Dep’t of Correction v. Patterson
OATH Index No. 1884/02 (Feb. 25, 2003), aff'd in part, rev'd in part, Comm'r Dec. (May 9, 2003),
modified on penalty, NYC Civ. Serv. Comm'n Item No. CD05-09-M (Mar. 10, 2005), appended.
Summary: 1. Petitioner established that respondent received over 197 telephone calls from a
particular inmate that had been, prior to the first telephone calls, housed in her facility and within
her assigned housing area. Telephone calls to respondent’s home number were made while inmate
was later housed in respondent’s facility, but not her housing area. Respondent contended that
inmate was a friend of her son and nephew and that she was unaware of telephone calls. ALJ found
testimony incredible due to inconsistent and contradictory statements made by respondent’s son and
nephew as to whether or not respondent was aware of from whom the telephone calls were coming.
Respondent also inconsistent in statements as to when she became aware of the telephone calls.
ALJ found respondent to be incredible in denying that she knew or recognized inmate. Pervasive
nature of telephone calls led to conclusion that undue familiarity was established.
Petitioner established that respondent associated with former inmate at social outing sponsored by
Correction Officer’s Benevolent Association. Credibility issues included conflicting statement of
respondent’s son and nephew as to whether respondent saw and/or spoke to former inmate and
whether or not former inmate left the outing in the company of respondent.
2. Petitioner established that respondent failed to notify the Department that an inmate was
telephoning her home telephone. ALJ relies on theory of presumption of regularity to discredit
respondent’s contention that she gave a memorandum to facility security officer. Security Officer
and security Captain and personnel Captain all testified that no memorandum was present in any of
three files in which the memorandum would have been placed had it been received by them. In
addition, ALJ did not credit testimony of colleague of respondent to the effect that she placed a copy
of the memorandum on a counter in the Deputy Warden’s office when no one was present in the
office. Moreover, respondent’s colleague never inquired of the Warden’s Office whether they
received the memorandum nor did she inquire of respondent if respondent had submitted the
memorandum to the Security Office. Finally, ALJ found that respondent’s testimony was too
inconsistent with that of her colleague to be credible concerning the drafting of the memorandum.
3. Petitioner established by a preponderance of the credible evidence that respondent gave false
and/or misleading statements concerning her relationship with the inmate at an interview in the
Inspector General’s office pursuant to Mayoral Executive Order No. 16.
Petitioner did not establish that respondent engaged in undue familiarity with the inmate by allowing
the inmate to reside in her home for two weeks while he was out on bail. ALJ found inmate’s
statements to Department Investigator to be incredible. In addition, ALJ did not draw inference from
Investigator’s telephone conversation with respondent’s son to the effect that mail for the inmate
could be sent to respondent’s home address, that the inmate had resided with respondent.
Petitioner did not establish that respondent gave a false and/or misleading report of her timely
compliance with Department rules, regulations and directives on notification requirements.
Petitioner presented no evidence on allegation.
4. Notwithstanding respondent’s tenure of twelve years with the Department and the lack of any
prior disciplinary adjudications on her record, ALJ recommended termination of respondent’s
employment as a correction officer because of pervasiveness of the telephone calls and respondent’s
failure to assume responsibility for her actions.
DONNA R. MERRIS, Administrative Law Judge
This employee disciplinary proceeding was referred by petitioner, the Department of Correction
(“Department”), pursuant to section 75 of the Civil Service Law. The respondent, Correction Officer
Cheryl Patterson, is charged with engaging in undue familiarity with an inmate or inmates; with the
failure to promptly and properly notify her command that the inmate was housed at her facility; that
the inmate resided at respondent’s home; and, that respondent gave false and/or misleading
statements regarding her relationship(s) with inmates and former inmates and with regard to her
compliance with Department rules, regulations and directives related to notification requirements.
The Department alleges that these actions are all in violation of Department rules, regulations and
directives (ALJ Ex. 1).
A hearing was held before me on December 9, 2002. Petitioner presented five witnesses: Correction
Officer and Investigator Migdalia Figueroa; Correction Officer Joseph Jones; Correction Captain
Patrick Flynn; Assistant Deputy Warden Edmund Duffy; and, Correction Personnel Captain Iris
Parker. Respondent presented the testimony of her son, D’tanyon Patterson, her nephew, Harold
Smith, and Correction Captain Berneice Foster. Respondent testified in her own behalf and denies
the allegations.
For the reasons stated below, I find that petitioner has proven by a preponderance of the credible
evidence that respondent engaged in undue familiarity with an inmate and former inmate, that
respondent failed to promptly and properly notify the department of her contact with the inmate and
that respondent gave false and/or misleading statements to the Inspector General’s office during a
Mayoral Executive Order No. 16 interview. I recommend that respondent be terminated from her
position as a correction officer.
ANALYSIS
I
This matter came to petitioner’s attention in July 2001. An allegation was made to the Department
Inspector General’s Office that, at a Correction Officer’s Benevolent Association (COBA) picnic at
Rye Playland on July 14, 2001, a correction officer was introduced to respondent’s “boyfriend.” The
correction officer recognized the boyfriend as a former inmate that was housed in the facility to
which respondent was assigned. The inmate’s name was Simpson Valdez or Valdez Simpson (Tr.
7).1 Correction Investigator Migdalia Figueroa testified as to the procedure for investigating such
an allegation.
During the time that an inmate is incarcerated, he or she is given a “pin” number that allows the
1
The inmate hereinafter will be referred to as Valdez Simpson.
inmate to make telephone calls. When the inmate enters the pin number into the telephone system,
the system records the number that the inmate is calling. In the instant case, Officer Figueroa first
reviewed respondent’s personnel file from which she obtained respondent’s home telephone number.
She then entered that telephone number into the Department Inmate Telephone System in order to
determine whether or not any inmate telephone calls were made to it. In her initial check, Officer
Figueroa found that 20 telephone calls were placed to respondent’s home telephone by inmate
Simpson Valdez during the period May 21, 2001 to May 27, 2001, when inmate Simpson left the
system on bail. Department records revealed that inmate Simpson had been incarcerated and housed
in respondent’s housing area from January 2001 until March 23, 2001 (Tr. 7-8; Pet. Ex. 1).
Following a failed attempt to interview Mr. Simpson, Officer Figueroa did a further search of the
system telephone logs from which she determined that Mr. Simpson returned to the system in August
2001. The investigator’s research revealed that inmate Simpson was calling respondent’s house on
a regular basis and that from May 21, 2001 through November 29, 2001, there were 205 calls to
respondent’s house, 197 of which were directly attributed to inmate Simpson’s assigned pin number
(Tr. 8-9, 12; Pet Ex. 1). As the Department telephone logs denote the time that the calls were made,
Officer Figueroa then compared those times to respondent’s time card (Pet. Ex. 2) in order to
determine whether or not the calls were made during a time that respondent was off-duty or on a
“pass” day (Tr. 9). The comparison showed that all of the calls to respondent’s home, with the
exception of two or three, were made either before her tour of duty began or immediately after
respondent’s tour ended. Thus, Officer Figueroa concluded that respondent was not working during
the hours that the telephone calls were made to her home (Tr. 11; Pet. Exs. 1 & 2).
