NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS. In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - JEWEL CALDWELL Respondent

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1 Dep t of Correction v. Caldwell OATH Index No. 2702/14 (May 27, 2015), modified on penalty, Comm r Dec. (Apr. 19, 2016), appended, modified on penalty, NYC Civ. Serv. Comm n Case No (Feb. 21, 2017), appended Correction officer was not guilty of misconduct under undue familiarity rules where she timely notified the Department of her relationship with an inmate and, where her notice was deficient, the Department s rules did not adequately provide notice of what was required. The officer made two false statements at her MEO 16 interview for which the ALJ recommended a 15-day suspension. Officer s act of posting bail for the inmate, for which she gave notice, did not establish the crime of official misconduct. On review, the Commissioner imposed a 60-day suspension without pay. On appeal, Civil Service Commission reduces penalty to a ten days unpaid suspension. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF CORRECTION Petitioner - against - JEWEL CALDWELL Respondent REPORT AND RECOMMENDATION TYNIA D. RICHARD, Administrative Law Judge This disciplinary proceeding was referred by the Department of Correction ( Department ), pursuant to section 75 of the Civil Service Law. Civ. Serv. Law 75 (Lexis 2014). The charges allege that Correction Officer Jewel Caldwell made false statements at her MEO 16 interview and is guilty of undue familiarity for her failure to notify the Department of her relationship with an inmate and to request and/or obtain permission to make contact with the inmate. 1 the charges, in part. Respondent is also charged with the crime of official misconduct. Respondent denies 1 Prior to trial, petitioner withdrew Specification 1(c) and Specification 3, and part of the language of Specification 5, as indicated in ALJ Exhibit 1 (Tr. 13).

2 - 2 - At a trial conducted before me on March 9, 2015, the Department presented two witnesses and respondent testified on her own behalf. For the reasons set forth below, I find that respondent made two false statements at her MEO 16 interview for which a 15-day suspension is recommended. All other charges should be dismissed. ANALYSIS The primary facts are not disputed. Respondent is in an intimate relationship with NH 2 who on March 8, 2012, was arrested on a parole violation and committed to the custody of the Department of Correction (Tr. 114). On March 23, 2012, he was transferred to the custody of New York State at the Ogdensburg Correctional Facility ( Ogdensburg ) to complete a term of incarceration. Respondent submitted three official intra-departmental memoranda (known as 600 A/R s) on May 26, 2011, March 8, 2012, and March 1, 2013, notifying the Department of a relationship with NH, who was incarcerated at those times (Pet. Ex. 2). She described him in two of those memoranda as a family member although she admits today that he is her significant other with whom she has lived for more than seven years (Pet. Ex. 7 at 19). In the memorandum dated May 26, 2011 (hereinafter 2011 Notification ), respondent notified the Department that NH, a family member, was incarcerated at the Manhattan Detention Center and she would be posting his bail (Pet. Ex. 2 at 3). Respondent testified at her MEO 16 interview on February 7, 2012, that she did post his bail (Pet. Ex. 7). Petitioner does not contest the timeliness of the notice. In the memorandum dated March 8, 2012 (hereinafter 2012 Notification ), respondent states as follows: I CO J. Caldwell... assigned to GRVC on the 0700x1531 tour, of the law library post, does [sic] hereby submit this report. This writer acknowledges that a family member, inmate [NH],... currently in custody at MDC Facility. I CO Caldwell will be receiving mail and telephone calls, and also will be sending mail, package [sic] and money to said inmate. 2 The inmate s name has been redacted from the record, and his initials used, at the Department s request which was unopposed.

3 - 3 - (Pet. Ex. 2 at 2). Petitioner does not contest the timeliness of the notice. During NH s incarceration at Ogdensburg, respondent sent NH packages on seven occasions and made deposits to his commissary account on 13 occasions. Respondent did not deny this. In the memorandum dated March 1, 2013, respondent notified the Department that NH was in custody at Ogdensburg, that he would be contacting her by phone, and that she would be sending money and package but would not be visiting him (Pet. Ex. 2 at 1). The Department has charged Officer Caldwell with the failure (prior to March 1, 2013) to notify the Department of NH s incarceration at Ogdensburg, and to request permission to speak to him from January 19, 2013, to February 10, 2013 (Specification 4). Petitioner also charged respondent with the failure to request or receive permission to communicate with NH while incarcerated at Ogdensburg from March 26, 2012, to February 14, 2013, and with sending him packages on seven occasions and making deposits to his commissary account on 13 occasions during that time period (Specification 5). It is undisputed that the 2012 Notification timely notified the Department that respondent would be in communication with NH who was then incarcerated at Manhattan Detention Center ( MDC ) (Tr. 12, 33). Thus, Specification 4 alleges misconduct in respondent s failure to notify the Department that she would be having ongoing contact with NH after he was transferred from MDC to Ogdensburg. Specifications 4 and 5 allege misconduct in her failure to request and obtain permission to do the same. Failure to Notify Petitioner contends that its rules not only require that members of service notify the Department of communications with an inmate in the Department s custody but also to update that notification whenever the inmate is transferred to another facility (Tr. 19), as occurred in this case two weeks after NH s arrival at MDC. Respondent, admittedly, failed to do that. Between March 26, 2012, to February 14, 2013, respondent sent seven packages to NH and made 13 deposits to his commissary account while he was in state custody at Ogdensburg (Pet. Exs. 4, 5). Respondent contends that she was not aware that her 2012 Notification would not cover her contacts with NH after he was transferred to the state facility and that she did not intend to violate the rules (Tr. 18). I find no misconduct here.

