked respondent for a written report. Respondent said he would
provide one. On April 14, 2006, Captain Patterson again asked respondent for the report and
advised him that if he failed to do so, he would be brought up on charges. When he did not get a
written report, Captain Patterson issued a command discipline for respondent’s failure to comply
with an order (Tr. 27-28; Pet. Ex. 32).
It was unclear from the record whether Captain
Patterson’s command discipline was ever pursued. Respondent denied that Captain Patterson
ever spoke to him about filing a use of force report when he returned from medical leave.
Respondent testified that there was no need to file a written report because Captain Patterson had
made a finding that the use of force was appropriate and the investigation had been closed (Tr.
165-66, 185-86). On May 29, 2007, respondent was removed from medically monitored status
and returned to full duty (Tr. 59-60; Pet. Ex. 6).3
Petitioner’s 3, a memorandum from Captain Patterson to Warden Riordan, is dated “April 01, 2006,” but refers to
incidents occurring on April 12, and 14, 2006, and includes an Investigating Supervisor’s Report dated April 7,
2006. Captain Patterson credibly testified that the memo was prepared on April 21, 2006, and that the “01” date is a
typographical error (Tr. 23-27).
3
By way of background, when Officer Cherry returned from medical leave, Captain Patterson asked him to submit
a written use of force report. Officer Cherry said that he could not write and that he was on medically monitored
status. Captain Patterson told him to dictate the report to someone else and sign it or to sign the prior summary of
his oral statement. Officer Cherry reviewed Captain Patterson’s report and claimed that it was inaccurate. Although
2
-6Captain Williams testified that he is responsible for reviewing all use of force packages at
AMKC. He was instructed by ADW Danielle Johnson to obtain written reports from respondent
and Officer Cherry or have them sign the use of force reports prepared by Captain Patterson (Tr.
61-62, 69-70). Captain Williams explained that because the officers’ reports were missing, the
use of force package was incomplete and the Warden could not sign-off on the package (Tr. 75).
On June 13, 2006, Captain Williams issued a written order to respondent and Officer
Cherry to submit a use of force report no later than 3:00 p.m. the next day (Tr. 63-63; Pet. Ex. 4).
At 2:30 p.m. the following day, Captain Patterson brought respondent and Officer Cherry to
Captain Williams (Tr. 28-29). Captain Williams met with both men together and spoke first with
Officer Cherry and then respondent. He advised them that they needed to file reports for the use
of force package. Captain Williams testified that both officers told him that they were physically
incapable of writing. When asked for medical documentation, neither officer produced anything
showing that they were unable to write. Captain Williams showed them Captain Patterson’s
summaries of their statements which they claimed were inaccurate. Captain Williams testified
that he advised the officers that if they could not sign Captain Patterson’s use of force reports,
they should write their own report and had until 9:00 p.m., the end of their tour, to do so. Both
officers refused (Tr. 64, 68, 72-73, 83, 89).
Respondent denied that he told Captain Williams he could not write and testified that he
first asked to see his verbal report and that this request was denied. Respondent also stated that
he offered to write “an addendum” but that he could not write a word-for-word report which
would have been identical to the verbal report. His offer to write an addendum was also denied.
With regard to the use of force report prepared by Captain Patterson, respondent testified that he
was shown a different report which was a false document, and that he would have overlooked the
pat frisk/strip search discrepancy and signed the report in evidence had it been shown to him (Tr.
205-10). According to Officer Cherry, he disagreed with Captain Patterson’s reference to a pat
frisk and that he asked to see his verbal report (Tr. 124).4
Patterson told respondent to submit the report by the end of the day, he failed to do so. See Dep’t of Correction v.
Cherry, OATH Index No. 184/07, at 7 (Feb. 28, 2007).
4
Both officers testified that they asked for a union delegate and that this request was denied. Respondent claimed
that he wanted a delegate because the investigation into the use of force was being re-opened (Tr. 124-25, 168).