To look for a pattern, Officer Figueroa compared past records with respondent’s telephone number
from which she learned that, between May 21, 1996 and January 23, 1999, there were inmate
telephone calls to her house. For those telephone calls, respondent was not on duty when they were
made to her home. Between May 1996 and November 29, 2001, there were 310 calls to respondent’s
home telephone (Tr. 13-14).
Following Officer Figueroa’s investigation, respondent was ordered to appear for an interview
pursuant to Mayor’s Executive Order 16 on February 26, 2002. During that interview, respondent
stated that Inmate Valdez Simpson had been calling her home since August 2001 because he is a
friend of her son D’tanyon Patterson, who resides with respondent. Respondent contended that her
son gave the telephone number to inmate Simpson. Further, respondent stated that inmate Simpson
had visited her son at their home on one occasion, in February 2002, just prior to respondent’s
interview date. Respondent acknowledged that inmate Simpson had been incarcerated in the facility
to which she is assigned and, in fact, was assigned to her housing area. She met inmate Simpson in
February 2001. Respondent stated in the interview that, at the COBA family day in Rye Playland
in July 2001, she saw inmate Simpson with her son and that inmate Simpson left Rye Playland with
her and her family. Respondent denied that she had or has any relationship with inmate Simpson.
At the interview, when asked whether or not she had notified the Department that inmate Simpson
was an acquaintance, respondent stated that she had submitted a memo to the facility’s Security
Office in August 2001. Respondent gave the memo to Officer Jones. When Officer Jones
determined that inmate Simpson was incarcerated in her facility, Officer Jones put that information
on the memo (Tr. 14-17; Pet. Exs. 3, 4).
Officer Figueroa interviewed Officer Joseph Jones concerning the instant issue on March 8, 2002
and on April 8, 2002. At the March 8 interview, Officer Jones acknowledged that he knew an
Officer Patterson. Officer Jones denied that Officer Patterson had ever given him a memorandum.
At the April 8, 2002 interview, Officer Jones was told of respondent’s contention that she handed
a memorandum to him in August 2001 and that Officer Jones had made a notation on it that inmate
Simpson was housed at her facility. Officer Jones denied that the conversation took place and denied
that he received any notification memorandum from respondent. Officer Jones did state that, toward
the end of summer 2001, he encountered respondent in the officer’s kitchen, where respondent told
him that a friend of her son’s was “running up” her phone bill (Tr. 17-18; Pet. Exs. 5A, 5B, 6).
After respondent stated to Officer Figueroa that she had submitted a notification memorandum to
the Security Officer, Officer Figueroa telephoned the security captain at George Mochan Detention
Center (GMDC). By telephone on February 26, 2002, Officer Fiegueroa asked Security Captain
Flynn to check the files, including respondent’s personnel file, for a memorandum from respondent
notifying the facility that inmate Valdez Simpson was telephoning her home. Captain Flynn returned
the telephone inquiry from Officer Figueroa and stated that there were no notification memoranda
from respondent in the files (Tr. 20; Pet. Ex. 7).
On February 26, 2002, directly after respondent left her office, Officer Figueroa telephoned
respondent’s home and spoke to one of respondent’s sons, Ramel Patterson. Ramel Patterson told
Officer Figueroa that he did not live there, but that he came to the house on occasion. When asked
whether Mr. Simpson was his mother’s boyfriend, Ramel said, “hell no” (Tr. 21). Officer Figueroa
asked Mr. Patterson whether Mr. Simpson was there, to which he responded that Mr.Simpson was
not there and Mr. Patterson did not know when he would be there. Officer Figueroa asked whether
she could mail some money for Mr. Simpson to respondent’s home. Mr. Patterson replied that the
money could be mailed there (Tr. 20-21; Pet. Exs. 8, 9).
Finally, Officer Figueroa interviewed inmate Simpson on February 26, 2002. During that interview,
inmate Simpson told the officer that he was a friend of respondent’s son, Lamont. Inmate Simpson
also told Officer Figueroa that he had lived at respondent’s house for about two weeks after he was
released from jail in November 2001 and that he had paid respondent $100.00 each week. Mr.
Simpson stated that he had been at Rye Playland, however, he denied that he saw respondent there
and denied leaving Rye with respondent and her family (Tr. 22-23; Pet. Ex. 10).
It is Officer Figueroa’s testimony that correction officers are obligated to notify the facility security
office in the event that they are receiving telephone calls from inmates. The security office must then
forward a copy of the notification to the inspector general’s office. The correction officer is required
to make notification immediately upon the realization that the inmate is incarcerated. The purpose
of the rule is to avoid placing relatives or acquaintances of officers in the same facility in which the
officer works. The Department believes that, if the officer and the inmate are in the same area, a
significant security risk is posed (Tr. 24-25).
At the hearing, Officer Joseph Jones’ testimony was consistent with the answers he gave to Officer
Figueroa during her investigation of this matter. Officer Jones has been a Security Risk Group
Officer at GMDC for one and one-half years. He testified that he often sees respondent in the
morning and that, one morning, respondent mentioned to him that a friend of her son’s was running
up her telephone bill. Respondent did not give Officer Jones a memorandum to the effect that an
inmate was calling her home, nor did Officer Jones do a computer run in order to determine the
whereabouts of any inmate. It is Officer Jones’ testimony that, if he had received a memorandum
from respondent, it is the practice in the security office to submit the note to the security captain for
a determination of whether or not the inmate should be transferred out of the area. Officer Jones
denied having seen respondent’s August 2001 memorandum (Resp. Ex. A) prior to having been
shown it by Officer Figueroa during the interview with her on April 8, 2002 (Tr. 40-44).
Similarly, Captain Patrick Flynn who has been the security captain at GMDC for two and one-half
years, testified that he had never received any notification from respondent that she was receiving
telephone calls from an inmate. If Captain Flynn had received any notification to that effect, it is
standard procedure for him to arrange for the transfer of the inmate out of the facility in order to
separate the inmate and the employee and to file the notification in his files. Finally, Captain Flynn
would notify the Department inspector general’s office of the officer’s notification and of his action
taken (Tr. 51-52). Captain Flynn reviewed his records for the years 2000 and 2001 and found no
memoranda from respondent. Further, Captain Flynn testified that, if an officer notifies him of
contact with an inmate, he would instruct the officer to write a report, submit a copy to Captain
Flynn, to Deputy Warden Duffy and place a copy in the officer’s personnel file. The reports should
be time stamped upon their receipt, however, there is not any notation made in any log book
concerning the receipt of such reports from correction officers (Tr. 53).
