Fire Dep’t v. Loscuito OATH Index No. 509/06 (June 14, 2006) Respondent firefighter found to have given false testimony in an MEO 16 interview relating to sexual misconduct in the firehouse. However, charge that firefighter engaged in sexual acts with a female in the firehouse is not sustained, due to unreliability of complainant’s hearsay statements. Charge that respondent permitted visitor to remain in quarters after-hours is sustained. Termination of employment is recommended. ____________________________________________________ NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of FIRE DEPARTMENT Petitioner - against ANTHONY LOSCUITO Respondent ____________________________________________________ REPORT AND RECOMMENDATION FAYE LEWIS, Administrative Law Judge This is a disciplinary proceeding brought by the Fire Department pursuant to section 15113 of the Administrative Code. Respondent, Anthony Loscuito, a firefighter, is charged with: engaging in sexual acts with a female on the premises of Engine 75/Ladder 33 on August 20, 2004 (charge 4); allowing a visitor into Engine 75/Ladder 33 on August 20, 2004, after 10 p.m. (charge 3); providing false testimony during a Mayor’s Executive Order 16 (MEO 16) interview on August 25, 2004 relating to misconduct on August 20, 2004 (charges 1 and 2); and, violating his oath of office and engaging in conduct unbecoming and conduct bringing discredit upon the Department (charges 5-7). Trial was held on four dates: March 20, 21, and 28, 2006. Petitioner presented numerous witnesses: retired Detective Aida Virola, who on August 20, 2004 was assigned to the Sex Crimes Unit in the Bronx; Investigator Evelyn Delgado, who on August 20, 2004 was a detective assigned to the Department of Investigation Squad; Jayme Naberzny, the Inspector General for the Fire Department; George Hicks, an auto mechanic assigned to the Fire Department; -2firefighters Mathew Bruckner and Brian Gill, both assigned to Engine 75 on August 20, 2004; and Captain John Stark, who until his transfer on August 21, 2004 was assigned to Engine 75. Respondent testified in his own behalf and also presented the testimony of firefighter Edward Brown, the Bronx trustee for the Uniformed Firefighters Association. Additionally, petitioner presented tapes and transcripts of interviews conducted by the Inspector General, pursuant to MEO 16, of former firefighter Tony DeLuca, mechanic Hicks, and respondent (Pet. Exs. 16, 17). Respondent presented a tape and transcript of a second MEO 16 interview of Mr. DeLuca (Resp. Ex. I). The parties stipulated to the introduction of portions of transcripts of a deposition taken of Jennifer Swanton by the Corporation Counsel, following Ms. Swanton’s filing of a notice of claim dated November 16, 2004 alleging that she was raped at the firehouse (Pet. Exs. 37 a-d).1 Neither party produced Ms. Swanton as a witness at trial, although respondent served a subpoena for her testimony upon the attorney who represented her in the deposition (Resp. Ex. O).2 The record was closed on March 30, 2006, following submission of several post-trial exhibits. For the following reasons, I find that respondent gave false and misleading MEO 16 testimony regarding the events of August 20, 2004, and that he permitted Ms. Swanton to remain in the firehouse after hours. I find that petitioner has failed to prove that respondent engaged in sexual activities with Ms. Swanton. I recommend that respondent’s employment be terminated. 1 Respondent had originally made an application to this tribunal for the issuance of a subpoena duces tecum to compel the production of these deposition minutes, to which the Fire Department objected. By memorandum decision dated January 6, 2006, although finding the minutes likely to be extremely relevant to respondent’s defense, I denied this application, because the applicable statute, General Municipal Law section 50-h, provides that the minutes are not to be produced for “public inspection” except upon “court order” and OATH is an administrative tribunal which is not considered a “court” under section 2 of the Judiciary Law. Fire Dep’t v. Loscuito, OATH Index No. 509/06, mem. dec. (Jan. 6, 2006). Thereafter, respondent sought an order in Supreme Court, New York County, compelling compliance with a subpoena for the minutes, and Justice Rolando Acosta ordered disclosure of portions of the minutes to respondent’s counsel, subject to redaction of personal identifying information relating to the complainant, as well as any information relating to sexual conduct involving persons not the subject of the OATH proceeding or not involving the events of August 20, 2004. Justice Acosta also ordered that the transcript not become part of the court file or OATH file except if placed under seal. In the Matter of Firefighter Anthony Loscuito, Index No. 100707/06 (Sup. Ct. N.Y. Co. Feb. 15, 2006). Accordingly, Exhibit 37a-d was accepted into evidence, but placed under seal. Consequently, attached to this report and recommendation is a “confidential addendum,” to be reviewed only by the Commissioner and the parties, which contains an analysis of the deposition minutes as relevant. The minutes are hereby returned to the Fire Department as part of the record in this case. 2 It is unclear whether service upon this attorney constituted good service upon Ms. Swanton, since he represented her in a different proceeding. See Bianca v. Frank, 43 N.Y.2d 168, 173, 401 N.Y.S.2d 29, 31 (1977); N.Y. CPLR § 2103(b). -3ANALYSIS As a preliminary matter, the following should be noted. First, although Ms. Swanton, the complainant in this matter, has filed a notice of claim alleging rape, the Fire Department does not now claim that the respondent, or for that matter any firefighter at Engine 75, engaged in a rape of the complainant on August 20, 2004. The complainant had reported in a phone call made to 911 on August 20, that she was raped by four firemen at a firehouse in the Bronx (Pet. Ex. 18, at 18). She then told the EMS workers who responded to her call that she had had consensual sex with a male friend, after which three other firemen had raped her (Pet. Ex. 18, at 19; Pet. Ex. 32). Thereafter, the Engine 75/Ladder 33 firehouse was “locked down” and firefighters sequestered in the kitchen and later moved as a group to another firehouse while crime scene investigators swept the house for evidence.3 The Bronx District Attorney promptly concluded on August 20, 2004, after interviewing the complainant, that there was no force involved and that the complainant’s actions were “voluntary” (Pet. Ex. 6). The Inspector General then went on to conduct its investigation, concluding as a result that “inappropriate sexual activity” had occurred within the firehouse on the night in question, between the complainant and three firefighters: respondent and former firefighters Tony DeLuca and Christopher Waugh (Pet. Ex. 18, at 23). DNA analysis established that Mr. DeLuca’s DNA alleles matched the DNA alleles found on a swab taken from the complainant’s person and underwear (Resp. Ex. B1). However, there was no DNA match for respondent (Resp. Ex. B2). There was also no physical evidence linking respondent to any sexual activity with the complainant, despite the complainant’s claim that he gave her a glass of water to drink and used a pillowcase to clean himself after engaging in various sexual acts. That notwithstanding, the complainant consistently claimed that a person she knew as “Luigi” was one of the firefighters who had sex with her in the firehouse in the early morning hours of August 20, 2004. Respondent admitted that that was his nickname and there was no evidence that anyone else in the firehouse had that nickname. The complainant, however, identified a photograph of a firefighter other than respondent as “Luigi” (Pet. Ex. 13, at 000052). Mr. DeLuca provided MEO 16 testimony indicating that respondent had met Ms. Swanton on the date in question, and that Ms. Swanton had told him thereafter