Correction officer convicted of driving while impaired after being involved in a single-vehicle automobile accident. Respondent’s assertion that his belligerent behavior at the scene and refusal to take a breathalyzer were the result of a head injury, rather than being intoxicated, was incredible. Since this is the second occasion that respondent has engaged in dangerous alcohol-related misconduct, termination is warranted.
ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of
DEPARTMENT OF CORRECTION
____________________________________________________ REPORT AND RECOMMENDATION KARA J. MILLER, Administrative Law Judge
This employee disciplinary proceeding was referred by the Department of Correction pursuant to section 75 of the Civil Service Law. Respondent, Manuel Ortiz, is charged with engaging in conduct unbecoming of an officer and of a nature to bring discredit to the Department, failing to timely notify his commanding officer of his arrest, and failing to submit a written report about the circumstances of his arrest.
A hearing was held before me on April 23, 2007. For the reasons set forth below, I find that charges have been sustained and recommend termination.
These charges stem from respondent’s arrest for driving while intoxicated after a single-vehicle automobile accident on December 18, 2005 (Pet. Ex. 4). Respondent was driving his car when it struck the center median at the intersection of 145th Street and Seventh Avenue in Manhattan. Police Officer Colleen Helly arrived at the scene shortly after the accident and observed that the vehicle had jumped the concrete crosswalk and landed on top of the approximately three feet high concrete barrier (Tr. 11). Two men, later identified as respondent and Correction Officer Anthony Simpson, were pulling a third man, Correction Officer Joshua Shahid, out of the driver’s side of the vehicle (Tr. 11). The vehicle had missed hitting the lamppost in the crosswalk by inches. When the vehicle came to rest, the vehicle was so close to the lamppost that it was impossible to open the passenger-side door (Tr. 12).
While investigating the accident at the scene, Officer Helly asked the three men which of them had been driving. Both respondent and Officer Simpson responded that they did not know (Tr. 13). Officer Simpson acknowledged that he had been sitting in the backseat of the car but, despite repeated questioning, was not forthcoming about who was driving at the time of the accident. Officer Helly ran a check of the vehicle’s license plates and determined that respondent was the owner. When she again asked respondent who had been driving the car, he looked down at Officer Shahid, who was lying on ground, as if to insinuate that he was the driver (Tr. 14). Officer Shahid “reeked” of alcohol and was “so inebriated, he couldn’t even open up his eyes.” (Tr. 14, 22). Only after Officer Helly’s supervisor told Officer Simpson that he would be arrested for obstruction if he refused to identify the driver, did he disclose that respondent had been driving the car (Tr. 13-14).
Officer Helly observed that respondent had alcohol on his breath and his eyes were bloodshot (Tr. 15). He was belligerent and refused to answer her questions (Tr. 23). In response to some of her inquiries, he just stared blankly at her (Tr. 37). Shortly after being taken in the ambulance, respondent vomited. Officer Helly testified that the vomit smelled strongly of alcohol (Tr. 38).
At the hospital, Officer Helly read respondent his Miranda rights and told him that an officer from the Intoxicated Driver Testing Unit was present and needed to take his blood to determine its alcohol content (Tr. 22, 44). Respondent refused the test and asked to see his union representative. He was arrested for driving while intoxicated (Pet. Ex. 4). On May 18, 2006, respondent pled guilty to driving while impaired in violation of Vehicle and Traffic Law section 1192(1) (Pet. Ex. 3).
Respondent disputed that he was intoxicated at the time of the accident (Tr. 81). He testified that on the day of the accident, Officer Shahid, Officer Simpson and he spent approximately an hour and a half at a sports bar watching football. During that time he drank only two or three beers (Tr. 72-3). They left the bar during halftime because Officer Shahid complained that his head was bothering him from an injury he sustained during an inmate extraction the previous day (Tr. 73). Respondent offered to drive him home.
Although respondent admitted to drinking two or three beers, he believed that he was able to drive and that he was “functioning pretty well.” (Tr. 81). Respondent testified that he does not remember what happened after he started driving and only remembered waking up in the hospital (Tr. 74). He did not recall speaking with the police either at the scene of the accident or at the hospital (Tr. 75). He speculated that his inability to remember the event could be a result of “. . . the concussion [he] might have sustained.” (Tr. 80). He testified he was hospitalized for two days for injuries to his head, chest and abdomen (Tr. 75).
Respondent argued that his behavior after the accident was symptomatic of a concussion. He suggested that the concussion was possibly sustained by hitting his head against the front windshield, causing a spider web crack in the glass. Respondent also posited that the accident may have been caused by the pain medication, Motrin, that he had taken earlier in the day for a shoulder injury (Tr. 74).
I find respondent’s version of events wholly incredible. Respondent’s contentions, that the accident may have been caused by a reaction to Motrin and that his behavior following the accident could be the result of a head injury he “might” have sustained, are unsupported by any evidence. He failed to submit medical documentation about his injuries or even state with certainty what these injuries were. Although the Police Incident Report states that respondent suffered injuries to his head and chest, respondent presented no other evidence to document their extent or seriousness (Tr. 35-6; Pet. Ex. 6). His description of his injuries was extremely vague. When asked why he was hospitalized, he said only, “A head injury, they said head, chest and abdomen.” (Tr. 75). He testified he did not know what medications he received at the hospital and could not recall if his injuries caused any bleeding (Tr. 75, 84).
