Civilian Complaint Review Board v. Smith OATH Index No. 662/04 (May 20, 2004)

Civilian Complaint Review Board v. Smith OATH Index No. 662/04 (May 20, 2004) Clerical associate guilty of insubordinate conduct and giving false and misleading information. ALJ recommended five-day suspension. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of CIVILIAN COMPLAINT REVIEW BOARD Petitioner - against - MARCELLINO SMITH Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This disciplinary proceeding was referred by petitioner, the Civilian Complaint Review Board (the "CCRB"), pursuant to section 75 of the Civil Service Law. Petitioner alleges that respondent Marcellino Smith, a clerical associate III, failed to obey the instructions of his supervisor and gave false and misleading information. Respondent denies the allegations. The hearing was conducted before me on January 26, 2004. Petitioner presented the testimony of supervisor Sandra Williams and Assistant District Attorney Bari Klein. Respondent testified on his own behalf. For the reasons set forth below, I find that petitioner established the charged misconduct and recommend a penalty of five days' suspension. ANALYSIS Respondent is charged with failing to obey the direction of his supervisor to bring records to a court proceeding in which he was expected to testify on behalf of CCRB, refusing to testify in a criminal case, and giving false and misleading information to an Assistant District Attorney about his ability to testify in the case. Petitioner contends that respondent's supervisor spent time with him conducting the necessary record searches, compiling the records, and preparing him for his testimony. Respondent refutes this and contends that he was untrained and inexperienced in giving

-2- testimony. He also denies that it was a part of his job. It is undisputed that, on October 14, 2003, respondent was expected to testify in a criminal case as an employee of CCRB about a search that he was to have conducted for the subpoenaed records. Assistant District Attorney Bari Klein was prosecuting the case and had subpoenaed the records. Respondent appeared at court without the subpoenaed records and told Ms. Klein that he would not testify because he had no documents and he had not conducted a document search. Sandra Williams is respondent's direct supervisor and the supervisor of CCRB's case management unit. She testified that the case management unit responds to the requests of various city and state agencies for records and data that CCRB compiles; the unit conducts records searches and provides those records to the requesting agency. On October 8, 2003, the unit received a subpoena from the Kings County District Attorney's office seeking an agency representative to testify the following day about records relating to an individual identified as "Maurice Dieyette" (Tr. 12-13; Pet. Ex. 2). Ms. Williams received the subpoena from Cathy Wang, CCRB agency counsel, who had spoken to the Assistant District Attorney on the case and taken notes of the relevant details (the "Wang notes," Pet. Ex. 2). After receiving the subpoena, Ms. Williams told respondent that he would have to testify for the agency (Tr. 13-16). She said he was chosen because he lived in Brooklyn and could go to court on his way into the office the next morning. Sometime after 4:00 p.m., she sat with respondent at the computer in the reception area where he was working, and they conducted the search for the records. They searched the name "Maurice Dieyette" and three case file numbers were generated which respondent wrote on the same piece of paper that also contained the Wang notes (Pet. Ex. 2). They then generated the complaint reports for each of the three case file numbers and printed them. The three complaint reports were entered in evidence as Petitioner's Exhibits 3, 4, and 5. Ms. Williams gave the three reports to respondent along with the subpoena to take with him to court the following day. Respondent went to court on October 9 th, but he was not needed that day. On October 10, 2003, CCRB received a second subpoena requesting respondent's presence in the case of "William Johnson" (Tr. 16-19). Respondent pointed out to Ms. Williams that this was a different name from the previous subpoena; late that afternoon, the District Attorney's office sent another subpoena which named as the subject "William Johnson aka Maurice Dieyet" (Pet. Ex. 7).