that she and 3 Trustee Brown testified that he arrived at the firehouse upon hearing of the rape allegation, and instructed the firefighters not to make any statements until counsel arrived (Tr. 520-21). -4respondent had had sex. In an MEO 16 interview on August 25, 2004, respondent denied, not only having sex with Ms. Swanton, but ever meeting her, talking with her, or even knowing that she was in the firehouse. With regard to the other firefighters, Mr. DeLuca resigned, and Mr. Waugh was terminated after an OATH hearing at which he was found to have refused to answer questions during an MEO 16 interview. See Fire Dep’t v. Waugh, OATH Index No. 678/05 (Dec. 1, 2004). I Much of petitioner’s case was presented through the hearsay statements of Ms. Swanton, which came in mainly through the testimony of retired detective Virola and former detective Delgado. By about 10:30 a.m. on August 20, Detective Virola had responded to St. Vincent’s Hospital in Staten Island, where Ms. Swanton had been taken by the EMS workers. Detective Virola testified that she was only able to briefly question the complainant at the hospital. She asked the complainant to identify the men involved. Ms. Swanton related that they were TJ DeLuca, Luigi, Waugh, and the “probie” (or probationary officer), but she clarified that she did not have sex with the “probie” (Tr. 41; Pet. Ex.1). Detective Virola confirmed from one of the doctors at the hospital that Ms. Swanton had been examined, and that the doctors had found no evidence of trauma, but had found an “excessive” amount of semen in her vaginal area (Tr. 38; Pet. Ex. 4). She also spoke to the complainant’s mother, who indicated that her daughter has bipolar disorder and takes medication for depression, and that she had asked her daughter to “please tell the truth” when her daughter said she had been raped (Pet. Ex. 3).4 Detective Virola was present at a more in-depth interview conducted with Ms. Swanton by ADA Borgstedt at the Bronx Special Victims Squad at about 3:30 p.m. on August 20. In essence, according to Detective Virola, Ms. Swanton stated the following at this interview. She met Mr. DeLuca over the internet and had many phone conversations with him prior to August 20, mostly involving “phone sex.” They agreed to meet at the firehouse in the early morning of August 20, to wear firemen’s bunker gear and have sex. Ms. Swanton told ADA Borgstedt that that she wanted to have sex because she was depressed and her children were with their father. The record establishes that Ms. Swanton’s father was also interviewed, by a Detective O’Keefe, who wrote in her aided report that she interviewed Ms. Swanton’s father on August 20, 2004, who said that Ms. Swanton had told him upon her arrival home on the morning of the 20 th that she had gone to meet a man in a firehouse in the Bronx, that he had left the room, and that his friends had then come in the room and forced her to have sex. Ms. Swanton’s father related that Ms. Swanton called the rape crisis hotline after this conversation (Pet. Ex. 31b). 4 -5She also said that she had been hospitalized for a major depression triggered by the September 11, 2001, terrorist attacks, and that she felt sorry for firefighters and police officers. After going to a club in Sayreville, New Jersey with a female friend, she called Mr. DeLuca on her cell phone, who gave her directions to the firehouse. Once at the firehouse, she was met by Mr. DeLuca, who led her to the parking lot adjacent to the firehouse, where she parked her car. She walked inside a side door, into the firehouse, and met three other men, whom she identified as Waugh, Luigi, and a “probie.” She and Mr. DeLuca then had consensual sex in a dim and cold room. Thereafter, Mr. DeLuca left, to get something to eat. Waugh entered the room, sat next to her, and had oral sex with her. Luigi then entered the room, and engaged in vaginal intercourse and oral sex with her. He attempted to engage in anal sex with her as well, but she said “no,” and he stopped, and then masturbated into a pillowcase. This was the same pillowcase that Ms. Swanton had used to wipe herself after having sex with Mr. DeLuca, who had also used this pillowcase to clean himself (Tr. 43-47, 96, 106; Pet. Exs. 5-6). When she was ready to go home, Mr. DeLuca came in with the “probie” that she had met earlier. Mr. DeLuca asked her, “how about doing a probie?” and the probie replied, “I’m up for it.” However, by that time, Ms. Swanton just wanted to leave (Tr. 114; Pet. Ex. 5). As noted above, it was after this interview that the District Attorney’s Office decided not to prosecute, finding the sexual encounters to be consensual (Tr. 47). The District Attorney’s Office noted as well that Ms. Swanton had been hospitalized for depression and took “numerous” medications, including serious anti-seizure and anti-depressant drugs (Pet. Exs. 5, 6). Detective Virola noted that although she did not smell alcohol on Ms. Swanton’s breath, she seemed “a little bit off” (Tr. 100), “a little bit irrational, a little upset, a little, maybe drugged” (Tr. 123). The Inspector General’s office had been part of the massive response to the firehouse following the 911 call, and had sent representatives to St. Vincent’s Hospital as well, but had not been permitted to be present during the ADA’s interview of the complainant at Bronx Special Victims. However, once Detective Virola informed Detective Delgado, and her supervisor, Sergeant Pena, of the decision not to prosecute, the Inspector General’s office took a more active role in the questioning of the complainant, presenting her with 38 photographs of firefighters provided by the Fire Department, and asking her to “pick out the individuals that were involved in the incident” (Tr. 212, 250, 252, 274). Ms. Swanton selected four photographs. She said that she was “definite” as to two of the photographs, which she identified as photographs of TJ -6DeLuca (Pet. Ex. 13, 000051) and “Luigi” (Pet. Ex. 13, 000052). She professed uncertainty as to two of the photographs, which she identified as “possibly” those of Christopher Waugh (Pet. Ex. 13, 000053) and the “probie” (Pet. Ex. 14, 0000054). In truth, photograph 000054 is not a photograph of the “probie,” who was later identified, correctly, as Mathew Bruckner. And photo 000052 is not of respondent, who admitted that he has the nickname, “Luigi,” but of firefighter Brian Gill, who is not known as “Luigi” and who testified in this proceeding that he was asleep during most of the evening of August 19-20 (Tr. 214, 217). Detective Delgado testified that she did not ask Ms. Swanton if Luigi had any identifying features, and that Ms. Swanton never provided a physical description of Luigi. Nor did Ms. Swanton ever refer to Luigi as Loscuito. The questioning did not continue because Ms. Swanton was very tired, having been up all night, and wanted to go home (Tr. 214, 217, 284). Detective Delgado conducted a much more thorough interview of Ms. Swanton four days later, at Seton Bayley Hospital in Staten Island, to which Ms. Swanton had admitted herself because she was depressed and very upset (Tr. 218). Ms. Swanton acknowledged having met Mr. DeLuca about six months prior to August 19, via the Internet, having communicated with him via the Internet and the phone. On August 19, in the afternoon, Mr. DeLuca called her and told her to come to the firehouse, stressing that she should arrive late, after 2:00 or 3:00 a.m., so that the chief would be asleep. She complied with this instruction, leaving for the firehouse after first spending from approximately 9:00 p.m. to 2:00 a.m. socializing in a New Jersey club with a friend, and spending some additional time thereafter with friends outside the club (Tr. 218, 287; Pet. Ex. 15). In addition to calling Mr. DeLuca for directions, she called 911 for directions. 