4 - 4 - The undue familiarity rules cited by petitioner, and , were made effective in 1996 in a General Order of the Department (ALJ Ex. 2). Rule is the general prohibition against undue familiarity with inmates which states as follows: Members of the Department shall not indulge in any undue familiarity with inmates nor shall they permit undue familiarity on the part of the inmates toward themselves. Rule requires notification of verifiable pre-existing relationships with inmates and approval of contact with former inmates and the families of current inmates. It states as follows: 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, nor shall they make or maintain contact with or in any way associate with a member of an inmate s family, except with the approval of the Commanding Officer. 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. Rule (emphasis added). Sending packages and making commissary account deposits, when unreported, are contacts with an inmate that have constituted undue familiarity. See, e.g., Dep t of Correction v. Merced, OATH Index No. 1608/14 at 5 (Aug. 19, 2014) (receipt of phone calls from City inmate violated and ; failure to notify Department of pre-existing relationship with close friend housed in City jail violated ); Dep t of Correction v. Baker, OATH Index No. 556/10 at 8 (Nov. 13, 2003) (180 calls from inmate housed in respondent s facility); Dep t of Correction v. James, OATH Index No. 1055/04 at 15-16, 19 (Feb. 15, 2005) (officer s letter to state inmate, prior to notification of Department, violated rules and ). Here, a timely notification was made. Although respondent failed to update the 2012 Notification after NH was transferred to a state facility two weeks later, the evidence shows that respondent took her reporting responsibility seriously. This is not a factual situation involving the failure to notify the Department that a related inmate had entered its custody; respondent made that notification immediately. She testified credibly that she did not realize that her 2012 Notification would not

5 - 5 - apply to his state incarceration also (Tr ). Because NH was arrested on a parole violation, both petitioner and respondent were aware that he would be temporarily in the Department s custody before being transferred to a state facility, and in fact, NH was in DOC custody for only two weeks. Neither Rule nor speak to what occurs when an inmate is transferred shortly after the officer has made a notification. Here there is no reason to believe that respondent intentionally withheld this information from the Department: her timely disclosure of her anticipated contact with NH while in DOC custody, including plans to send him packages and deposit funds in his commissary account, is independent corroboration of her intent to comply with the rules. See Dep t of Sanitation v. Menzies, OATH Index No. 678/98 at 2-3 (Feb. 4, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 9, 1998) (in determining credibility, tribunal looks to factors including witness demeanor, the consistency of a witness testimony, supporting or corroborating evidence, and witness motivation). Had the 2012 Notification merely inserted the name of the Ogdensburg facility, it would have been sufficient in all respects. The Department contends that it has a right to know if the officer is still communicating with an inmate after he is moved out of Department custody into state custody (Tr. 19), and I do not disagree, as a matter of policy. The question here is whether Officer Caldwell was on notice that she was required to make a second notification to the Department and I find such notice lacking. There has been much discussion in the cases about the precise meaning of Rules and , the requirements set forth therein, and the degree to which they are ambiguous. Even the Department conceded there certainly is some ambiguity in the rules (Tr. 19). A number of OATH cases have commented upon a lack of clarity in the undue familiarity rules. See, e.g., Dep t of Correction v. Bruce, OATH Index No. 1226/15 at 5 (Mar. 31, 2015) (noting that Rule is less than clear, while parsing the language of the rule -- which incongruously refers to former inmates and member[s] of an inmate s family in the first sentence, and inmates in the second sentence -- to extract the most likely meaning); Dep t of Correction v. Speights, OATH Index No. 319/04 at 7 (Apr. 19, 2004), modified on penalty, Comm r Dec. (Jan. 4, 2005), modified on penalty, NYC Civ. Serv. Comm n Item No. CD M (Apr. 27, 2006) (noting the rule s lack of specificity as to what constitutes contact or association ). The meaning of has been interpreted differently even by OATH judges.