Captain Williams denied that they requested a union delegate and testified that, in any event, there was no need for
-7Captain Williams notified ADW Johnson and Captain Patterson about what had
transpired. He then went to the personnel area and verified that both officers had signed in for
their tour of duty. He wrote a memo to the Warden and prepared disciplinary charges against
the officers (Tr. 64-64; Pet. Ex. 5; Resp. Ex. C).
On June 15, 2006, DW Agro reviewed the use of force package and referred it to the
Investigation Division with a recommendation that they conduct further investigations due to the
officers’ lack of cooperation (Tr. 103-06; Resp. Ex. D). DW Agro testified that it is customary
to forward all use of force packages to the Investigation Division and that she did not know what
happened to this package once it got there (Tr. 110-15).
On July 26, 2006, DW Agro held a command discipline hearing on Captain Williams’
charges that respondent refused an order to file a report claiming he was unable to do so as
advised by the Health Management Division. DW Agro testified that she told respondent that he
needed to file a written report and that he replied that he did not think he had to because he had
given a verbal report. Respondent refused DW Argo’s offer of a three-day penalty and asked for
a memorandum of complaint (Tr. 102, 107; Resp. Ex. C).
To establish that respondent failed to obey a direct order, the Department must show that:
an order was communicated to respondent and respondent heard the order; the content of the
order was not ambiguous; and respondent willfully refused to obey the order.
Dep’t of
Correction v. Graham, OATH Index No. 1380/03, at 16 (Feb. 25, 2004).
I find that on June 14, 2006, after numerous verbal and written orders to do so,
respondent refused Captain William’s instruction to provide a written use of force report.
Respondent’s claim that he did not have to submit a written report because he provided an oral
report as allowed by the Use of Force directive, is contrary to the principle of “obey now, grieve
later.”
This means that an employee is required to obey the order when it is given and
subsequently challenge it through formal grievance procedures if there are any substantive or
procedural objections. See Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855, 477
N.Y.S.2d 616 (1984); Dep’t of Correction v. Shabazz, OATH Index No. 111/03 (Aug. 21, 2003).
one and that delegates sometimes taint an investigation (Tr. 85). Whether the officers’ request for a delegate was
wrongly denied is not within this tribunal’s jurisdiction to decide. See New York City Collective Bargaining Law
(City of New York Administrative Code, Title 12, Chapter 3). In any event, there is no evidence that Captain
Williams was doing anything more than trying to obtain the officers’ written account to include in the force package.
-8Moreover, I found credible Captain Patterson’s testimony that respondent did not sign a dictated
oral report on the day of the incident. It appears that respondent was under the mistaken
impression that his oral statement to Captain Patterson, which was summarized in a use of force
report signed by the Captain, excused respondent’s obligation to file his own written report.
Even if respondent had signed an oral report or was correct about his interpretation of the
directive, he was given a separate and distinct order to write a report which he failed to do.
Respondent’s testimony that he would have signed Captain Patterson’s report had it been
presented to him but that he was shown a fake document was incredible. Respondent was given
numerous options and opportunities to provide a written report for the use of force package and
he consistently refused to do so.
I also find that respondent alleged that he was unable to write due to his medically
monitored status. While it seems illogical for respondent to make such a claim when he was
admittedly able to write (Tr. 57), I found Captain Williams to be a credible witness. Captain
Williams was very specific that respondent and officer Cherry had the same excuse and that he
went to check if both had signed their names into the log that morning. It is undisputed that as a
result of the same use of force incident, the officers went on medical leave with a hand injury
and that both failed to provide a written report as directed. It seems that over the course of the
investigation and this hearing, respondent proffered a variety of excuses not to file a written
report: that he signed an oral statement on the day of the incident; that the use of force report
prepared by Captain Patterson was not the same report shown to him on June 14, 2006; and that
the use of force investigation was flawed as evidenced by the documents and the fact that two
captains were assigned to investigate when the directive allegedly provides that only one captain
is responsible. I find it curious that many of these excuses were the same or similar to the ones
made by Officer Cherry. It appears that respondent was under the wrong impression that the
investigation into the underlying use of force had been closed. It is also evident that respondent
was concerned that his failure to provide, two months after the incident, an identical written
report to his prior oral statement would result in charges concerning his use of force on the
inmate. Under the circumstances, I find it more likely than not that respondent concocted the
excuse that he could not write because he was determined not to provide a written report.
