Dep’t of Correction v



Dep’t of Correction v. Woodford

OATH Index No. 2188/07 (Dec. 21, 2007)

Correction officer erroneously advised a court officer that she could discharge an inmate, submitted a false report, and gave false testimony at an MEO-16 interview. ALJ recommended a 60-day suspension.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

VALERIE WOODFORD

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge

This is an employee disciplinary proceeding referred by petitioner, the Department of Correction, pursuant to section 75 of the Civil Service Law. Respondent Valerie Woodford, a correction officer, is charged with erroneously discharging an inmate, submitting a false report, and giving false testimony at an MEO-16 interview in violation of the Department’s Rules and Regulations (ALJ Ex. 1).

A hearing was conducted before me on October 29, 2007. In support of the charges, petitioner presented the testimony of Deputy Warden Andrew Pereiro, Court Officer Anne Chiarantano, Correction Officer Ken Lewis, and documentary evidence. Petitioner alleged that respondent gave Officer Chiarantano inaccurate information regarding an inmate’s hold status, thereby authorizing his erroneous discharge, and that respondent made false statements about her actions. Respondent presented the testimony of Correction Officer Sydney Waiters and testified on her own behalf denying the allegations. Respondent maintained that Officer Chiarantano never inquired about the inmate’s hold status and as such, bears no culpability for the erroneous discharge. For the following reasons, I find that petitioner has sustained the charges and recommend that respondent be suspended for 60 days.

ANALYSIS

Based on the evidence presented, I make the following findings of facts. When an inmate is brought from Rikers Island to Brooklyn Criminal Court for a scheduled appearance, the inmate is in the custody of the Department until transferred to the Office of Court Administration (“OCA”). OCA officers accompany the inmate from the Department pens on the 9th floor to and from the courtrooms on the main floor. Generally, two court officers are responsible for the inmate. One officer takes care of the paperwork and the other, accompanied by a correction officer, collects the inmate from the pens (Tr. 123). Depending on the inmate’s court schedule, the inmate may change custody several times throughout the day. In order to keep track of the inmate, facilitate the transfer of custody between the Department and OCA, and avoid an erroneous discharge there are various procedures and paperwork in place.

First, an “accompanying card” or orange card is generated by the Department at Rikers Island based on data maintained in the Inmate Information System (“IIS”) (Tr. 17-18, 21). The accompanying card includes, among other things, the inmate’s picture, pedigree, and inmate classification, warrant information including the date, the nature of the warrant, and the name of the issuing agency, and space for information concerning the inmate’s court appearances (Resp. Ex. F). This card follows the inmate to court. The card is stored at the computer post on the 9th floor and is updated throughout the day as necessary (Tr. 23-25, 130). At the end of the day, the accompanying cards are reviewed by the correction officer at the computer post. Live cards accompany inmates returning to Rikers Island (Tr. 25). Dead cards are for inmates who have been released (Tr. 19, 129-30).

When an inmate arrives for court, data is entered by hand into the pen register which is maintained near the office where the computer post is located (Tr. 124, 126-27). The pen register contains the inmate’s name and number, the court docket number, the times the inmate is signed in and out of the pens for court, and a line for the court officer to sign. If there are outstanding warrants for the inmate which would preclude releasing the inmate after the court appearance, it is noted as a “hold” where the court officer is supposed to sign (Tr. 22, 27; Pet. Ex. 8). The pen register is maintained by Department personnel.

In addition, a form 44A is generated by the Department. The 44A sets forth the inmate’s hold information such as outstanding warrants and informs court staff whether the inmate can be discharged or whether he must be remanded to the Department’s custody (Resp. Ex. A). A copy of the 44A is given to the court officer when the inmate is taken to court (Tr. 27-28, 65).