6 - 6 - Compare Bruce, OATH 1226/15 at 5 (finding that the exception for a verifiable pre-existing relationship referenced in the second sentence of Rule refers solely to former inmates and families of inmates (but not current inmates), as the second sentence is expressly a limitation upon enforcement of the first sentence in the rule), with Dep t of Correction v. Harris, OATH Index No. 2383/14 at 4 (Feb. 27, 2015) (finding that the second sentence of requires notification of a verifiable pre-existing relationship with a current inmate). Exacting punishment without adequate notice that particular conduct is required or prohibited raises issues of due process. In Department of Correction v. Pelham-Morse, the tribunal rejected the Department s contention that the express prohibition in Rule against unapproved contact with former inmates and members of an inmate s family could be expanded to apply to a former inmate s family, and found that the tribunal lacked the authority to apply a reading of the rule not expressly stated and to which respondent has had no prior notice. Dep t of Correction v. Pelham-Morse, OATH Index No. 604/04 at 4 (Aug. 10, 2004), citing Dep t of Correction v. Page, OATH Index No. 1358/96 at 27 (Mar. 17, 1997). The tribunal held in Page that, when an agency rule is subject to reasonable differing interpretations, the benefit of doubt in construing the rule must be given to the employee, because the agency must clearly put respondent on notice that her conduct... would be a violation. Id. at 24; see also Dep t of Correction v. Benston, OATH Index No. 1557/05 at 5 (Nov. 7, 2005) (arguing in favor of limited use of the continuing offense doctrine in light of tribunal precedent declaring that agency regulations must clearly put an employee on notice of what conduct would be a violation ). The tribunal s focus on due process is validated in court precedents that have considered its requirements as to notice, as did the Second Department in Food Parade, Inc. v. Office of Consumer Affairs: [D]ue process requires a civil statute or administrative regulation contain a reasonable degree of certainty so that individuals of ordinary intelligence are not forced to guess at the meaning of statutory terms. Pringle v. Wolfe, 88 N.Y.2d 426, 435 (1996), quoting Foss v City of Rochester, 65 N.Y.2d 247, 253 (1985). In circumstances where the proper construction of a statute or regulation is open to legitimate debate, the application of the statute or regulation must be construed against the municipality (see Matter of Nicklin-McKay v. Town of Marlborough Planning Bd., 14 A.D.3d 858 (3d Dep t 2005)), and construed in such a way

7 - 7 - as to avoid results that are absurd, unreasonable, or mischievous (see Matter of ATM One v. Landaverde, 307 A.D.2d 922, 925 (2d Dep t 2003)). The test for statutory vagueness is whether the language is sufficiently clear so as to inform a reasonable person of the nature of the offense prohibited and what is required (see Matter of Patricia A., 31 N.Y.2d 83, 86 (1972)). 19 A.D.3d 593, (2d Dep t 2005), aff d, 7 N.Y.3d 568 (2006). The United States Supreme Court stated in Grayned v. City of Rockford, that: Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). When violation of a Department rule that prohibits undue familiarity is alleged, the same due process principles are at stake as this tribunal considers whether the acts alleged constitute misconduct under Section 75 of the Civil Service Law, because misconduct cannot be established without a finding of fault and fault cannot be established when a rule has failed to put the employee on notice of the prohibited conduct. The courts long have held that employees are not held to a strict liability standard, because a finding of misconduct is not the equivalent of a finding that an administrative rule has been violated; rather, misconduct requires proof of fault. Reisig v. Kirby, 62 Misc. 2d 632, 635 (Sup. Ct. Suffolk Co. 1968), aff d, 31 A.D.2d 1008 (2d Dep t 1969) (sanctionable misconduct requires petitioner prove willful or intentional conduct); see also McGinigle v. Town of Greenburgh, 48 N.Y.2d 949, 951 (1979) (evidence in the record was sufficient to sustain the conclusion either that respondent started the fire or that it was caused by his negligence). Absent a showing of fault, no misconduct can be found. Dep t of Sanitation v. Beecher, OATH Index No. 176/01 at 4 (Mar. 7, 2001), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Mar. 20, 2002). Consider that the Department closed a two-year investigation of Officer Caldwell and preferred an initial set of charges that alleged respondent had failed to make any notifications to the Department, after having unearthed from its own files none of the notifications respondent submitted to her command. Respondent s notifications were offered in evidence at trial (Pet. Ex. 2), and petitioner now does not dispute that they were timely and properly submitted.

8 - 8 - Respondent contends the Department lost the notifications (Tr. 111); the Department did not dispute it and offered no explanation. Although the Department emphasizes the potential for security breaches in cases of undue familiarity, it does not offer a description of any systematic method for maintaining notifications, or the information contained therein, once received. If the information contained in the notifications is not systematically logged or maintained to make it accessible to authorized personnel when needed, the notifications hardly serve any security function at all. As a consequence, cases that involve very technical readings of these rules appear as an exercise in gotcha discipline, exposing officers to the public disclosure of potentially embarrassing and private details of their lives with little point. 3 Fairly, the undue familiarity rules should put members of service on proper notice of what notifications must be submitted, what approvals are required, to/from whom must they be given/obtained, in what manner must a notification/approval be logged in as received by the Department, whether and when a notification/approval expires or must be updated, whether the nature of a relationship (specifically, an intimate or live-in relationship) must be disclosed, and the extent to which the requirements apply to current inmates, former inmates, or the families of either group. No rule is perfect, but there is room for improvement in the current undue familiarity rules, particularly and The Department can remedy the vagueness of these rules so they will contain the details the Department needs and specifies the types of contact strictly prohibited, or permitted under specified circumstances, or for which only notification is required. Officers should not be in fear of their jobs for violating rules so broadly written and ambiguously worded. Petitioner failed to establish misconduct for the deficiency in respondent s 2012 Notification and these allegations should be dismissed. A member of service cannot be found guilty of misconduct for her failure to comply with a requirement of which she has not been 3 In Pelham-Morse, the Department charged respondent with failure to notify it of her relationship with a former inmate to whom she was engaged to be married at the time of hire. The tribunal accepted respondent s credible testimony that she had provided written notice in a questionnaire she filled out during her pre-employment interview conducted by NYPD (OATH 604/04 at 5-6). The Department charged respondent with misconduct in spite of its investigator s testimony that respondent s notice at a pre-employment interview had been sufficient, its lack of proof that she failed to disclose, and its own fault in losing her pre-employment file (id. at 7). In Department of Correction v. Stoudymire, OATH Index No. 1367/13 (Sept. 20, 2013), where respondent was charged with fabricating two date-stamped documents that purportedly notified the Department of respondent s relationship with an inmate, the tribunal found it more likely that she submitted the documents and petitioner misfiled or misplaced them (id. at 6).

