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Dep’t of Environmental Protection v. Ginty
OATH Index No. 1627/07 (Aug. 10, 2007)
Hearsay found sufficient to prove charge that respondent used profanity to a member of the public during arrest. Charge sustained. Six-day penalty recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF ENVIRONMENTAL PROTECTION
Petitioner
- against -
THOMAS GINTY
Respondent
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REPORT AND RECOMMENDATION
JOAN R. SALZMAN, Administrative Law Judge
This is a disciplinary proceeding referred by petitioner, the Department of Environmental Protection, pursuant to section 75 of the Civil Service Law. Petitioner charges that respondent, Thomas Ginty, an agency police officer, used the word “fuck” toward a person he was arresting on October 17, 2006,[1] in violation of the Uniform Code of Discipline, section E.6 (ALJ Ex. 1). Respondent denies this allegation.
Although the charge in this case was simple, a number of procedural and evidentiary issues complicated consideration of the matter. The hearing was held on May 11, 2007, and counsel briefed the legal issues by June 1, 2007, as I requested. Respondent challenged each key piece of evidence against him, claiming that the failure by the Department to provide Civil Service Law warnings to him before an agency captain took his statement should result in the exclusion of respondent’s otherwise damaging admissions to the captain and of the evidence stemming from that interview. He also contended that the hearsay tendered was unreliable and that the Department’s evidence should be precluded because of inadequate document production by the Department that was discovered at trial, as each witness called by the agency testified that there were additional written materials that had not been produced in response to a clear, timely written demand for all statements relevant to the charges. I reserved decision on the motions until the close of the proofs pursuant to 48 RCNY, section 1-50, which states that “motions addressed to the sufficiency of the petition or the sufficiency of the petitioner’s evidence shall be reserved until closing statements.” Petitioner presented three witnesses and respondent testified on his own behalf. As set forth below, and upon consideration of the full record, I find that the motion to preclude respondent’s admissions made in the interview with the captain and the testimony concerning that interview must be granted for the admitted failure by the Department to comply with Civil Service Law section 75(2), that the motion to preclude the agency’s evidence based on incomplete document production by the Department must be denied, except to the extent that the agency and its advocate are admonished to be more diligent with respect to their document production obligations in the future, and that the Department has nevertheless proved the charges of misconduct by a preponderance of the credible evidence.
ANALYSIS
It is undisputed that respondent and his partner, Anthony Garcia, stopped motorist Mao Quo Dong on October 17, 2006, at Neill and Paulding Avenues in the Bronx. The officers believed Mr. Dong was driving recklessly and nearly hit a pedestrian. Mr. Dong resisted them and they arrested him about 5:00 p.m. Neither is it disputed that Officer Garcia’s wrist was sprained in the incident and that Mr. Dong was struggling with the two officers (Pet. Exs. 1-4; Resp. Ex. A). The only factual question presented here is whether in the course of this arrest, respondent used the word “fuck” in addressing Mr. Dong.
Respondent’s Admissions in the Disciplinary Interview and Testimony About That Interview Must Be Excluded For Failure to Provide Notice Under Civil Service Law § 75(2)
The strongest potential evidence against respondent was his own admission in the course of an interview by Captain Thomas Arnold on October 20, 2007, three days after the arrest at issue here, that he was “sure” he had used specific, profane language to the suspect. Respondent told the captain: “Yes, I’m sure I did.” He then admitted that he had said to Mr. Dong: “Show me your fucking hands, get up out of the fucking car” (Pet. Ex. 3). These statements by respondent must be excluded entirely because the Department admittedly failed to comply with the requirements of Civil Service Law section 75(2). That section provides in pertinent part:
Procedure. An employee who at the time of questioning appears to be a potential subject of disciplinary action shall have a right to representation by his or her certified or recognized employee organization under article fourteen of this chapter and shall be notified in advance, in writing, of such right. . . . If representation is requested a reasonable period of time shall be afforded to obtain such representation. If the employee is unable to obtain representation within a reasonable period of time the employer has the right to then question the employee. A hearing officer under this section shall have the power to find that a reasonable period of time was or was not afforded. In the event the hearing officer finds that a reasonable period of time was not afforded then any and all statements obtained from said questioning as well as any evidence or information obtained as a result of said questioning shall be excluded, provided, however, that this subdivision shall not modify or replace any written collective agreement between a public employer and employee organization negotiated pursuant to article fourteen of this chapter.
