Admin. for Children’s Services v. Judge OATH Index No. 1412/16 (Jan. 20, 2017), modified on penalty, NYC Civ. Serv. Comm’n Case

No. 2017-0253 (July 6, 2017), appended

Juvenile counselor charged with using impermissible and unauthorized force on three residents. The excessive and inappropriate force included placing his arm, hand, and knee on a resident’s neck; pulling another resident backwards off of a desk, causing him to fall on his back and hit his head on a chair; and grabbing a third resident around the waist, lifting him in the air, and throwing him to the ground. Respondent was also charged with submitting a false report regarding the incident. ALJ sustained the charges and recommended termination. CSC reduces penalty to time-served suspension, citing to progressive discipline and the fact that the counselor was not the initial aggressor. ______________________________________________________

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

ADMINISTRATION FOR CHILDREN’S SERVICES

Petitioner

-against-

MATHEWS JUDGE

Respondent

____________________________________________________

REPORT AND RECOMMENDATION

KARA J. MILLER, Administrative Law Judge

This employee disciplinary proceeding was referred by the Administration for Children’s

Services pursuant to section 75 of the Civil Service Law. Respondent, Mathews Judge, a

juvenile counselor (“JC”), is charged with using impermissible and/or unauthorized force on

three residents and submitting a false and/or misleading report1 (ALJ Ex. 1).

Following a three-day hearing on the charges, I find that respondent used impermissible

and unauthorized force on three residents by placing his arm, hand, and knee on the first

resident’s neck; pulling a second resident backwards off of a desk, causing him to fall on his

back and hit his head on a chair, and then once the second resident was on the ground placing his

1 Charge 1, specification 5 was withdrawn at the commencement of the trial.

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hand and knee on his head; and grabbing a third resident around the waist, lifting him in the air,

and throwing him to the ground. In addition, I find that respondent submitted a false and

misleading report regarding the incident. I recommend that respondent be terminated from his

position as a juvenile counselor.

ANALYSIS

The charges stem from an August 23, 2015, group assault by four residents at the

Crossroads Juvenile Center (“Crossroads”) on resident Isaac, a new resident to A-Hall. A-Hall,

an eight-bed resident hall for male juveniles, is configured like an “L” and is divided into two

sides, the A-side and the B-side, which are perpendicular to each other. The A-side is comprised

of four resident’s rooms, a bathroom, a storage closet, and the dayroom. The A-side corridor

serves as the dayroom. On one end of the A-side corridor there is a staff desk. Behind the staff

desk is a Plexiglas partition and door, which leads to the facility’s main corridor. The four

resident’s rooms are located on the right side of the corridor when facing the staff desk. The

bathroom and storage closet are across the corridor, on the left side (Pet. Ex. 8; Tr. 30, 35, 38,

41-43, 329).

In the center of the dayroom there are four heavy plastic arm chairs, commonly referred

to as “bricks,” which are weighted down with sand to make them difficult to move or throw. The

bricks face a flat screen television mounted on the right wall and a tube television on a stand with

wheels. At the opposite end of the A-side corridor is a table and two bricks pushed directly

against a Plexiglas partition, which leads to the B-side corridor. There are four resident’s rooms

on the B-side, as well as a resident’s bathroom and a staff bathroom. On the far end of the B-

side corridor are double doors which lead to a patio (Pet. Ex. 8; Tr. 30, 35, 38, 41-43, 329).

Resident Isaac, who was on two-to-one supervision, was being supervised by JCs Lovick

and Bristow at the time of the incident (Tr. 79-80, 404). Respondent was working an overtime

assignment supervising the remainder of the residents on A-Hall with JC Marceis (Tr. 450). At

approximately 6:50 p.m., a resident punched resident Isaac in the head. The situation quickly

escalated into a melee that lasted four minutes and 36 seconds, during which four residents tried

to assault resident Isaac. The JCs attempted to protect resident Isaac and prevent the attack but

lost control of the situation. About three to four minutes into the group assault, another JC and a

tour commander (“TC”) entered A-Hall to help control the situation (Pet. Ex. 8).