-3- When the corrected subpoena arrived, Ms. Williams told respondent that she would conduct the search with him later. Late that afternoon, Ms. Williams sat with respondent and they searched the name "William Johnson," which generated 11 to 13 case files. They printed each complaint report, all of which are dated October 10, 2003 (Pet. Ex. 6). Ms. Williams told respondent to take these complaint reports, along with the previous set of complaint reports and the subpoena, to court with him on October 14. Respondent refused saying that the subpoena only instructed him to take the subpoena with him, not the documents. She told him to take both. The subpoena is directed to "CCRB, M. Smith"; it does not indicate that documents are to be produced in court (Pet. Ex. 7). Ms. Williams said respondent was apprehensive about testifying "stating that he was unsure of what they were going to ask him, what if he answered the questions wrong, what if he didn't know what kind of answer to give" (Tr. 20). She stated at trial that giving testimony on behalf of the agency involved describing the process of conducting a record search (Tr. 23), but her testimony was unclear as to what instructions she gave respondent (Tr. 15). She said she reassured him and told him that ADA Klein would instruct him prior to putting him on the stand, and that he should indicate if a question was unclear (Tr. 20). She admitted that respondent had never testified in court before and had never received special training for giving testimony. She also confirmed that his tasks and specifications did not specify that he give testimony (Tr. 22-23). On cross examination, she conceded that respondent told her that he did not want to testify (Tr. 23), while on direct she characterized him as "a little apprehensive" (Tr. 20). Ms. Williams also qualified her recollection about whether they conducted the search together on October 10 ("I sat with him in the reception booth. I believe to the best of my knowledge, to the best of my recollection that we sat together" Tr. 18); she did not equivocate about this fact with respect to the first search (Tr. 14). When she arrived in her office on October 14, around 10:00 a.m., Ms. Williams had a message from agency counsel indicating that respondent had gone to court but refused to testify, and the ADA was upset (Tr. 20-22). She received no messages or phone calls from respondent while he was out. When respondent returned to the office he told her he did not testify because he was concerned he would perjure himself, though it was never clear to her why. She said that, in her

-4- absence, respondent could have sought assistance from the deputy director or from agency counsel, both of whom were in the office that morning. ADA Bari Klein testified that she was prosecuting a criminal case in which the defendant claimed that, on June 26, he filed complaints against the police officers testifying against him (Tr. 30-31). ADA Klein was seeking to rebut that claim with testimony from CCRB that no such complaints existed, so she subpoenaed CCRB to provide testimony about any relevant records in its possession. She had wanted to put on the CCRB witness in her case in chief, on October 9, but was required to put him on in her rebuttal case (Tr. 25). On October 9, she explained this to respondent. She also told him the name and address of the defendant in her case and that she would need his testimony about an incident that occurred on or after June 26, 2002. 1 She then excused him and said she would be in contact if she were able to call him as a witness. Respondent did not express any concerns to her about testifying that day; she was unaware if he had brought documents with him. He told her "just contact my office, I will be here again" (Tr. 32). She told him to contact her if he had any concerns about testifying so she could further explain what she would elicit from him; he never did (Tr. 33). On October 14, respondent appeared at Ms. Klein's office around 9:20 a.m. (Tr. 25-27). She said he had no documents with him. As they walked to the courthouse, Ms. Klein explained to respondent that she would ask him for information about his duties at CCRB, what records he had searched, and whether the defendant had made any complaints. Respondent then said that he would not testify. She asked if he went over his records at CCRB; he said he had not and he would not perjure himself. She told him she did not expect him to perjure himself, and he should not get on the witness stand if he did not feel comfortable. She told him she had spoken with Ms. Wang who said that she would explain what testimony was expected, in particular, that the CCRB records had been searched for complaints against the officers and whether such complaints existed. She asked respondent if there was someone they could contact at CCRB to help explain to him what was needed. Respondent told her that he would not call CCRB. She was confused about why, on this 1 Ms. Klein said that the defendant in her case was a Brooklyn drug dealer with prior convictions, mostly misdemeanors, but no violence (Tr. 33-35). T he pending case involved misdem eanor charges. She did not talk to respondent about these details. Respondent testified that ADA Klein told him the defendant in her case was a big drug dealer in Brooklyn who had various crack houses and was involved in prostitution (Tr. 44). He also said this information did not effect his willingness to testify.