OCA also maintains a securing order that contains the inmate’s pertinent personal information, information concerning the court appearance, and whether the court has remanded the inmate to the Department’s custody until a future court date or released the inmate on own his recognizance (“ROR”) or on bail (Resp. Ex. G). Even though it is an OCA document, the securing card is given to the court officers by the pen register to notify the officer that the inmate can appear before the judge (Tr. 65, 120). Information about the inmate’s court appearance is transcribed on the card by the OCA officer while the inmate is in court (Tr. 25-26). The card is returned to the correction officer at the pen register when the inmate is taken back to the pens or after the inmate has been released (Tr. 36). Information about the inmate’s next court date or release is then transferred to the pen register and the card is forwarded to the computer post so that IIS can be updated (Tr. 120-22). Department personnel should not write on the securing order (Tr. 21, 37).

If a warrant is served on an inmate while the inmate is in court, the correction officer accepting the warrant logs it into the pen register. The officer then transcribes the warrant information onto the accompanying card and attaches the warrant to the accompanying card and the securing order. The officer at the computer post updates IIS to reflect the warrant. Finally, a new 44A must be generated and presented to the pen register and the court part so that all personnel are informed that the inmate should be remanded to Department custody after the court appearance (Tr. 39-40, 50; Resp. Ex. E).

Since a hold can appear at any time and because there may be errors in the paperwork (Tr. 19), the following procedures are followed when the court orders that the inmate be released. One court officer stays with the inmate while the other court officer makes a final check whether there are any holds on the inmate (Tr. 92-95). The final check involves the court officer speaking with the correction officer at the computer post regarding the inmate’s hold status (Tr. 64-65, 129-34). The officer first checks the accompanying card and then the computer for holds on the inmate (Tr. 53-54, 86, 131-34). If the correction officer advises that there are no holds, the court officer releases the inmate and returns the securing order to Department staff.

Erroneous Discharge

It is undisputed that on May 3, 2006, an inmate was erroneously discharged due to multiple procedural errors. At the time the inmate was released, respondent was assigned to the computer post for the 4:00 p.m. to midnight shift (Tr. 128). Petitioner charged that respondent failed to properly notify Court Officer Chiarantano of a new hold on the inmate which resulted in the inmate’s erroneous discharge.

The undisputed facts established that, on the day in question, an inmate was brought from Rikers Island to Brooklyn Criminal Court at approximately 8:55 a.m. When the inmate arrived, there were no warrants listed on his accompanying card. At approximately 12:15 p.m., a warrant for a parole violation was served on the inmate (Pet. Ex. 4). Correction Officer Annette David was present when the inmate was served and logged the warrant information onto the accompanying card (Pet. Ex. 3). Officer David then assisted Correction Officer Leonard Jackson, who was assigned at the time to the computer post, in updating IIS with the warrant information (Pet. Ex. 9). The Department alleged that both officers neglected to generate a new 44A to notify court personnel that due to the warrant the inmate should be returned to Department custody. Moreover, the officers failed to notify the pen register or court personnel that a warrant had been issued. The Department has charged these officers with inefficient performance of duties (Tr. 25; Pet. Ex. 2).

At approximately 4:45 p.m., the inmate was escorted to court for his appearance by Officer Chiarantano and Court Officer Robert Gelormino. When the court officers retrieved the inmate from the pens, the pen register stated “no holds” and the existing 44A stated that the inmate did not need to be returned to Department custody (Pet. Exs. 7 & 8; Resp. Ex. A). There is no evidence that a copy of the warrant was attached to the securing card given to the court officers (Pet. Ex. 10). At approximately 4:50 p.m., the criminal court judge ordered the inmate released on his own recognizance. In light of the new warrant, the inmate should have been remanded to custody. Instead, he was discharged. At issue here is respondent’s role in the erroneous discharge.

Officer Chiarantano testified that on May 3, 2006, after a scheduled appearance, the inmate in question was released into a drug treatment program. Officer Gelormino maintained custody of the inmate while she went to inquire about his hold status from respondent, who was at the computer post. She handed respondent the inmate’s securing card (Tr. 70), which respondent checked against his accompanying card. Officer Chiarantano could not recall if there was a warrant attached to the accompanying card that respondent looked at (Tr. 89, 90). According to Officer Chiarantano, respondent then searched the computer and advised that there were no holds and that the inmate was “good to go” (Tr. 70, 71, 84-86). Officer Chiarantano noted on the reverse side of the securing card “no holds per DOC.” She returned to the holding area where the inmate signed the securing order and she released him (Tr. 71; Pet. Ex. 10). The securing order was returned to the Department with a notation that the inmate had been released (Pet. Exs. 1, 2, & 10).

