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Dep't of Correction v. Daniel
OATH Index No. 1874/04 (July 20, 2005), aff’d, NYC Civ. Serv. Comm’n Item No.CD06-46-SA (Apr. 24, 2006)
Respondent correction officer was found to have violated undue familiarity rules by providing an inmate with his home phone number and soliciting a future relationship with the inmate, and consequently receiving a phone call at home from the inmate. Respondent was also found to have made false and misleading statements about his conduct during his Mayoral Executive Order No. 16 interview. Termination of employment recommended.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
DEPARTMENT OF CORRECTION
Petitioner
- against -
KIRTNEY DANIEL
Respondent
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REPORT AND RECOMMENDATION
RAYMOND E. KRAMER, 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 Kirtney Daniel, a correction officer currently assigned to the Anna M. Kross Center, is charged with violating Department rules banning undue familiarity with inmates for having received six telephone calls at his home from an inmate during a two-week period in October 2002, and making false and/or misleading statements about his improper conduct when interviewed pursuant to Mayoral Executive Order No. 16 (ALJ Ex. 1).
A hearing on the charges was conducted before me on July 19, 2004 and September 23, 2004.[1 ]Petitioner presented three witnesses, including a Department investigator, a captain and the inmate who is alleged to have called respondent at home, in support of the charges. Respondent testified in his defense and acknowledged receiving one unsolicited phone call at home from the inmate, which he claimed was the result of his having given his phone number to the inmate several years prior to respondent’s employment by petitioner. Respondent denied making any false or misleading statements about the incident when interviewed about the matter.
ANALYSIS
There is no dispute that inmate Terrence Francis, while incarcerated at the George Mochan Detention Center (“GMDC’) on Rikers Island in October 2002, had respondent’s home phone number and made six telephone calls to respondent’s residence between October 1, 2002 and October 14, 2002. There is likewise no dispute that the first five calls, which were are all under a minute in length, were made at times when respondent was at work and thus was not in a position to receive them or speak with the inmate. The inmate indeed confirmed during the investigation and again at trial, that on these five occasions someone other than respondent answered and indicated respondent was not at home, and he hung up without leaving a message. Respondent denied any awareness of those five calls prior to being confronted at his investigatory interview with phone records indicating them, and petitioner presented no evidence to establish otherwise.
Thus, the charge of undue familiarity revolved around the sixth and final call. There was no dispute that when the sixth call was made, on October 14, 2002, respondent was at home and received the call and spoke with the inmate. Phone records (IFCOM printout) indicate that the call lasted 13 minutes and 47 seconds (Pet. Ex. 2).
Respondent and the inmate recalled the substance of the conversation between them in that phone call similarly – that the inmate tried to convince the respondent as to his identity and that respondent repeatedly denied knowing him and told him not to call there again.
The key issue here was how Mr. Francis obtained respondent’s home phone number. Inmate Francis, a career criminal with thirty-two acknowledged incarcerations who is currently serving a sentence of three and one half years to seven years for a drug sale conviction, was produced from the Edgecombe Correctional Facility to testify in this proceeding. He gave the following account of his dealings with respondent.
In the spring of 2002, Mr. Francis was incarcerated at GMDC and housed in 7 Main, an alternative lifestyle unit where gay men resided. Respondent was not a regularly assigned officer there but worked there occasionally (Tr. 82). One day that spring, when respondent was assigned to the area, inmate Francis became aware that respondent was standing at the door of his cell, the last one at the end of the tier, watching the inmate urinate. Mr. Francis started to cover up but respondent told him not to be “in such a rush,” asked the inmate to let him “see,” referring to the latter’s penis, and made various sexual innuendos and alluded to the type of unit in which the inmate was housed (Tr. 85, 97). When the inmate protested, respondent made veiled comments about things happening to inmates “who don’t go with the flow” and that “things have ways of finding themselves in [inmates’] cells” (Tr. 83,-85).
When respondent repeated such conduct on two more occasions, inmate Francis got very upset and expressed his dismay at being put in such position. Respondent told him not to be upset and that he would “make it up to him” (Tr. 86). He offered the inmate his phone number, which he had written on a piece of paper, and told the inmate to call him when he was released, but not before. Respondent also told the inmate that if he needed anything, respondent would get it for him (Tr. 86). Inmate Francis claimed that although he was upset by respondent’s conduct, he accepted the number, which he stored in his cell. According to him, he then tried to forget the entire interaction (Tr. 86-87).
Months later, in what the inmate recalled was December 2002 but the phone records revealed was actually October 2002, Mr. Francis was getting ready to be transferred from Rikers Island to his current upstate facility after having received his criminal court sentence. As the time came to leave and he was packing up his things, he came across the piece of paper with respondent’s phone number written on it in his locker (Tr. 88). On “impulse,” he decided to call the number just to “see if it was real” (Tr. 88, 105). He called the number several times unsuccessfully, as the phone records indicated and the parties did not dispute (Tr. 105).
When he finally got respondent on the phone, on what the phone records indicated was October 14, the inmate tried to convince him as to his identity. Respondent at first claimed not to know him, which got Mr. Francis angry and upset. At some point, according to the inmate, he could tell that respondent finally recognized him and that respondent’s “attitude” changed. Respondent nevertheless “pretended” differently and he told the inmate he did not know him and that he was not to call again (Tr. 88). Mr. Francis denied asking respondent for money and claimed that he only called respondent for “recognition” (Tr. 90).
Mr. Francis testified that despite feeling “disrespected,” he never reported the phone call or his contact with respondent to anyone. Nor did he ever report the incidents where respondent allegedly harassed him in his cell and made various comments and veiled threats, for fear that he might be retaliated against (Tr. 101-06).
Mr. Francis denied knowing or ever meeting respondent in the street or in a context outside of respondent’s employment with the Department (Tr. 91).