-5- second appearance, respondent still did not understand what was expected of him; she suggested they could clear up the matter and he could refresh his recollection of the records. He said no. They then went to the criminal court building and ADA Klein suggested he call Ms. Wang (Tr. 27-29). He made a call to someone who tried to reach Ms. Wang, but he was unsuccessful reaching her or anyone else. She told respondent that he could leave because she did not feel comfortable putting him on the stand. Ms. Wang subsequently returned the call and sent Ms. Williams to testify. ADA Klein testified that respondent never said that he was intimidated about testifying in court or in a criminal case (Tr. 32); rather, he told her that he felt uncomfortable testifying because the agency had not conducted the search correctly (Tr. 29). After confirming with him that searches may be done by the defendant's name, by the location where the complaint was made, and by the officer's name and tax ID, she told him she did not understand his contention that the search was not done correctly because she had conveyed this information to Ms. Wang. He told her he had not conducted a search of the records himself (Tr. 30). Respondent is a clerical associate and has worked at CCRB for five years (Tr. 36-37). He testified that his duties have included reproducing records for the Law Department and covering the reception desk; he said he had processed very few requests made by district attorneys during his tenure ("less than five or six"). He had never testified in court. Respondent testified that Ms. Williams told him that he would be providing testimony in a case (Tr. 38-41). He asked her why he was being sent to testify "when this is something that is not of a normal procedure within our unit, as a clerical associate. I mean, this was all new to me. This was totally new to me." Ms. Williams gave him some complaint reports and case histories of some police officers as he worked at the reception desk, and they discussed them. He had a lot of questions since he had never testified before. He asked Ms. Williams what if there were "aka's" and she left to look into it; she did not return. She left with him the records that had been collected. He did not tell her at that time that he did not want to testify. On October 9, respondent went to court with a document that he identified as a complaint report (Tr. 42-43). ADA Klein told him he would not be needed that day, but he may have to return later (Tr. 46). When he returned to the office, he was perspiring from nervousness and his co-

-6- workers made jokes about it (Tr. 45). He said he was nervous because he knew nothing about this particular case, and it was all new to him. Subsequently, a second subpoena arrived (Tr. 46-47). His supervisor assured him that he would not have to answer questions that he did not know the answer to. He then said that she assured him that he would not have to testify, though it would not have mattered to him. He said there was no additional preparation for the second court appearance ("absolutely nothing"). When Ms. Williams told him he would have to appear, he told her he was concerned about his lack of preparation. He said he waited patiently for her to prep him and to go over the records that would be produced, but "she did not give me anything." He said, since it was the Friday before a Monday holiday and he would be in court on Tuesday, he gave his home phone number to Ms. Williams and implored her to let him know if he would need to provide any information in court. "So, as it stood Friday, the close of business, my supervisor did not give me one shred of a document, nothing other than the actual subpoena." On October 14, respondent reported to ADA Klein's office (Tr. 48-50). He told her he did not have any documents and had not been given any by his supervisor. He said he had returned the documents he had on the 8 th to his supervisor. When the ADA asked if he would testify, he told her he did not know anything about the case and did not have any information. As he understood it, on the witness stand, he would be asked whether the defendant had made any complaints against a particular police officer; he said he could not answer that question because he had not conducted a search. Respondent testified that he refused to testify because he did not have the records, not because he was nervous (Tr. 54). Respondent said he then made three attempts to reach someone at the agency by telephone (Tr. 50-52). He spoke with the executive secretary who tried to reach Ms. Wang, his supervisor Ms. Williams, and his director Denise Alvarez, and none of them were available. He did not recall if messages were left for any of them (Tr. 61). He said he offered to go to his office and return to the courthouse that day if the ADA could get an adjournment, and she declined. Respondent claims that the present charges are the result of petitioner's retaliation against him for filing a sexual harassment lawsuit (Tr. 52-53). He claims he suffered retaliation previously when

