Dep’t of Correction v. Benston
OATH Index No. 1557/05 (Nov. 7, 2005)
Correction officer charged with undue familiarity and failure to
report contact with his cousin, an inmate. Dismissal of the charges
recommended based on the statute of limitations. Failure to notify
command is not a continuing violation that tolls the statute of
limitations.
______________________________________________________
NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF CORRECTION
Petitioner
- against MAXWELL BENSTON, JR.
Respondent
______________________________________________________
REPORT AND RECOMMENDATION
KEVIN F. CASEY, Administrative Law Judge
Petitioner, the Department of Correction (Department), brought this disciplinary
proceeding pursuant to section 75 of the Civil Service Law. The petition alleges that respondent,
a correction officer, committed misconduct by engaging in undue familiarity with an inmate and
failing to report contact with that inmate (ALJ Exs. 1 and 2).
At a hearing on September 12, 2005, petitioner presented three witnesses and respondent
testified on his own behalf. For the reasons below, I find that the charges are barred by the
eighteen-month statute of limitations set forth in Civil Service Law section 75(4). I recommend
dismissal of the charges.
ANALYSIS
Fifteen years ago, respondent Maxwell Benston, Jr., began working for the Department as
a correction officer. For most of his career he was assigned to the George R. Vierno Center
(GRVC) (Tr. 65).
-2Respondent’s cousin Melvin, also known as Eugene Montgomery, took a different career
path. As a result of several arrests and criminal convictions, he spent much of the last fifteen
years in city and state correctional facilities (Pet. Ex. 5; Tr. 44-47).
On October 13, 2003, while investigating unrelated charges, Department investigators
discovered that Mr. Montgomery made twenty-four telephone calls from the Anna M. Kross
Center (AMKC) to respondent’s home between November 22, 2002 and March 12, 2003 (Tr. 39,
42; Pet. Ex. 5; Resp. Ex. B). Ten calls were unanswered; eight were shorter than ten seconds;
five were between twelve and sixty-four seconds in duration; and one call, on February 7, 2003,
was seven and a half minutes long (Resp. Ex. B; Tr. 49). Investigators also learned that Mr.
Montgomery was an inmate at GRVC on two occasions in the 1990s and he listed a Bushwick
Avenue address as his home (Pet. Ex. 5). When respondent joined the Department, he identified
Michael Montgomery, living at the same Bushwick Avenue address, as his next of kin (Pet. Ex.
2). Melvin and Michael Montgomery are brothers (Tr. 43).
On May 19, 2004, Department investigators interviewed respondent pursuant to Mayoral
Executive Order No. 16 (MEO 16). A recording of that interview was admitted in evidence (Pet.
Ex. 1). Most of the interview concerned unrelated charges. When asked about the Montgomery
brothers, respondent identified them as his cousins (Pet. Ex. 1, track 2, 30:48). Although
respondent said that he was aware that Mr. Montgomery had been confined at GRVC on two
occasions in the 1990s, the investigators did not ask how or when he learned of that information
(Pet. Ex. 1, track 3, 3:30-3:48). Acknowledging that, at some point, he received one or more
telephone calls from Mr. Montgomery, respondent believed that the calls were from an upstate
prison and “probably” from a New York City correctional facility (Pet. Ex. 1, track 3, 1:28-1:37;
6:30-6:40, 7:25-7:30). Respondent stated that he had not notified the Department about contact
with Mr. Montgomery (Pet. Ex. 1, track 2, 31:01; track 3, 3:30-3:48; 7:25-7:30).
On February 3 and March 18, 2005, nearly two years after the last alleged contact
between respondent and Melvin Montgomery, petitioner filed these charges. Specification 3
alleged that, from October 25, 1995 through January 26, 1996 and from January 5, 1998 through
October 1, 1998, respondent engaged in undue familiarity by failing to report that his cousin, Mr.
Montgomery, was an inmate living in the facility where respondent worked. Specifications 1
-3-
and 2 accused respondent of engaging in undue familiarity by receiving two dozen phone calls
from Mr. Montgomery, between November 22, 2002 and March 12, 2003, and failing to inform
his supervisors. All of the charges alleged that the undue familiarity was “revealed” on or about
October 13, 2003 (ALJ. Exs. 1 and 2).