Respondent denied that Officer Chiarantano ever came to the computer post to ask about holds on the inmate. According to her report dated May 3, 2006, at approximately 4:55 p.m., the inmate’s “paper work came back from the court along with his I.D. showing he was ROR and next court date was May 22, 2006” (Pet. Ex. 5). She testified that around 6:00 p.m., while reviewing the dead cards, she noticed a warrant attached to the inmate’s accompanying card (Tr. 134). She pulled the securing order and scratched off the inmate’s signature and the court officer’s “no holds per DOC” notation because she did not think the court officers would have released him with the outstanding warrant. She then accessed the computer and discovered that the warrant was new (Tr. 135). When she went to the pens to make sure the inmate was being returned to Rikers Island, she learned from one of the pen officers that the inmate was not there (Tr. 137, 138). Respondent then called Officer David who had relieved her and stated: “I think we [have] a problem” (Tr. 135). According to respondent, Officer David admitted that she had accepted the inmate’s warrant earlier that day (Tr. 136). Officer David then came to the computer post and reviewed the documents with respondent (Tr. 138). At 7:25 p.m., respondent informed Captain Sinmazisik of the erroneous discharge (Pet. Exs. 1, 2, & 5). At approximately 1:00 a.m., the inmate was apprehended (Pet. Ex. 2).

In a disciplinary proceeding, the Department “has the burden of proving its case by a fair preponderance of the credible evidence.” Dep’t of Correction v. Hall, OATH Index No. 400/08, at 2 (Oct. 18, 2007). Where the facts are disputed, as they are here, resolution depends on an assessment of the witnesses’ relative credibility. In making credibility determinations, this tribunal has often considered “witness demeanor, consistency of a witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the degree to which a witness’ testimony comports with common sense and human experience.” Dep’t of Sanitation v. Menzies, OATH Index No. 678/98, at 2-3 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 98-101-A (Sept. 9, 1998).

I found Officer Chiarantano to be more credible than respondent. Her testimony was clear, consistent, and logical. Contrary to respondent’s assertion that court officers make final checks on inmate holds only occasionally (Tr. 146), I credit Officer Chiarantano’s testimony that she “never trusts the paperwork” (Tr. 72) and that court officers always check with the computer post to make sure that there are no holds before discharging an inmate. There can be no dispute that the officer on the computer post is in the best position to know whether there is a hold on an inmate. Since it is the court officers who are responsible for actually discharging the inmate, it makes sense that before doing so, they would check with the computer post about holds in the event that, as happened here, there has been a change in the inmate’s status that is not reflected in the paperwork. Indeed, Officer Chiarantano’s notation on the securing order that there were “no holds per DOC” is consistent with her testimony that she checked the inmate’s hold status prior to releasing him.

While Officer Chiarantano had just as much motive to falsify her testimony to avoid disciplinary action as did respondent, there was no mistaking her indignation at the suggestion that she was responsible the erroneous discharge. She testified credibly that when she learned that an inmate had been erroneously discharged and that her actions were being questioned, her immediate response was: “Wait a second. I checked his holds like we always do” (Tr. 72). She further testified, “I was very confident knowing that I did everything that I was supposed to do in my end” (Tr. 27) and when asked whether she released the inmate immediately after his court appearance, she responded “absolutely not” (Tr. 83). Officer Chiarantano’s testimony was consistent with the report she and Officer Gelormino prepared with their superior officer after the incident (Pet. Ex. 7). Moreover, Officer Chiarantano testified that respondent told her the inmate was “good to go” (Tr. 70), which are the exact words respondent used in her ME0-16 interview to describe the process of checking a hold on an inmate (Pet. Ex. 11 at 20).

