Dep't of Correction v



Dep’t of Correction v. Fuller

OATH Index No. 2144/05 (Nov. 28, 2005), aff'd, NYC Civ. Serv. Comm'n Item No.CD06-120-SA (Nov. 14, 2006)

Correction officer intentionally defrauded the United States Department of Housing and Urban Development by signing false statements submitted to the New York City Housing Authority. Termination of employment recommended.

______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

DEPARTMENT OF CORRECTION

Petitioner

- against -

LISA FULLER

Respondent

______________________________________________________

REPORT AND RECOMMENDATION

KEVIN F. CASEY, Administrative Law Judge

Petitioner, the Department of Correction (Department), brought this disciplinary proceeding pursuant to section 75 of the Civil Service Law. The petition alleges that respondent, a correction officer, committed misconduct by intentionally defrauding the United States Department of Housing and Urban Development and submitting false written instruments to the New York City Housing Authority (ALJ Ex. 1).

At a hearing on September 26, 2005, petitioner relied upon documentary evidence and an investigator’s testimony. Respondent testified on her own behalf and acknowledged that she had been convicted of a federal crime. In support of her plea for leniency, she presented character testimony and other mitigating evidence.

For the reasons stated below, I find that respondent committed misconduct by defrauding a federal agency and repeatedly submitting false written instruments to a city agency. I recommend termination of her employment.

ANALYSIS

On January 20, 2005, respondent pleaded guilty to a federal misdemeanor, knowingly and intentionally defrauding the United States Department of Housing and Urban Development in violation of title 8, section 1012, of the United States Code (Pet. Ex. 3). The charges arose from allegations that respondent and her mother, Marilyn Fuller, obtained federal rent subsidies by falsely understating respondent’s income (Pet. Ex. 1). On May 26, 2005, respondent was sentenced to a year on probation and required to pay $38,973.74 in restitution (Pet. Exs. 2 and 4).

According to Bergia Telesford, deputy inspector general with the New York City Housing Authority (NYCHA), respondent’s mother received federal “Section 8” housing subsidies for an apartment on Essex Street in Brooklyn from May 1, 1997 to February 28, 2001 (Tr. 14-15). Section 8 tenants must report all household income and submit affidavits for annual recertification (Tr. 14; Pet. Ex. 5, ¶ 3). Pursuant to that requirement, respondent’s mother submitted notarized NYCHA forms signed by respondent in January 2000 and February 2001. On each form, respondent claimed that she was unemployed (Tr. 19; Pet. Exs. 8 and 9).

In fact, respondent had been employed by the Department as a correction officer since 1996 and, by February 2001, she was earning more than $49,000 per year (Pet. Ex. 7). As a result of respondent’s failure to report her employment status and income, NYCHA overpaid more than $33,000 in rent subsidies (Pet. Ex. 5, ¶ 8).

When interviewed by Telesford, respondent admitted that she had signed false statements to help her mother (Pet. Ex. 5, ¶ 6). Respondent also told Telesford that, in 1997, she moved from her mother’s Essex Street apartment to East 27th Street in Brooklyn. In 2001, respondent moved in with an aunt on 210th Street in Hollis, Queens (Tr. 29, 37; Pet. Ex. 5, ¶ 6).

Testifying on her own behalf, respondent recalled that her mother was a single parent who kept her family together under difficult circumstances (Tr. 47-48). As a youth, respondent never lived in the same apartment for more than a year and, on occasion, they had lived in an apartment for only a single day (Tr. 48). When respondent was a teenager, she lived with her family in a homeless shelter. After two years in the shelter, they moved to Essex Street (Tr. 48). A year later, respondent left her mother’s apartment and moved in with her boyfriend at an apartment on East 27th Street (Tr. 49). Because of occasional disagreements with her boyfriend, respondent went back and forth from Essex Street to East 27th Street (Tr. 49). Respondent presented a 1996 lease and a 1999 utility bill to corroborate her claim that she lived at East 27th Street in the late 1990s (Tr. 49, 58, 60; Resp. Exs. F and G).

Respondent admitted that she signed false statements to secure Section 8 subsidies for her mother. According to respondent, the three-bedroom apartment on Essex Street was the most stable location that she and her mother had ever known. Respondent feared that, if she did not sign the false statements, her mother and two younger siblings could lose their apartment and return to a homeless shelter until they were relocated to a smaller apartment (Tr. 58-59, 66-67).

On December 11, 2003, respondent was arrested for signing the false NYCHA documents. The Department immediately suspended her. While suspended, respondent worked for a bus company, waited tables, and drove a yellow cab (Tr. 61). After pleading guilty to the federal offense, respondent returned to work for the Department on June 3, 2005 (Tr. 61). Under the terms of the plea agreement, if respondent continued to work for the Department, she was required to pay 25% of her net income in restitution. If she no longer worked for the Department, she must remit 10% of her net income towards the restitution amount (Tr. 62).