-9FINDINGS AND CONCLUSIONS
1. On June 14, 2006, respondent failed to submit a written use of
force report as directed by his supervisor.
2. On June 14, 2006, respondent engaged in conduct unbecoming
in that he falsely alleged he was unable to write due to his
medically monitored status.
RECOMMENDATION
Upon making these findings, I obtained and reviewed an abstract of respondent’s work
history for purposes of recommending an appropriate penalty. Respondent was appointed as a
correction officer on January 4, 1996. During his eleven-year tenure, respondent has acquired an
extensive disciplinary record. In 1998, respondent was sanctioned for violating the Use of Force
directive and forfeited five vacation days. That same year, respondent was suspended for five
days for violating the sick leave directive. In 2001, he was suspended for 60 days for exerting
impermissible force against an inmate, failing to notify a supervisor, and filing a false use of
force report.
In increasing the penalty to 60 days, the former Commissioner noted that
respondent’s former penalty for a use of force violation “did not deter him from once again
violating the provisions of what is one of the most important directives in this agency.” Dep’t of
Correction v. Price, OATH Index No. 363/00 & 1399/00 (Apr. 17, 2001) modified on penalty,
Comm’r Dec. (June 26, 2001). In 2003, respondent was suspended for seven days for failing to
follow a supervisor’s order to report to the front gate to receive an escort assignment. Dep’t of
Correction v. Price, OATH Index No. 466/03 (Apr. 2, 2003). On the positive side, respondent
served in the army with an honorable discharge, and also received two Department citations in
1997 and 2001.
Petitioner’s counsel seeks termination of respondent’s employment because respondent
“doesn’t get it” and the Department cannot rely on “an officer who goes by his own rules and his
own understandings to perform the jobs that he’s supposed to be doing” (Tr. 218). Respondent’s
counsel asks that if a penalty is imposed, that it be considered in light of the three-day suspension
offered at the command discipline level.
- 10 Here, respondent has deliberately failed to follow an order to file a written use of force
report and proffered a false excuse for his failure to do so. This misconduct is similar to his
previous acts of insubordination and untruthfulness, and presents a third violation concerning the
Use of Force directive. While there is a big discrepancy between a three-day penalty and
termination and there were no serious consequences to respondent’s misconduct, there comes a
point when a public employer is entitled to end the employment relationship. Health and
Hospitals Corp. (Kings County Hospital Center) v. Dedier, OATH Index No. 1203/07 (Mar. 22,
2007). Respondent has had multiple warnings and opportunities to correct his behavior and his
continued defiance of authority has placed him at the point where he should be separated from
City service. As prior cases teach, an employee who is insolent and refuses to accept supervision
continues to reject authority at his peril. In Health and Hospitals Corp. (Coler-Goldwater
Specialty Hospital and Nursing Facility) v. Ramsay, OATH Index No. 724/04, at 8-9 (Apr. 16,
2004), the respondent was found “insubordinate, intemperate and abusive.” Judge Kara J. Miller
found that respondent had “an issue with supervision,” and that even if he disliked his
supervisor, he was required to comply with that supervisor’s directives.
The judge
recommended a penalty of 21 days’ suspension “as a deterrent to further insubordination.” Id.
In a later proceeding, the same respondent was found to have failed to correct himself, to have
engaged in additional, similar forms of insubordination, and termination of his employment was
recommended. Health and Hospitals Corp. (Coler-Goldwater Specialty Hospital and Nursing
Facility) v. Ramsay, OATH Index No. 1248/05, at 18-22 (Nov. 9, 2005).
