REPORT AND RECOMMENDATION

Transcription

1 Dep't of Correction v. Parrish OATH Index No. 1386/03 (Aug. 6, 2003), aff'd, Comm'r Dec. (Sept ), aff'd, NYC Civ. Serv. Comm'n Item No. CD04-37-SA (July 8, 2004). Officer convicted of third degree assault found guilty of off-duty misconduct; nexus found between position as peace officer and engaging in assaultive criminal conduct. Officer also guilty of failing to notify command of arrest. Termination recommended on basis of misconduct aggravated by failure to accept responsibility for conduct and show remorse, and failure to notify the Department. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - HANNABLE PARRISH Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This employee disciplinary proceeding was referred by petitioner, Department of Correction (the "Department"), pursuant to section 75 of the Civil Service Law. Respondent Hannable Parrish is employed by petitioner as a correction officer. He is charged with engaging in unbecoming conduct for his arrest and conviction for punching his sister in the eye and breaking her orbital bone, and with failing to report this incident. Respondent denies the unbecoming conduct. The hearing on the charges was conducted before me on July 2, Petitioner's witnesses were Dietrick Parrish, respondent's sister, Investigator Gwendolyn Jones, Police Officer Daniel Heffernan, and Detective Miriam Piretti. Respondent testified on his own behalf. Based upon the record of the proceeding, I find that petitioner established the charges. I recommend a penalty of termination.

2 -2- ANALYSIS On September 26, 2002, respondent was arrested and criminally charged with 2 nd and 3 rd degree assault and harassment for punching his sister in the eye, which resulted in a broken orbital bone (Pet. Ex. 3). On January 22, 2003, respondent pled guilty to assault in the 3 rd degree, a class A misdemeanor under Penal Law section (1) (Pet. Ex. 1). He was sentenced to a one-year conditional discharge, $1,000 restitution, and required to take an anger management course; his sister was issued an order of protection. Respondent is charged with unbecoming conduct for his arrest and his commission of the underlying assault. Petitioner submitted documents attesting to respondent's conviction of the assault, including the Certificate of Disposition and the transcript of his plea allocution before Judge Dorothy Chin-Brandt of the Criminal Court of the City of New York (see Pet. Ex. 1). The plea allocution records respondent's admission that he intentionally assaulted Dietrick Parrish, his sister, on September 15, Inasmuch as the doctrine of collateral estoppel precludes respondent from relitigating his guilt in the prior conviction, respondent's guilty plea to the intentional assault is conclusive proof of the underlying facts. S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 344 N.Y.S.2d 938 (1973). The facts alleged in the first charge are therefore established by respondent's guilty plea. The case law provides that off-duty conduct may be the subject of discipline under the Civil Service Law where petitioner demonstrates that there is a sufficient nexus between the off-duty conduct and respondent's civil service position, Cromwell v. Bates, 105 A.D.2d 699, 481 N.Y.S.2d 137 (2d Dep't 1984); Zazycki v. City of Albany, 94 A.D.2d 925, 463 N.Y.S.2d 614 (3d Dep't 1983); Dep't of Environmental Protection v. Tosado, OATH Index No. 311/83 (Sept. 2, 1983), or where respondent has engaged in conduct involving moral turpitude. Furst v. New York City Transit Auth., 631 F. Supp (E.D.N.Y. 1986); Arancio v. Dep't of Sanitation, N.Y.C. Civ. Serv. Comm'n Item No. CD (Mar. 4, 1987). Correction officers are peace officers. As such, they are constrained to protect and preserve the peace and order of a civil society. Engaging in criminal conduct is "inherently inimical" to the law enforcement responsibilities of a peace officer. Dep't of Correction v. McDowell, OATH Index No. 150/88 (Oct. 7, 1988), aff'd sub nom., McDowell v. Koehler, 159 A.D.2d 424, 553 N.Y.S.2d 116 (1 st Dep't 1990). I find that respondent's violent assault on his sister