The evidence established that respondent committed a federal crime involving fraudulent acts. This misconduct is subject to sanction because it conflicts with respondent’s law enforcement responsibilities and discredits the Department. Dep’t of Correction v. McDowell, OATH Index No. 150/88 (Oct. 7, 1998), aff’d sub nom., McDowell v. Koehler, 159 A.D.2d 424, 553 N.Y.S.2d 116 (1st Dept. 1990) (criminal conduct is “inherently inimical” to a peace officer’s law enforcement responsibilities); Dep’t of Correction v. Jones¸ OATH Index No. 393/04 (May 3, 2004); Dep’t of Correction v. Breland, OATH Index No. 128/85 (May 14, 1985) (shoplifting is conduct unbecoming a peace officer and of a nature to bring discredit to the Department); see also Villanueva v. Simpson, 69 N.Y.2d 1034, 517 N.Y.S.2d 916 (1987).

Thus, the specifications must be sustained.

FINDINGS AND CONCLUSIONS

1. Respondent intentionally defrauded the United States Department of Housing and Urban Development by signing false statements that were submitted to the New York City Housing Authority.

2. Respondent’s criminal acts were unbecoming conduct and of a nature to bring discredit to the Department.

RECOMMENDATION

Based upon the nature of respondent’s offense, petitioner maintained that termination of employment is the appropriate penalty.

Respondent offered several facts in mitigation. She has an unblemished disciplinary record since joining the Department in January 1996. A colleague testified that respondent is an excellent officer who has worked effectively in a number of difficult posts. Respondent also furnished letters from colleagues and a religious organization attesting to her character and reliability (Resp. Exs. A-E). Moreover, respondent emphasized that she did not financially benefit from her wrongdoing. Finally, the federal judge who sentenced respondent strongly recommended that she should be permitted to keep her job as a correction officer.

Petitioner countered that respondent engaged in an intentional pattern of dishonesty that defrauded the federal government of a substantial sum of money. Noting that the Department had given consideration to the federal judge’s recommendation, petitioner cited numerous decisions from this tribunal involving employees from other agencies who were terminated for committing welfare fraud and related misconduct. See, e.g., Dep't of Sanitation v. Brown, OATH Index Nos. 542/99, 1745/98, 543/99 (Nov. 17, 1998), Saxon (543/99), aff'd, NYC Civ. Serv. Comm'n Item No. CD 00-003-SA (Jan. 24, 2000), Brown (542/99), aff'd, NYC Civ. Serv. Comm'n Item No. CD 00-059-SA (June 2, 2000); Human Resources Admin. v. Williams, OATH Index No. 869/96 (Jan. 26, 1996); Dep’t of Transportation v. Jefferson, OATH Index No. 607/80 (Dec. 31, 1980).

The established policy of the City of New York is that an employee convicted of a crime of moral turpitude shall be terminated “absent compelling mitigating circumstances.” Mayor’s Executive Order No. 105 § 5(b) (Dec. 26, 1986), amending, Mayor’s Executive Order No. 16 § 5(c) (July 26, 1978). Intentional fraud and theft of government benefits are crimes of moral turpitude that invariably lead to termination of employment. See, e.g., Human Resources Admin. v. Turner, OATH Index No. 2212/01 (Nov. 21, 2001), aff’d, NYC Civ. Serv. Comm’n Item No. CD 02-48-SA (June 14, 2002) (possession of a forged instrument is an act of moral turpitude leading to termination of employment); Health & Hospitals Corp. (Elmhurst Hospital Center) v. Williams, OATH Index No. 1818/01 (Oct. 12, 2001) (employee’s wrongful acceptance of disability payments is a crime involving moral turpitude that warrants termination of employment); Transit Auth. v. Levy, OATH Index No. 1671/99 (June 17, 1999), aff’d, Sup. Ct. Kings Co. Index No. 31577/99 (May 23, 2000) (fraudulent use of credit card is an act of moral turpitude resulting in termination of employment).

Although respondent has presented some mitigation, it did not outweigh the Department’s legitimate concerns. See, e.g., Human Resources Admin. v. Finley, OATH Index No. 947/05 (Oct. 12, 2005) (health problems and financial desperation were insufficient mitigating circumstances where employee committed insurance fraud and wrongfully obtained property worth more than $1,000); Human Resources Admin. v. DeFreitas, OATH Index No. 629/01 (Nov. 30, 2000) (employee’s tenure, financial hardship, and payment of restitution were insufficient mitigation to avoid termination of employment for welfare fraud); Human Resources Admin. v. Morgan, OATH Index No. 1512/96 (Apr. 15, 1996) (employee terminated for fraudulently issuing more that $3500 in food stamps to friends and relatives).

It is understandable that respondent wanted to help her mother keep a three-bedroom apartment, but she should not have engaged in criminal fraud to achieve that goal. Respondent’s misconduct was a deliberate, repeated, and fundamental breach of trust. It gives the Department ample reason to doubt her integrity. See, e.g., Dep’t of Correction v. Muza, OATH Index No. 236/99 (Dec. 23, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 00-26-SA (Apr. 10, 2000) (termination of employment where correction officer arrested in possession of two stolen credit cards). Because of the serious nature of the offense, I recommend termination of respondent’s employment.

Kevin F. Casey

Administrative Law Judge

November 28, 2005

SUBMITTED TO:

MARTIN F. HORN

Commissioner

APPEARANCES:

WILLIAM BRYK, ESQ.

Attorney for Petitioner

KOEHLER & ISAACS, LLP

Attorneys for Respondent

DAVID McGRUDER, ESQ.

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