Dep't of Correction v



Dep't of Correction v. Pack

OATH Index No. 1553/06, mem. dec. (June 14, 2006)

ALJ denies respondent's pretrial motion to dismiss disciplinary proceedings on ground that petitioner failed to comply with its command discipline procedure.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

-against-

JACQUELINE PACK

Respondent

____________________________________________________

MEMORANDUM DECISION

DONNA R. MERRIS, Administrative Law Judge

This employee disciplinary proceeding was referred by the Department of Correction ("Department") pursuant to section 75 of the Civil Service Law. Respondent, Jacqueline Pack, is charged with misconduct in two specifications arising out of an incident which occurred on November 3, 2004. A hearing on the allegations is scheduled to commence before me on August 3, 2006.

The issue presently before me is respondent's motion to dismiss the instant disciplinary charges on the ground that their hearing is barred by petitioner's failure to adhere to the time requirements of Department Directive 4257. Respondent's application was presented to this tribunal on May 16, 2006. Petitioner requested an extension of time to answer on May 22, 2006 to which respondent did not object. The extension of time to answer was granted by letter dated May 23, 2006. Petitioner submitted an answer dated June 6, 2006. Respondent submitted a reply affirmation dated June 9, 2006. Those submissions are incorporated as part of the record in this proceeding.

For reasons set forth below, the motion to dismiss is denied.

ANALYSIS

Respondent argues that, because the Department did not comply with the time requirements set forth in its Directive 4257, the proceeding now before this tribunal must be dismissed. Department Directive 4257 sets out the Department's command discipline procedure and provides that a Supervisor's Complaint Report must be filed within thirty days of the incident leading to the proceeding and that the facility's Commanding Officer must schedule a command discipline interview within thirty days of his/her receipt of the Supervisor's Complaint Report. Department Directive 4257 (VI)(A)(1), (VI)(B)(2) (eff. May 5, 1988). It is undisputed that the incident which led to the instant charges occurred on November 3, 2004. The Supervisor's Complaint Report was filed on January 24, 2005, eighty-two days after the incident, and a Command Discipline hearing was held on January 28, 2005 (Resp. Aff., p. 1).

Relying on Department of Correction v. Lubrano, OATH Index No. 1872/96 (Mar. 5, 1997), in which this tribunal rejected the Department's argument that the time period within which to hold the command discipline hearing should be extended pending review by its Labor Relations Division, respondent argues that, here, the Department's delay in filing the Supervisor's Complaint Report because respondent filed an Equal Employment Opportunity complaint, requires dismissal of the instant proceeding. As was the case in Lubrano, respondent argues, if the Department intended to extend the time as a result of extenuating circumstances, the Command Discipline Directive should articulate those exceptions. Moreover, unlike the circumstance in Lubrano, in which only the time for the command discipline hearing was delayed, here, the very filing of the Supervisor's Complaint Report which triggered the command discipline hearing, was not completed until eighty-two days following the alleged incident. Therefore, according to respondent's argument, as the Department determined that the alleged misconduct was suitable for resolution as a command discipline and failed to adhere to its own procedural rules, the instant proceeding must be dismissed (Resp. Aff., p. 2).

In response, petitioner argues that the Department's non-adherence to the Directive time frames is irrelevant to the disciplinary proceeding here that is brought pursuant to section 75 of the Civil Service Law, a process entirely independent of the Departmental informal process. Therefore, according to the argument, because respondent refused to accept the penalty offered at the command discipline, she was not prejudiced by the filing of the section 75 proceeding as the allegations will now be independently adjudicated at this tribunal. Moreover, petitioner relies on this tribunal's precedent in which motions to dismiss have been consistently denied when based on violations of agency disciplinary rules, absent a showing that the agency's failure to abide by its rules has violated a substantial right protecting a party from prejudice. As respondent has a full opportunity to answer the allegations in this forum, it cannot be shown that she has been prejudiced (Pet. Response, pgs. 3-4).

It is well settled that an agency is bound by its own rules and regulations. Frick v. Bahou, 56 N.Y.2d 777, 452 N.Y.S.2d 18 (1982); Conlon v. McCoy, 27 A.D.2d 280, 278 N.Y.S.2d 449 (1st Dep't 1967), modified on other grounds, 22 N.Y.2d 356, 292 N.Y.S.2d 857 (1968). Accordingly, rules regulating procedure affecting substantial rights of an individual may not be waived. However, where no substantial right protecting a party from prejudice is violated by an agency's failure to abide by its own rule or regulations, such noncompliance constitutes harmless error. Substantial prejudice involves a determination as to whether a significant possibility exists that the rule violation affected the ultimate outcome. See Dep't of Correction v. Harrison, OATH Index No. 301/87, at 12-13 (Nov. 18, 1987).