It is Captain Flynn’s testimony that he received information on July 18, 2001 that respondent was
at the COBA picnic at Rye Playland with former inmate Valdez Simpson. On July 18, 2001, a
correction officer approached Captain Flynn and told him that he had seen respondent at the picnic
and that respondent introduced Valdez Simpson as her boyfriend. The officer recognized Mr.
Simpson as a former inmate from respondent’s housing area (Tr. 49-50). Pursuant to Department
procedure, Captain Flynn immediately notified Deputy Inspector General Lumarano concerning the
information he had received (Tr. 51).
Finally, Captain Iris Parker, GMDC personnel captain, testified at the hearing that, upon review of
respondent’s personnel file, no memorandum concerning the receipt of telephone calls from an
inmate was present (Tr. 67-68).
II
D’Tanyon Patterson, respondent’s son, testified that he and his cousin, Harold Smith, met Valdez
Simpson at a talent show sometime in the year 2000. Following the performance, Mr. Simpson
approached the cousins to discuss the formation of a group. Thereafter, the young men saw each
other approximately twice a week, sometimes at the Patterson house and sometimes at other
locations (Tr. 70-71). D’Tanyon Patterson testified that his mother knew of Mr. Simpson, because
he told respondent that he was having company. Respondent was not always at home when Mr.
Simpson came to the house. D’Tanyon gave Mr. Simpson respondent’s telephone number as there
was only one telephone line in the house. When Mr. Simpson called, it was always to speak to either
D’Tanyon or to Harold Smith. According to his testimony, the last time D’Tanyon saw Mr. Simpson
was two months prior to the instant hearing (Tr. 72-73).
Mr. Patterson learned, in May or June 2001, that Mr. Simpson was incarcerated. Mr. Simpson called
the Patterson house to tell Mr. Patterson’s uncle that he could not meet to discuss the making of a
recording because he had been arrested. After Mr. Simpson was released, he came to the Patterson
home a “couple” of times (Tr. 74). As to the occasion of the COBA picnic at Rye Playland in July
2001, Mr. Patterson testified that he and Mr. Simpson went to Rye on the bus and that respondent
drove her car. D’Tanyon and Mr. Simpson arrived at the Playland around 1:00 p.m. or 2:00 p.m. and
the young men remained there most of the day. While they saw respondent at Rye Playland, Mr.
Simpson did not speak to her. D’Tanyon, Mr. Simpson and Harold Smith left Rye together and
returned on a bus (Tr. 75-76).
On cross-examination, D’Tanyon Patterson testified that, during the period, December 2000 to
March 2001, he was working in a warehouse from 7:00 a.m. to 3:15 p.m. and that he would meet
with Mr. Simpson after 3:15 p.m. or, they would meet at the Patterson house on weekends (Tr. 7879). On Friday or Saturday, Mr. Simpson would come to the house at 2:30 p.m. or 3:00 p.m. and
remain there until 7:00 p.m. or 8:00 p.m. unless the young men went to a club. Occasionally,
respondent was at home when Mr. Simpson was there. It is D’Tanyon’s testimony that, while
respondent knew of Mr. Simpson, it was not clear to him whether she knew exactly who he was (Tr.
80). Mr. Simpson called D’Tanyon Patterson after he returned from work in the afternoons, once
or twice a week and would talk for twenty or thirty minutes (Tr. 82). D’Tanyon did not tell
respondent that Mr. Simpson was in jail until July or August 2001 when she asked D’Tanyon about
Mr. Simpson (Tr. 83-84). According to Mr. Patterson’s testimony, respondent asked, in July or
August, why Mr. Simpson was calling the house so often (Tr. 84). After Mr. Simpson was released
in August or September 2001, Mr. Patterson resumed seeing him, but Mr. Simpson did not come
back into the Patterson house (Tr. 86).
At the hearing, Harold Smith testified that, following their meeting at the talent show, he and
D’Tanyon Patterson would meet Mr. Simpson at the Patterson house and then go to the park to play
ball. In July 2001, Mr. Smith went to Rye Playland with D’Tanyon and Mr. Simpson on the bus.
The three were at the Playland for several hours and, according to Mr. Smith’s testimony, they did
not see respondent while they were there. The three returned to the City on a bus (Tr. 94-97).
Respondent testified that she knew Valdez Simpson when he was incarcerated in her facility in
January 2001. Respondent met Mr. Simpson again in April or May 2001 when he was with her son
and nephew. It is respondent’s testimony that her son and nephew met Mr. Simpson in December
2000 at a talent show and that her son and nephew were helping respondent’s brother acquire talent
for his recording company (Tr. 101-102). It was in May 2001, that respondent’s son Jamal told her
that Lamar (D’Tanyon’s nickname) had company at the house. Respondent questioned D’Tanyon
as to why he had company when she was not at home and he told her that he would not do it again.
D’Tanyon did not tell respondent the name of the individual coming to the house. In May 2001,
respondent saw Mr. Simpson outside her house and recognized him as a former inmate in her
facility. Respondent did not speak to Mr. Simpson, however, she told her son that she did not want
Mr. Simpson around the house because he was “bad news” (Tr. 103-104). In July 2001, respondent
again saw Mr. Simpson at her house, outside the entrance gate. She did not speak to Mr. Simpson.
Respondent then told D’Tanyon that if she saw Mr. Simpson there again, she would put him out of
the house (Tr. 104). Respondent did not see Mr. Simpson at the house again.
At the hearing, respondent denied looking at her telephone records for the first half of 2001 and
denied knowledge of the receipt of a large number of telephone calls during this period (Tr. 105).
It is respondent’s testimony that she went by car to the union picnic in July 2001 at Rye Playland.
She took her son, Jamal, a friend of Jamal, her daughter Tamisha, her younger son Akeem and
respondent’s sister and niece. While at Rye Playland, respondent saw D’Tanyon Patterson and her
nephew, Harold Smith, along with Valdez Simpson (Tr. 106). Respondent told her son and nephew
that she would “deal with them when [she] got home” (Tr. 106). The entire group, including
D’Tanyon, Harold Smith and Valdez Smith, left the Playland area together around 6:00 p.m. (Tr.
106-107).
As to her notification of the telephone calls from the inmate to the Department, respondent testified
that, in August 2001, she answered the telephone at home and realized that the call was from jail.