5 As she had told Detective Virola on August 20, Ms. Swanton stated that Mr. DeLuca met her outside and directed her to a side door of the firehouse. By contrast to her August 20 statement, however, Ms. Swanton recalled meeting two, not three, additional firefighters at that time – namely, Luigi and Waugh. As on August 20, she indicated engaging in a variety of sexual acts with TJ, Waugh, and Luigi, in that order, in a downstairs lounge. The encounters took place in private, with the door to the room closed. By her account, the sexual activity with DeLuca lasted about ten or fifteen minutes; he then got dressed and left the room. About two minutes later, Mr. Waugh entered the room, she performed oral sex on him, which took about a minute; he then left 5 The record established that the call to 911, which was then transferred to 311, was made at 4:12 a.m. (Tr. 296; Resp. Ex. D). -7the room, leaving Ms. Swanton kneeling on the floor. About a minute later, according to the complainant, Luigi entered the room (Tr. 218, 220, 287, 315; Pet. Ex. 15). As to Luigi, Ms. Swanton told Detective Delgado that he had brought her a glass of water and some chocolate chip cookies upon entering the room and that he had also used her keys to remove a Fire Department patch from a white captain’s shirt that was hanging on the wall in the room. Then, according to Ms. Swanton’s description, Luigi pulled down his pants to his knees, exposing his penis. He was already wearing a condom (Pet. Ex. 15; Tr. 319). Her description of the sexual activity in which they then engaged paralleled the description that she gave on August 20, except for certain extra detail pertaining to Luigi, which is described in Detective Delgado’s aided report (Pet. Ex. 15), and discussed below, at 15. Ms. Swanton also identified “crime scene photographs” that Detective Delgado showed her on August 24, that depicted the downstairs lounge room, including a number of couches as well as a white lieutenant’s shirt hanging on the wall6 (Tr. 220-21, 226; Pet. Exs. 7-12). She indicated that it was in this room that she had had sex, and that she had used a different couch with each firefighter (Tr. 226). Ms. Swanton also told Detective Delgado on August 24th that, before she left the firehouse, she asked Mr. DeLuca for $20 for a hotel room, which he said he did not have (Pet. Ex. 220). It was plain to Detective Delgado that she was particularly annoyed at Mr. Waugh, who she kept referring to throughout the interview in a sexually derogatory manner (Tr. 225, 319). Ms. Swanton told Detective Delgado that Waugh had said something to insult her, but did not provide details (Tr. 227). As one of petitioner’s witnesses, firefighter Bruckner lent corroboration to Ms. Swanton’s claim that she was at the firehouse, and that she met TJ, Waugh, and the man she knew as Luigi. Firefighter Bruckner testified that he had been assigned to Engine 75 for about nine months on August 19-20, 2004. He was catching some sleep in the early morning hours of August 20, in a bunk room on the top floor of the firehouse, to which he had returned after returning from his last run of the evening, at 3:24 a.m. on August 20. He was awakened by TJ Deluca, who told him to go to the downstairs lounge room in the sub-basement (the same room that Ms. Swanton described). He complied because he was a “probie” and thought he was being woken up to do some “probie” activity, although he had never been woken up like that before 6 According to Captain Stark, the shirt had been worn by a former firefighter, since promoted to captain and transferred from the firehouse, in a bar after a day of digging at the World Trade Center site. It had red lipstick marks on it and was put on the wall after the lieutenant left, as a momento of his tenure (Tr. 149-53). -8(Tr. 500). However, he never reached the lounge because, after he went down the interior steps to the lounge, he saw a number of people in the hallway, including DeLuca, Waugh, respondent, and a woman, whose relative positions he had earlier indicated in a photograph (Tr. 466, 477-78; Pet. Ex. 28). 7 After some prompting, firefighter Bruckner added that he had seen respondent and the woman walking out of the lounge as he came down the steps (Tr. 467). According to firefighter Bruckner, DeLuca introduced him to the woman as “Matt” and also introduced the woman to him, although he could not remember her name (Tr. 478). He acknowledged that the woman asked if he was a “probie,” and that he said he was. Firefighter Bruckner testified that he then left the hallway, because he was a probationary firefighter, and he did not think he should be in that situation. He professed to have gone back to the top-floor bunk room, to sleep, until about 8:00 a.m. the next morning (Tr. 480). He acknowledged being in the hallway only for “a matter of seconds” (Tr. 478), in “medium light” (Tr. 476), but maintained, steadfastly, that he was certain of whom he saw (Tr. 478, 485). He denied that Mr. DeLuca asked the woman if she wanted to “do a probie” (Tr. 486) and denied that he ever asked for sex (Tr. 487). He described the woman as being fully dressed and indicated that she was not crying and did not seem upset (Tr. 486). As noted earlier, Mr. DeLuca provided sworn statements at two different MEO 16 interviews. During both interviews, he acknowledged that Ms. Swanton visited the firehouse on August 20, and described the circumstances leading up to that visit. However, in the first interview, on August 25, 2004, he denied having sex with Ms. Swanton and said that she had left the firehouse after having used the bathroom on the apparatus floor (the street-level floor where the house watch is located and where the engine, truck, and battalion are parked), 8 and having been shown the basement area and the firehouse by Mr. Waugh. He also denied that firefighter Loscuito was present at any time (Resp. Ex. I). By contrast, at the very beginning of the second interview, held on August 26, 2004, Mr. DeLuca said that he wanted to recant most of his prior testimony regarding what occurred at the firehouse, but that he stood by his testimony about the circumstances leading up to her visit. He was assured by DOI that it would not refer the matter 7 Firefighter Bruckner did not identify the woman as Ms. Swanton, although the record establishes that she was the only woman present in the sub-basement that morning. 8 The schematic of the apparatus floor level was introduced into evidence as Pet. Ex. 25 and indicates the location of the bathroom. -9for a perjury investigation so long as he gave a “candid” and “complete” description of what transpired on the 20th (Pet. Ex. 17, at 2). Firefighter DeLuca went on to provide the following account in his second interview. He had had a series of phone calls with Ms. Swanton on the evening of August 19, 2004, during which she engaged in banter of a sexual nature, indicated her intent to come to the firehouse after leaving a bar in New Jersey, and asked for directions. He was assigned the house watch post, which he assumed after returning from the ladder’s last run of the morning at about 3:00 a.m.9 Shortly thereafter, he greeted George Hicks, a mechanic assigned to the Fire Department, who arrived at the firehouse to fix two damaged tires on the engine, which had been put out of service slightly earlier because of a blow-out on a run. Respondent came to the house watch and spoke to the mechanic and perhaps to the light duty firefighter who had arrived to assist the mechanic. Then respondent walked around the firehouse, returning intermittently to the house watch. Firefighter DeLuca denied telling respondent that Ms. Swanton would be arriving imminently at the firehouse (Pet. Ex. 17, at 41-57). Ms. Swanton arrived and parked on Cameron Place, across the street from the firehouse. Mr. DeLuca greeted her outside, and after a brief conversation of a sexual nature, she entered the firehouse through the front door and went to use the bathroom behind the house watch. Mr. DeLuca told Mr. Waugh, who had also had phone conversations with Ms. Swanton, both that night and in the months