Officer Chiarantano’s assertion that she asked respondent about the inmate’s hold status was also corroborated by Correction Officer Lewis. Officer Lewis, who is now retired, testified that in May 2006 he was working as a relief officer. He stated that respondent started working at the computer post about three months after he started on this particular tour and that they had worked in the past (Tr. 113-14). His relief post was in the same office as respondent who was stationed about 10 feet away (Tr. 100). Officer Lewis recalled that on the day of the erroneous discharge, Officer Chiarantano came into the office and asked respondent whether there were any holds on the inmate and that respondent told her no (Tr. 100; Pet. Ex. 6). Officer Lewis had no apparent stake in the outcome of this trial and was a credible witness. Respondent’s claim that Officer Lewis was biased against her because she had complained several times that he played his radio on post (Tr. 116, 117) was simply not believable. Officer Lewis testified credibly that a captain had spoken to him about the radio playing and “that was the end of it” (Tr. 117). Indeed, respondent’s claim of bias was undermined by her own testimony at the ME0-16. When asked if she recalled Officer Lewis being present, she claimed that she did not know who he was and that there was no one else in the office (Pet. Ex. 11 at 15-18). This statement is incredible since they had worked together before and during that time respondent had complained that Officer Lewis disturbed her.

A review of respondent’s testimony, written reports, and MEO-16 interview reveal additional inconsistencies which seem to suggest that respondent was engaging in some sort of cover-up. Moreover, she sought to cast a wide net of blame in an attempt to exculpate herself. First, she argued that the events that led to the inmate’s discharge occurred prior to her shift. No doubt there were earlier errors concerning the other officers’ failure to issue a new 44A and to notify the pen register and court personnel that a warrant had been lodged against the inmate. However, the computer post was the final safeguard to prevent an erroneous discharge and respondent was entrusted with that responsibility. Respondent did not dispute that the warrant information was input into IIS prior to her shift. Instead, she tried to shift the blame to Officer Chiarantano by asserting that the officer never asked her about holds on the inmate. This self-serving statement was not only incredible but was undermined by respondent’s conduct following her discovery of the erroneous discharge.

According to respondent, when she discovered the warrant attached to the inmate’s accompanying card, she immediately scratched off the inmate’s signature and Officer Chiarantano’s notation “no holds per DOC” on OCA’s securing card. When asked why she did this, respondent testified:

I thought that the courts made a mistake when I pulled out the orange card and seen that he had a warrant out there and that was the reason why I scratched it off because I knew that they didn’t release him because I thought he came with that warrant. So I went to update it and I seen that the warrant was accepted that same day.

(Tr. 135). Respondent’s explanation that she thought the inmate came from Rikers Island with the warrant does not comport with common sense. The warrant information had been transcribed onto the accompanying card with the date of May 3, 2006 (Pet. Ex. 3), and according to respondent was attached thereto (Tr. 134). Therefore, it should have been obvious when respondent looked at the card that the warrant had been served that day. It seems more likely than not that when respondent discovered the warrant she tried to delete the court officer’s notation to conceal her culpability in the erroneous discharge. Also, respondent’s testimony was inconsistent with her written statement wherein she claimed that the reason she scratched the statement off the securing order was because she “was told the inmate was in the cell” (Pet. Ex. 5).

I also find it suspicious that when respondent realized the inmate was erroneously discharged she immediately called Officer David (who had accepted the warrant) to review the paperwork rather than calling a supervisor. Moreover, she waited almost an hour and a half from the time she claimed to have discovered the mistake at 6:00 p.m. to report the discharge to her superiors. When asked to explain in a subsequent written report why she waited until 7:25 p.m. to report the erroneous discharge, she gave a non-responsive and evasive answer that she did not discover the warrant at 4:55 p.m. as suggested by Captain Sinmazisik (Pet. Ex. 5). Respondent’s testimony was also inconsistent with her MEO-16 interview, wherein she stated that she discovered the warrant around 7:00 p.m. and that she notified her supervisors within 20 minutes of discovering the discharge (Pet. Ex. 11 at 26-32).

It is notable that respondent’s witness was unable to corroborate her claim that Officer Chiarantano did not check the inmate’s hold status. In fact, Mr. Waiters, a correction officer whose work station is located about 20 feet away from respondent’s, could not recall with even an modicum of detail, the events on the day of the inmate’s erroneous discharge (Tr. 124, 125). Nor did the report filed by Officer Waiters on May 3, 2006, provide any support for respondent’s version of the events (Resp. Ex. H).