-7- he was brought up on disciplinary charges for hanging up the telephone on a constituent who he believed was a prankster. On cross examination, respondent admitted telling the ADA that the searches were not done correctly (Tr. 59). He denied telling her that there was no one he could call at CCRB to clarify his testimony. I. Failure to obey an order to bring records to court - Charge I Petitioner charges that respondent failed to follow his supervisor's direction and order to take certain records with him to court on October 14, 2003, in violation of CCRB's Code of Conduct, section 3, rule 3, subsection C. Subsection C prohibits "Refusing to obey a direct order, whether oral or written, or failing to carry out a direct order in an expeditious manner." I credit Ms. Williams' testimony that she instructed respondent to bring the records with him to court. I did not credit Mr. Smith's testimony that she failed to give him the records, despite his ardent pleas that she contact him over the holiday weekend to give him the necessary instructions. Because I found that respondent's demeanor lacked credibility, as discussed below, his claim was simply not believable. The fact that the subpoena does not direct that documents be produced in court does not excuse respondent from his obligation to obey his supervisor's direction. With few exceptions, civil service employees are obliged to obey the directions of superiors and address objections to the appropriateness of those directions to the grievance process at a later time. Ferreri v. New York State Thruway Auth., 62 N.Y.2d 855, 477 N.Y.S.2d 616 (1984); Strokes v. City of Albany, 101 A.D.2d 944, 475 N.Y.S.2d 635 (3d Dep't 1984); Health and Hospitals Corp. (Kings County Hospital Center) v. Gordon, OATH Index No. 1843/98 (Nov. 2, 1998); McCauley v. Dep't of Sanitation, NYC Civ. Serv. Comm'n Item No. CD 81-127 (Sept. 3, 1981). None of the exceptions to this general rule apply here. See Alper v. Gaffney, 73 A.D.2d 644, 422 N.Y.S.2d 744 (2d Dep't 1979) (orders that are unlawful); Ferreri, 62 N.Y.2d 855, 477 N.Y.S.2d 616 (orders that are clearly beyond the authority of the supervisor to make); Reisig v. Kirby, 62 Misc. 2d 632, 309 N.Y.S.2d 55 (Sup. Ct. Suffolk Co. 1968), aff'd, 31 A.D.2d 1008, 299 N.Y.S.2d 398 (2d Dep't 1969) (orders that imminently threaten the health or safety of the employee or others).

-8- Accordingly, I find that petitioner established misconduct under Charge I by a preponderance of the evidence. II. Refusing to testify and giving false and misleading information about his inability to testify - Charges II - V Petitioner alleges that, after arriving at court, respondent refused to give testimony and misrepresented to the ADA that he had never conducted a record search, that petitioner did not conduct the records searches correctly, and there was no one at the agency that he could call to confirm the information necessary for him to testify. Petitioner charges that respondent's conduct violated CCRB's Code of Conduct, section 3, rule 3, subsections J (negligence), K (incompetence), N (giving false or misleading information), and T (conduct prejudicial to good order and discipline). As a result of respondent's refusal to testify, CCRB had to send another employee to testify in the case. Resolution of the facts is dependent upon an assessment of the relative credibility of Ms. Williams and respondent. To make a factual finding, in addition to assessing credibility, it is also necessary to weigh the probative value of the evidence. I found that petitioner proved that respondent committed misconduct by refusing to testify and giving false and misleading information to ADA Klein. Ms. Williams testified that she conducted both searches with respondent, and that respondent was given the appropriate records pursuant to those searches prior to both trial dates. Respondent denied conducting any searches in preparation for his testimony. He also denied being given any documents on October 10 th to use for his October 14 th court appearance. I credited Ms. Williams' account of the facts. After weighing the credibility of the witnesses, I determined that much of respondent's testimony was untrustworthy, in part, because of his demeanor at trial, and, in part, because of inconsistent statements he made. First, respondent's demeanor lacked candor and was marked by a flair for drama that appeared disingenuous. For example, he feigned tears when explaining that he had become so "distraught" when disciplinary charges were filed against him that he had not reported to work since then (Tr. 64). I found this claim highly incredible.