leading up to it, that Ms. Swanton had arrived, and then Mr. Waugh and Ms. Swanton had a brief discussion, in the doorway of the bathroom, about bunker pants. At some point Mr. DeLuca saw respondent walking around the apparatus floor, and introduced him to Ms. Swanton as “Luigi.” Respondent then left Ms. Swanton’s presence; according to firefighter DeLuca, both he and respondent spent a lot of time walking back and forth to the house watch area, because the mechanic and the off-duty firefighter were in the house and there was concern that they not notice the presence of Ms. Swanton. Because of this concern, Mr. DeLuca suggested to Mr. Waugh that they move to the subbasement landing below, and the men also told Ms. Swanton that she had to move her car from off Cameron Place to the side parking lot (not visible from the house watch). As related by 9 Captain Stark testified that the engine was put out of service at about 3:00 a.m. but that the ladder was later called for another run (Tr. 134-36). The DOI investigative report on the incident indicates that the ladder responded to an alarm shortly after 3:00 a.m., from which DeLuca returned at approximately 3:20 a.m. (Pet. Ex. 18, at 13-14). - 10 firefighter DeLuca, after Ms. Swanton moved her car, she and Mr. DeLuca had vaginal intercourse and oral sex in the sub-basement lounge. He left the room; she followed him out; and then they encountered Mr. Waugh. He engaged Ms. Swanton in a conversation about bunker gear and she said that she wanted to have sex with him. Mr. DeLuca then walked back to the house watch, concerned that the mechanic and his helper might be looking for him. He believed that he had had some conversation with the light duty firefighter at that time. Mr. Waugh and Ms. Swanton stayed in the lower level. Mr. DeLuca saw respondent and told respondent that he had “got laid” (Pet. Ex. 17, at 86). Respondent expressed surprise, commented negatively on Ms. Swanton’s physical appearance, and walked away toward the downstairs area. He returned and said that Ms. Swanton wanted cookies. Mr. DeLuca told respondent to get her cookies. Respondent then left. Mr. DeLuca thought that he had gotten Ms. Swanton a glass of milk or water, because he saw her shortly thereafter with a glass (Pet. Ex. 17, at 87-88). After respondent left, Mr. DeLuca went upstairs to get firefighter Bruckner. He wanted to introduce Ms. Swanton to firefighter Bruckner, because firefighter Bruckner was “very quiet” and he thought that perhaps Ms. Swanton would “shock him” (Pet. Ex. 17, at 89). He woke up firefighter Bruckner from the second floor bunk room and told firefighter Bruckner to come with him. The two men then walked to the sub-basement lounge. When they got there, Mr. Waugh was standing with his back to the lounge, propping the door open. Ms. Swanton was in the room, sitting on one of the couches. Respondent was also in the room, closer to another couch. Ms. Swanton was fully dressed, with her feet on a couch, and a blanket around her. Respondent, too, was fully dressed (Pet. Ex. 17, at 93, 94). Someone introduced firefighter Bruckner as the “probie.” Ms. Swanton wanted to know if firefighter Bruckner was wearing bunker pants; firefighter Bruckner shook his head and walked away. After he left, Ms. Swanton suggested that she have sex with firefighter Bruckner, but by then Mr. DeLuca wanted Ms. Swanton to leave. She wanted to sleep at the firehouse, because it was late and she was tired. He told her that was not possible, and she asked for money for a hotel. Mr. Waugh commented disparagingly upon that request. Mr. DeLuca then “turned back” into the room and told Ms. Swanton that she couldn’t ask for money, that people didn’t know how to “take that,” and that they did not have that much money (Pet. Ex. 17, at 96). With that, Mr. DeLuca walked Ms. Swanton to her car. Because she was concerned about how to get home, they decided that she would stay on the cell phone with Mr. DeLuca until she reached the - 11 expressway. Mr. Waugh went to sleep, while respondent stayed awake for a while, at one point remaining in the house watch with Mr. DeLuca while Mr. DeLuca was on the phone with Ms. Swanton (Pet. Ex. 17, at 97). Ms. Swanton called back several times on her way home, once to indicate that she wanted to see Mr. DeLuca again, despite his protestations that he would be assigned to the Republican Convention and probably would be unable to see her for a while, and at least one other time in which she commented on the events of the evening. In terms of these comments, she said that she had sex with Luigi (Pet. Ex. 17, at 102, 103). Mr. DeLuca was not consistent as to whether she also made a comment about Luigi’s penis, although he testified at one point that she had made a favorable comment (Pet. Ex. 17, at 101, 102). She also commented negatively on Mr Waugh’s anatomy, and complained that Mr. Waugh had made her feel like a “whore” and that Mr. DeLuca had better talk to him (Tr. 103). According to Captain Stark, on the morning of August 20, Mr. DeLuca told him, upon questioning, that there had been “an incident” with a woman in the firehouse. Mr. DeLuca denied that there was a rape, and said that there had been an “incident” with a woman at a car on the curb. Captain Stark asked who else was involved, and DeLuca replied, Waugh and Luigi (Tr. 141). Mr. DeLuca denied providing these names to Captain Stark in his MEO testimony, insisting instead that Captain Stark had told him that they had three names as being involved in the rape – a “doctor,” an “aide,” and DeLuca (Pet. Ex. 17, at 112- 113).10 Respondent denied having any contact with Ms. Swanton on the morning of the 20th, or even knowing that she was in the firehouse. He testified that at about midnight on August 19-20, he went into the television room next to the house watch, which is located on the same floor as the apparatus, and is where he usually sleeps.11 He lay down on one of the couches, watched some television, and fell asleep. He woke up to go on a number of runs and returned after each run. According to respondent, two other firefighters, Brian Gill and Eddie Riley, were also sleeping in this room. Respondent thought they might have gone into the room earlier than him, because they had more seniority and thus would have been able to turn in rather than complete any tasks that needed to be completed around the firehouse (Tr. 561-64). Respondent marked on a photograph the couch on which each firefighter was sleeping, and indicated that it was 10 DeLuca testified that he did not believe that either Loscuito or Waugh went by either of these names (Pet. Ex. 17, at 110), and this testimony was never amplified or explained. 11 This room is marked on the schematic as “training room No. A 5” (Pet. Ex. 25). - 12 customary for each firefighter to return to their same couch (Tr. 570-73; Resp. Ex. P1-3). He assumed that the other firefighters had returned to the lounge as well after each run, although he asserted that, after midnight, he does not pay attention: “I just go back into my spot” (Tr. 574). Respondent indicated that he awoke in the middle of the night to the sound of the mechanic’s air gun, which the mechanic uses to take the lug nuts off the tires before changing them. He knew the sound from living next to a mechanic and having a friend who is a mechanic. Only he got up, not the other men in the room. Respondent professed, though, to be a “light sleeper” at the firehouse, because he is a junior man and wanted to be sure he “stepped up and took care of . . . anything that needed to be done” (Tr. 579-80). He walked through the house watch, up to the mechanic, who was working under the rig. He asked the mechanic if he wanted something to eat or drink, and questioned why he was changing the front tire, since it was the rear inside tire that was blown out. The mechanic was surprised and upset, and said he needed to make a phone call. Respondent thought that he needed to call either the dispatcher or the