Dep't of Correction v. Reiser OATH Index No. 1890/04 (Feb. 17, 2005) Correction officer charged with failure to submit timely report following the realization that three Department portable radios were missing. ALJ finds that respondent failed to timely submit a report as to one of the radios. Respondent's defense that he submitted a report that was never found in Department files fails based on a presumption of regularity that submitted documents are properly processed absent evidence to the contrary. Long tenure with no prior disciplinary action and evidence that other correction officers may also have been responsible for equipment mitigates penalty. ALJ recommends reprimand. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - JOHN REISER Respondent REPORT AND RECOMMENDATION DONNA R. MERRIS, Administrative Law Judge This disciplinary proceeding was referred by petitioner, the Department of Correction ("Department") pursuant to section 75 of the Civil Service Law. Respondent, Correction Officer John Reiser, is charged in one specification with failing to efficiently perform his duties in that he failed to timely notify a supervisor, failed to timely submit a report, and failed to timely submit missing equipment reports concerning three missing Department radios (ALJ Ex. 1). A hearing was commenced before me on November 9, 2004. Petitioner presented the testimony of three witnesses: Assistant Deputy Warden Mark Hughes; Correction Captain Jose Gonzalez; and, Correction Officer Efraim Hernandez and relevant documentary evidence. Respondent testified in his own behalf and presented relevant documents.
-2- For the reasons stated below, I find that respondent failed to timely submit a Missing Radio Report as to one radio and recommend that he be issued a reprimand. ANALYSIS Respondent has been assigned to the Bernard B. Kerik Center (Manhattan Detention Complex) ("BBKC"), second-floor control since 1992. During his tour, respondent is in charge of distributing hand-held radios, gas canisters, emergency keys and flex cuffs (Tr. 46). 1 It is undisputed that in October 2001, Deputy Warden ("DW") Miguel Western was assigned as the Security Deputy Warden of the BBKC. Upon taking the new assignment, DW Western ordered the taking of an inventory of the equipment assigned to the area. In November 2001, Security Captain German Ocasio assigned the inventory task to Correction Officer Efrain Hernandez who determined that three portable radios were unaccounted for. Radios numbered 3600 and 3669 had been assigned to the security area and radio number 3667 had been assigned to the "movement" area (Pet. Ex. 1). On November 19, 2001, DW Lionel Lorquet replaced DW Western and ordered Security Captain Jose Gonzalez to complete the physical inventory of the security equipment. By November 26, 2001, Captain Gonzalez had determined that the three radios were, in fact, unaccounted for. Petitioner maintains that the radios are valued at $3,000 each (Pet. Ex. 1). At the hearing, Captain Gonzalez testified that, in November 2001 when he was first assigned as security officer at BBKC, he was made aware that there were missing radios and that he instructed Officer Hernandez to do an inventory. Officer Hernandez reported that he had informed Captain Ocasio that the radios were missing in June 2001 (Tr. 26-27). Captain Gonzalez spoke to respondent about the radios. Respondent told Captain Gonzalez that Correction Officer Card was aware of the missing radios "several years ago" (Tr. 30). In addition, respondent told Captain Gonzalez that he had filed a Missing Radio Report. However, Captain Gonzalez was never able to locate any report in the Department files. Respondent also told Captain Gonzalez that radio no. 3600 was assigned to the security captain, radio no. 3669 was assigned to the security office and radio no. 3667 was unaccounted for (Tr. 30-31). As to the two radios reportedly assigned to the security office, Captain 1 The transcript of the instant proceeding will be referred to as "Tr."