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The Video

Petitioner relied heavily upon a video recording of a very chaotic incident in which

respondent and three other JCs try to prevent four residents from assaulting another resident (Pet.

Ex. 8). The video, taken from two camera angles on both the A-side and B-side of A-Hall,

captures the interaction between respondent and residents Rashan, Jason, and Tyrone during the

group fight.

The video begins with JC Lovick, JC Bristow, and resident Isaac sitting at the staff desk

in the dayroom playing a game of Monopoly (Pet. Ex. 8 at 18:49:09; Tr. 41, 43, 219, 407, 422,

426, 452, 460). Without warning, resident Christian moves quickly towards the staff desk,

reaches around JC Bristow, and punches resident Isaac twice on the side of his head. Isaac

stands up and stumbles towards JC Lovick behind the desk, while holding the side of his head.

JC Lovick stands up and places herself in between the staff desk and Isaac as JC Bristow moves

rapidly towards Christian, who is taking several steps backwards (Pet. Ex. 8 at 18:49:45 –

18:49:52; Tr. 45-46, 220, 304-05, 411, 453).

JC Bristow catches up to resident Christian and guides him to the door leading to the B-

side. Respondent, who was standing by the door on the B-side, gives Christian a light shove into

the B-side corridor. Respondent, while gesturing and talking, follows Christian walking towards

the patio. After Christian walks through the patio doors, respondent returns to his position by the

door leading to the dayroom. At that time, the JCs are guiding the other residents, who have

been sitting in the dayroom to the B-side. (Pet. Ex 8 at 18:49:52 – 18:50:09; Tr. 46-47, 100-01,

221, 309, 412, 421, 453, 461).

Isaac walks away from the staff desk towards the left wall and stops not far from the TV

stand. He appears to be agitated. JC Bristow approaches Isaac and places himself in between

Isaac and the TV stand. JC Lovick speaks into her radio and then walks back towards the staff

desk and picks up the wall phone. JC Bristow moves towards the other end of the dayroom near

the door to the B-side, leaving Isaac by himself (Pet. Ex. 8 at 18:50:11 – 18:51:26; Tr. 109-10,

312, 428, 429-31).

Suddenly, resident Isaac turns towards the TV stand and pushes it very hard, sending it

rolling down the length of the dayroom. The TV stand bounces off one of the bricks and tips

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forward slightly, self-corrects, and starts rolling back towards the middle of the room. JC

Bristow walks back towards resident Isaac, who quickly moves behind the staff desk. JC Lovick

hangs up the telephone and also walks towards Isaac. Isaac appears to be ignoring JCs Lovick

and Bristow and continues to pace back and forth behind the staff desk (Pet. Ex. 8 at 18:51:31 –

18:51:49; Tr. 49, 316, 412, 456, 463).

Meanwhile, five residents on the B-side are standing near the partition, peering through

the Plexiglas windows into the dayroom, gesturing and taunting resident Isaac. Respondent, who

is still stationed on the B-side, has his back to the five residents and is talking to another resident

while pointing towards the Skelly board on the floor. On the A-side, JC Lovick moves the two

lightweight plastic chairs that JC Bristow and Isaac had been sitting on and places them along the

right side wall (Pet. Ex. 8 at 18:51:59 – 18:52:07; Tr. 50-51, 121, 123, 126, 225, 313, 315, 466).

After Isaac pushes the television stand, residents Tyrone and Jason walk into the dayroom

from the B-side corridor and appear to be yelling at resident Isaac. JC Lovick moves closer to

Isaac, standing slightly in front of him. Respondent, noticing what is happening, walks to the

doorway separating the A-side from the B-side. As he enters the dayroom, respondent grabs

resident Tyrone’s arm and pulls him towards the door to the B-side corridor. JC Marceis tries to

guide resident Jason, who resists moving, back towards the B-side. JC Marceis starts pulling on

Jason’s shirt. Respondent moves closer to them, placing his hand on Jason’s back to push him

out of the dayroom to the B-side corridor. Meanwhile, the remaining residents on the B-side

appear to be yelling and pointing at resident Isaac (Pet. Ex. 8 at 18:52:15 – 18:52:20; Tr. 51-52,

226, 229, 319-20, 455-57, 467).