This tribunal has held that the provisions of Directive 4257 do not establish a procedure affecting substantial rights of the Department's employees. Dep't of Correction v. Bovell, OATH Index No. 742/99, mem. dec., at 3 (Feb. 2, 1999). It is a managerial tool aimed at adjudicating violations by uniformed members without resort to the formal disciplinary process pursuant to section 75 of the Civil Service Law. Id. While there are provisions in the Directive that mandate the use of command discipline in all cases except those enumerated therein, the commanding officer is authorized to opt for the formal disciplinary process if aggravating circumstances exist. The commanding officer, when choosing the formal disciplinary process, provides the rationale for so doing. Directive 4257 (IV)(3).

In those cases where it has been held that the failure to adhere to some part of the Directive did not substantially affect the employee's rights, the issue of the timeliness of the commencement of the command discipline process did not arise. See, e.g., Bovell, 742/99 (failure to explain why formal discipline was more appropriate than command discipline); Dep't of Correction v. Garland, OATH Index No. 1057/99 (Feb. 3, 1999) (referral for formal discipline because of prior violations); Dep't of Correction v. Kevelier, OATH Index No. 131/83 (Mar. 11, 1983) (issue was whether or not the Department had jurisdiction to impose command discipline on the employee).

In Kevelier, respondent's motion to dismiss the formal proceeding because the command discipline procedures had been instituted was denied. Chief Judge Failla found that the issue there was not whether the Department had jurisdiction or authority to commence the section 75 proceeding, but whether the institution possessed the appropriate jurisdiction or authority to impose command discipline on the respondent (Kevelier, at 12). Because the Department did not forward the proper disposition forms to the Chief of Operations for approval or disapproval as required by the command discipline Directive then in effect, the Department did not have the authority to dispose of certain of the charges or to impose the recommended penalty of the loss of one pass day. However, Judge Failla found that the action did not affect the Department's ability to proceed with the formal disciplinary process. The claim in the instant case is only that the command discipline process was untimely. Implicit in the claim is that the Department therefore had no jurisdiction to proceed with the command discipline. On the facts presented here, the jurisdictional question should have been raised at the command discipline level.

Moreover, the Directive is not a formally promulgated rule (see New York City Charter section 1043) and serves as only internal procedure for Department personnel to process personnel matters. As such, the suggested time frames for commencing the informal disciplinary process are not limitation periods, but are designed to promote efficiency within the Department and to attempt to settle certain rule infractions committed by employees without undue delay. The process is analogous to pre-trial settlement conferences. Here, respondent did not object to the delay in the commencement of the command discipline process, but participated in it and rejected the recommended disposition. This was respondent's prerogative. Accordingly, the instant proceeding, pursuant to section 75 of the Civil Service Law was then timely initiated. As substantial prejudice to a party has been defined to involve a determination as to whether a significant possibility exists that the rule violation affected the ultimate outcome,1 delay in affording an informal process to the employee in which that employee ultimately participated and rejected the recommendation cannot be said to affect the ultimate outcome. Particularly, where, as here, the employee now has an opportunity to fully be heard on the allegations.

Finally, the holding in Department of Correction v. Lubrano, OATH Index No. 1872/96 (Mar. 5, 1997) that failure to adhere to the thirty-day period in Department Directive 4257 deprives the employee of the opportunity to be disciplined for minor violations is hereby rejected. As noted above, the process outlined in the Directive is an informal one and the employee is not bound by it. The employee may accept or reject the recommended outcome of the command discipline proceeding. The Department may then opt to commence a formal proceeding pursuant to section 75 of the Civil Service Law. It is the section 75 process which affords the employee ample opportunity to answer the allegations.

The delay in commencing the command discipline process did not, in the instant case, affect the ultimate outcome.

Accordingly, the motion to dismiss is denied. Respondent's application for leave to move to compel discovery is granted.

Donna R. Merris

Administrative Law Judge

June 14, 2006

WILLIAM BRYK, ESQ.

Attorney for Petitioner

FRANKIE & GENTILE, P.C.

Attorneys for Respondent

By: JAMES G. FRANKIE, ESQ.

1Note, Violations by Agencies of Their Own Regulations, 87 Harv. L. Rev. 629, 634 (1983).

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