Respondent maintained that the charges were barred by section 75(4) of the Civil Service
Law, which mandates that “no removal or disciplinary proceeding shall be commenced more
than eighteen months after the occurrence of the alleged incompetency or misconduct” as
described in the charges. This statute of limitations is inapplicable for criminal conduct, but
petitioner did not allege that respondent committed a crime. Instead, it asserted that the statute of
limitations was tolled by “a continuing violation of wrongful concealment” (Tr. 60). This
argument conflated two distinct grounds for tolling the statue of limitations: wrongful
concealment and a continuing violation.
A party whose wrongful concealment of misconduct prevents the filing of disciplinary
charges may not rely upon the statute of limitations as a bar to prosecution. However, the
“failure to report is not the equivalent of wrongful concealment.” Dep’t of Correction v. Battle,
OATH Index No. 1052/02, at 13 (May 15, 2002) (wrongful concealment involves more than
“mere silence,” there must be “some affirmative act of deception on the part of the employee”).
There was no active concealment here. Respondent did not engage in any deceptive acts
or take any steps that impeded or thwarted the investigation. On the contrary, when questioned
by Department investigators, respondent admitted his relationship with Mr. Montgomery. Thus,
petitioner cannot rely upon a wrongful concealment theory to toll the statute of limitations.
Battle, at 13.
The only remaining issue is whether petitioner can rely upon the exception for continuing
violations. Such violations, also referred to as continuing wrongs, occur over a span of time.
This doctrine is used to toll statutes of limitations in a variety of situations, ranging from
conspiracy prosecutions to nuisance or trespass actions. See Jensen v. General Electric Co., 82
N.Y.2d 77, 90, 603 N.Y.S.2d 420, 426 (1993); see also Cintron v. Bowen, 51 A.D.2d 569, 378
N.Y.S.2d 764 (2d Dep’t 1976) (excessive absenteeism deemed a continuous course of
misconduct).
However, there is an obvious tension between the purpose of a statute of
-4limitations and the continuing wrong doctrine, which “for all practical purposes” extends the
limitations beyond its stated term. Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860
(1970). Thus, the continuing wrong doctrine should only be applied in “limited circumstances”
where an offense is inherently ongoing or there is a clear statute or regulation establishing that
the offense is a continuing wrong. Toussie, 397 U.S. at 115, 90 S.Ct. at 860; see also Jensen, 82
N.Y.2d at 87, 603 N.Y.S.2d at 424 (continuing wrong doctrine cannot be used to ignore a statute
of limitations or extend it beyond a term established by the Legislature).
Reporting requirements are sins of omission. Such rules are violated when someone is
required to act and fails to do so. In Toussie, for example, the Supreme Court held that failure to
register for the draft is not a continuing offense.
Analyzing the applicable statute and
regulations, the Court emphasized the absence of a clearly stated legislative intent to make the
failure to report a continuing wrong. Thus, the Court held that the offense occurred, and the
statute of limitations began to run, upon the initial failure to register. 397 U.S. at 119, 90 S.Ct. at
862; see also United States v. Trident Seafoods Corp., 60 F.3d 556 (9th Cir. 1995) (corporation
that failed to report its intent to remove asbestos could not be fined for continuing violation of
the Clean Air Act, where statute or regulation did not provide clear notice that failure to notify
was a continuing offense); United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987) (noting that
“continuing offenses do not continue indefinitely,” court held that statute requiring agent
representing foreigners to register begins to run on the last day the person acts as an agent).
Matter of Steyer, 70 N.Y.2d 990, 526 N.Y.S.2d 422 (1988), demonstrates that the Court
of Appeals has declined to apply a broad interpretation of the continuing wrong doctrine to
employee disciplinary actions. There, two deputies were charged with misconduct for failing to
report crimes committed by fellow officers more than eighteen months earlier. The Appellate
Division upheld disciplinary charges against the deputies by citing a trespass case and finding
that the “continuous nature” of the misconduct tolled the statute of limitations. 129 A.D.2d 994,
514 N.Y.S.2d 298 (4th Dep't 1987). The Court of Appeals affirmed, “[o]n a different ground.”
70 N.Y.2d at 992, 526 N.Y.S.2d at 423.
It held that the deputies “concealed their own
wrongdoing” when a prosecutor specifically questioned them about their colleagues’ alleged
criminal conduct and their “concealment prevented filing of the disciplinary charges.”