9 - 9 - given notice, and notice to respondent was lacking here. See Pelham-Morse, OATH Index No. 604/04 at 4; Page, OATH Index No. 1358/96 at 27. Failure to Request/Obtain Permission Specifications 4 and 5 allege that respondent failed to request or obtain permission to communicate with NH during his incarceration at Ogdensburg. As an initial matter, it should be noted that the rules do not explicitly require permission to communicate with a presently incarcerated inmate. Rule requires Department approval for members of service to make contact or associate with former inmates and with member[s] of an inmate s family. The rule does not address approval for contact with current inmates. That would strongly suggest that Rule does not apply to this particular allegation of Specifications 4 and 5. The Department s theory appears to be according to the testimony of one of its witnesses that under all contact with an inmate is prohibited unless approved, through the submission of permission forms. Rule is the Department s general prohibition against undue familiarity. Although the term undue familiarity is nowhere defined in the rule, the case law adjudicating charges under Rule has created the contours of what constitutes undue familiarity. Manifestly the prohibition against undue familiarity is of crucial significance to the paramilitary environment of the jails. Undue familiarity with inmates is an offense to the core principles of the jail environment which are to administer care, custody, and control of inmates wherein correction officers maintain separation from and authority over the inmates at all times. Compromise of an officer s authority is tantamount to breakdown in the security of the facility and of the community writ large. Thus, among other things, officers must not socialize with inmates inside the facility (Dep t of Correction v. Murchison-Hunt, OATH Index No. 297/10 (Mar. 25, 2010), aff d, NYC Civ. Serv. Comm n Item No. CD A (Sept. 12, 2011) (officer guilty of undue familiarity for accepting an earphone from an inmate, listening to music on it, and dancing to the music in front of inmates while on duty)); officers must not be seen in interactions with inmates that undermine the authority of their position (Dep t of Correction v. Connell, OATH Index No. 1598/11 at 9 (May 24, 2011) (officer s participation, by omission and commission, in an inmate assault upon another inmate constituted undue familiarity)); officers must not show favoritism of one inmate over another (Dep t of Correction v. LeConte, OATH

10 Index No. 788/96 at 9-10 (Jan. 8, 1996) (undue familiarity occurs whenever an act constitutes a personal favor that breaches the proper wall of separation between the jailers and the jailed and includes giving an inmate cold, salty, leftover chicken that would otherwise be thrown in the garbage )); and an officer s interactions with an inmate must not undermine the security of the facility (Dep t of Correction v. Harris, OATH Index No. 2383/14 at 16 (Feb. 27, 2015) (officer jeopardize[ed] the safety and security of the facility by improperly and inappropriately discussing Department business with an inmate)). None of these expectations were violated by respondent who notified the Department of her anticipated contact with NH in advance (sending packages and deposit to his commissary account) and acted in accordance with the notification. There is no allegation that she and NH discussed Department business. Respondent did not visit NH and her interaction with him was not observed by other inmates. Deputy Warden Miguel Melendez testified on behalf of petitioner that, apart from the notification of a pre-existing relationship, the Department requires that a permission form be filled out by an officer each time he or she makes certain contact with an incarcerated individual, such as sending them a package or depositing funds in a commissary account. He testified that permission is required any time [an officer] want[s] to interact with a particular incarcerated individual (Tr. 75, 78). However, he made an exception for phone calls because receipt of a phone call is outside of an officer s control (Tr. 79). Asked if there was a particular rule that creates the permission requirement, the deputy warden did not name one but referred generally to the rules against undue familiarity (Tr. 81). Asked whether officers are told when they submit a 600AR notifying the Department of a verifiable pre-existing relationship with an incarcerated individual that they must also fill out a form seeking permission each time they want to mail a package or deposit funds into a commissary account, Deputy Warden Melendez was not certain. He stated, I would think it would be [from] the commanding officer or the warden or assistant deputy warden (Tr ). The Department produced no rule or directive on obtaining permission. Although I credited the deputy warden s testimony about his experience of the use of permission forms, I noted that it is not corroborated by any written rule and it reflects an ad hoc nature to this permission requirement which, in the deputy warden s opinion, made an exception for phone calls. I do not know how respondent would be expected to know this. Overall, the deputy warden s testimony failed to establish that, in the absence of written