offduty fireman, who had already left the house with the tire truck (Tr. 581, 636). Respondent then used the bathroom and returned to the lounge where he had been sleeping. He did not stop in the house watch, where the mechanic was using the phone (Tr. 582-85). Respondent denied ever hearing of Ms. Swanton prior to this date, having any conversations with firefighters Waugh or DeLuca about a woman who liked to engage in “phone sex,” hearing reference to a “crazy bitch” or “fucking freak,” or hearing that a visitor would be coming to the building in the early morning hours of August 20, 2004 (Tr. 558, 585, 628). Further, he denied knowing that Ms. Swanton was in the building on August 20, 2004, interacting with her in any way, or engaging in any type of sexual activity with her (Tr. 600-01). Finally, respondent asserted that he had remained asleep in the television room until he woke up in the morning. He testified that the firefighters were all called to the apparatus floor at about 8:30 a.m. and informed by Captain Stark that a woman had alleged that she had been the victim of a gang rape in the firehouse. At that point they were instructed to remain in the kitchen, where a police officer was stationed (Tr. 590). Respondent remained in the kitchen until relocated with all the other firefighters to an adjoining firehouse (Tr. 590). He denied ever going to the lower level lounge to try to clean it up (Tr. 590). He acknowledged that his nickname is “Luigi” and that the shirt that he wore on August 19-20 had white stitching which read, “Loscuito” (Tr. 556-58). - 13 Respondent provided MEO testimony on August 25, 2004, which is alleged by petitioner in charges one and two to have been false and misleading with regard to his conduct on August 20, 2004. In his recorded testimony (Pet. Ex. 16), respondent provided a version of the events of August 19-20 which was generally, but not always consistent with his testimony at trial. As he did at trial, respondent contended that he went to bed about midnight on August 19-20, in the television room/lounge located on the apparatus floor.12 He believed Brian Gill and Eddie Riley to be present in the lounge as well, and recalled laughing with Gill at Saturday Night Live (Pet. Ex. 16, at 44-45). He recalled, as he did at trial, lying down after the last run of the evening. Firefighters Gill and Riley were already in the room. He was unable to sleep, but got up to use the bathroom (Pet. Ex. 16, at 52-54). On the way to the bathroom, he noticed that the mechanic was on the apparatus floor. He went to the mechanic and informed him of the problem with the rear tire, offered him coffee or water, and then went back to sleep in the apparatus floor lounge, where firefighters Gill and Riley were still sleeping. He stayed there until about 8:15 a.m. the next morning (Pet. Ex. 16, at 56-57). Respondent denied ever leaving that room until the morning. Further, he denied seeing a woman in the firehouse on August 20, having any contact of any type with a woman in the firehouse on August 20, and, more specifically, having intercourse or oral sex with a woman in the firehouse on August 20 (Pet. Ex. 16, at 57). After being given a perjury warning (Pet. Ex. 16, at 58-60), and a short break, respondent was shown a photograph, which he identified as the sub-basement lounge. Respondent denied ever entering the sub-basement lounge at any time on August 20, 2004; more specifically, he denied engaging in a variety of sexual acts in the lounge, or touching a woman on a couch in the lounge (Pet. Ex. 16, at 62). Further, he denied ever speaking to either Mr. DeLuca or Mr. Waugh prior to 8:00 a.m. on August 20, 2004 (Pet. Ex. 16, at 62-63), or, more generally, ever speaking with anyone prior to 8:00 a.m. about a woman (Pet. Ex. 16, at 65). He claimed to have spent the entire time between 3:00 a.m. and 8:00 a.m. in the apparatus floor lounge (Pet. Ex. 16, at 66). He denied that anyone ever told him that a woman was expected at the house, and denied that either firefighter DeLuca or firefighter Waugh ever told him that there was a woman at the firehouse (Pet. Ex. 16, at 82). He also asserted that, prior to being told the next morning that there was an allegation of gang rape, no one had ever told him that there was sexual activity in To prevent confusion, this will be referred to as the “apparatus floor lounge,” while the sub-basement lounge and downstairs lounge referred to by Mr. DeLuca, firefighter Bruckner, and Ms. Swanton will be referred to as the “subbasement lounge.” 12 - 14 the firehouse (Pet. Ex. 16, at 74). Respondent also denied washing clothes or a pillowcase on the morning of August 20, 2004, or removing a pillowcase from the firehouse, or knowing if anyone else had washed clothes or a pillowcase or removed them from the firehouse (Pet. Ex. 16, at 77). He admitted that his nickname was “Luigi” and that he did not know of anyone else at the firehouse with that nickname (Pet. Ex. 16, at 70). II As a preliminary matter, much of this case rests on hearsay – either of Ms. Swanton or Mr. DeLuca. Hearsay statements are admissible in a disciplinary proceeding, but they must be scrutinized carefully in order to determine if they are “so substantially reliable and probative that a reasonable inference of the existence of a fact may be culled therefrom.” Police Dep’t v. Ayala, OATH Index No. 401/88, at 5 (Aug. 11, 1989) (citations omitted), aff’d sub nom., Ayala v. Ward, 170 A.D.2d 235, 565 N.Y.S.2d 114 (1st Dep't 1991). “Clearly, the more central the hearsay is to an agency’s case, the more serious the question of basic fairness and the more critical the question of reliability may become.” Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980), cert. den., 452 U.S. 906, 101 S.Ct. 3033 (1981). Although Ms. Swanton’s hearsay statements are inconsistent in some major respects, it is indisputable that she was at the Engine 75/Ladder 33 firehouse that night and at the very least engaged in sexual activity with Mr. DeLuca, given that his DNA matched DNA taken from Ms. Swanton’s person and undergarments. Further, the record establishes that Ms. Swanton was not only at the firehouse, but also present in the sub-basement lounge room. Ms. Swanton described this lounge and the entrance to it in a manner consistent with the description provided by Captain Stark (Tr. 131-32, 185-86). She also told Detective Delgado that respondent had given her a patch from a white captain’s shirt hanging on the wall, which was consistent with Captain Stark’s testimony that the white lieutenant’s shirt displayed on the wall in the sub-basement lounge was missing a patch (Tr. 149-53; Pet. Ex. 11-12). The Inspector General reported, moreover, that Ms. Swanton had an Engine 75 patch which she turned over during the investigation (Pet. Ex. 18, at 17). It is also clear that, in every statement given by Ms. Swanton in which she identified the firefighters with whom she had sexual activity, she included “Luigi,” that respondent goes by the nickname “Luigi,” and that no other firefighter in the house is known to have that nickname. There was no plausible explanation offered as to why Ms. Swanton would name “Luigi” if he - 15 had not been one of the firefighters whom she met that morning. Respondent’s hypothesis that some other firefighter must have used that nickname, to keep himself out of trouble (Tr. 629), was unconvincing, particularly in light of Mr. DeLuca’s MEO 16 statement in which he recalled introducing respondent to Ms. Swanton as Luigi and firefighter Bruckner’s testimony that he saw respondent together with a woman. Although Ms. Swanton identified a photograph of firefighter Gill as being “Luigi,” Mr. DeLuca’s MEO 16 statement and firefighter Bruckner’s testimony make clear that Loscuito, not Gill, was the “Luigi” whom Ms. Swanton met that night. That Ms. Swanton identified two photographs incorrectly (one as being “Luigi” and the other as being Bruckner) serves only to highlight that she had