3 -3- is antithetical to the duties he was sworn to perform as a correction officer for the New York City Department of Correction, and that petitioner has shown a sufficient nexus between the off-duty conduct and respondent's position as a correction officer to overcome his right freely to engage in such conduct. Therefore, petitioner has established respondent's guilt of unbecoming conduct. I also find that petitioner established by a preponderance of the evidence that respondent failed to report the incident to his command, as required under Department rules (see Directive 5000R (III)(L)(14); (Tr. 11)). Investigator Jones testified that the Department first became aware of the incident when notified of respondent's arrest by the Department of Investigation (Pet. Ex. 4; Tr. 14, 19). Respondent never denied this assertion, and there was no evidence that respondent ever submitted a report notifying the Department of the incident or of his arrest. FINDINGS AND CONCLUSIONS 1. The preponderance of the credible evidence established that respondent engaged in conduct unbecoming an officer by his off-duty act of punching his sister and causing a serious injury consisting of a broken orbital bone, as set forth in charge The preponderance of the credible evidence established that respondent failed to efficiently perform his duties when he failed to report this incident to his command, as set forth in charge 2. THEREFORE: I find that petitioner has properly proved the pending charges. RECOMMENDATION Upon making the above findings and conclusions, I obtained and reviewed respondent's personnel record abstract (Form 22R) provided to me by the Department. Officer Parrish was appointed to his position as a correction officer on May 30, His disciplinary record contains two instances of lateness (for which he lost one and four vacation days, respectively), a use of force incident (five vacation days), and one instance of out of residence (five suspension days).

4 -4- Petitioner seeks to terminate respondent's 12-year career with the Department on the basis of this misconduct. To support this request, petitioner presented the testimony of the victim of the assault, Dietrick Parrish, to emphasize the egregiousness of the assault. The Department also seeks aggravation of the penalty on the basis of respondent's failure to report the incident which constitutes an integrity offense, which the Department seeks to give its highest priority. According to the testimony adduced at trial, the incident occurred as follows. On Sunday, September 15, 2002, respondent engaged in a verbal altercation with his sister, which culminated in his punching her in the eye and breaking her orbital bone which was repaired by surgery. The altercation arose out of a telephone conversation in which respondent and his sister disagreed about whether he would drive the following day to their lawyer's office in Manhattan, or whether they would take the Long Island Railroad (Tr. 43). As the telephone conversation became a heated argument, Ms. Parrish passed the telephone to their brother, Jeffrey, and walked away. Ten minutes later, respondent was at her door to resume the argument (Tr. 44). Respondent expressed his strong feelings about the length of time it was taking to resolve the estate of their father, who had died four years earlier; he attributed the delay to Ms. Parrish's failure to meet appointments with the lawyer. Both Parrishs testified that Ms. Parrish had been made executrix of their father's estate at the suggestion of Officer Parrish, after the siblings complained about his failure, as executor, to resolve the estate in the first two years after their father's death (Tr. 43, 78). The two argued for a while longer before respondent attempted to grab Ms. Parrish around the neck, as if in a headlock, and the argument escalated (Tr ). Respondent yelled at Ms. Parrish that he was tired of her disrespecting him and the lawyer, Mr. Moret. 1 Ms. Parrish testified that, while she was turned slightly away, respondent "sucker punched" her "full force... in [the] face." Her "whole face... caved in," and she felt "something warm dripping down [her] hand" and her "eye rolling around in her head." Her one-year-old son and 17-year-old daughter, who were standing nearby watching the entire event, began to scream. In the chaotic moments that followed, Ms. Parrish rushed into a bedroom holding her face. As respondent continued to pursue her, still punching her, her daughter grabbed him around his neck in an attempt to restrain him. As she did 1 Though never specified by the witnesses, both Parrishs pronounced their lawyer's name as "Moret," though it is spelled throughout the transcript as "M errit."