11 instructions, officers are uniformly afforded notice that permission forms must be used to seek approval for all (or most) contacts with an incarcerated individual. Human Resources Admin. v. Payton, OATH Index No. 314/12 at (Dec. 6, 2011) (employee could not be disciplined for coming to the aid of a co-worker in the absence of a written statement prohibiting workers from intervening in incidents involving security guards; nor could employee be sanctioned for disobeying verbal ban against calling 911). In addition, although she previously expressed a different view (Tr ), after reviewing a copy of Rules and , Investigator Johnson testified that, so long as respondent notified her command of a verifiable pre-existing relationship, submission of a permission form for purposes of sending packages, mail, etc., to this inmate was not required (Tr. 66). This testimony not only contradicted Deputy Warden Melendez but it is also exculpatory of respondent who submitted a proper notification of a pre-existing relationship. It is also consistent with the holding in Department of Correction v. McCaskill, where the tribunal found an officer was not guilty of undue familiarity with an inmate who was his nephew where the officer received telephone calls from the incarcerated nephew after informing the Department of the relationship and receiving no further instruction from the Department. OATH Index No. 1530/97 at (Jan. 12, 1998), aff d, NYC Civ. Serv. Comm n Item No. CD SA (Aug. 31, 1999). Significantly, Investigator Johnson s contradiction of the deputy warden s testimony on this crucial point illustrates the problem with an attempt to enforce highly complex rules that are unwritten. It also is an indication that no clear rule exists. I should note that petitioner did not argue at trial that respondent failed to obtain permission; rather, counsel argued that respondent was required to give notice (Tr. 131). 4 There is a further inconsistency in the Department s position, which is the fact that respondent is not charged with the failure to obtain permission to have contact with NH while he was in DOC custody, as it is not disputed that she filled out no permission form for such contact. If the notification and permission requirements are separate and distinct requirements, the Department did not charge consistently with that principle. Rather, the Department s conduct is 4 To add to the confusion, there are OATH decisions that have determined, based upon the trial records in those cases, that there is a blanket prohibition against consorting with inmates eshewing notification and permission alike. See Dep t of Correction v. Gritten, OATH Index No. 1116/04 at 7 (Aug. 2, 2004); Dep t of Correction v. Lewis, OATH Index No. 1028/01 at 11 (Jan. 11, 2002), aff d, NYC Civ. Serv. Comm n Item No. CD03-47-SA (June 12, 2003).

12 consistent with Investigator Johnson s testimony and the holding in McCaskill that permission was not necessary once a proper notification was provided. Respondent testified that, when she submitted her 2012 Notification to security, no one advised her that she would be required to complete a form seeking permission or giving notification each time she sent a package or money (Tr. 89, 102). She stated that Captain Gates asked her if she would be visiting NH and offered her a visit form. She told Captain Gates she would not be visiting, and Captain Gates told her to write a 600AR. Respondent did so, stating in the memo that she would be sending packages and money, but would not visit the inmate (Tr. 89). This testimony is uncontroverted. To be clear, the Department has an interest in keeping track of a member s interactions with inmates, former and current, no matter the location of their incarceration. However, Rule , which requires approval for contact with former inmates, does not mention approval for contact with current inmates. And Rule does not enunciate a requirement that permission forms be completed for each package sent or commissary deposit made by a member of service. No permission form is annexed to the rules and none was entered into evidence at trial. There is no evidence that respondent was advised of this requirement, and the existence of such a requirement was contradicted by one of petitioner s two witnesses. I find that petitioner failed to prove by a preponderance of the evidence that respondent committed misconduct by failing to seek and obtain permission for the packages and commissary deposits she sent to NH during his incarceration at Ogdensburg. To the contrary, I find that respondent, by submitting timely notification that she would be sending packages and making commissary deposits, sought to put the Department on notice of her conduct and, hearing nothing further from her command, reasonably believed that her notification was sufficient. Failure to Notify of the Nature of the Relationship Petitioner separately charged respondent with a failure to notify the Department that she was involved in a relationship with NH (Specification 2). Respondent did notify the Department of a relationship with NH, to whom she referred as a family member (Pet. Ex. 2). The Department faults respondent with failing to disclose that she was in an intimate or romantic relationship with NH. I find no obligation to do so in the rules.