Accordingly, I find that respondent told Officer Chiarantano that there were no holds on the inmate and that it was this statement that occasioned the erroneous discharge.

False Reporting and ME0-16 Interview

Petitioner further charges that respondent filed a false and inaccurate report denying that the court officer requested from her the hold status of the inmate prior to his erroneous discharge and that she made the same misrepresentations at her MEO-16 interview.

In her initial report on the day of the incident, respondent stated: “At no time did any court officer come to this writer to check for holds on this inmate.” When asked on May 5, 2006, to identify the court officers who escorted the inmate to his court appearance, respondent again wrote: “At no time did any court officer come to this writer to check for holds on [the] inmate” (Pet. Ex. 5). Respondent repeated maintained this position in her testimony at the MEO-16 interview held on January 26, 2007 (Pet. Ex. 11 at 23).

The first consideration is whether the underlying incident in question did in fact occur. The second is whether respondent made material deviations from the actual incident or intentionally misrepresented the actual events in question. See, e.g., Dep’t of Correction v. Rodriguez, OATH Index No. 277/06 (Mar. 29, 2006). Having found that respondent told Officer Chiarantano that there were no holds on the inmate I find respondent’s report that no court officer questioned her about the inmate’s hold status to be undeniably and intentionally false. Similarly, I find her testimony at the MEO-16 interview on January 26, 2007, based on the same facts to be false.

FINDINGS AND CONCLUSIONS

1. On May 3, 2006, respondent was culpable in the erroneous discharge of an inmate.

2. On May 3, 2006, respondent submitted a false report concerning the erroneous discharge.

3. On January 26, 2007, respondent gave false testimony at an MEO-16 interview concerning the erroneous discharge.

RECOMMENDATION

Upon making these findings, I obtained and reviewed an abstract of respondent’s work history for purposes of recommending an appropriate penalty. Respondent has been employed by the Department as a correction officer since 1986 and has no prior disciplinary record.

In this proceeding, respondent has been found guilty of causing the erroneous discharge of an inmate, submitting a false report, and giving false testimony at an MEO-16 interview. Petitioner seeks a suspension of 60 days.

In the case law of this tribunal, penalties for inefficient performance of duties leading to the escape or erroneous discharge of an inmate have ranged from 10 to 30 days. See, e.g., Dep’t of Correction v. Slater, OATH Index No. 1887/04 (Aug. 31, 2005), modified on penalty, Comm’r Dec. (Dec. 6, 2005), aff’d, NYC Civ. Serv. Comm’n Item No. CD06-67-SA (July 10, 2006) (30 days for officer with no prior disciplinary history who failed to properly challenge and verify an inmate’s authorization pass and, thus, suffering the attempted escape of that inmate); Dep’t of Correction v. Ross, OATH Index No. 1203/95 (Aug. 18, 1995) (10-day penalty for inefficient performance of duties that contributed to the erroneous discharge of an inmate from custody); Dep’t of Correction v. Jennette, OATH Index No. 318/89 (Aug. 11, 1989), modified on penalty, NYC Civ. Serv. Comm’n Item No. CD 90-31 (Mar. 26, 1990) (recommendation of 19-day penalty reduced to 10 days by Commissioner).

Penalties for submitting false reports or making false statements have ranged from 10 to 60 days. See Dep’t of Correction v. Jones and Alston, OATH Index No. 1332, 1334/95 (Dec. 22, 1995) (10-day and 20-day suspension for filing a false report concerning a use of force incident); Dep’t of Correction v. Mangham, OATH Index No. 257/93 (Jan. 14, 1993) (20-day suspension for false report regarding insubordination); Dep’t of Correction v. Centeno, OATH Index No. 2031/04 (Mar. 16, 2005) (20-day suspension for officer who made false statements during a MEO-16 interview); Dep’t of Correction v. Butler, OATH Index Nos. 876-78/92 (Dec. 2, 1992) (20-day suspensions for two correction officers who gave false reports about a third officer’s impermissible use of force); Dep’t of Correction v. Slevin, OATH Index No. 323/87 (Aug. 5, 1988) (20-day suspension for correction officer who made false statements about another officer’s use of force); Dep’t of Correction v. Spencer, OATH Index No. 1387/97 (Oct. 20, 1997), aff’d, NYC Civ. Serv. Comm’n Item No. CD99-62-A (May 12, 1999) (30-day suspension for false report regarding failure to conduct security check); Dep’t of Correction v. Davis, OATH Index Nos. 299-301/88 (Nov. 7. 1988) (60-day suspensions for officers with no prior records who filed false reports omitting their observations of serious use of force by colleague).