Suddenly, resident Isaac picks up one of the lightweight plastic chairs and throws it in the

direction of the Tyrone and Jason, who were standing near JC Marceis and respondent by the B-

side door. Resident Isaac starts running in the direction of the flung chair, rushing towards the

other residents while yelling and gesturing. JCs Lovick and Bristow run behind Isaac, who is

now in a fighting stance with his fists clenched. JC Lovick manages to push Isaac back towards

the staff desk, placing herself in front of him to block him from the residents, who are rushing

into the dayroom from the B-side corridor. JC Bristow and respondent unsuccessfully attempt to

stop all of the residents from entering the dayroom. The residents who were able to get past

respondent and JC Bristow run towards JC Lovick and Isaac (Pet. Ex. 8 at 18:52:26 – 18:52:31;

Tr. 53, 131-32, 134-35, 229-30, 319, 321-22, 412, 458, 470).

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Two residents, Michael and Jason, run straight at resident Isaac while two others, Rashan

and Tyrone, run around the bricks to attack him from the side. JC Bristow manages to stop

resident Michael as respondent steps in front of JC Lovick to help block Isaac. The residents

then switch directions and continue to charge at Isaac by attempting to bypass the counselors.

Two residents step back while JC Bristow continues to struggle with resident Michael.

However, resident Rashan runs towards respondent, who is still standing in front of Isaac.

Respondent uses both hands to shove resident Rashan backwards into the bricks. Resident

Tyrone takes this opportunity to run to the other side of the bricks, step on one of the seats, and

jump over the back of the brick. Together, residents Jason, Rashan, and Michael corner

respondent, JC Lovick, and resident Isaac against the wall in front of the staff desk. As the

residents move closer, resident Michael jumps straight up, about three feet into the air and comes

down with his fist punching into the middle of everyone, trying to hit Isaac (Pet. Ex. 8 at

18:52:34 – 18:52:42; Tr. 53, 138, 140-41, 323-24, 333, 335-36, 338, 413, 459, 470, 473).

Collectively, the juvenile counselors push the attacking residents backwards. Residents

Jason, Tyrone, and Michael retreat a few steps but resident Rashan persistently pushes forward to

get closer to resident Isaac. Respondent places resident Rashan in a headlock and either pushes

him down to the floor or loses his balance and falls, taking Rashan to the floor with him. After

landing on the floor, respondent is lying on top of Rashan and presses his forearm across

Rashan’s throat. Meanwhile, JC Lovick pulls resident Isaac further away from the other

residents. Respondent, who is still on the floor, has moved his arm off of Rashan’s neck and

presses it down on the resident’s head (Pet. Ex. 8 at 18:52:44 – 18:52:48; Tr. 55-56; 231, 342,

416, 476).

Residents Michael and Tyrone run to the other side of the bricks to get closer to resident

Isaac. JC Lovick, who is next to Isaac, tries to pull Isaac behind her. JC Bristow assists JC

Lovick by moving in between Isaac and the two attacking residents. Respondent, who is still on

the floor tussling with resident Rashan, straddles Rashan, who at that point is lying prone

underneath him. Respondent places both of his hands around the resident’s neck. Respondent

removes one of his hands from Rashan’s neck as he shifts onto one knee. With the hand that is

still on Rashan’s neck, respondent pushes down on the resident’s neck while repositioning

himself and grabs the wall with his free hand for support. Respondent then removes his hand

from Rashan’s neck and places his knee on Rashan’s neck instead. Resident Rashan grimaces in

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pain and flails about as he struggles to get loose (Pet. Ex. 8 at 18:52:50 – 18:52:52; Tr. 57-60,

150-51, 346-47, 349-50).