-3- Gonzalez testified that, since the time that he has been security officer, the radios have not been present in the security office (Tr. 31). Correction Officer Hernandez prepared a memorandum addressed to the facility warden on November 16, 2001 in which he stated that he was not able to locate the three radios (Tr. 45; Pet. Ex. 7). On December 3, 2001, Officer Hernandez submitted an addendum to his report in which he stated that he had informed the security captain in June 2001 that the radios were missing. In addition, Officer Hernandez stated that, from August 2001 until December 2001, he had continually informed the deputy wardens in charge of security that the radios were missing (Tr. 44-45; Pet. Ex. 6). It is respondent's testimony that in 2001, while Correction Officer Card was still employed by the Department, respondent was assigned to the second floor control post only two days of the work week. Presently, respondent is assigned to the post for four days and is responsible for dispensing gas canisters throughout the facility and accounting for the security keys used by the probe teams and is responsible for a "handful" of radios (Tr. 46-47). Prior to November 2001, respondent became aware that radio no. 3667 was missing. Officer Card notified respondent that the radio, assigned to Intake A, could not be accounted for and respondent asked for documentation to the effect that the radio was missing. Respondent's testimony is that, when a radio is assigned to a fixed post such as Intake A, accountability for the equipment lies with the captain in charge of that particular area. In any event, after he was informed that the radio was missing, respondent completed a Missing Radio Form and placed it in a security box to be given to the wardens, deputy warden for security and the tour commander (Tr. 47-48). Respondent testified that, sometime around the beginning of November 2001, Officer Card reported to respondent that the three radios, including radio no. 3667, were missing from Officer Card's possession (Tr. 48). Respondent wrote a memorandum to the facility warden on November 16, 2001 in which he stated that Officer Card was aware for "several years" that the radios assigned to the security office, nos. 3600 and 3669, were missing. In addition, respondent wrote that radio no. 3667 had been missing since September 2001 (Tr. 52; Resp. Ex. A). Department documents indicate that radio no. 3600 was assigned to the steady security captain in 1996 and, according to procedure, should have been returned to the security office each
-4- day. In 1996, Captain Ocasio was the security captain. Radio no. 3667 was assigned to the Intake A post in 1996 and radio no. 3669 was also assigned to the security office (Tr. 50-51; Resp. Ex. C). The Department inventory list as of January 2001 indicates that the three radios remained logged out to the security office and to the Intake A area as they were in 1996 (Tr. 51; Resp. Ex. D). Finally, respondent testified that he is responsible only for those radios that are assigned to his area, 2 Control. The notations on the inventory sheets indicate that, the radios assigned to certain areas, such as 2 Control, or security, or Intake, are to be returned each day to those specific areas (Tr. 53). Here, respondent is charged with violating Department rules which require correction officers to perform their duties efficiently (Rule 3.05.010); which place responsibility on correction officers for the good care of Department equipment (Rule 3.20.240); and, which require correction officers to submit a report concerning Department business when required (Rule 4.30.020). See Department Rules (eff. 1996). In order to prevail in this administrative proceeding, petitioner must show by a preponderance of the credible evidence that respondent violated the Department rules and is, thereby, guilty of misconduct. Foran v. Murphy, 73 Misc.2d 486, 342 N.Y.S.2d 4 (Sup. Ct. N.Y.Co. 1973). Preponderance has been defined as "the burden of persuading the trier of fact that the existence of a fact is more probable than its non-existence." Richardson on Evidence, 3-206 (J. Prince 11 th ed. 1995); Dep't of Correction v. McNeely, OATH Index No. 119/92 (Sept. 13, 1991), aff'd, 193 A.D.2d, 422, 598 N.Y.S.2d 946 (1 st Dep't 1993). The evidence before me preponderates in favor of a finding that respondent failed to timely submit a report concerning the missing equipment. Assistant Deputy Warden ("ADW") Mark Hughes testified that Department procedure requires a correction officer to complete a Missing Radio Report and file it with a supervisor upon learning that the equipment is missing (Tr. 12-13, 18). It is not sufficient, according to ADW Hughes, to only make a notation in the log book that the equipment is missing (Tr. 13). Respondent's position required him to inventory and monitor the whereabouts of the radios and he was required to report missing items upon the realization that they were not accounted for (Tr. 22). Captain Gonzalez testified also that it is not sufficient to only make an entry in the log book, a Missing Radio Report is required to be filed with a supervisor upon learning that the equipment is missing (Tr. 24). If the log book states that the equipment is assigned to an individual or group, the