After that incident, respondent wrote the memorandum explaining her son’s relationship with inmate
Simpson. Respondent gave the memorandum (Resp. Ex. A) to Officer Jones and asked him to look
in the system in order to determine where inmate Simpson was housed. Officer Jones told
respondent what inmate Simpson was accused of and the amount of his bail (Tr. 107). Prior to
submitting the memorandum, respondent spoke to Captain Berneice Foster and asked her to help
write the memorandum. After the memorandum was written, Captain Foster retained a copy of it
(Tr. 108). While respondent gave the memorandum to Officer Jones, she did not have it time
stamped. Respondent did not see Captain Flynn the day she turned the memorandum in to the
security office (Tr. 108-09).
On cross examination, respondent testified that Captain Foster helped her draft the memorandum on
August 13, 2001. Respondent gave a copy to Captain Foster, turned in a copy to Officer Jones on
August 17, 2001 and retained a copy for herself (Tr. 111). Respondent assumed that Captain Foster
turned the memorandum in to the security office (Tr. 112). When respondent asked Officer Jones
to check to see where inmate Simpson was housed, Officer Jones wrote the information on the
memorandum. It is respondent’s testimony that Officer Jones did not give her a copy of the
memorandum with his handwriting on it. However, respondent re-wrote the memorandum that is
Respondent’s Exhibit A (Tr. 113).
Respondent testified that inmate Simpson, to her knowledge, had never been inside her house and
that he never lived there or paid her rent (Tr. 115). While inmate Simpson did not identify himself
in August 2001 when respondent answered the telephone, respondent recognized his voice because
he had been housed in her area at the GMDC (Tr. 117). On re-direct, respondent testified that, in
August 2001 when inmate Simpson called her house, he identified himself as “Val” and she knew
who it was. Respondent told him then to not call her house again (Tr. 120). It was respondent’s
testimony that Officer Jones made the notation on a different form similar to her memorandum, a
form 600AR, and respondent does not know what happened to that notation (Tr. 121).
On re-cross, respondent testified that, on August 13, 2001, she spoke to Officer Jones at 7:00 a.m.
about the friend of her son’s calling her house from jail; that same day she formulated the memo with
Captain Foster and handed it to Officer Jones (Tr. 122).
Captain Berneice Foster has been at GMDC for four years and works with respondent on the search
team on the days when respondent is on duty. At some point in time, respondent came to Captain
Foster to explain that she had problems with an inmate and respondent asked what the procedure was
for notification to the Department and for having the inmate transferred out of the facility (Tr. 12425). Captain Foster advised respondent to put the information in a memorandum, give the
memorandum to Captain Foster and she would take the memorandum to the security office (Tr. 125).
Captain Foster was not present when respondent wrote the memorandum. Captain Foster received
the memorandum from respondent and took it the security office to put it on Deputy Warden Duffy’s
desk. There was no one in the Deputy Warden’s office when Captain Foster arrived so she left the
memorandum on the counter. Captain Foster never read the memorandum nor did she speak to
respondent or anyone else about the memorandum after she put it in the Deputy Warden’s office (Tr.
126).
On cross examination, Captain Foster testified that she could not remember if she told the
Department advocate that she handed the memorandum directly to Deputy Warden Duffy. Captain
Foster reiterated that she went to Deputy Warden Duffy’s office and turned the memorandum in (Tr.
127).
III
Specification I
Specification I alleges that respondent, since February 1996 through November 29, 2001 and
continuing to the present, engaged in a continuing pattern of undue familiarity with inmates in that
310 telephone calls were placed to her home telephone from various inmates while they were
incarcerated by the Department. In particular, it is charged that respondent’s home telephone number
was called 197 times by inmate Valdez Simpson between May 21, 2001 and November 29, 2001
while he was incarcerated within the Department.
The evidence before me as to the telephone calls to respondent’s home telephone prior to May 21,
2001 consists of the testimony of Investigator Figueroa to the effect that, her investigation in 2001
revealed that between May 21, 1996 and January 23, 1999 there were telephone calls from inmates
made to respondent’s home telephone. Petitioner offered no documentation to support this
testimony. While I found Investigator Figueroa to be a credible witness, the testimony, standing
alone, is insufficient to support a finding that the alleged rule infraction by respondent was a
continuing one in light of the statute of limitations imposed by the Civil Service Law.
Section 75 of the Civil Service Law provides that charges must be served within 18 months of the
alleged rules infraction absent the presence of an exception to the rule. Civil Service Law § 75(4)
(McKinney CD-ROM 2002). The exceptions include: where the conduct charged would constitute
a crime; a continuing wrong (Cintron v. Bowen, 51 A.D.2d 569, 378 N.Y.S.2d 764 (2d Dep’t 1976);
and, where a respondent is estopped from asserting the time bar because her own wrongful
concealment caused the delay in bringing the charges. Matter of Steyer, 70 N.Y.2d 990, 526
N.Y.S.2d 422 (1988). Here, the Department has not demonstrated that the continuing violation
exception would defeat the limitations provision. The testimony is only that telephone calls were
made to respondent’s home during the period May 1996 to January 1999. There is no evidence that
telephone calls were made after January 1999 and before May 2001. Thus, for a period of 18
months, petitioner has no evidence of any continuing telephone calls to respondent’s home.
Moreover, there is no evidence that respondent actively concealed the 1996 to 1999 telephone calls.
It has been held that charges are not time barred where respondent actively concealed an infraction
and failed to request permission or give notice to the Department. Dep’t of Correction v. Yan,
OATH Index No. 450/88 (Dec. 21, 1988) (failure to reveal ownership of a gun and failure to request
permission to own the gun not time barred since respondent, after his appointment, actively
concealed the fact of gun ownership; thus, failure to request permission was a continuing violation).
However, where there is no evidence of active deceit, in conjunction with isolated acts of misconduct
and no showing of an on-going relationship, the allegation did not fall within the continuous action
exception. See Dep’t of Housing Preservation & Development v. Parikh, OATH Index No. 785/90
(June 12, 1990) (distinguishing Dep’t of Correction v. Yan, OATH Index No. 450/88 (Dec. 21,
1988)).
Petitioner served the instant charges on respondent on June 7, 2002. Thus, absent the presence of
an exception to the 18-month statute of limitations provision in the Civil Service Law, allegations
of misconduct prior to January 2001 are time barred.
Accordingly, I find that the portion of specification 1 alleging the continuing pattern of undue
familiarity with inmates by receiving telephone calls at her home telephone from February 1996
through January 1999 is time barred. The remainder of the specification, to wit, that inmate Valdez
Simpson made approximately 197 telephone calls to respondent’s home telephone number between
May 21, 2001 and November 29, 2001 while he was incarcerated within the Department facilities,
survives.
The evidence that the telephone calls were made to respondent’s home telephone by inmate Valdez
Simpson is uncontroverted. In addition, petitioner’s telephone log (Pet. Ex. 1) and respondent’s time
sheets for the year 2001 (Pet. Ex. 2) show that the vast majority of the telephone calls from inmate
Simpson to respondent’s home were made during a time when respondent was not on duty.