some difficulty recalling faces, and to illustrate the general unreliability of photo identification. See generally, United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1933 (1967) (“The vagaries of eyewitness identification are wellknown; the annals of criminal law are rife with instances of mistaken identification”). However, although I conclude based upon this record that respondent met Ms. Swanton on August 20, 2004, in the firehouse, and interacted with her in some fashion, near the subbasement lounge, there are a number of major inconsistencies in Ms. Swanton’s statements which raise serious questions as to the reliability of her assertion that she and respondent engaged in a variety of sexual activities. As noted earlier, although Ms. Swanton alleged rape, initially by four firemen and then by three firemen, the District Attorney declined to prosecute and deemed the sexual activity to be consensual. A careful review of the reports of Detectives Delgado and Virola indicates that Ms. Swanton did not allege that any firefighter forced her to engage in sexual activity; for example, while she described respondent as “flipping her over” and then attempting to have anal intercourse with her, she acknowledged to both detectives that he desisted when asked to do so (Pet. Ex. 5, 15). Yet it was undisputed that Ms. Swanton subsequently filed a civil lawsuit against the City, alleging rape (Tr. 19). The minutes of the 50h deposition reveal additional inconsistencies with Ms. Swanton’s prior statements, some of which are significant, but as the minutes are under seal, these inconsistencies are discussed in a separate, confidential addendum to this report, which is provided only to the Commissioner and counsel. Apart from the inconsistencies in Ms. Swanton’s statements as to respondent, she was inconsistent as to whether she met firefighter Bruckner twice, as she told Detective Virola on the afternoon of August 20, 2004, or only once, as she told Detective Delgado six days later. More - 16 critically, Ms. Swanton’s mother’s statement, to Detective Virola, that her daughter has bipolar disorder and that she told Ms. Swanton to “please tell the truth” when she said she had been raped, suggests that Ms. Swanton’s ability and/or willingness to recount events truthfully had previously been compromised, and may have been compromised that night. Additionally, Mr. DeLuca’s testimony that Ms. Swanton was angry because she believed that Mr. Waugh had insulted her after she asked for money for a hotel room, which request was rejected, could plausibly have provided an impetus for Ms. Swanton to make false claims regarding the events of that morning. Moreover, as to the purported sexual activity, there was no corroborating physical evidence. Despite a thorough search of the firehouse, including the lockers of the respondent, Bruckner, DeLuca, and Waugh, the glass which respondent purportedly gave to Ms. Swanton was never found. Nor did investigators find the pillowcase upon which the firefighters, including respondent, allegedly cleaned themselves. And, despite the evidence indicating that the downstairs lounge had been freshly mopped, including a bottle of what appeared to be cleaning solution found in the lounge (Tr. 311, 384-90; Pet. Ex. 23), there was no evidence tying respondent to any attempt to clean up the lounge or to discard the pillowcase or glass in question. Thus, considering some of the major inconsistencies in Ms. Swanton’s prior statements, and the other evidence suggesting that her ability to tell the truth as to exactly what transpired may have been impaired, I find that her statements, in and of themselves, constitute an insufficient basis on which to sustain the charge that respondent engaged in sexual acts with Ms. Swanton. The question becomes then, whether there is enough additional, reliable evidence sufficient to sustain this charge. Mr. DeLuca’s MEO16 statements, discussed above at 8-11, would, if credited, establish that he told respondent that he had just had sex with Ms. Swanton, that respondent, upon hearing that, headed toward the sub-basement lounge, only to return shortly later to complain that Ms. Swanton wanted cookies and water, and to then vanish after Mr. DeLuca told him to get her cookies and water. It would establish as well that when he returned to the sub-basement lounge, upon getting firefighter Bruckner, the door to the lounge was open and respondent was sitting in the room, fully dressed on one of the couches, with Ms. Swanton sitting on the other couch, and Mr. Waugh standing with his back to the lounge. - 17 Mr. DeLuca’s MEO16 interview of August 26, 2004 was a statement against interest, and as such seemed generally credible. See People v. Maerling, 46 N.Y.2d 289, 295 , 413 N.Y.S.2d 316, 320 (1978) (“Simply stated, in the case of declarations against interest, the theory is that such assurance flows from the fact that a person ordinarily does not reveal facts that are contrary to his own interest. Therefore, the reasoning goes, absent other motivations, when he does so, he is responding to a truth-revealing compulsion as great as that to which he would likely be subjected if cross-examined as a witness”). Although DOI conditioned its promise not to seek perjury charges against Mr. DeLuca upon his “candid and complete” testimony on August 26 (Pet. Ex. 17, at 2), I could discern no reason for Mr. DeLuca to lie, in particular, about respondent, or respondent’s interactions with Ms. Swanton. Clearly, given the DNA results, Mr. DeLuca had sex with Ms. Swanton. There is every reason to believe he did so in the sub-basement lounge, given Mr. Bruckner’s testimony placing him just outside the lounge. Mr. DeLuca’s testimony that he saw respondent and Ms. Swanton in the sub-basement lounge, with Mr. Waugh propping the door open, is consistent with firefighter Bruckner’s testimony that he saw respondent, Ms. Swanton, Mr. DeLuca, and Mr. Waugh in the hallway outside the lounge. It is apparent from the record that Mr. Bruckner went downstairs by himself to the lounge, after having been told to do so by Mr. DeLuca. Even though Mr. Bruckner answered “yes” when asked at one point in cross-examination whether he had gone downstairs with Mr. DeLuca (Tr. 483), he testified quite unequivocally on direct that he never reached the room because he was “met by other people in the hallway,” including Mr. DeLuca (Tr. 466). Moreover, that respondent would be in the sub-basement lounge is entirely consistent with the scenario related by Mr. DeLuca in which he told respondent that he had had sex with Ms. Swanton, that respondent then walked toward the sub-basement lounge, returned and said that Ms. Swanton wanted cookies, and then left again, after Mr. DeLuca told him to get Ms. Swanton the cookies. Further, given the physical layout of the firehouse, it was entirely convincing that Mr. DeLuca would choose the sub-basement lounge as the place to which to bring Ms. Swanton, so that her presence would not be noticed by either the mechanic, the helper, or Captain Stark (Tr. 131-32, 142-43, 173, 175-178, 185). Thus, I find Mr. DeLuca’s hearsay statement that he saw respondent and Ms. Swanton in the sub-basement lounge to be reliable, and I credit it, as I do firefighter Bruckner’s testimony - 18 that he saw respondent, Waugh, DeLuca, and the woman in the hallway outside the lounge. I do not, however, credit firefighter Bruckner’s testimony, noted on 7-8 above, that he saw respondent and Ms. Swanton coming out of the sub-basement lounge, because, initially, as he had during the MEO 16 interview, firefighter Bruckner testified only that he saw respondent and Ms. Swanton in the hallway (Tr. 507-08; Pet. Ex. 18, at 17). However, the fact remains that neither Mr. DeLuca nor firefighter Bruckner were present in the lounge with Ms. Swanton and respondent. Even if Mr. DeLuca’s double hearsay statement that Ms. Swanton told him that she had sex with respondent is credited, the source of that