70
-5-
N.Y.2d at 993, 526 N.Y.S.2d at 423. Because of that concealment, the statute of limitations was
tolled. By refusing to adopt the Appellate Division’s reasoning, the Court of Appeals elected not
to stretch the continuing offense doctrine to encompass an ongoing failure to provide
notification.
Limited application of the continuing offense doctrine is also consistent with precedents
from this tribunal declaring that agency regulations must clearly put an employee on notice of
what conduct would be a violation. See Dep't of Correction v. Pelham-Morse, OATH Index No.
604/04, at 3 (Aug. 10, 2004), citing Dep't of Correction v. Page, OATH Index No. 358/96, at 24
(Mar. 17, 1997). This principle further supports the conclusion that, before an employee can be
disciplined for acts or omissions that occurred long ago, there must be a statute or regulation
clearly stating that a violation is a continuing offense.
Here, the controlling statute is section 75(4) of the Civil Service Law. It states that the
time limit for bringing employee disciplinary actions begins to run with the “occurrence” of the
alleged misconduct. Nothing in the statute suggests that the limitation period varies depending
upon the difficulty that an agency has in detecting a violation. The limitation period does not, as
petitioner suggests, begin from the date that misconduct is discovered. Had the Legislature
intended the limitation period to begin from that later date, it would have said so. See, e.g.,
CPLR §§ 214-c (statute of limitations for toxic torts begins to run three years from discovery),
214-a (continuous treatment exception for medical malpractice); see also CPLR § 201 (Lexis
2005) (courts may not extend the time limits for commencement of an action).
Moreover, the Department rules do not clearly establish that the failure to report contact
with an inmate is a continuing offense.
Prior to September 20, 1996, members of the
Department could not indulge in undue familiarity with inmates and could not, without proper
approval, contact or associate with former inmates or the inmates’ families. Rule 3.60.040. This
rule did not have an explicit reporting requirement. Dep’t of Correction v. Bradley, OATH
Index No. 862/98, mem. dec. at 5 (Apr. 3, 1998) (although there is an implicit notification
requirement, the purpose of the undue familiarity rule is to prohibit contacts, it “is not a reporting
requirement when compared to other rules and directives requiring members to report unusual
incidents, such as arrests, loss of weapons, etc.”).
-6-
On September 20 and December 23, 1996, the Department modified its prohibition on
undue familiarity. The rules now include two specific reporting requirements where there is a
pre-existing relationship between an inmate and a member of the Department:
Rule 3.25.040: Members of the Department shall not indulge in
any undue familiarity with inmates nor shall they permit undue
familiarity on the part of the inmates toward themselves.
Rule 3.25.041: Members of the Department . . . shall not make or
maintain contact with or in any way associate with former inmates,
nor shall they make or maintain contact with or in any way
associate with a member of an inmate's family, except with the
approval of the Commanding Officer. Where there is a verifiable
pre-existing relationship between a member of the Department and
an inmate this rule shall not apply except to the extent that the
member must report the information to the Commanding Officer.1
Rule 3.25.050: Members of the Department shall immediately
notify their Commanding Officer whenever a relative, friend, or a
person with whom the member had a verifiable previous
relationship, is incarcerated and housed at the same facility.
Unlike the statute of limitations, which specifically states that the limitation period begins
to run from the date of occurrence, the Department’s rules lack clarity. Although a violation
occurs whenever there is unauthorized contact between an inmate and a member of the
Department, there is no clear rule stating that the failure to notify the Department is a continuing
offense. Absent such a clear rule, the wrong occurs and is completed as soon as there is a failure
to report. Thus, in respondent’s case, the statute of limitations began to run on March 12, 2003,
when Mr. Montgomery last called him and when he failed to report it.