Respondent’s tour was steady from 4:15 a.m. to 12:46 p.m. The calls are logged, in most instances,
between noon and 10:45 p.m. On those occasions when the calls were made earlier than noon,
respondent had a pass day. For example, on September 7, 2001, a call was made at 10:28 a.m.; this
date is reflected as a pass day for respondent. Similarly, on September 8, 2001, calls were made to
respondent’s telephone at 11:12 a.m., 11:19 a.m., 11:33 a.m., 11:34 a.m., and 11:35 a.m. and
respondent was scheduled for a pass day on that date. A review of the documents reveals that
respondent was on duty in only three instances when the calls were made before noon.
Respondent’s defense to this specification that she engaged in undue familiarity is that it was not she
who had the relationship with inmate Simpson, but her son, D’Tanyon Patterson and her nephew,
Harold Smith. Much was made at the hearing of the dates and times when there was contact with
the inmate by respondent or by her family members. While I did not credit much of the testimony,
the following was established at the hearing:
1. Inmate Simpson was incarcerated at GMDC, 5 Main (respondent’s facility and housing area) from
January 12, 2001 through March 23, 2001.
2. Inmate Simpson was discharged from the Otis Bantum Correction Center on April 10, 2001.
3. Inmate Simpson was re-arrested on May 21, 2001, transferred to GMDC on May 26, 2001 and
bailed out on May 27, 2001.
4. Inmate Simpson was re-incarcerated at GMDC, 8 Main, on August 7, 2001 and discharged on
November 29, 2001.
5. Respondent saw inmate Simpson at the COBA picnic at Rye Playland on July 18, 2001; inmate
Simpson left the Playland with respondent and her family.
In sum, the uncontroverted evidence establishes that, after inmate Simpson was housed in
respondent’s facility and housing area from January 2001 through March 2001, inmate Simpson
telephoned respondent’s home at least 197 times between May 21, 2001 and November 29, 2001.
It is also uncontroverted that respondent was not on duty, with very few exceptions, when the
telephone calls were made to her home. A review of petitioner’s evidence reveals that many of the
calls were made at night when it would be likely that respondent was at home. I do not find
respondent’s testimony that she was unaware of the incoming telephone calls from inmate Simpson
until she answered the telephone one day in August 2001 and recognized that the call was coming
from a prison and/or that she recognized the inmate’s voice to be credible. Indeed, if respondent had
had no contact with inmate Simpson since March 2001 when he left her housing area, it would
appear unlikely that she would immediately recognize his voice in a self-described brief telephone
conversation in August, some five months later. Respondent’s housing area normally would have
some 40 to 50 inmates present in a continuously shifting population. Moreover, respondent’s
testimony that she never answers her telephone at home because her children always answer belies
logic. The proven pervasiveness of the telephone calls from inmate Simpson at times when
respondent was not on duty leads only to the conclusion that it is more likely than not that
respondent, even if the inmate was calling her son, knew of the calls.
Thus, the preponderance of the credible evidence established the respondent’s undue familiarity with
an inmate through a pattern of respondent’s receipt of more than 197 telephone calls from an inmate.
See Dep’t of Correction v. Howell, OATH Index No. 919/01 (Jan. 25, 2002); Dep’t of Correction
v. Isom, OATH Index No. 1995/01 (Oct. 23, 2001), aff’d, NYC Civ. Serv. Comm’n Item No. CD
03-04-SA (Feb. 5, 2003).
Therefore, specification one has been sustained to the extent noted.
Specification II
Petitioner alleges that respondent attended the COBA social event at Rye Playland on July 18, 2001
with inmate Simpson, thereby engaging in undue familiarity. The Department rule prohibiting the
alleged misconduct states, in relevant part:
Members of the Department other than those required to do so in the performance of their regular
duties shall not make or maintain contact with or in any way associate with former inmates . . .except
with the approval of the Commanding Officer. . .
Dep’t Rule 3.25.041 (eff. Dec. 23, 1996).
In support of this allegation, petitioner relies on the hearsay statements made to Captain Flynn. The
reporting officer told the captain that inmate Simpson was introduced as respondent’s “boyfriend”
at the outing on July 18, 2001. Respondent denies attending the picnic with inmate Simpson and
denies introducing the inmate to any member of service. However, respondent, by her own
admission, spoke to the inmate and testified that her family and Mr. Simpson all left the Playland
together. Clearly, the former inmate was at the Playland at the behest of respondent or her family.
Even without considering the other evidence as to this allegation,2 the rule prohibiting contact with
or association with former inmates was violated by virtue of the uncontroverted fact that the former
inmate was present with respondent’s family. It is undisputed that respondent, in July 2001, had
sought no approvals from the Department nor informed the Department of the contact with inmate
Simpson. Thus, the credible evidence is sufficient to support a finding that respondent associated
with the former inmate at the COBA outing in violation of the rule. The specification is hereby
conformed to the evidence. See Dep’t of Correction v. Sostre-Valentin, OATH Index No. 1923/99
(Sept. 22, 1999), aff’d, NYC Civ. Serv. Comm’n Item No. CD00-94-SA (Nov. 14, 2000)
(appropriate to conform charge to correspond to the proof since respondent and all other witnesses
were well aware of the incident charged); Dep’t of Correction v. Bovell, OATH Index No. 1910/99
(Aug. 13, 1999) (respondent not prejudiced by conforming charge to proof presented at hearing when
given opportunity to defend substantive charge).
Accordingly, I find that petitioner has sustained specification two.
Specification III
Petitioner charges, in specification III, that respondent violated Department rules by failing to
“promptly and properly” notify her command that inmate Simpson was housed in her facility and
that he was making telephone calls to her home telephone (ALJ Ex. 1).
The Department rules prohibiting undue familiarity impose a requirement to inform the Department
of contact with inmates or former inmates. Rule 3.25.041 requires the officer to gain the approval
of the Commanding Officer before associating with former inmates and requires further:
Where there is a verifiable pre-existing relationship between a member of the Department and an
inmate this rule shall not apply except to the extent that the member must report the information to
the Commanding Officer.
Thus, because respondent knew inmate Simpson prior to May 2001 when the telephone calls are first
2
The testimony of respondent’s son and nephew was inconsistent in that D’Tanyon Patterson testified
that the young men saw respondent at Rye Playland, Harold Smith testified that they did not see respondent
at the Playland and inmate Simpson denied seeing respondent at Rye Playland. I found this testimony,
therefore, to be not credible. See Dep’t of Correction v. Gabriel, OATH Index No. 1283/02, at 9 (Oct. 21,
2002) (credibility analysis rests on consideration of such factors as witness demeanor, consistency of a
witness’ testimony, supporting or corroborating evidence, witness motivation, bias or prejudice, and the
degree to which a witness’ testimony comports with common sense and human experience), citing Dep’t of
Sanitation v. Menzies, OATH Index No. 678/98 (Feb. 4, 1998), aff’d, NYC Civ. Serv. Comm’n Item No.