-5- Department, absent a Missing Radio Report, assumes that the equipment is at the assigned post (Gonzalez: Tr. 41). During the investigation conducted in November 2001, a search of Department records was made in order to determine whether or not respondent had filed a Missing Radio Report. No report was found in Department files (Gonzalez: Tr. 30; Pet. Exs. 1, 3). Respondent contends that he completed a Missing Radio Report for radio no. 3667, the one assigned to Intake A, prior to the November 2001 investigation (Tr. 48). In his report dated November 16, 2001, respondent states that radio no. 3667 was missing since September 2001. Moreover, respondent states that Officer Card was aware of the other missing radios, no. 3600 and no. 3669, for several years (Resp. Ex. A). Thus, for at least one of the radios, no. 3667, respondent was aware that it was missing as early as September 2001. It is well settled that a presumption of regularity attaches to official acts. The law presumes that "no official or person acting under an oath of office will do anything contrary to his official duty, or omit anything which his official duty requires to be done." Matter of Marcellus, 165 N.Y. 70, 77, 58 N.E. 796, 798 (1900). Accordingly, if respondent had completed a Missing Radio Report and submitted it, absent evidence to the contrary, it is presumed that the report would have been reviewed by the Department employees to whom it was submitted and acted upon. There has been no showing of bias toward respondent nor any showing that any of respondent's superiors would have deliberately ignored the existence of such a filing. Accordingly, I find that respondent did not file a Missing Radio Report prior to November 2001. See Dep't of Correction v. Taylor, OATH Index No. 622/91(Sept. 6, 1991) (presumption of regularity defeats officer's claim that he submitted report to control room but that it was not properly forwarded to the captain who ordered it). Respondent would argue that Officer Card had responsibility for reporting the other missing radios, no. 3600 and no. 3669, and that Officer Card was aware that they were missing for some time prior to November 2001. The difficulty here is that the record is not clear as to whether or not Officer Card informed respondent of these missing radios at the same time, in September 2001, that he informed respondent that radio no. 3667 was missing. In addition, Officer Hernandez seemed to be aware, as well, that the radios were missing well before November 2001. Thus, on this record,
-6- I cannot determine when respondent knew that radios numbered 3600 and 3669 were missing or who was responsible for reporting that they were missing. Finally, respondent argues that the instant charge indicates only that respondent failed to fill out a Missing Radio Report only on November 20, 2001, when, in fact, he completed his memorandum about the missing radios on November 16, 2001. Therefore, according to the argument, based on the language of the charge, respondent may not be found guilty of any misconduct. While the allegation is not artfully drafted, it is clear from the evidence that the charge refers to the date that the Department determined that respondent had failed to timely file a Missing Radio Report. The charge was drafted in a way that gave respondent full notice of the alleged misconduct and the allegation has been fully litigated in this proceeding. Thus, respondent has not been prejudiced. See Dep't of Correction v. Carter, OATH Index No. 171/91 (Feb. 28, 1991), aff'd on guilt, modified on penalty, NYC Civ. Serv. Comm'n Item No. CD 93-13 (Mar. 13, 1993) (variance between charge and proof was minor and respondent was on full notice of the charge itself). THEREFORE: FINDINGS AND CONCLUSIONS Respondent failed to timely submit a Missing Radio Report upon learning in September 2001 that Department radio no. 3667 was missing. Petitioner has sustained the portion of the specification that alleges that respondent failed to timely submit a written report as to the missing radio by a preponderance of the credible evidence. The remaining portion of the specification is duplicative and should be dismissed. RECOMMENDATION Upon making the above findings, I requested and received respondent's employment history in order to make an appropriate penalty recommendation. Respondent was appointed to his position as a correction officer in October 1987 and has no prior disciplinary record. For the year 1997, respondent received a certificate of perfect attendance
-7- and, in 1996, respondent received a Departmental certificate of appreciation. As noted, respondent has an outstanding record of attendance. Petitioner has asked that respondent be suspended without pay for twenty days for this infraction. However, respondent's record and long tenure with the Department are significant factors in considering an appropriate penalty recommendation here. Moreover, the circumstances surrounding the failure of several officers to report the missing radios as shown by undisputed evidence at the instant hearing also mitigates the penalty recommendation. Respondent was shown to have knowledge that at least one of the radios was missing at least three months before the Department requested a report from him. As a long tenured correction officer and with experience on his post, respondent should have known that a report was necessary. Thus, some penalty is demanded for this failure. The Department has a decided interest in maintaining accurate inventories of its equipment, particularly expensive equipment such as the portable radios at issue here. Accordingly, I recommend that respondent be issued a reprimand. February 17, 2005 SUBMITTED TO: MARTIN F. HORN Commissioner APPEARANCES BY: WILLIAM BRYK, ESQ. Attorney for Petitioner KOEHLER & ISAACS Attorneys for Respondent By: MARLON MARTINEZ, ESQ. Donna R. Merris Administrative Law Judge