5 -5- so, Ms. Parrish pulled away and ran into an adjoining bathroom (Tr ). She said she heard her daughter say to respondent, "that's my mother; how could you hit a woman like that?" and Officer Parrish respond, "she's not a woman, she's nothing." As she stood in the bathroom, blood dripping from her face, she heard respondent say, "I'm tired of this, I'm tired of her.... You'd better get this shit straightened out now, or, otherwise, I'm going to kick your ass again, and I can get away with it because I can." At the hospital, doctors informed Ms. Parrish that she could not be released because her eye socket was fractured and required surgery (Tr ). She had surgery to repair a broken orbital bone and was released from the hospital after a week. Ms. Parrish's account of the physical assault, which I credited fully, was detailed, gripping, logical, and consistent with respondent's behavior in the days following the assault. Officer Parrish never provided a detailed alternative version of events. Rather, he admitted punching his sister, once; he denied continuing to hit her and threatening her. He sought to support his denials by the absence of some of these details from official documents which recorded Ms. Parrish's contemporaneous version of the incident, such as the criminal court complaint and domestic violence report (see Resp. Ex. A; Pet. Ex. 8; Tr ). I found these aspects of Ms. Parrish's testimony believable in the context and sequence of events, however, and did not see their absence from the criminal complaint as dispositive, or compelling, evidence that they were mere exaggeration. 2 Respondent's failure to provide a detailed description of events contributed to my skepticism about his denials (Tr. 79). Moreover, there were admissions made by respondent that were consistent with Ms. Parrish's testimony. For example, respondent admitted that his niece grabbed him in an attempt to restrain him after he hit Ms. Parrish (Tr. 97). He even placed himself inside the bedroom, where, according to Ms. Parrish, she retreated after the first punch while he continued to hit her. Yet, he provided no alternative explanation for following her into that room, such as to render aid or an apology. Two days after the assault, at their brother's suggestion, respondent went to the hospital to see his sister (Tr. 89). He explained to her how angry it made him to wait for two hours for her and 2 I also note that the Domestic Violence report corroborates Ms. Parrish's testimony that respondent hit her "in the back of the head a few times" in addition to punching her (Pet. Ex. 8).

6 -6- her mother to arrive at the lawyer's office for a previous appointment, and he spoke of looking through a family album and becoming angry when he discovered only two photographs of his father and several photographs of his mother's former boyfriend (Tr ). When Ms. Parrish objected that he was not appropriately apologetic about the assault, respondent said "forget that, we're not talking about that right now." Ms. Parrish decided that respondent's visit was disingenuous and selfserving, and they have had no interaction since then, except for one occasion. After Ms. Parrish was released from the hospital, respondent called her "screaming and hollering" about the fact that she had pressed criminal charges which resulted in his being forced to surrender his firearm to the Department (Tr ). There is precedent for terminating correction officers who engage in violent off-duty conduct, with or without a resulting criminal conviction. See Dep't of Correction v. McDermott, OATH Index No. 280/96 (June 26, 1996), aff'd, 250 A.D.2d 538, 673 N.Y.S.2d 127 (1 st Dep't 1998) (termination for pattern of on and off-duty harassing behavior toward Captain and his wife); Dep't of Correction v. Islar, OATH Index No. 321/88 (Oct. 5, 1988) (termination for conviction of third degree assault for engaging in fight with off-duty police officer, fracturing his jaw); Dep't of Correction v. Flores, OATH Index No. 146/82 (July 9, 1982) (termination for assaulting restaurant personnel and unholstering firearm). Even a civilian employee of the Department may be terminated for such misconduct. See Dep't of Correction v. Griffith, OATH Index No. 669/01 (Apr. 3, 2001), penalty modified, Comm'r Decision (June 28, 2001) (termination by Commissioner where officer stomped on girlfriend's chest breaking several ribs, overriding ALJ recommendation of 60-day suspension). Respondent seeks to mitigate any penalty by the submission of evidence of his prior supportive familial relationship with the victim and her children. Officer Parrish testified that he has been married for 10 years and has three children, ages 3, 7 and 14 (Tr. 82). He and his wife own their home. As a result of this incident, he was suspended from work for four months, with no other source of income (Tr. 82). He testified that he had often provided food and used clothing to Ms. Parrish's children his nieces and nephew who socialized with his children and shared in family occasions (Tr. 83). He assisted one of Ms. Parrish's daughters get her birth certificate so she could obtain her driver's permit, and he assisted her in taking the test (Tr , 69). While Ms. Parrish grudgingly acknowledged receipt of this familial support, she experienced it as nothing outside of