CD98-101-A (Sept. 9, 1998).
recorded to her home telephone, she was obligated to inform the Department of the contact.
Respondent does not deny knowledge of the requirement. The issue here is whether or not
respondent did, in fact, notify the Department that she was receiving telephone calls from the inmate.
Respondent contends that, on August 13, 2001, after she answered the telephone at home and
realized the caller was inmate Simpson, she asked Captain Berneice Foster to help respondent write
a memorandum (Resp. Ex. A) informing the Department of her son’s relationship with inmate
Simpson. Respondent testified that she gave the memorandum to Officer Jones and asked him to
look in the system in order to determine where inmate Simpson was housed. Officer Jones,
according to respondent’s testimony, told respondent what inmate Simpson was accused of and the
amount of his bail. On cross-examination, respondent testified that Officer Jones also wrote
information as to where inmate Simpson was housed on the memorandum, however, Officer Jones
did not give respondent a copy of the memorandum with his handwriting on it.
Contrary to respondent’s testimony, Officer Jones testified that, while respondent sometime in the
summer of 2001, told him, while they were in the officer’s kitchen, that she was having trouble with
her son running up her telephone bill, respondent did not give him a memorandum. In addition,
Officer Jones testified that he did not check the computer for the whereabouts of inmate Simpson.
Similarly, while Captain Foster testified that she, without reading it, left a copy of the memorandum
on a counter in Deputy Warden Duffy’s office, the Department has no record that the memorandum
was received by the Deputy Warden.
Officer Jones and Captain Flynn testified that the procedure to be followed when receiving such a
memorandum in the security office is that, the note is submitted to the security captain for a
determination as to whether or not the inmate should be transferred out of the area. Captain Flynn’s
standard procedure is to arrange for the transfer of the inmate out of the facility in order to separate
the inmate and the employee and to file the memorandum in the security office files. Captain Flynn
would then notify the Department Inspector General’s Office of the employee’s notification and of
the action taken by Captain Flynn. Captain Flynn would also instruct the officer to write a report and
submit a copy to him, to Deputy Warden Duffy and then place a copy of the report in the officer’s
personnel file. The report would be time stamped when submitted to the security office. Personnel
Captain Iris Parker testified that no memorandum concerning the receipt of telephone calls from an
inmate was present in respondent’s personnel file.
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). “This presumption compels the adversary to come forward with affirmative
evidence of unlawful or irregular conduct, but when the adversary does produce substantial contrary
evidence, ‘the presumption is out of the case’.” People v. Richetti, 302 N.Y. 290, 298, 97 N.E. 908,
912 (1951). Here, respondent’s contention falls short of overcoming the presumption that, had she
submitted a memorandum to Officer Jones on August 13, 2001, the memorandum would have been
processed according to the Department’s regular procedure.
Respondent’s testimony on this issue is not credible. First, respondent testified that Captain Foster
helped her draft the memorandum. Captain Foster’s testimony is to the contrary in that Captain
Foster testified that she only advised respondent that a memorandum containing the information
about the inmate should be written. Indeed, Captain Foster testified that she was not present when
respondent wrote the memorandum. Second, respondent’s testimony as to her retention of a copy
of the memorandum is internally inconsistent. At the outset, respondent testified that Officer Jones
wrote the information as to inmate Simpson’s whereabouts on the memorandum she provided. On
cross-examination, respondent testified that, because Officer Jones did not give her a copy of the
memorandum on which he wrote, she re-wrote the memorandum that is now Respondent’s Exhibit
A. On re-direct examination, respondent’s counsel elicited from her that Officer Jones made the
notation on a different form similar to her memorandum, a form 600 AR. Respondent could not
testify as to what happened to that form. Finally, while Officer Jones did remember that respondent
spoke to him about a friend of her son’s calling him from jail, respondent’s own testimony
corroborates that she spoke to Officer Jones at 7:00 a.m. on August 13, 2001. However, respondent
did not, according to her testimony, give the memorandum to Officer Jones until sometime later that
same day. It is unlikely that Officer Jones would remember the conversation about the telephone
calls and then not recall that respondent gave him a memorandum concerning the same issue on the
very same day. Moreover, had Officer Jones made a notation on a memorandum, either one given
him by respondent, or another sheet of paper, it defies logic that neither memorandum can be found
in any one of the three files that it would have been placed in the ordinary course of events. Captain
Flynn reviewed his files and found no memorandum. Captain Parker found no memorandum in
respondent’s personnel file. Officer Jones, Captain Flynn and Captain Parker were all credible
witnesses with no stake in the outcome of the instant proceeding. None of these witnesses exhibited
any bias toward respondent.
Thus, the credible evidence before me leads only to the conclusion that respondent did not submit
a memorandum of notification to the security office in August 2001.
Finally, I did not credit Captain Foster’s testimony that she left a copy of the memorandum on a
counter in Deputy Warden Duffy’s office. It appeared, at the hearing, that Captain Foster’s memory
was not clear as to the drafting of the memorandum. Captain Foster denied helping respondent
actually draft the memorandum, denied reading the memorandum after respondent gave it to her and
denied following up in any way after leaving the memorandum in the Deputy Warden’s office.
Notwithstanding the unlikely event that no employee would be present in the Deputy Warden’s
office when Captain Foster entered to submit the memorandum, common sense would dictate that,
having left the document in an unattended office, normal practice would be to inquire later whether
it was received and/or inquire of respondent whether or not respondent had submitted the
memorandum. Captain Foster testified explicitly that she never spoke of the matter again.
Accordingly, I find that respondent’s evidence that she notified the Department of the telephone calls
is insufficient to overcome the presumption that, had she produced a memorandum in August 2001,
the memorandum would have been processed in the ordinary course of the Department’s business.
Specification IV
Petitioner alleges that respondent continued a pattern of undue familiarity with inmate Simpson in
that, from November 29, 2001 through December 2001, former inmate Simpson resided at her home
while out on bail in violation of Department policy and rules (ALJ Ex. 1).
In support of this allegation, petitioner relies on the information provided by Mr. Simpson to
Investigator Figueroa that, for two weeks from November 29, 2001, he lived at respondent’s house
for which he paid respondent $100.00 per week. In addition, petitioner would argue that an inference
could be drawn that Mr. Simpson had resided at respondent’s house from the conversation between
Investigator Figueroa and respondent’s son, Jamal Patterson. Respondent denies that Mr. Simpson
ever lived in her residence.