JC Marceis, who is standing closer to the B-side door, has resident Jason in a headlock.

Resident Isaac is standing behind JC Lovick as JC Bristow blocks residents Michael and Tyrone

from resident Isaac. Resident Michael breaks away and moves behind the staff desk to try to

reach resident Isaac. Resident Isaac slides to his right along the wall and away from the desk

with JC Lovick blocking him the entire time. Isaac slides behind respondent and resident Rashan

and falls backward through the unlocked storage closet door, landing on the floor. In the chaos,

residents Michael and Tyrone push past JC Bristow. Tyrone runs around the bricks towards the

storage closet while Michael hurdles over the bricks to get to the closet. Michael loses his

balance and as he lands he falls into respondent, causing respondent to lose his balance. This

permits resident Rashan to twist his body out from underneath respondent (Pet. Ex. 8 at 18:52:54

– 18:52:56; Tr. 61-62, 350-51, 416).

Resident Isaac is now standing in the doorway of the open storage closet with JCs Lovick

and Bristow blocking him. JCs Lovick and Bristow push residents Michael and Tyrone away

from the storage closet while respondent is still struggling with Rashan, who is trying to stand

up. Respondent places his arm around Rashan’s neck. As JC Bristow speaks into his radio, JC

Rhymer enters the hall to help. JC Rhymer rushes into the center of the room and blocks

resident Michael, preventing him from throwing a shoe at Isaac. JC Rhymer corrals Michael and

Tyrone and moves them to the right side of the dayroom, away from the storage closet (Pet. Ex.

8 at 18:53:02 – 18:53:04; Tr. 62-63, 156, 351-53, 487).

Resident Michael, however, breaks away from JC Rhymer and runs around the bricks

towards the closet. JC Rhymer lets Michael go but keeps resident Tyrone pinned against the

wall. JC Lovick tries to push an uncooperative resident Isaac back inside the storage closet. JC

Bristow prevents Michael from reaching the closet by pushing him back against the bricks. As

they struggle, JC Bristow loses his balance and falls forward causing Michael to lean backwards

all the way over one of the bricks. Isaac rushes past JC Lovick, knocking her to the floor as he

runs towards JC Bristow and Michael. Isaac pushes JC Bristow, who was still trying to recover

his balance, causing him to fall face first over the bricks and onto the floor with Michael

underneath him. While all of this is occurring, respondent is still on the floor restraining resident

Rashan in a chokehold. JC Rhymer loses her grip on resident Tyrone, who charges at Isaac,

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forcing Isaac to move towards the staff desk. At this point, TC Eromosele enters the dayroom.

As respondent gets to his knees he loses his hold on resident Rashan (Pet. Ex. 8 at 18:53:04 –

18:53:16; Tr. 64-65, 157, 356, 416-17, 436, 491).

JC Rhymer pushes Isaac behind the staff desk and stands in front of him. On the other

end of the dayroom by the B-side door, JC Marceis is still struggling with resident Jason. JC

Marceis is holding onto Jason by his shirt, but Jason slips out of his shirt, pushes past JC Marceis

and runs towards the staff desk. Isaac grabs the game board off of the staff desk and throws it at

Jason, but the board misses Jason and hits JC Lovick in the head. JC Marceis chases after Jason.

As they pass respondent, respondent stops focusing on resident Rashan and follows JC Marceis

to the staff desk. Jason, who is in socks but no shoes, jumps up on top of the staff desk to get

closer to Isaac. While still on his knees on top of the desk, Jason starts throwing punches

towards Isaac (Pet. Ex 8 at 18:53:18 – 18:53:20; Tr. 66, 355, 360, 362-63, 413, 417, 490, 492).