In support of its claim that there is a continuous duty to report that tolls the statute of
limitations, petitioner relied upon Dep’t of Correction v. Walker, OATH Index No. 1779/02
(Dec. 13, 2002), aff’d NYC Civ Serv. Comm’n Item No. CD 04-18-SA (May 19, 2004). There,
a correction officer deposited funds in a state inmate’s commissary account, visited the inmate
1
The specifications against respondent refer to contact that supposedly occurred while Mr. Montgomery was an
inmate. It is questionable whether Rule 3.25.041, which bans contact with former inmates and relatives of inmates,
and only refers to a duty to report while defining the exception to the rule, has any application here. Even if the rule
does apply, it does not make clear that the failure to report is a continuing offense .
-7-
on thirty-four occasions, and received thirteen calls from the inmate in May 2000. Charges were
filed against the officer on October 21, 2001. Thus, the contact with the inmate was ongoing and
the charges were brought within eighteen months of the last known communication. Here, in
contrast, the last alleged contact between respondent and Mr. Montgomery took place more than
eighteen months before the charges were filed.
Although Walker suggests that a failure to report tolls the statute of limitations, that
analysis is based largely upon Dep’t of Correction v. Saunders, OATH Index No. 1694/96 (Aug.
1, 1996). In Saunders, a default proceeding, a member of the Department married an inmate at
Attica Correctional Facility and continued to be married within the eighteen months preceding
the filing of disciplinary charges. That intimate relationship was “one continuing violation” of
the prohibition against undue familiarity. Id. at 6.
Walker and Saunders do not support the sweeping claim that every failure to report undue
familiarity indefinitely tolls the statue of limitations. In each of those cases, charges were filed
within eighteen months of ongoing acts of undue familiarity. To the extent that those cases
suggest that a failure to report is a continuous offense, such analysis is contrary to section 75(4)
of the Civil Service Law and principles set forth by the Supreme Court in Toussie and the Court
of Appeals in Jensen.
A statute of limitations, such as section 75(4) of the Civil Service Law, may permit some
wrongdoers to go unpunished, but it also serves an important purpose. It encourages prompt
investigation and imposition of penalties while protecting parties from having to defend against
charges where the underlying acts have been obscured by time. Toussie, 397 U.S. at 114, 90
S.Ct. at 860. Those considerations apply with full force in administrative proceedings. See, e.g.,
3M Company v. Browner, 17 F.3d 1453, 1461 (D.C. Cir. 1994) (“An agency’s failure to detect
violations, for whatever reasons, does not avoid the problems of faded memories, lost witnesses,
and discarded documents ….”). To accept petitioner’s view, that the limitation period does not
begin to run until the Department discovers evidence of undue familiarity, would circumvent the
statute of limitations. Any member of the Department who fails to report an unauthorized
communication from a rogue relative, no matter how long ago, would be subject to disciplinary
charges for the duration of his or her career.
-8This case shows that such concerns are not exaggerated.2 Petitioner charged respondent
with failing to report contact with his cousin that occurred as long as ten years ago. There was
no proof that respondent and Mr. Montgomery had seen each other in the past decade. Instead,
petitioner relied upon the MEO 16 interview, which primarily concerned an unrelated event, and
phone records of calls that were, for the most part, unanswered or only a few seconds in duration.
Not surprisingly, the passage of time made it difficult to evaluate these claims.
Respondent testified that he was not close with Mr. Montgomery (Tr. 91-92). He insisted
that he never saw Mr. Montgomery in a correctional facility (Tr. 65-66, 72-73, 78). Although
the Department alleged that respondent worked at GRVC while Mr. Montgomery was housed
there, in late 1995 and throughout 1996, respondent asserted that he was injured and did not
work at GRVC for most of that time period (Tr. 65). As for allegations that Mr. Montgomery
was also at GRVC in 1998, respondent recalled that a fellow officer told him about his cousin’s
presence in the facility. After checking inmate records, respondent submitted written notification
to the security office. Neither respondent nor the Department had a copy of such a document
from seven years ago (Tr. 48, 51, 70, 86, 92). Department records reveal that Mr. Montgomery
was transferred from GRVC on October 1, 1998, but there is no indication that any notification
by respondent prompted this move (Pet. Ex. 5).