I do not find Mr. Simpson’s statements to Investigator Figueroa to be credible. The statements
concerning the outing at Rye Playland were inconsistent with the other testimony and did not
comport with any other evidence before me. The claim that he lived at respondent’s residence for
two weeks is inexplicable. Moreover, Mr. Simpson’s reference to “Lamont” is suspect. Jamal
Patterson indicated that D’Tanyon Patterson’s family nickname is “Lamar.” Had Mr. Simpson been
that close to the family, it is unlikely that he would make the mistake of referring to his friend by the
wrong nickname. Finally, petitioner’s contention that, because Jamal Patterson told Investigator
Figueroa that mail for Mr. Simpson could be sent to respondent’s address, that is evidence that Mr.
Simpson actually lived there, is not, standing alone, sufficient to sustain the charge by a
preponderance of the evidence.
Therefore, I find that specification IV has not been sustained.
Specification V
Here, petitioner alleges that respondent made false and/or misleading statements regarding her
interactions with inmates and former inmates and her compliance with Department rules, regulations
and directives (ALJ Ex. 1).
I find, to the extent that her statements were inconsistent with the findings herein, respondent did
give false and misleading statements to the Office of the Inspector General during a Mayoral
Executive Order No.16 interview on February 26, 2002. To wit, respondent, at the interview, denied
knowing that Mr. Simpson was incarcerated and denied recognizing him. In addition, respondent
made false statements regarding the memorandum purportedly submitted to the Department
concerning the telephone calls from inmate Simpson.
Specification VI
Petitioner alleges that respondent submitted a false and/or misleading report as to her “timely”
compliance with Department rules about her interactions with inmate and former inmate Simpson
(ALJ Ex. 1).
Petitioner put forth no evidence on this specification. Accordingly, the specification should be
dismissed.
FINDINGS AND CONCLUSIONS
1. Petitioner established, by a preponderance of the credible evidence that, from on or about May
21, 2001 through November 29, 2001, respondent engaged in conduct unbecoming a member of the
Department and of a nature to bring discredit upon the Department through her undue familiarity
with an inmate who called her home more than 197 times. Respondent’s conduct violates rules
3.25.040 and 3.25.041, of the Rules and Regulations Governing Members of the Department.
2. Petitioner established, by a preponderance of the credible evidence that, on or about July 18,
2001, respondent engaged in conduct unbecoming an officer and of a nature to bring discredit upon
the Department through her undue familiarity with a former inmate by associating with the former
inmate at a social event sponsored by the Correction Officers Benevolent Association in violation
of Rule 3.25.041, of the Rules and Regulations Governing Members of the Department.
3. Petitioner established, by a preponderance of the credible evidence that respondent failed to
promptly and properly notify the Department that the inmate was making telephone calls to her home
telephone. Respondent’s conduct violates Rule 3.25.041, of the Rules and Regulations Governing
Members of the Department.
4. Petitioner has not established, by a preponderance of the credible evidence that respondent
engaged in undue familiarity with a former inmate by allowing that inmate to reside in her home
while on bail from on or about November 29, 2001 through on or about December 2001.
5. Petitioner established, by a preponderance of the credible evidence, that respondent gave false
and misleading statements to the Inspector General’s Office pertaining to the facts outlined in
specifications one, two and three, in violation of Rules 3.20.300 and 4.30.020 of the Rules and
Regulations Governing Members of the Department and Mayor’s Executive Order No. 16.
6. Petitioner did not establish that respondent gave a false and/or misleading report of her timely
compliance with Department rules, regulations and directives on notification requirements.
THEREFORE:
Charges one, two, three and five against respondent have been sustained. Charges four and six
should be dismissed.
RECOMMENDATION
Upon making the above findings and conclusions, I obtained and reviewed a copy of the abstract of
respondent’s employment and disciplinary history in order to make an appropriate penalty
recommendation. Respondent was appointed to her position on January 24, 1991. The record
reveals that respondent has had no prior adjudicated disciplinary matters.
Petitioner has asked that, for these infractions, respondent be terminated from her position as a
correction officer.
Here, petitioner has established that respondent engaged in an improper relationship with an inmate.
Moreover, respondent has taken no responsibility for her failure to report the contact with the inmate.
It is well settled that such egregious and dishonest misconduct warrants termination of employment.
See, e.g. Medina v. Sielaff, 182 A.D.2d 424, 582 N.Y.S.2d 685 (1st Dep’t 1992); Dep’t of Correction
v. Isom, OATH Index No. 1995/01 (Oct. 23, 2001); Dep’t of Correction v. Smith, OATH Index No.
427/98 (May 5, 1998); Dep’t of Correction v. Williams, OATH Index No. 521/97 (Jan. 7, 1997).
Where, as here, the proven contact is pervasive, the only penalty recommendation has been
termination. See Dep’t of Correction v. Howell, OATH Index No. 919/01 (Jan. 25, 2002) (evidence
established 77 telephone calls from inmates to respondent’s home telephone); Dep’t of Correction
v. Isom, OATH Index No. 1995/01 (credible evidence established receipt of more than 150 telephone
calls from an inmate); cf. Dep’t of Correction v. LeConte, OATH Index No. 788/96 (Jan. 8, 1996)
(respondent had outstanding record with Department; respondent acknowledged contact with inmate
and contact was minimal; termination not recommended).
While I am cognizant of the fact that this respondent has no prior adjudicated disciplinary actions
on her record, it is the pervasive nature of the misconduct and the denial of any wrongdoing that
leads to the conclusion that the only appropriate penalty recommendation is termination. Pell v. Bd.
of Education, 34 N.Y.2d 222, 356 N.Y.S.2d 833 (1974).
Accordingly, I recommend that respondent be terminated from her position as correction officer.
P R E S E N T: DONNA R. MERRIS, Administrative Law Judge
T O: MARTIN HORN, Commissioner
A P P E A R A N C E S:
OMA DEONARINE, Attorney for Petitioner
MARLON MARTINEZ, Attorney for Respondent
Department of Correction's Decision, May 7, 2003
MARTIN F. HORN, Commissioner
ACTION OF THE COMMISSIONER
Respondent, Cheryl Patterson, as revealed to the Department, on or about July 18, 2001, from on or
about February 1996 through on or about November 29, 2001 and continuing to present, engaged
in conduct unbecoming an officer and of a nature to bring discredit upon the Department in that she
engaged in a continuing pattern of undue familiarity with inmates.
As set forth in the attached Findings and Recommendations of Charges and Specifications of
Administrative Law Judge Donna Merris, Respondent was found guilty of four (4) out of six (6)
specifications with a recommended penalty of termination. The Commissioner adopts the penalty
BUT finds the Respondent also "Guilty" on Specification #6 in that on or about March, 2002, the
officer further engaged in conduct unbecoming when she gave a false and/or misleading report of
her timely compliance with Departmental rules, regulations and directives on notification
requirements and that the report contained false and/or misleading information about her
dealings/interaction with Inmate/Former Inmate Valdez Simpson.