This tribunal has also recognized that there are circumstances when an employee should receive a minimal punishment, particularly on the first occasion that misconduct occurs.  Transit Auth. v. Ondeje, OATH Index No. 1339/04 (Dec. 30, 2004); Dep’t of Transportation v. Jackson, OATH Index No. 299/90 at 12 (Feb. 6, 1990) (“It is a well-established principle in employment law that employees should have the benefit of progressive discipline wherever appropriate, to ensure that they have the opportunity to be apprised of the seriousness with which their employer views their misconduct and to give them a chance to correct it”). In addition, a fair penalty must take into account the particular circumstances of the incident and individual mitigating factors, as appropriate.  Admin. for Children’s Services v. Goodman, OATH Index Nos. 986/05 & 1082/05 (Aug. 12, 2005) (respondent’s lack of a prior disciplinary record is a mitigating factor); Dep’t of Correction v. Passe, OATH Index No. 1917/02 (Jun. 4, 2003), modified on penalty, Commission’s Decision (Sept. 23, 2003) (respondent’s 13-year tenure and clean record are mitigating factors which must be taken into account in assessing penalty). However, failure to acknowledge responsibility and filing deliberately false and misleading statements have been found to exacerbate the penalty recommendation. See Dep’t of Correction v. Coleman, OATH Index No. 1267/03 (Dec. 18, 2003), aff’d, NYC Civ. Serv. Comm’n Item No. CD 04-77-SA (Nov. 18, 2004) (termination of employment where officer, with prior disciplinary record, made an untruthful report to 911 operator, filed a false police report, lied during an MEO-16 interview, possessed an illegal weapon, and inadequately safeguarded personal firearm).

Respondent manned the final checkpoint and her erroneous response to the court officer’s inquiry resulted in the discharge of the inmate who should have been remanded for a parole violation. Respondent’s counsel would have this tribunal believe that, had the events occurred as related by Officer Chiarantano, his client’s actions would be tantamount to a complete abdication of her responsibilities (Tr. 160). I disagree. Workplace errors are not unusual and respondent is not immune from making a mistake. It is clear from the record that the custody and transfer of an inmate in court is paper intensive. That alone may occasion error. Had respondent immediately acknowledged her error, the penalty would be one at the low end of the range. Instead, respondent failed to accept any responsibility.

The most troubling aspect of this case is respondent’s lack of integrity. Not only did she lie, but in an attempt to extricate herself from the situation, respondent sought to shift the blame to a court officer. Respondent compounded her misconduct by altering an OCA document and waiting almost an hour and a half to report the erroneous discharge. This misconduct was then followed up by not one but two false reports. Even when given time to reflect and come forward with the truth, respondent continued to maintain at both the MEO-16 interview and the trial that she bore no responsibility for the erroneous discharge. These were extremely dishonest acts and are the kind which erodes an employer’s trust in an employee. Conduct such as this can merit the most severe of penalties. See Dep’t of Correction v. Melendez, OATH Index Nos. 237/05 and 240/05 (Aug. 25, 2005) (officer with six years experience who made a false report and false statements during an official interview and claimed that two captains were responsible for the misconduct terminated). However, in light of respondent’s 18-year career without any disciplinary action, the Department Advocate’s request for a penalty short of termination is reasonable. Therefore, I recommend that respondent be suspended for 60 days.

Alessandra F. Zorgniotti

Administrative Law Judge

December 21, 2007

SUBMITTED TO:

MARTIN B. HORN

Commissioner

APPEARANCES:

ADRIAN LAURIELLO, ESQ.

Attorney for Petitioner

GREGORY J. WATFORD, ESQ.

Attorney for Respondent

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