-9- Second, respondent sought to diminish his capabilities in a manner that seemed calculated to understate his skill set and was contradicted by other testimony. Although he acknowledged that he was trained to conduct searches of CCRB records and regularly searched documents for the Law Department, he claimed that he did not know the procedures for responding to subpoena requests "because there are other intricate parts" to it (Tr. 57-58). When pressed about the difference between these searches, he finally admitted that they were "pretty much about the same." He also tried to depict his ability to execute searches as dependent upon his supervisor; when asked to explain his failure to conduct his own search for the records that he claimed his supervisor failed to give him, he gave the excuse that his "supervisor had the information and this was in her authority and all instructions were coming directly through [her]" (Tr. 63). Third, respondent's testimony contained other disturbing inconsistencies. For example, he initially denied having the Wang notes in his possession on October 8, probably because they contained his handwriting which, according to Ms. Williams' testimony, was evidence that he conducted the first search along with her. Later, however, he conceded that the handwriting on the notes was his (Tr. 54). I find that petitioner established that respondent gave false and misleading information to ADA Klein when he told her that he had not conducted a search for records and that the searches that were conducted were performed incorrectly. There is no question that respondent conducted the first search; his own handwriting on the notes he took during the search discredit his contrary testimony. Although Ms. Williams was somewhat equivocal about the second search, respondent's testimony was unreliable and therefore an insufficient contradiction of her recollection that they conducted the search together. Respondent admitted telling ADA Klein that the searches were conducted incorrectly. There was no evidence that this was true. Even respondent's own testimony provided no support for the statement. Therefore, petitioner sustained Charge II as to these statements. Although ADA Klein credibly testified that respondent told her that he would not call the agency to receive information necessary for him to testify, she also testified that he subsequently made such phone calls. I therefore do not find his statement to constitute misconduct. See Office of the Comptroller v. Frazier-Lee, OATH Index No. 1199/03, at 32 (Dec. 4, 2003) (a prospective

-10- refusal to obey an order that is later complied with is not misconduct where it evidences "mere disagreement" rather than "a true refusal"; after initial refusal, respondent did the work). I recommend dismissal of Charges III and IV, which allege that respondent's acts were negligent and incompetent, respectively. "[A]cts of negligence are properly charged as misconduct when they involve instances of carelessness, inattentiveness or recklessness, and are properly charged as incompetence where the negligent conduct arises from an inability to perform the job function." Dep't of Correction v. Baez, OATH Index No. 182/81, at 8 (Aug. 6, 1981) (citations omitted). Here, I have found respondent guilty of intentional conduct, therefore he was not negligent. Moreover, there was no demonstration that respondent could not perform his job; in fact, it was never established that giving testimony was a part of his job. Therefore, these specifications should be dismissed. Respondent does not dispute that he refused to testify and, by his refusal, I find him guilty of conduct prejudicial to the good order and discipline of the agency in accordance with CCRB's Code of Conduct, section 3, rule 3, subsection T, as alleged in Charge V. Though respondent may have been entitled to grieve being ordered to testify when his job specifications did not expressly require him to do so, it was his duty first to obey his supervisor's instruction and to grieve it later. See Ferreri, 62 N.Y.2d 855, 477 N.Y.S.2d 616 (establishing general rule of "obey now, grieve later"). FINDINGS AND CONCLUSIONS 1. On October 14, 2003, respondent failed to obey his supervisor's instruction to bring records with him to court to testify in a criminal case, in violation of Code of Conduct, section 3, rule 3, subsection C. 2. On October 14, 2003, respondent gave false and misleading information to ADA Klein that he had never conducted a records search for the criminal case and that petitioner did not conduct the records searches correctly, in violation of Code of Conduct, section 3, rule 3, subsection N. Petitioner failed to prove that respondent's statement that there was no one for him to call at the agency constituted misconduct.