13 The notification requirement set forth in Rule specifically requires notification of a verifiable pre-existing relationship between an officer and an inmate. Respondent properly notified the Department of such a relationship. Nothing in Rule requires notification of the nature of the relationship nor asks for any specific details regarding the relationship. Moreover, her reference to NH as a family member is not inconsistent with his being her significant other. It is objectively reasonable that she would consider her significant other of many years to be a family member, and I did not find use of the term to be misleading, particularly given the fact that details are not specified in the rule. Before being found guilty of misconduct, an officer is entitled to notice of the required (or prohibited) conduct. In this case, petitioner did not notify respondent that the specific nature of the relationship was required. See Bruce, OATH 1226/15 at 6 (recommending dismissal of undue familiarity where respondent s notification stated that she had a verifiable relationship with an inmate whom she named and indicated was a convicted felon ). Influential in Judge Casey s decision in Bruce was the fact that respondent s commanding officer at the time of her notification, who had since retired, testified at trial that he received her notification and deemed it satisfactory under the rule (id.). Judge Casey noted that the undue familiarity rules provide no guidance on how much detail officers are expected to provide in their notifications, such as how they met or whether periodic updates of milestones in the relationship are expected, instead requiring only that the employee notify the commanding officer that there is a relationship (id.). I concur with that assessment. There was no testimony here from Officer Caldwell s commanding officer. However, having reviewed respondent s notifications to the Department, Investigator Johnson testified that she would not have charged respondent with failure to notify if she had had these documents prior to closing her investigation (Tr. 57). Proof of fault (through willfulness, intent, or negligence) is lacking here where respondent reported having a relationship with NH who she regarded as a family member. See Reisig, 62 Misc. 2d at 635 (sanctionable misconduct requires petitioner prove willful or intentional conduct); McGinigle, 48 N.Y.2d at 951 (evidence sufficient to sustain the misconduct caused by employee s negligence). If more detail was needed, any commanding officer who reviewed the report could have asked for it. In this case, no one did.

14 Petitioner s argument of risk to the security of the Department in the characterization of NH as a family member rather than significant other (Tr. 121) is exaggerated beyond credence. The Department fails to explain what difference it would have made for respondent to have notified the Department that NH was her significant other rather than family member, particularly when the Department for at least two years could not even find respondent s notifications in its own files. In addition, there is no merit to petitioner s claim that respondent s failure to disclose that her relationship with NH was an intimate one nullified all of her notifications to the Department, as agency counsel argued (Tr ). The rules lack sufficient specificity to have put respondent on notice that the precise nature of her relationship with NH was a required part of the disclosure to her commanding officer. I therefore find that misconduct is not established. False or Misleading Statements Respondent is charged with making false or misleading statements in her MEO 16 interview, to wit (1) NH was a family member and her nephew; (2) NH is her sister s child; (3) she had no cell phone since being hired to work at the Department; and (4) NH s sister actually posted bail for him in May/June 2011 (Specification 1). To establish misconduct, petitioner must show that respondent s statements were designed to mislead. See Dep t of Correction v. Stoudymire, OATH Index No. 1367/13 at (Sept. 20, 2013) (officer s statement at her MEO 16 that she wrote to inmate only once when she wrote to him at least nine times could not have been an honest mistake and was false); Dep t of Correction v. Johnson, OATH Index No. 1639/05 at (Aug. 18, 2005), modified on penalty, Comm r Dec. (Oct. 27, 2005), modified on penalty, NYC Civ. Serv. Comm n Item No. CD M (Mar. 14, 2007) (reference to upper body in use of force report was misleading in that it failed to reflect that the officer struck inmate s head into a door). Not every inaccuracy is false or misleading, and imprecise language is not misconduct if there was no intent to conceal or deceive. Dep t of Correction v. Holder, OATH Index No. 2208/07 at 4 (Sept. 14, 2007). At the MEO 16 interview, respondent initially testified that she resides with her daughter and her nephew (Pet. Ex. 7 at 6). When later asked who lived with her, she named NH and stated that he was a family member and her sister s child (id. at 7-8). After two more

15 questions from the interrogator, respondent admitted that NH was not her nephew (id. at 9). She stated that he has lived with her for seven years and is her domestic partner (id. at 9, 18). As I stated above, I find respondent s reference to NH as a family member to be reasonable and do not find it to be false or misleading or deceptive. Even petitioner s witness believed the term family member could be applied to an intimate relationship of 10 years or longer (Tr ). The evidence did establish, however, that respondent initially falsely testified at her MEO 16 interview that NH was her nephew and her sister s child. 5 This is not content that could be subject to a mistaken impression. At trial, respondent did not dispute that she answered falsely. Although respondent corrected her false testimony during the same MEO 16 interview, not long after making the false statement, her belated attempt at damage control does not excuse her initial false statements. Stoudymire, OATH 1367/13 at 12 (respondent guilty of false statement for her failure to concede the truth that she had written nine letters to an inmate until after she was confronted with them); Speights, OATH 319/04 at (respondent s admission made only when faced with opposing statements from two eyewitnesses did not cure false statement during MEO 16 interview); Dep t of Correction v. Smith, OATH Index No. 427/98 at 10 (May 5, 1998) (later admission does not cure false statement to investigators). When asked about a personal cell phone during the MEO 16 interview, respondent stated that she did not have a cell phone and had only a home telephone since her appointment to the Department in 1996 (Pet. Ex. 7 at 10). After a break and several more questions, respondent admitted that she does have a cell phone, which she has owned for two years, and she provided the phone number to the interrogator (id. at 14). At trial, respondent did not dispute or offer context for her MEO 16 testimony about her cell phone. I could find no reasonable basis for any confusion about the question being asked. I find respondent s denial that she had a cell phone to be false. Finally, respondent stated during the MEO 16 interview that NH was arrested in or about May 2011, and that she bailed him out (id. at 21, 25-26). This is not disputed in the record. However, petitioner charged respondent with falsely stating that NH s sister actually bailed him out. I could not reconcile the allegation with the record evidence. 5 These utterances (that NH is her nephew and her sister s child) are restatements of the same fact so, for purposes of penalty, they are counted as one false statement.