Respondent’s theory that the crack in the front windshield may have been caused by his head hitting the glass is also unsupported by the evidence. Indeed, while one of the photographs taken from a distorted interior angle suggests that the spider web crack was just slightly right of the steering wheel (Pet. Ex. 10-K), another photograph taken from outside of the vehicle facing it head on shows the crack on the windshield to be directly in front of the passenger (Pet. Ex. 10-L). If the windshield was actually cracked because someone hit their head on it, it is more likely that the front seat passenger, Officer Shahid, hit his head on the windshield and not respondent. If Officer Shahid had hit his head, it may have explained why Officer Shahid was unable to stand and needed assistance getting out of the vehicle after the accident.
Likewise, respondent’s speculation that the accident may have been caused by a reaction to Motrin is unconvincing. Respondent submitted nothing to indicate that Motrin would impair his ability to drive. This argument was further undermined by his allocution to driving while impaired. When asked by the Criminal Court Judge if he operated a motor vehicle while impaired by alcohol, respondent said yes (Pet. Ex. 2).
Instead, I credit the testimony of Officer Helly, a 15-year veteran police officer, that respondent appeared to be intoxicated at the scene of the accident. She smelled alcohol on respondent’s breath and observed that his eyes were bloodshot. Furthermore, Officer Helly testified that respondent did not complain of any physical pain at the scene and he had no visible injuries to his head, no bleeding, bruising or contusions (Tr. 45-6). I find that respondent’s failure to cooperate with the police and his refusal to submit to an alcohol test were deliberate attempts to evade responsibility rather than the effects of a hypothetical head injury.
Because respondent is charged with conduct that occurred while he was off-duty, the Department must show that his off-duty conduct has a nexus to his on-duty responsibilities as a correction officer. Dep’t of Correction v. Muza, OATH Index No. 236/99 (Dec. 23, 1998), aff’d, NYC Civ. Serv. Comm’n Item No. CD 00-26-SA (Apr. 10, 2000). The nature of respondent's law enforcement job forms a sufficient nexus to justify misconduct charges. Dep’t of Correction v. Chalmers, OATH Index No. 1426/95 (Feb. 14, 1996).Although respondent was not convicted of a crime, he was involved in an automobile accident after consuming alcohol and admitted to driving while impaired by alcohol. Following the accident, he did not cooperate with the police, in that he was unwilling to admit he was the driver, did not respond to police questioning and acted belligerently. This behavior is contrary to his law enforcement duties. SeeDep’t of Correction v. Dash, OATH Index No. 336/06, at 9 (Mar. 28, 2006) (noting that a correction officer “[a]s a law enforcement employee . . . bears a special responsibility to abide by the directions and commands of police officers . . . .”); Dep’t of Correction v. Akua, OATH Index No. 1435/05, supplemental rep. and rec., at 2 (Jan. 30, 2006) (finding correction officer committed misconduct where he did not initially cooperate with police officers who responded to a dispute at a nightclub and failed to “comply promptly with lawful instructions”); Dep’t of Correction v. Williams, OATH Index No. 376/85, at 3 (Dec. 18, 1985) (finding misconduct where correction officer did not cooperate with police at scene of accident); see also Dep’t of Correction v. Brake, OATH Index No. 1779/05 (Mar. 31, 2006); Dep’t of Correction v. Johnson, OATH Index No. 1177/99 (July 16, 1999); Dep’t of Correction v. Soanes, OATH Index No. 320/99 (Jan. 8, 1999).
Respondent has also been charged with failing to timely notify the Department of his arrest and failing to submit a written report about his arrest. The Department’s rule 3.05.170 requires an employee who is arrested while off-duty to notify the Department within one hour of the arrest or as soon as practicable. It is undisputed that respondent did not notify the Department of his arrest until six days after his release from the hospital, December 26, 2005, when he informed Captain Angela Howard that he had been arraigned (Resp. Ex. A).
Respondent testified that he waited to notify the Department because he was suspended after the accident (Tr. 75). This tribunal, however, has held that a suspension does not relieve a correction officer of the obligation to notify the Department and submit a written report after being arrested. Dep’t of Correction v. Chalmers, OATH Index No. 413/04, at 18 (June 23, 2004), modified on penalty, Comm’r Dec. (Oct. 5, 2004), aff’d, NYC Civ. Serv. Comm’n Item No. CD05-42-SA (Aug. 11, 2005). Although the Police Department notified petitioner of respondent’s arrest, it does not negate respondent’s responsibility to report the arrest himself. Dep’t of Correction v. Drayton, OATH Index No. 1901/99 (Dec. 28, 1999), aff’d, NYC Civ. Serv. Comm’n Item No. CD06-124-SA (Nov. 14, 2006). As such, I find that respondent failed to comply with the Department’s reporting requirement by not verbally notifying his command.