Respondent, for his part, denied allegations that he “harassed” or “propositioned” inmate Francis while the latter was incarcerated at GMDC, and gave a very different version of how the inmate came to have his home phone number. By way of background, respondent, a forty-five year old married father of nine children with a BA in English from City College, explained that he held several jobs before becoming a correction officer in June 2001, first as a guidance counselor at City College, while also a student there; then as a postal employee for four years, through 1997; and finally as a high school teacher for four years, through half of 2001.
Respondent claimed that he first met inmate Francis sometime around June 1997, while respondent was employed at the post office on 34th Street and Eighth Avenue in Manhattan and four years before becoming a correction officer (Tr. 119). Respondent was working on a midnight shift at the time and recalled an evening when he went out for a meal break about 3 a.m. On his return to the post office, Mr. Francis approached him in the street and started a conversation. Respondent explained that Eighth Avenue between 34th and 42nd Street is an area where young men often hustle for sex with men (Tr. 120). Respondent recalled that there was a degree of flirting between them at the time and that Mr. Francis asked for his phone number and respondent gave it to him. Mr. Francis, however, never called him and respondent forgot about the encounter.
Years later, after becoming a correction officer and finishing at the academy, respondent was assigned to GMDC and occasionally worked at 7 Main, a gay housing area to which officers generally did not like to be assigned. Respondent recalled an occasion in October or November of 2001, when he was assigned to 7 Main, that he came across inmate Francis standing with another inmate, during a period when inmates were being locked out of their cells. Inmate Francis smiled at him. Respondent recognized him immediately but looked away. As he started to walk off, he heard the inmate say something to the effect of “you don’t know anybody now,” and then apparently to the other inmate, “yes, I know him.” Respondent turned and said, “No you don’t,” and walked away (Tr. 124-25). The rest of the tour, Mr. Francis said nothing else to him and did not create any problems. After that date, there was no other contact between them in the facility. Respondent made no report of this brief encounter because he did not think it significant enough to warrant it (Tr. 148).
In January 2002, respondent was transferred out of GMDC and sent to the Brooklyn House of Detention. According to respondent, the one phone call he received at home from Mr. Francis on October 14, 2002, was almost a year after their brief encounter at GMDC. With respect to that call, respondent recounted that after returning home from work and taking a shower, he was called to the phone by his nephew. Respondent picked up the phone and said hello, and a voice replied, “Hello, Officer Daniel.” Respondent asked who was calling, and the caller told him not to worry about it. Respondent asked why he was calling and the person answered that he needed money. Respondent told him to “listen” and the caller interrupted and said, “No, you listen. You have a lot more to lose than I do.” Respondent demanded to know to whom he was speaking, but the caller would not identify himself (Tr. 128). Respondent asked from where the call was being placed and the caller answered from Rikers Island. Respondent warned him never to call his house again, told him that he was not going to send him any money, and hung up. The person never called back (Tr. 129). Respondent recalled that the conversation was much briefer than what the phone records indicated, speculating that the inmate may have been on hold for awhile until respondent got out of the shower and was called to the phone by his nephew. Respondent claimed not to know or to have recognized the caller as inmate Francis, and indeed claimed that he never even suspected inmate Francis, because he knew that he did not give out his phone number to inmates (Tr. 131). Respondent stated that he has lived in the same place with the same phone number since 1995, when he got married (Tr. 131-32).
The following day at work, respondent saw Assistant Deputy Warden (“ADW”) Victor Vasquez, when the latter came into his housing area, and told him about the call from the prior evening. ADW Vasquez told him not to worry about it and that it was probably a prank call. He advised that if the person called again, respondent should ask where he wanted the money sent and then report the matter to investigations. Respondent claimed that he also went to Deputy Warden Richard Thomas’s office on his lunch break and asked the deputy warden “hypothetically” what one should do if an inmate called him at home. Deputy Warden Thomas told him to let an investigator know about it. Respondent, however, took no further action because the caller never called back and he considered that to have been the end of it. Respondent did not write a To/From memorandum about the incident because he did not think that he had to and neither of the deputy wardens to whom he spoke instructed him to do so.
It was not until his subsequent Mayoral Executive Order No. 16 (“MEO 16”) interview on April 18, 2003, during the investigation that led to these charges, according to respondent, that he became aware that the caller had been inmate Francis from the investigators’ statements and the phone records they revealed to him. Respondent denied making any intentionally false or misleading statements during that investigatory interview, but acknowledged that he was less specific at the interview than at trial because his memory of the details of his contacts with inmate Francis and how the inmate got his phone number was less clear at the time. He also did not volunteer details not asked for by the investigators.
The resolution of the pending charges was essentially a determination as to the credibility of the two principal witnesses. I credited inmate Francis’s version as to how he obtained respondent’s home phone number over respondent’s version, for several reasons. First, in terms of the simple plausibility of the two accounts, respondent’s claim that he met Mr. Francis in a chance encounter on the street one night on 34th Street and Eighth Avenue in 1997 and spontaneously gave him his phone number, and that the inmate kept it for five years, took it with him to prison, and then suddenly called respondent at home out of the blue in October 2002 to try and get money from him, seemed highly improbable. It seemed highly unlikely that Mr. Francis would carry a scrap of paper containing a phone number on his person for so many years, that he would happen to have it on him at the time of his arrest and incarceration, that he would be able to enter the prison system with it, and that long after his incarceration, he would suddenly choose to call respondent at home. It made far more sense, as was claimed by the inmate, that he would have the number in his cell because he first obtained it after he was already in prison. Respondent admittedly worked several times in 7 Main where inmate Francis was housed, and did not dispute that the two encountered one another at that facility, although they gave different versions of the nature of such encounter(s).