With respondent’s attention diverted to Jason, Rashan runs around the bricks to approach

the staff desk from a different direction. All of the residents converge on the staff desk and try to

attack Isaac. Resident Michael jumps up in the air and tries to reach over JC Rhymer to land a

blow on Isaac as he comes back down. Respondent, JC Lovick, JC Marceis, JC Bristow, and TC

Eremosele rush to the staff desk to help JC Rhymer. Resident Jason stands up from his kneeling

position on top of the staff desk. Respondent and JC Marceis grab the back of Jason’s underwear

and shorts in an attempt to remove him from the desk. In the process, they pull Jason’s

underwear and shorts down, so that he is bare bottomed. Jason is struggling to keep his

underwear and shorts on but respondent is still pulling on them and causes Jason to fall off the

desk backwards. As he is falling to the ground, Jason hits the back of his head on one of the

bricks (Pet. Ex. 8 at 18:53:21 – 18:53:24; Tr. 68, 242-43, 372, 494-95).

Residents Michael, Rashan, and Tyrone start pushing towards the door leading to the

main corridor, trying to reach Isaac, who is being blocked by TC Eromosele. Respondent, in an

effort to keep Jason on the floor, drops to his knees with his hand pressed on the side of Jason’s

head, pushing it into the floor. One of the JCs is able to unlock the corridor door and move

resident Isaac into the corridor before re-locking the door. Michael and Rashan retreat. Tyrone,

however, continues to move towards the door and pushes against respondent’s back as he rushes

past him, causing respondent to lose his balance. Respondent recovers his balance and moves

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his knee onto Jason’s head to keep him on the floor (Pet. Ex. 8 at 18:53:26 – 18:53:29; Tr. 69-70,

164-68, 377, 420, 488, 495 -98).

Respondent sees resident Tyrone rushing towards TC Eromosele, who was blocking the

corridor door, and releases Jason to go after Tyrone. Respondent reaches Tyrone, grabs him

around the torso in a bear hug and lifts him up in the air before throwing him onto the floor.

Tyrone tries to get up off the floor but respondent throws himself down on top of him. As

respondent and Tyrone begin to struggle on the floor, TC Eromosele leans over and grabs

respondent’s arm to pull him off of the resident. Respondent gets off of Tyrone and they both

stand up (Pet. Ex. 8 at 18:53:33 – 18:53:45; Tr. 71, 246-47, 377, 379, 381, 501-02).

The Charges

Respondent is charged with engaging in conduct unbecoming of a juvenile counselor and

of a nature that would bring negative criticism upon the employee or the agency in the

performance of his duties pertaining to the supervision of the Crossroads’ resident juveniles

(ALJ Ex. 1).

Louis Watts, Executive Director of Crossroads, and Keith Petersen, Director of Juvenile

Justice Training, viewed the video and concluded that respondent had used improper restraints

on three residents during the incident. They described JCs as direct care employees responsible

for the safety and well-being of the residents. JCs are required to monitor the residents to ensure

that they are properly clothed, fed, provided with recreation, attend school and engage in

program activities (Tr. 15-17, 449). Most importantly, JCs are responsible for maintaining a safe

and orderly environment (Tr. 205, 449).

Staff members are trained in Safe Crisis Management (“SCM”), which is a behavior

management system that emphasizes employing the least restrictive intervention. SCM is

comprised of a de-escalating component and a physical component. De-escalating involves

creating a safe environment, such as moving an individual to another area; verbal strategies, such

as counseling, praising, and planned ignoring; and non-verbal strategies, such as body language,

posture, proximity, and head nods (Tr. 207-09). SCM permits a physical restraint to be used

when a resident is out of control (Tr. 209).

Mr. Watts testified that SCM is the primary training strategy with regard to physical

restraints. He stressed that even in a group assault the juvenile counselor is required to use the

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least restrictive measure (Tr. 174). Although he did not articulate a strategy or technique that

should be used when multiple residents are involved, he indicated that this situation should never

have devolved into a group assault (Tr. 73).