16 Respondent forthrightly testified at the MEO 16 interview that she bailed out NH in May 2011 after his arrest (id. at 26, 35), that she posted the $10,000 bail which was funded through her individual bank account (id. at 28-30), that the money was not a loan to NH and that she would get it back when he appeared for trial (id. at 29-30). She also testified at the MEO 16 interview that NH s sister went with her at the time she posted bail and that the two of them delivered a package to the jail with personal items for NH, which his sister took inside the building (id. at 34-35, 43). I found no testimony in the MEO 16 interview that NH s sister posted bail for him and, thus, no support for petitioner s allegation that respondent testified falsely in this regard. I therefore find that respondent made the following false statements during her MEO 16 interview: (1) that NH was her nephew and her sister s child, and (2) that she had no cell phone since being hired to work at the Department. The remaining allegations should be dismissed. 6 Crime Official Misconduct Specification 6 charges respondent with commission of the crime of official misconduct by posting bail for NH on or about May 24, 2011, and alleges that she obtained a benefit by enabling inmate H[] to leave Rikers Island and return to the residence that they shared with knowledge that the act of posting bail was unauthorized. This tribunal will review criminal statutory provisions under certain circumstances, in particular, when the crimes exception to the statute of limitations in Section 75(4) of the Civil Service Law is asserted. See Dep t of Correction v. Battle, OATH Index No. 1052/02 (Nov. 12, 2002); Dep t of Correction v. Price, OATH Index Nos. 363/00 & 1399/00 (Apr. 17, 2001), aff d in part, rev d in part, Comm r Decision (June 26, 2001). The Civil Service Law mandates that, except for criminal acts, no removal or disciplinary proceeding shall be commenced more than eighteen months after the alleged misconduct. Civ. Serv. Law 75(4) (Lexis 2014). Otherwise, the charges may be dismissed as untimely even in the absence of a specific objection. See Matter of Zabari, OATH Index No. 893/97 (Mar. 11, 1997), adopted, Loft Bd. Order No (Apr. 24, 2007). Thus, a charge served on July 30, 2013 (ALJ Ex. 1), for misconduct 6 Petitioner cites at the bottom of page 1 of its charges and specifications (ALJ Ex. 1 at 1) three Penal Law provisions, sections , , and , without indicating to which specifications they refer or stating how respondent allegedly violated these statutes. Nor did petitioner provide legal argument for the same. I find no basis for a violation of these criminal statutes in Specifications 1 through 5; any such allegations should be dismissed.

17 alleged to have been committed on May 24, 2011, is barred by the statute of limitations unless the misconduct alleged also constitutes a crime. Mieles v. Safir, 272 A.D.2d 199 (1st Dep t 2000) (charge specifying unauthorized exercise of [police officer s] official functions in violation of the Patrol Guide was not barred by the 18-month statute of limitations in Section 75(4)). Here, petitioner alleges that respondent committed official misconduct. When an agency relies upon the crimes exception to the limitations period, it must establish by a preponderance of the evidence all of the elements of the alleged crime as defined in the Penal Law. See Aronsky v. Bd. of Education, 75 N.Y.2d 997, 1000 (1990). Under section of the Penal Law, a public servant is guilty of official misconduct when, with intent to obtain a benefit or deprive another person of a benefit, he or she: 1. commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized; or 2. knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office. Penal Law (Lexis 2014) (violation is a class A misdemeanor). Specification 6 alleges a violation of (1). This specification should be dismissed. There is no dispute that in or about May 2011, respondent posted bail for NH. Respondent made timely notification of it in the 2011 Notification (Pet. Ex. 2 at 3), and she testified at her MEO 16 interview on February 7, 2012, that she posted his bail (Pet. Ex. 7). The claim that respondent is guilty of the crime of official misconduct appears to be premised upon the unproven allegation that she was not authorized to post bail for NH, even though petitioner acknowledged timely receipt of the 2011 Notification. Petitioner argued at trial that respondent was not authorized to post bail for NH because the 2011 Notification states that NH is a family member and does not disclose that NH is her significant other (Tr. 132). As I understand petitioner s argument, respondent s failure to disclose what petitioner describes as the true nature of her relationship to NH nullified her notification that she would be posting bail (Tr. 121). Therefore, the act of posting bail was an unauthorized exercise of her official functions, as contemplated under the statute. As a legal proposition, this argument fails in several respects. First, as I have found herein, respondent s description of NH as a family member is not false or misleading. It is a reasonable use of the term family, although not a detailed description of the relationship. The rules do not set forth any amount of detail that is required.