statement is Ms. Swanton, and the reliability of her statements is questionable. Neither Mr. DeLuca nor Mr. Bruckner was competent to testify about whether Ms. Swanton engaged in sexual activity with respondent, which Ms. Swanton asserted, but respondent denied. Ultimately, the matter boils down to whether Ms. Swanton’s uncorroborated hearsay accusations are to be credited over respondent’s denials. There is reason to question respondent’s credibility about what exactly occurred on the morning of August 20. Respondent denied ever seeing Ms. Swanton that evening, or even knowing of her presence in the firehouse. Both Mr. DeLuca’s MEO 16 statements and Mr. Bruckner’s testimony contradict that assertion, as does Ms. Swanton’s identification of “Luigi” as one of the men with whom she had sex. Moreover, respondent’s claim that he slept in the downstairs lounge all night, except for going on runs, and the chance encounter with the mechanic, was not persuasive, given Mr. Bruckner’s testimony, as well as Mr. Deluca’s detailed MEO 16 testimony about his various encounters with respondent on the morning of August 20, Such detail is a factor which may, and in this instance, did, enhance the reliability of hearsay statements. See, e.g, Dep't of Correction v. Rocchild, OATH Index No. 318/90, at 22 (Feb. 6, 1995), aff’d, NYC Civ. Serv. Comm’n Item No. CD 90-115 (Dec. 20, 1990). Moreover, Mr. DeLuca’s MEO 16 statements were corroborated in significant aspects by Mr. Hicks’ testimony, both at trial and in his August 26, 2004, MEO 16 sworn statement (Pet. Ex. 27). As noted, at 9 above, Mr. DeLuca said that after he initially greeted Mr. Hicks, respondent then spoke to Mr. Hicks and perhaps the light duty firefighter, and that respondent then walked around the firehouse, returning intermittently to the house watch area. Mr. Hicks testified that the firefighter who had greeted him was in bunker gear, which Mr. DeLuca acknowledged wearing on August 19-20, during house watch (Pet. Ex. 17, at 71). He then - 19 testified that two firemen approached him, and that the smaller of the two firemen, (admittedly, respondent) told him that the right rear tire was leaking (Tr. 429). According to Mr. Hicks, he went to use the house watch phone to call his supervisor to let him know that the light duty firefighter had left. He did not see anyone in the house watch at that time, although he testified that he saw the fireman who had initially greeted him on the phone on the apparatus floor, and saw the other two firefighters (the one who had approached him when he learned about the right rear tire) talking to each other on the apparatus floor (Tr. 430). Mr. Hicks provided a somewhat similar account during his MEO 16 interview, indicating that when he went to call his supervisor about the flat rear tire, the house watch was empty, but he saw the firefighter who had told him about the flat tire, whom he described as a “short…skinny…young guy,” talking on the house phone (Pet. Ex. 17, at 10-12). This testimony is consistent with Mr. DeLuca’s MEO 16 statement that both he and respondent spent some time walking back and forth to the house watch, and inconsistent with respondent’s testimony that he went promptly to bed after speaking to the mechanic. Mr. Hicks also testified that about twenty or thirty minutes later, at about 4:30 or 5:00 a.m., after he had finished changing the rear tire, he went to wash his hands in a slop sink near the apparatus floor bathroom, and noticed two firefighters walking behind him, coming from the direction of an entrance to a staircase and walking in the direction of the house watch area. According to Mr. Hicks, the smaller of the two firefighters was the same firefighter who told him about the flat tire (Tr. 445). This was consistent with Mr. Hicks’ MEO 16 statement that a fireman in bunker gear and the “smaller guy” had walked by him while he was washing up at the slop sink, before he left the firehouse, heading from the stairwell toward the direction of the house watch (Pet. Ex. 27, at 15). Although Mr. Hicks identified a photograph of Brian Gill, not respondent, as the smaller firefighter (Tr. 440-444, Pet. Ex. 13, at 4), he was not shown a photograph of respondent, but rather shown the four photographs that had been shown to Ms. Swanton, namely those of DeLuca, Waugh, Gill, and an unnamed fourth firefighter (Pet. Ex. 13). Thus, his identification of Gill is worthy of very little weight, and is far less reliable than his testimony that the smaller firefighter whom he saw at about 4:30 or 5:00 a.m. was the same firefighter who told him about the flat tire. In addition, respondent’s testimony about why he just happened to wake up on the morning of August 20 was undercut by the inconsistency between his trial testimony that he - 20 heard the mechanic’s air gun and his MEO 16 testimony which did not mention the air gun but only a need to use the bathroom. Respondent also appeared to be bolstering his testimony by asserting, not only that he slept in the downstairs lounge all night, but that he watched television in the downstairs lounge, specifically Saturday Night Live, with Brian Gill and Eddie Reilly (Pet. Ex. 16, at 44-45), which Brian Gill denied, testifying instead that he watched the Olympics with Mr. Reilly and that no one else was in the room at the time (Tr. 355-56). As I credited Mr. Gill’s testimony, I concluded that respondent made this claim in order to lend credence to his claim that he slept in the downstairs lounge all night.13 Finally, respondent’s claim of innocence with regard to 1998 guilty plea to a misdemeanor drug possession charge was not indicative of candor (Tr. 543-48, 614-15). In sum, I did not credit those portions of respondent’s testimony in which he claimed to have remained in the apparatus floor lounge after talking to the mechanic and to have never met Ms. Swanton. I find that it is fair to infer on this record that respondent was in the sub-basement lounge of the firehouse with Ms. Swanton for a limited period of time during the morning of August 20. However, the fact that respondent lied about seeing or interacting with Ms. Swanton does not lend itself to a fair inference that he engaged in sex with her, as there may be other, less insidious, reasons for his denials. At most, his denials could give rise to a suspicion, but a suspicion is not the equivalent of proof, and is not a sufficient basis upon which to sustain a charge of misconduct under the Administrative Code. See Francis v. Transit Auth., 112 A.D.2d 994, 492 N.Y.S.2d 803 (2d Dep’t 1985); Ridings v. Vaccarello, 55 A.D.2d 650, 390 N.Y.S.2d 152 (2d Dep’t 1976); Transit Auth. v. Dugger, OATH Index No. 794/91 (May 14, 1991) (in cases based on circumstantial evidence, the inferences sought to be drawn must be based on proven facts). This tribunal has long held that “where an agency fails to establish essential elements of its case, it may not rely upon inconsistencies in a respondent’s testimony, or even a lack of credibility, to substitute for proof.” Dep’t of Juvenile Justice v. Clements, OATH Index No. 1198/06, at 9-10 (Apr. 24, 2006) Dep’t of Correction v. Cancel, OATH Index Nos. 1085/05 and Firefighter Gill did not, however, refute respondent’s claim that he slept in the apparatus floor lounge. Firefighter Gill testified that he did not see respondent return to the apparatus floor lounge after the last run and did not see him in that lounge until about 8:00 a.m. the next morning. However, firefighter Gill also said that he did not see Mr. Reilly return to the apparatus floor lounge after the last run, although Mr. Reilly apparently did so. Further, Mr. Gill acknowledged that he would not have known whether respondent came into the room while he was sleeping (Tr. 366). 