With regard to phone contact, respondent remembered that Mr. Montgomery called him
from an upstate correctional facility in the 1990s. Respondent told him that he could not help
and he advised Mr. Montgomery not to call again (Tr. 78, 91). He did not speak to Mr.
Montgomery while he was in the Department’s custody, especially during the time periods
specified in the charges (Tr. 89, 91). Petitioner alleged that there were twenty-four phone calls
to respondent’s home, but ten of those calls were never answered. It is puzzling how respondent
could be charged with misconduct for failing to report a call that he never answered. Most of the
2
As a practical matter, the Department could have avoided this delay. It became aware of the alleged contact
between respondent and Mr. Montgomery, “on or about” October 13, 2003. This was less than six months after the
last phone call from Mr. Montgomery to respondent’s home on March 12, 2003. The Department did not question
respondent about Mr. Montgomery until the MEO 16 interview on May 19, 2004. At that point, the Department had
all the information it needed to accuse respondent of undue familiarity and it was still less than eighteen months
since the last contact between respondent and Mr. Montgomery. Yet it waited until February 3, 2005, to serve these
charges.
-9-
remaining calls were less than ten seconds in duration; hence, there was considerable room to
doubt whether there was any conversation between respondent and Mr. Montgomery during
those brief calls. However, there was a seven-minute call from AMKC on February 7, 2003.
Respondent, who was on vacation that day, noted that his eleven-year old son, who periodically
stayed with him at the time, also had access to the phone (Tr. 82, 88-90).
There were some inconsistencies between respondent’s testimony and his MEO 16
interview. Respondent attributed those differences to threats made by investigators during the
interview (Tr. 77, 84, 87-88). Based upon the recording and the testimony of investigator
Thomas Lynch, I was not persuaded that respondent had been threatened. Respondent was
assisted by counsel throughout the interview and he provided detailed, exculpatory responses to
questions. However, there was a heated exchange when an investigator told respondent that
unidentified inmates had accused him of misconduct. Asked why inmates would lie, respondent
became indignant and suggested that he was being penalized for doing his job. The investigator
interjected, “I don’t need to hear all of that” and abruptly turned off the recording device (Track
2, 16:10-16:50). When recording resumed moments later, the investigators continued to question
respondent about the unrelated incident before they questioned respondent about Mr.
Montgomery. In this context, respondent’s unclear recollection of events that occurred years
earlier was understandable.3
This case, based upon allegations of remote and fleeting contacts with a cousin, is
precisely the type of proceeding that the Legislature sought to avoid when it enacted Civil
Service Law section 75(4). There is no indication that respondent committed a crime or engaged
in active concealment. Nor is it clear that a failure to report a cousin’s incarceration or phone
communication is a continuing offense. Under these circumstances, the charges are barred by
the statute of limitations and should be dismissed.
3
Investigator Lynch suffered from a similar lack of recall. Despite the benefit of access to a recording of the MEO
16 interview, he could not accurately recall its contents. He averred that respondent admitted during the interview
that he had “a physical observance” of Mr. Montgomery in GRVC (Tr. 15). Respondent never said that he spoke to
or saw his cousin while he was incarcerated at GRVC. In response to a question, he said that he became aware that
his cousin was housed at GRVC (Pet. Ex. 1; track 3, 3:30-3:48). Investigator Lynch never followed up during the
interview to determine how or when respondent learned of this information; instead, he simply assumed that
respondent saw his cousin.
- 10 -
FINDING AND CONCLUSIONS
1.
The last alleged contact between respondent and Melvin
Montgomery occurred on March 12, 2003, more than
eighteen months before charges were filed against
respondent.
2.
The charges against respondent were untimely.
RECOMMENDATION
I find the charges against respondent are time-barred and should be dismissed.
Kevin F. Casey
Administrative Law Judge
November 7, 2005
SUBMITTED TO:
MARTIN F. HORN
Commissioner
APPEARANCES:
DAVID K. KLOPMAN, ESQ.
Attorney for Petitioner
JAVIER A. RODRIGUEZ, ESQ.
Attorney for Respondent