Therefore, the Commissioner adopts OATH's recommended penalty of Termination being imposed
with the exception noted as to the findings of fact.
MARTIN F. HORN, Commissioner, Department of Correction
City Civil Service Commission's Decision, March 10, 2005
STANLEY K. SCHLEIN, Commissioner/Chairman
STATEMENT
On Thursday, August 19, 2004, the City Civil Service Commission heard oral argument in the appeal
of CHERYL PATTERSON, Correction Officer, New York City Department of Correction, from
a determination by the New York City Department of Correction, finding her guilty of charges of
misconduct and imposing a penalty of DISMISSAL following an administrative hearing conducted
pursuant to Civil Service Law Section 75.
COMMISSIONERS' FINDINGS:
CHERYL PATTERSON appeals from the determination of the Department of Correction
(DOC) finding her guilty of conduct unbecoming an officer and imposing a penalty of termination
following disciplinary proceedings conducted pursuant to §75 of the Civil Service Law. The
Commission conducted a hearing on August 19, 2004.
Statement of the Facts
Appellant was charged with: (1) engaging in undue familiarity with an inmate or inmates
from February 1996 to November 2001 in that she received over 310 phone calls to her home
telephone number from an inmate; (2) engaging in undue familiarity with former inmate, Valdez
Simpson in that she attended a social event sponsored by the COBA accompanied by him; (3) failing
to notify her command promptly and properly that Inmate Valdez Simpson ("Inmate Simpson" ) who
was housed at her facility was making phone calls to her home telephone number; (4) allowing
former Inmate Simpson to reside at her home while out on bail; (5) giving a false and or misleading
statement regarding her interactions and relationships with inmates and former inmates and her
compliance with the department during her Mayoral Executive #16 Interview (MEO 16); and (6)
giving false and or misleading report of her timely compliance with Department rules, regulations
and directives on notification requirements, and said report contained false and misleading
information about her dealings/interactions with Inmate/former Inmate Simpson.
The
Administrative Law Judge (ALJ) found appellant guilty of charges 1, 2, 3, and 5 and recommended
a penalty of termination, which was adopted by DOC, except that DOC also found her guilty of
charge 6.
Appellant's Position
Appellant denied that she was an acquaintance of Inmate Simpson. She stated that he was
a friend of her son D'Tanyon Patterson and her nephew Harold Smith. She explained that she did
not become aware that Inmate Simpson was calling her house until August 2001 and told her son that
he could not call or come inside the house. She pointed out that the phone bill does show the
number of origination because the calls were incoming. She acknowledged that she saw Inmate
Simpson at the Rye Playland picnic, conducted by her union, but she did not bring him to the event
and that he arrived with her son and nephew. She stated that she brought her other son, his friend,
her niece, and her sister to the picnic and that she never introduced Inmate Simpson as her boyfriend
to any Correction Officer in attendance. She exited the park with her family, which included her son,
nephew, and Inmate Simpson but she did not drive them home. She was unaware that Inmate
Simpson would be at the picnic that day.
She argued that she was truthful at the MEO16 interview and that she did not have a
relationship with Inmate Simpson. In addition, she stated that she submitted a "to and from memo"
with the help of Captain Foster and Officer Jones. She stated that Captain Foster delivered the
memo to the Security Officer. D'Tanyon Patterson testified that he received the calls from Inmate
Simpson and that Inmate Simpson was calling to speak to him.
DOC's Position
DOC stated that Officer Figueroa interviewed appellant regarding her relationship with
Inmate Simpson. An allegation was made to the Department's Inspector General's Office that
appellant had attended the Correction Officer's Benevolent Association picnic at Rye Playland on
July 14, 2001 with Inmate Simpson. Officer Figueroa's investigation revealed that Inmate Simpson
had placed 197 phone calls to appellant's home and that appellant who worked from 4:46 a.m. to
12:46 p.m. was home when the calls came to her house. During the MEO 16 interview, appellant
denied knowing about the calls to her house until August 2001, or that she was an acquaintance of
Inmate Simpson. Officer Figueroa interviewed Inmate Simpson and he acknowledged calling
appellant's house to speak to her son and that he did not have a relationship with appellant.
DOC also, stated that Officer Jones denied that appellant gave him a memorandum or that
he assisted her with it. Yet, Officer Jones remembers a casual conversation with appellant about her
phone bill relating to her son speaking to an inmate. In addition, Captain Foster denied helping
appellant write the memorandum, but admitted that she delivered the memorandum to the Security
Officer. DOC stated that a memorandum from appellant about Inmate Simpson was never found.
Decision
The Commission has carefully reviewed the record adduced below and considered the
arguments on appeal. We note that in relation to charge 6, we agree with the ALJ that the charge
should be dismissed because DOC put fourth no evidence on this specification. We disagree with
the ALJ that appellant is guilty of the amended charge 1 and charge 2. First, the evidence shows that
appellant lived with her son, D'Tanyon Patterson and Harold Smith and that both had access to and
would answer her phone. Second, appellant's son testified that he was associated with Inmate
Simpson and that he gave him the phone number to call the house. Third, Inmate Simpson,
D'Tanyon Patterson, and Harold Smith, acknowledged that they took the bus to and from the Rye
Playland picnic and that appellant did not arrive or leave with them. Fourth, Inmate Simpson stated
that he was an acquaintance of appellant's son and not appellant. Fifth, Officer Figueroa testified
that another son of appellant denied any relationship between appellant and Inmate Simpson. Sixth,
appellant testified that she was married at the time that she took her family to the Rye Playland
picnic. We find that the evidence shows that appellant is not guilty of charges 1 and 2.
The Commission agrees with the ALJ that appellant is guilty of charge 3 in that she failed
to promptly or properly notify the Department of the phone calls by Inmate Simpson to her telephone
number, as well as to charge 5 as it relates to charge3 only.
However, we do not find that appellant should be terminated given the fact that we have
determined that she is not guilty of charges 1, 2, part of charge 5 and 6 and given the notion of
progressive discipline. We note that appellant has been with the DOC since 1991 without any
previous disciplinary actions and find that the penalty is excessive.
Considering the circumstances, together with appellant's 13 year work history, the
Commission hereby modifies the determination of DOC to a suspension of time served from the date
of her dismissal to the date of this determination.
PRESENT/CONCURRING:
STANLEY K. SCHLEIN, Commissioner/Chairman, Civil Service Commission
DAVID S. LANDE, Commissioner/Vice Chairman, Civil Service Commission
NICHOLAS A. LAPORTE, Commissioner, Civil Service Commission