Civil Service Law § 75(2) (Lexis 2007) (emphasis supplied).
There was some doubt here as to whether Captain Arnold actually delivered the requisite warnings, even orally, to respondent. Moreover, the captain admitted freely that he supplied no written notice to respondent of his right to representation, that he was not familiar with Civil Service Law section 75(2), and that he knew of no one else at the Department who gave the requisite written notice of rights to respondent (Tr. 46-47). The captain acknowledged his error in having failed to record such an important notice in his handwritten notes, even though he did write in the same note pad that he gave notice of the right to representation to respondent’s partner, Officer Garcia. The captain recorded this notification in his October 31, 2006 handwritten notes of his interview with Officer Garcia. He also noted Mr. Garcia’s agreement to be interviewed without representation (Pet. Ex. 3). The omission from the same notepad with respect to any warning to respondent is an important one, which Captain Arnold conceded. I found Captain Arnold, a 22-year veteran of the Department police force now supervising 85 employees (Tr. 29), to be a credible witness, who readily admitted that it would be “crucial” and “critical” to include in his contemporaneous notes a statement that respondent had waived his Civil Service Law rights, and that he omitted such a notation because of his own error (Tr. 47). Even assuming that I accept Captain Arnold’s sworn testimony that he did give notice to respondent that he could have representation, the warning he said he gave to respondent (only that he informed respondent that he could speak with the captain alone or have somebody present, Tr. 46) was not adequate in the absence of a valid waiver of rights by respondent. Nor did the captain address the question of whether he afforded respondent a reasonable period of time to obtain representation. The Department produced no written waiver of Civil Service rights by respondent, who denied that Captain Arnold gave him the Civil Service Law notice before questioning him (Tr. 71-72). Finally, the evidence disabled the agency from claiming that this was not a disciplinary interview, and that, therefore, notice was not required in a preliminary, investigative interview. This is so because Captain Arnold testified clearly and without hesitation that he was conducting an investigation into allegations against respondent on October 20, 2006, from which investigation disciplinary charges could result (Tr. 46).
Based upon these uncontroverted facts establishing a violation of the applicable provision of the Civil Service Law, respondent’s admissions to Captain Arnold, and Captain Arnold’s and respondent’s testimony concerning the captain’s interview of respondent must be excluded. See, e.g., New York City Transit Auth. v. New York State Pub. Empl. Relations Bd., 8 N.Y.3d 226, 233-34, 832 N.Y.S.2d 132, ___ (2007) (under section 75(2), violation of rights results in the exclusion from a disciplinary hearing of statements made at the interview and evidence obtained as a result); Gardner v. Niskayuna Central School Dist., 2007 N.Y. App. Div. LEXIS, 2007 N.Y. Slip Op. 5816 (3d Dep’t 2007) (citing Transit Authority v. PERB); Police Benevolent Ass’n of N.Y. State Troopers, Inc. v. Div. of N.Y. State Police, 2007 N.Y. App. Div. LEXIS 8725, 2007 N.Y. Slip Op. 6201 (3d Dep’t 2007) (initial “critical incident” inquiries of state police concerning incidents of serious injury or death, discharge of a firearm, or traffic accidents involving agency vehicles did not trigger Civil Service Law right to representation due to plaintiffs’ lack of standing); Law Dep’t v. Stanley, OATH Index No. 1540/05, at 3-4 (June 15, 2005), aff’d, NYC Civ. Serv. Comm’n Item No. CD06-08-SA (Jan. 9, 2006) (critical question as to whether right to representation is triggered is whether the questioning is more than merely investigatory in nature or whether respondent was the “potential subject” of disciplinary action and should have been given the written notices required under the Civil Service Law); Office of the Comptroller v. Nagle, OATH Index No. 753/01, mem. dec. (Jan. 9, 2001) (same).