13 - 21 1087/05, at 11 (Aug. 11, 2005); Dep’t of Sanitation v. Amoto, OATH Index Nos. 420/05 & 421/05, at 10 (June 17, 2005); Dep't of Transportation v. Mendez, OATH Index No. 384/05, at 14 (Jan. 19, 2005); Bd. of Educ. v. Fuccio, OATH Index No. 924/01, at 30-31 (June 21, 2001), aff’d, NYC Civ. Serv. Comm’n Item No. CD03-37-SA (Apr. 11, 2003); Police Dep’t v. Duane, OATH Index No. 1891/99 (July 21, 1999); Police Dep’t v. Miller, OATH Index No. 513/92, at 7 (Mar. 2, 1992); Police Dep’t v. Brown, OATH Index No. 943/97 (June 20, 1997); Police Dep’t v. Schmidlein, OATH Index No. 244/89, at 27-28 (Feb. 9, 1990). Here, given the lack of physical evidence linking respondent to Ms. Swanton, petitioner’s proof as to whether respondent had sex with Ms. Swanton in the sub-basement lounge hinges entirely upon the hearsay of Ms. Swanton. The reliability of that hearsay, therefore, is critical. For many reasons, her statements simply lack sufficient indicia of reliability. As discussed above, she has made varying claims with respect to the sex, asserting first that she was raped, by four people, then three people, then giving an account which the District Attorney deemed to involve consensual sex, then filing a lawsuit and claiming rape by two people. In short, her statements have varied depending upon who she was talking to, and when. She was taking a significant amount of medication, some for bi-polar disorder, at the time of the incident, and her own mother expressed reservations about whether she was telling the truth. Detective Virola characterized her as a “little bit irrational, a little upset, a little, maybe drugged.” Moreover, although Detective Virola did not notice the odor of alcohol about Ms. Swanton, she had been in a club for some five hours prior to leaving for the firehouse, a place in which one might ordinarily have an alcoholic drink. She has an obvious financial motive, given the filing of her lawsuit, to shade the truth, and it was apparent from Mr. DeLuca’s MEO 16 interview that she was angered by a comment made to her by Mr. Waugh. In addition, her 50-h deposition reveals some significant relevant inconsistencies, specifically as to the man she called Luigi, which are discussed in this confidential memorandum. In sum, on this record, it is difficult to tell which portions of her statements are truthful and which are not. Had petitioner presented Ms. Swanton as a witness at trial, respondent could have cross-examined her and her credibility could have been fully assessed. As petitioner chose not to do so, I can not find that Ms. Swanton’s hearsay statements, presented through the statements and testimony of Detectives Delgado and Virola, constitute a preponderance of credible evidence that she and respondent engaged in sexual activity on August 20, 2004. - 22 Accordingly, I find that petitioner has failed to prove charge 4, and that portion of charges 5-7 which relate to charge 4. III Although I have found that petitioner has failed to prove charge 4, I find that respondent gave false and misleading MEO testimony regarding the events of August 20, 2004, as alleged in charges 1 and 2, by falsely testifying that: he remained in the apparatus floor lounge the entire night of August 19-20, except for going on runs and speaking to the mechanic; he did not see a woman in the firehouse; he never spoke to Mr. DeLuca or Mr. Waugh in the firehouse prior to 8:00 a.m., and thus neither Mr. DeLuca nor Mr. Waugh ever told him that there was a woman at the firehouse, or that there had been sexual activity in the firehouse. This testimony is discussed above, at 13-14. Accordingly, charges 1 and 2 are sustained. However, because petitioner did not prove that respondent engaged in sexual activity with Ms. Swanton, I do not find that respondent gave false and misleading testimony by denying that he engaged in such sexual contact. With regard to the other charges, for the reasons already discussed, I find petitioner has sustained charge 3, which alleges that respondent allowed a visitor on fire department property after 2200 hours (10:00 p.m.), in violation of Rule 19.2.1, prohibiting “social assemblages,” and indicating that visitors are not to be permitted to remain in quarters after 10:00 p.m. Although it was Mr. DeLuca, not respondent, who let Ms. Swanton into the firehouse at some point after 4:00 a.m., the record established that respondent was aware of Ms. Swanton’s presence inside the firehouse, and that had some interaction with her, in violation of this rule. Charge 5, which alleges that respondent engaged in conduct unbecoming, is sustained to the extent that it alleges a violation of Charges 1-3 (false statements, allowing a visitor on premises after 10:00 p.m.). Charge 6, which alleges that respondent brought discredit upon the Department, is sustained to the extent that it alleges a violation of Charges 1-3 and Charge 5, but not insofar as it alleges a violation of Charge 4 (engaging in sexual activities), which was not sustained. Charge 7, which alleges that respondent violated his oath of office, is sustained to the extent it alleges a violation of Charges 1-3, 5, and 6, but not as it alleges a violation of Charge 4. - 23 FINDINGS AND CONCLUSIONS 1. Respondent provided false and misleading testimony during a Mayor’s Executive Order 16 interview on August 25, 2004 relating to misconduct on August 20, 2004, as alleged in charges 1 and 2. 2. Respondent allowed a visitor to remain in Engine 75/Ladder 33 on August 20, 2004, after hours, as alleged in charge 3. 3. Petitioner did not prove by a preponderance of the credible evidence that respondent engaged in sexual acts with a female on August 20, 2004, as alleged in charge 4. 4. Respondent violated his oath of office and engaged in conduct unbecoming and conduct bringing discredit upon the Department, as alleged in charges 5-7, except insofar as charges 5-7 allege a violation of charge 4. Therefore, charges 1, 2, and 3 are sustained. Charge 4 is not sustained and should be dismissed. Charges 5-7 are sustained in large part. RECOMMENDATION Having made these findings, I requested and received a copy of respondent’s disciplinary abstract. It indicates that respondent was appointed as a firefighter on October 28, 2001. Thereafter, he was disciplined for failing to report a 2003 arrest for criminal possession of a controlled substance. He agreed to a suspension of 90 days pay and two years’ drug testing. Petitioner has requested that I recommend that respondent be terminated from office. Although I have found the hearsay proof lacking as to whether respondent had sex with Ms. Swanton, I agree that respondent’s misconduct merits termination. Respondent was questioned at length by the Inspector General, under oath, about the circumstances of August 19-20, 2004, and he repeatedly lied, not only about whether he had any contact or interaction with Ms. Swanton, but also about whether he was aware that she was in the firehouse. Respondent's lack of integrity constitutes an egregious breach of trust which cannot be condoned. Given that neither his tenure with the Department, nor his disciplinary history, constitute compelling mitigation, termination is the only appropriate penalty here, and so I recommend. See Fire Dep’t v. Waugh, OATH Index No. 678/05 (Dec. 1, 2004) (termination for refusing to answer questions - 24 during an MEO 16 interview relating to the events of August 19-20, 2004); Dep’t of Correction v. Melendez, OATH Index Nos. 237/05 and 240/05, at 15 (Aug. 25, 2005), (termination recommended for short-tenured officer found guilty of making false statements in a report and in an MEO 16 interview); Dep’t of Correction v. Wilder, OATH Index No. 1636/00 (June 20, 2001) (termination of correction officer for lying under oath at an investigatory interview); Mayoral Executive Order No. 16, section 4(c) (July 26, 1978) (requiring employees to cooperate fully with the Commissioner and agency Inspector Generals at the risk of termination of employment). Faye Lewis Administrative Law Judge June 14, 2006 SUBMITTED TO: NICHOLAS SCOPETTA Commissioner APPEARANCES: ROBERT MULLEN, ESQ. ROBERT GIGANTE, ESQ. Attorneys for Petitioner PAUL LONDON, ESQ. Attorney for Respondent