7 -7- the ordinary course of family life. What was most notable about respondent's testimony, and influenced my recommendation most, was his reticence to take responsibility for his conduct. Though I considered his argument for leniency, I was unprepared for respondent's ultimate conclusion that Ms. Parrish had brought this incident on herself. After apologizing for the assault, he stated that "This incident... could have definitely been avoided and that's what I've learned now from anger management and this incident also was very much provoked by Ms. Parrish" due to her failure to efficiently perform her executrix duties in settling their father's estate (Tr ). I found this to be a stunning declaration which demonstrated a lack of insight into his own violent acts and refusal to take responsibility for them, as well as a lack of true remorse. Much of his testimony was laced with blame that he heaped upon his sister for failing to "better her life" (Tr. 83, 84, 90). During his hospital visit with his sister, he reported asking her what she was going to do to "go on with her life" (Tr. 90). His preoccupation with his sister's relative lack of financial success suffused his testimony. It was impossible not to glean from his testimony that, in his mind, this all could have been avoided if she had just gotten her act together. I found little to recommend itself to that point of view. Besides his sister, respondent also found a way to apportion responsibility for his behavior both to his lawyer, Mr. Moret, and to his brother. Respondent testified that, after the assault, "I called [Moret] that night and told him I wanted no more dealings with the estate because every time [I] dealt with Mr. Moret there was a situation and I became the mediator between [him and my sister]" (Tr. 90, 96). According to respondent, his brother bore some blame for his being at the house where he assaulted his sister: "the reason why I came to [the] house is because my brother told me to come... and discuss the problem" (Tr. 95). Perhaps, we are to believe that, if his brother had not "told" him to come to the house, he would not have been driven there by his own anger and physically assaulted his sister. Even after completing the anger management course, respondent still has little appreciation for the extent of the violation he committed. While one can understand how this confluence of events, and the stress of a difficult family relationship between brother and sister, might have contributed to a very heated argument, they fail to assist me in understanding why that argument became physical. Critically, after it did, respondent did nothing to make amends. His expressions of remorse even at trial were tepid (Tr. 91), in contrast to his repeated protestations

8 -8- about his sister's many failures to settle their father's estate. On this record, I found little mitigation. Respondent's failure to report a serious incident such as this is completely unjustifiable, and is consistent with his failure to take appropriate responsibility for his actions. Not only does the Department have a right to expect its officers to act within the confines of the law and its departmental rules, it also has a right to expect them to be responsible and humane citizens. After taking part in a physical altercation that resulted in serious injury, it was incumbent upon Officer Parrish to take responsibility and face the music. He failed to do that. Moreover, respondent's lack of control and insight into his conduct raised a serious question about his fitness for work in the stressful environment of a jail where officers are regularly subjected to inmate provocation. Though mindful of the disruption that loss of a job can cause anyone, I find that the misconduct here justifies it and, therefore, recommend termination. August 6, 2003 TYNIA D. RICHARD Administrative Law Judge SUBMITTED TO: MARTIN F. HORN Commissioner APPEARANCES: MARTHA-IBIS HERNANDEZ, ESQ. Attorney for Petitioner KOHLER & ISAACS Attorneys for Respondent BY: DAVID McGRUDER, ESQ.