Respondent is employed in a para-military organization whose primary mission is the
care, custody and control of inmates. In order to effectuate this mission, it is incumbent upon its
employees to follow the orders of superior officers and uphold the policies of the Department.
The expectation that each officer does what he is instructed to do is vital to the Department’s
efficient and safe operation. Respondent’s arguments that he was acting “on principle” (Tr. 9)
and that the order to file a written report “was superfluous at best and at worst, an unnecessary
exercise of authority, which . . . was essentially an illegal order” (Tr. 216), demonstrate his
inability to understand the Department’s need and obligation to thoroughly investigate and
document all use of force incidents. It is evident that respondent is unwilling to obey orders that
he does not agree with and there is no evidence that previous discipline has had any effect on this
- 11 behavior. Indeed, during this proceeding, respondent persisted in denying the findings in 2003
and 2001 that he disobeyed a supervisor’s order and that he provided a false use of force report
(Tr. 174-78). Under the circumstances, the Department has a legitimate right to be concerned
that respondent “doesn’t get it” and that his unwillingness to follow orders to comply with the
Use of Force directive make him a risk to the safety of fellow officers and the inmates he is
charged with supervising.
Even though respondent’s last penalty was a seven-day suspension, respondent has
already received a 60-day suspension for violating the Use of Force directive and on this record
termination would not be inconsistent with the principles of progressive discipline. See Dep’t of
Correction v. Gardner, OATH Index No. 1096/99, at 14 (Nov. 17, 1999) (respondent’s conduct
over the years has not demonstrated a willingness or ability to improve his attendance record:
“He is no stranger to the disciplinary process,” and was “incorrigible”); Dep’t of Correction v.
Johnson, OATH Index No. 514/02 (May 30, 2002), modified on penalty, Comm’r Dec. (July 17,
2002), aff’d, NYC Civ. Serv. Comm’n Item No. CD03-39-SA (Apr. 11, 2003). In Johnson, the
former Commissioner found, in increasing a 60-day suspension to termination for numerous
attendance violations, in language that applies equally here: “Respondent has been the subject of
progressive discipline and given more than one opportunity to conform to the rules of conduct of
this agency. He has failed to do so. Given this history of disregard for Department rules and
regulations, the only appropriate penalty is termination of his employment.” See also Dep’t of
Correction v. Belgrave, OATH Index No. 1662/05 (Jan. 18, 2006), aff’d, NYC Civ. Serv.
Comm’n Item No.CD06-115-SA (Nov. 8, 2006) (respondent demonstrated a cavalier attitude
towards workplace rules; termination appropriate based on disciplinary history and absence of
compelling mitigation).
Respondent’s history of misconduct renders him unreliable and the Department, as an
employer, has a right to a workforce upon which it can depend. In consideration of respondent’s
current misconduct, his extensive record, as well as the absence of compelling mitigation
evidence, and in keeping with principles of progressive discipline, I recommend termination of
respondent’s employment with the Department.
- 12 Alessandra F. Zorgniotti
Administrative Law Judge
May 1, 2007
SUBMITTED TO:
MARTIN B. HORN
Commissioner
APPEARANCES:
DAVID K. KLOPMAN, ESQ.
Attorney for Petitioner
KOEHLER & ISAACS, LLP
Attorneys for Respondent
BY: LUIS SERRANO, ESQ.
The City Civil Service Commission’s Decision, Item No. CD08-08-M, January
23, 2008
_______________________________________________________
THE CITY OF NEW YORK
CIVIL SERVICE COMMISSION
In the Matter of the Appeal of
JOHN PRICE
Appellant
- Against NYC DEPARTMENT OF CORRECTION
Respondent
Pursuant to Section 76 of the New York Stat Civil service Law
_______________________________________________________
SIMON P. GOURDINE, Commissioner/Chairman
- 13 STATEMENT
On Thursday, November 15, 2007, the City Civil Service Commission heard oral argument in
the appeal of JOHN PRICE, Correction Officer, NYC Department of Correction, from a
determination by the NYC Department of Correction, finding him guilty of charges of
misconduct and imposing a penalty of TERMINATION following an administrative hearing
conducted pursuant to Civil Service Law Section 75.