Respondent has also been charged with failing to submit a written report. The Department’s rule 3.05.170 requires an employee who is arrested while off-duty to submit a written report to his or her commanding officer within 48 hours of the arrest. Respondent has never submitted a written report. Instead, he relies on his criminal attorney’s letter dated January 5, 2006, informing the Department that respondent had been arrested and that he had directed respondent not to make any statements about the facts surrounding his arrest until after criminal proceedings had concluded. The criminal complaint detailing the criminal allegations against respondent was enclosed in the letter (Resp. Ex. D). Although this letter and its enclosures provided the information required by the Department in a report following an arrest, it was not timely. Respondent’s written report was due on December 20, 2006, two days after his arrest. Respondent’s criminal attorney did not send the report until 18 days after the arrest. If the attorney’s letter had been submitted within a reasonable time frame it would have been sufficient to meet the Department’s written report requirement following an arrest. See Dep’t of Correction v. Shepard, OATH Index No. 1631/03 (Jan. 30, 2004), modified on penalty, Comm’r Dec. (Apr. 2, 2004) (Although the officer was under the impression that a union representative had faxed a written report to her command, it was her responsibility to ensure it was received). I find that respondent failed to submit a written report in a timely fashion.
FINDINGS AND CONCLUSIONS
On December 18, 2005, respondent engaged in conduct unbecoming an officer and of a nature to bring discredit upon the Department when he operated a motor vehicle while impaired by alcohol.
Respondent failed to provide timely verbal notification to the Department of his December 18, 2005 arrest.
3. Respondent failed to submit a timely written report about the circumstances of his December 18, 2005 arrest.
Upon making the above findings and conclusions, I obtained and reviewed an abstract of respondent’s personnel record provided to me by the Department. Respondent was appointed to his position as a correction officer on June 1, 2000. As a result of an incident in 2002 in which respondent was found to have carried his firearm while intoxicated and made false statements during an investigative interview, Judge Fraser recommended a 60-day suspension for conduct unbecoming, which was affirmed by Commissioner Horn. On appeal to the Civil Service Commission, the penalty was reduced to 45 days. See Dep’t of Correction v. Lopez, OATH Index Nos. 764/04 and 776-79/04 (July 20, 2004), modified on penalty, NYC Civ. Serv. Comm’n Item Nos. CD06-74-M and CD06-75-M (Aug. 4, 2006). Despite the Department requesting termination, Judge Fraser decided that respondent “should be allowed a second chance.” Lopez, OATH Index Nos. 764/04 and 776-79/04, at 13.
Petitioner is currently seeking termination of respondent’s employment. Respondent’s failure to accept responsibility is an aggravating circumstance in assessing the appropriate penalty. See Dep’t of Correction v. Parrish, OATH Index No. 1386/03 (Aug. 6, 2003), aff'd, Comm'r Dec. (Sept. 23, 2003), aff'd, NYC Civ.Serv. Comm'n Item No. CD04-37-SA (July 8, 2004) (an officer’s reticence to acknowledge responsibility for his actions aggravated the penalty and warranted termination for conviction for assaulting his sister). At the scene of the accident respondent not only claimed that he did not know who the driver of the vehicle was, he intimated that it was Officer Shahid. At the hearing, he denied that alcohol played a role in the accident and instead argued that Motrin may have been the cause. He also suggested that a possible concussion might explain his belligerence and general uncooperative behavior with the police.
Respondent has admitted to driving while impaired by alcohol, an act which endangered the lives of his passengers and the public. He has already been given a significant suspension for alcohol-related misconduct three years ago. Instead of taking advantage of the “second chance” afforded to him by Judge Fraser, respondent has proven that he is reckless and lacks judgment. He narrowly escaped hurting someone by irresponsibly getting behind the wheel of his car after drinking alcohol. He is very lucky that a pedestrian was not waiting in the center median crosswalk for the light to change when respondent’s car jumped the curb. In light of the seriousness of this behavior and because this is the second time respondent has engaged in alcohol-related misconduct, I find that termination is the appropriate penalty. See Dep’t of Correction v. Flaherty, OATH Index No. 413/05 (Feb. 16, 2005), modified on penalty, Comm’r Dec. (Mar. 31, 2005) (ALJ recommended 60-day suspension for driving while intoxicated conviction where correction officer had “unblemished” disciplinary record, was polite and cooperative with police, completed alcohol treatment program and acknowledged his mistake; Commissioner terminated respondent because he was serving a term of criminal probation); Transit Auth. v. Graves, OATH Index No. 720/91 (June 19, 1991) (recommending transit police officer be terminated after conviction for driving while impaired where he left his post to go to a bar and attempted to flee the scene of automobile accident; termination recommended despite admission of alcohol problem in light of respondent’s denial that accident was his fault, untruthful testimony and disciplinary history).
Accordingly, I recommend termination of respondent’s employment.
Kara J. Miller
June 25, 2007 Administrative Law Judge