-11-3. Petitioner failed to prove that respondent was negligent, as alleged in Charge III. 4. Petitioner failed to prove that respondent was incompetent, as alleged in Charge IV. 5. On October 14, 2003, respondent failed to obey his supervisor's instruction to testify at a criminal trial, in violation of Code of Conduct, section 3, rule 3, subsection T. THEREFORE: I find that petitioner sustained Charges I, II and V, as set forth above. I further find that Charges III and IV should be dismissed. RECOMMENDATION Upon making the above findings and conclusions, I obtained and reviewed respondent's personnel record abstract provided to me by the petitioner. Respondent was appointed to a position as a provisional secretary III-A on August 24, 1998; he received a transfer of his clerical associate III title from his tenure at a prior agency on December 22, 1998. He received performance evaluations of "very good" in 1999, 2000, and 2001, and a "satisfactory" evaluation in 2003. No information was reported for 2002. Respondent's prior discipline consists of forfeiture of three days' annual leave in 2002 for hanging up the telephone and not responding to a call from an agency constituent; he received a verbal warning in 2003 for disrespectful and insubordinate behavior toward his supervisor. Petitioner seeks a penalty of 30 days' suspension. My conclusion about this case is that respondent was panicked about testifying in court, a new task that he was unsure about, so he sabotaged his ability to do so by disobeying his supervisor's instructions, and he lied to cover it up. Respondent's conduct was insubordinate and deceptive and it should be punished accordingly. See Dep't of Correction v. Buford, OATH Index No. 388/02 (June 17, 2002), aff'd, NYC Civ. Serv. Comm'n Item No. CD03-49-SA (June 12, 2003) (10-day suspension for incident that included disrespect, insubordination and submission of a late report);

-12- Dep't of Environmental Protection v. Onibokun, OATH Index No. 535/95 (Nov. 3, 1994) (eight-day suspension for intimidating and insubordinate conduct toward supervisor, arriving late to work, and refusing to obey supervisor's order to perform his work tasks as directed). I note that respondent's lack of candor at trial was also disturbing. In fashioning a penalty, the conduct must be evaluated in the context of the circumstances that surrounded it. I found it significant that respondent's job tasks and specifications do not indicate that he is expected to testify in court. His supervisor admitted as much and petitioner gave no evidence that clerical associates at CCRB, in general, were expected to and did perform this task. It was undisputed that respondent had never done so previously. Though his supervisor conducted the searches with respondent, the degree to which she prepared him for giving testimony was unclear to me. Both searches were conducted late in the day just before he was to testify. Ms. Williams told respondent that ADA Klein would prepare him. ADA Klein indicated that she expected that Ms. Wang, agency counsel, would have prepared him. There was no testimony that Ms. Wang ever talked to respondent about the criminal case. Under these circumstances, it seemed reasonable to me that respondent was apprehensive about testifying. I therefore found mitigation in these facts. Petitioner contends that respondent should be charged with the results of his failure to testify, which included office disruption because Ms. Williams had to testify in his place, but I disagree. Respondent's supervisor conceded that, on October 10 th, respondent told her that he did not want to testify, that he was confused about what was expected of him, and that he would not take the documents with him. Yet, she did nothing to reassign the task to someone else. Though Ms. Williams said she chose respondent because he lived in Brooklyn, she never indicated that there was any other reason for selecting him, or that no one else was available for the task. Again, I would view these circumstances differently if giving testimony was a part of respondent's job duties. In light of the foregoing finding of guilt and mitigation, I recommend a five-day suspension. I find that this penalty is sufficient to demonstrate to respondent that his conduct was unacceptable. Because the proven misconduct arose from a single incident, this recommendation offers one penalty for the three rule infractions. See Dep't of Correction v. Buford, OATH 388/02 (10-day suspension for single incident which included disrespect, insubordination and submission of a late report);

-13- Human Resources Admin. v. Marfo, OATH Index No. 1643/97 (May 27, 1998) (where multiple specifications alleged that conduct occurring in the same incident violated more than one rule provision, only one penalty would be imposed for the conduct). May 20, 2004 SUBMITTED TO: FLORENCE L. FINKLE Executive Director APPEARANCES: RICHARD BUCKHEIT, ESQ. Attorney for Petitioner DRUYAN & ASSOCIATES Attorneys for Respondent MARTIN DRUYAN, ESQ. Tynia D. Richard Administrative Law Judge