18 Second, even if respondent s use of the term family member was faulty, it could not nullify the notice otherwise provided in the 2011 Notification, as a matter of law. Once notice is effectively given, it is not undone by technical anomalies; knowledge itself satisfies the notice requirement. See Dep t of Correction v. Bradley, OATH Index No. 862/98, mem. dec. at 5-6 (Apr. 3, 1998) (once respondent s command became aware of his relationship with a former inmate by virtue of news reports rather than respondent himself the notification purpose of the rule was satisfied and respondent had no further obligation to report). Third, petitioner has offered no proof that posting bail was an unauthorized exercise of respondent s official functions, as required in the statute. See Battle, OATH 1052/02 at (acts of undue familiarity cited in the charges, including respondent s posting or revoking bail for the inmate, giving the inmate her home phone number, receiving phone calls at home from the inmate, picking him up in her car or taking him home upon his release, were not criminal in nature; nor did petitioner demonstrate that any of the acts potentially violated criminal statutes). The alleged benefit of enabling NH to leave Rikers Island and return home was not obtained by respondent submitting the 2011 Notification but by posting bail. The act of posting bail is not an official act for respondent and, thus, may not form the predicate for the crime of official misconduct. See, e.g., People v. Maloney, 233 A.D.2d 681 (3d Dep t 1996) (police officer convicted of official misconduct for issuing a seatbelt violation to his former girlfriend s mother when she was properly restrained at the time); Battle, OATH 1052/02 at (correction officer s conduct which included the intent to benefit by submission of a false report seeking to have an inmate transferred in order to prevent the inmate from exposing their past improper relationship was official misconduct); Dep t of Correction v. McFarland, OATH Index No. 650/92 at 7 (Aug. 24, 1992), aff d sub. nom. McFarland v. Abate, 203 A.D.2d 190 (1st Dep t 1994) (correction officer s participation in gambling with inmates and his failure to report it was official misconduct). Nor is there any evidence that she acted improperly in posting NH s bail. The uncontroverted evidence showed that she submitted timely notification to the Department that she would be doing so. The Department failed to establish the elements of Penal Law section by a preponderance of the evidence. Specification 6 should be dismissed as time-barred. FINDINGS AND CONCLUSIONS

19 Respondent reported to the Department a pre-existing relationship with an inmate, NH, in 2011 and again in 2012 when he was arrested and incarcerated in the Department s custody. Petitioner failed to prove that respondent committed misconduct by failing to notify the Department of the inmate s transfer to a state facility at Ogdensburg, as alleged in Specification Petitioner failed to prove that respondent committed misconduct by failing to request permission to contact NH while at Ogdensburg from January 19, 2013, to February 10, 2013, as alleged in Specification Petitioner failed to prove that respondent committed misconduct by failing to request or receive permission to communicate with NH while incarcerated at Ogdensburg from March 26, 2012, to February 14, 2013, and with sending him packages on seven occasions and making deposits to his commissary account on 13 occasions during that time period, as alleged in Specification Petitioner failed to prove that respondent committed misconduct by failing to state in her notification that NH was her significant other, as alleged in Specification Petitioner established that respondent made false statements during her MEO 16 interview when she stated that NH was her nephew and her sister s son, and when she stated that she had no cell phone since being hired by the Department, as alleged in Specification 1. Petitioner failed to prove that respondent stated, falsely or otherwise, that NH s sister posted his bail. 6. Petitioner failed to prove that respondent committed the crime of official misconduct under Penal Law section , as alleged in Specification 6. Thus, the misconduct alleged is time-barred. RECOMMENDATION Upon making these findings, I obtained and reviewed an abstract of respondent s employee performance service report (Form 22R) for purposes of recommending an appropriate penalty. Officer Caldwell was appointed to the Department on November 14, She has

20 received minor discipline during her lengthy tenure with the Department: a five-day suspension in 2002 for a violation of the uniform directive and, recently, the loss of 16 hours of comp time. Respondent has been found guilty of making false statements during her MEO 16 interview. The Department seeks termination for the misconduct charged, the lion s share of which was not sustained by the evidence. I find termination of this officer s employment excessive for the misconduct proven here. Respondent presented herself in a professional manner at all times during the trial. She admitted her culpability and expressed remorse for failing to be completely honest during her MEO 16 interview, and she did not dispute the charge. Respondent testified that at the time of her MEO 16 interview she was surprised by the substance of the questioning. She explained that her initial impulse to dissemble about her relationship with NH was the result of shame and embarrassment that she was intimately involved with an inmate and regret that, because of the role she plays at work counseling others, she would be judged by those around her (Tr. 90). At the Department, she has been recognized as Officer of the Month, as Woman of the Month, and was recognized by the Guardians with an award last year. She forthrightly stated that she did not allow her relationship with NH to interfere with or to compromise the performance of her duties as a correction officer (Tr. 105). In spite of the charges proven here, her demeanor at trial gave me no reason to disbelieve her. Although respondent is guilty of making false statements during her MEO 16 interview, the record demonstrates it is an aberration in an otherwise admirable professional record. I do not expect it to be repeated. Accordingly, I recommend a penalty of 15 days suspension, which is mitigated by respondent s long tenure and good record. I also considered as mitigation the fact that respondent corrected her false statements during the course of the MEO 16 interview without need of being confronted with contrary evidence. May 27, 2015 Tynia D. Richard Administrative Law Judge SUBMITTED TO: JOSEPH PONTE Commissioner