DECISION
JOHN PRICE appeals from a determination of the New York City Department of
Correction (“DOC”) finding him guilty of engaging in conduct unbecoming an officer and
imposing a penalty of termination following disciplinary proceedings conducted pursuant to
Civil Service Law Section 75. The Commission conducted a hearing on November 15, 2007.
Appellant, a Correction Officer, was charged on June 14, 2006 with 1) failing to submit a
use of force report that had been ordered from him by Captain Anthony William and 2) falsely
alleging he was unable to write a report due to his Medically Monitored Status.
The
Administrative Law Judge (“ALJ”) sustained the charges and recommended termination.
The Commission has carefully reviewed the record adduced below and considered the
arguments on appeal.
We note that Appellant had been with DOC since 1996 and his
disciplinary history included four prior suspensions; in 1998 Appellant forfeited 5 vacation days
for violating the sick leave directive; in 1998 Appellant was suspended for 5 days for violating
the sick leave directive; in 2001 Appellant was suspended 60 days for exerting impermissible
force against an inmate failing to notify supervisor, and filing a false use of force report; in 2003
appellant was suspended 7 days for failing to follow a supervisor’s order to report to the front
gate to receive an escort assignment. We also note Appellant received two department citations
in 1997 and 2001.
We disagree with the ALJ’s finding that “Appellant falsely alleged he was unable to write
due to his medically monitored status and that Appellant more likely than not concocted the
excuse that he could not write because he was determined not to provide a written report” (see
ALJ’s decision pg. 8). We find Appellant’s testimony to be more credible and convincing than
Captain Williams. We note the use of force incident was deemed appropriate. With regard to
- 14 the report, Appellant testified that on June 14, 2006 he was working the visiting floor and that he
could write (Transcript 169-32) and Officer Cherry couldn’t write because his right hand was in
a medical restraint (Transcript 169-13). Appellant also testified that he “asked to see the verbal
report he signed which was given to Captain Patterson” and was refused. The Appellant then
offered to “write an addendum to the use of force report” which was also refused (see ALJ’s
decision pg. 6). Appellant testified that the reason he wanted to see the verbal report (he signed)
or to write an addendum to the use of force report was that “if I write from memory and miss
something, then it opens up a new investigation” (Transcript 169-9). Appellant argued he was
apprehensive about writing a new report without seeing a copy of his previously signed report
because he was previously brought up on charges for filing a false use of force report. Although
Appellant disobeyed a direct order from a supervisor by refusing to submit a use of force report,
we find his testimony credible.
We concur with the ALJ’s decision that Appellant “deliberately failed to follow an order
to file a written use of force report” and that “this misconduct is similar to previous acts of
insubordination” (see ALJ’s decision pg. 9, wherein he was suspended for seven day in 2003.
We also concur with the ALJ’s decision that “there is a big discrepancy between a three day
penalty and termination and there were no serious consequences to respondent’s misconduct ….”
However, we disagree with the penalty imposed. We find the penalty to be quite excessive in
light of the fact that at the command discipline level the Department recommended only a threeday suspension, which was refused by Appellant.
Considering the circumstances together with his work history, 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 his dismissal to the date of this determination.
Appellant is to be restored to the position within 30 days from this determination
SIMON P. GOURDINE, Commissioner/Chairman, Civil Service Commission
NICHOLAS A. LAPORTE, Commissioner/Vice Chairman, Civil Service Commission
RUDY WASHINGTON, Commissioner, Civil Service Commission
DAVID S. LANDE, Commissioner, Civil Service Commission
- 15 NORMA LOPEZ, Director/General Counsel, Civil Service Commission
ALLEN COHEN, ESQ.
Representative for Appellant
ADRIAN LAURIELLO, ESQ.
Representative for Respondent