The Department’s Undisputed Failure to Produce All Required Documents in Discovery
Before reaching the question of whether the Department has met its burden of proof based on the remaining evidence, I must dispose of respondent’s motion to preclude the balance of the Department’s proof. Respondent’s counsel moved to preclude the testimony of the Department’s other witnesses on the basis that each of them acknowledged seriatim that there was more documentation, in the nature of files including interview memoranda, notes, an email, and a report, which, without dispute, fell within the formal, written demand for the production of documents served by respondent’s counsel on March 5, 2007, two months before the trial. The formal demand sought all documentation “supporting” the charge, including, without limitation, interview notes, investigation notes, logs and reports in connection with this matter. Petitioner’s attorney conceded that the agency’s document production had been insufficient, apologized, and represented credibly that he was learning of the existence of these documents for the first time at the hearing from his own witnesses’ testimony. I find that the agency’s witnesses took agency counsel by surprise -- they blindsided him with their testimony that there was more documentation that they had not supplied to him. This should not have happened. A diligent search for responsive documents by the Department’s counsel in advance of trial would have prevented such difficulties. For respondent’s part, rather than pursuing the missing documents in a collateral sanctions proceeding, or accepting a delayed document production, which might have put to rest the question of whether those documents were favorable to respondent, he chose to complete the hearing on the evidence submitted, with the motions for discovery sanctions pending on the record as it stood on the day of the hearing. Having made this tactical decision to proceed without the documents, respondent nevertheless sought the most severe discovery sanctions.
Although I accept agency counsel’s apology as genuine and find that the non-production of documents here was not willful, there must be a more diligent search for responsive documents than was performed here, as I noted on the record (Tr. 39). In this case, the fact remains that the documents the Department did introduce were produced in discovery or as soon as counsel received them on the morning of trial. In the absence of willful non-production of all documents that were required to be produced, I deny the application to preclude documentary evidence submitted by the Department that was produced to respondent’s counsel in advance of trial or the testimony of agency witnesses who indicated that there was more paper. I also decline respondent’s invitation to draw an adverse inference from the non-production in this particular case. There was no reason from the record here to conclude that the agency was deliberately hiding unfavorable information and the testimony gave no indication that any of the documents agency counsel did not even know existed was favorable to respondent.
Because Department counsel was learning for the first time, as were respondent’s counsel and the tribunal, that respondent was entitled to production of more documents, there was no opportunity to have pre-trial motion practice concerning the Department’s efforts to locate all relevant documents, and there was no occasion for respondent to seek a pre-trial order requiring production of additional documents. Although petitioner’s counsel offered to have a continuance and a second production of all the missing documents and to issue a subpoena to the Department of Investigation (“DOI”) for the investigative file, respondent’s counsel definitively refused the offer (Tr. 108), and did not seek sanctions against the Department’s counsel individually. Respondent’s refusal of a continuance does not take the onus off the agency. Discovery in this tribunal “shall be requested and completed promptly, so that each party may reasonably prepare for trial.” 48 RCNY § 1-33(c) (Lexis 2007). The burden was clearly on the Department in the first instance, under our rule 1-33(c)-(d), to produce the documents called for, or to interpose a timely objection to the request, or to bring to the tribunal’s attention its difficulty in obtaining responsive documents or any discovery dispute, within 15 days of receipt of the request (10 days if the response is served by mail), “sufficiently in advance of the hearing to allow a timely determination.” The rule required this procedure so that respondent could be informed that documents were being withheld and bring a motion to compel, if he so chose, before this tribunal. The purpose of the rule is to avoid unwarranted surprise at trial. The agency failed to fulfill its discovery obligations.