Mr. Petersen testified that a JC can consider his own safety and the safety of others when

deciding to restrain a resident (Tr. 283-84). He conceded that it was a dangerous situation for the

JCs and resident Isaac, but agreed with Mr. Watts’ assessment that if SCM had been used from

the very beginning the outcome would have been very different (Tr. 324, 326, 383).

Both respondent and JC Lovick testified that they were trained in SCM for two days but

they were not taught how to deal with a multiple-person assault (Tr. 414-15, 447-49).

Respondent argued that he cannot be held accountable if he was not properly trained to deal with

a group assault. Mr. Petersen acknowledged that SCM does not train staff to handle group

assaults and noted that some staff members have asked about gang assaults during training. The

training staff’s response has been focused on structuring the environment, building relationships

with the residents, and organizing programs to avoid such incidents from occurring. Mr.

Petersen suggested that when there is a multiple person assault, a JC should focus on restraining

one resident at a time and securing the individual in a room so that they cannot reengage. He

further recommended that the JC simultaneously use verbal directives with the other residents.

Mr. Petersen conceded that in order to secure a resident in a room, the JC would need to unlock

the room with a key, while still holding the resident. He suggested that if the resident calms

down due to being counseled, then it is possible for the JC to move to a less restrictive hold to

get the keys out of their pockets. If the resident’s aggression escalates, then it would be

necessary to maintain the intervention or move to a more restrictive restraint (Tr. 267-69, 287-

89, 291-92, 384).

Specification 1

Respondent is charged with using impermissible and/or unauthorized force on resident

Rashan in violation of SCM guidelines by pushing the resident to the floor and performing

numerous unapproved physical restraint techniques while Rashan was lying on the floor, such as

placing his arm, hand, and knee on Rashan’s throat, and using a chokehold on Rashan as he

attempted to stand (ALJ Ex. 1).

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Under Policy #2014/10, entitled “Safe Intervention Policy for Secure and Non-secure

Detention,” JCs are permitted, when appropriate, to use an Emergency Safety Physical

Intervention (“ESPI”). An ESPI is defined as any authorized means of physically

holding/moving a youth against his or her will to interrupt and control acute physical behaviors

(Pet. Ex. 4). Section V(A) of this policy emphasizes that all ESPIs must be techniques

sanctioned by ACS (Pet Ex. 4). The agency’s “Chokeholds & Other Unauthorized Physical

Restraint Prohibition Directive” similarly mandates that staff may use only authorized physical

restraint techniques (Pet. Ex .5). This directive prohibits the use of chokeholds or unauthorized

techniques that may result in chest compression which reduces a resident’s ability to breathe

(Pet. Ex. 5). Mr. Petersen explained that SCM training stresses that placing someone in a

chokehold is considered deadly force and that there are no situations in which they should be

used on a resident (Tr. 232-33).

While reviewing the video, Mr. Watts characterized several of the restraints that

respondent employed on Rashan as improper, including placing his forearm over Rashan’s neck

or facial area and pressing down on Rashan’s neck with both hands. Mr. Watts also found that

respondent’s placement of his knee across Rashan’s neck to be an unauthorized and excessive

restraint. He was especially concerned because the resident appeared to be in distress while

frantically trying to dislodge respondent’s knee from his neck (Tr. 55-57, 59-60, 74). In

addition, Mr. Watts concluded that respondent employed a chokehold on Rashan by wrapping

his arm around the resident’s neck as he tried to stand up (Tr. 62-63). He testified that under no

circumstances are chokeholds permitted when restraining a resident (Tr. 23).

Mr. Petersen testified similarly to Mr. Watts. While watching the video, Mr. Petersen

testified that respondent had improperly placed Rashan in a chokehold as the resident tried to run

past him. Mr. Petersen stressed that a chokehold is not a sanctioned SCM hold (Tr. 231). He

also noted that once respondent was on the floor with Rashan, respondent placed his forearm on

the resident’s neck before straddling the resident, who was in a prone position (Tr. 233). He

further observed that while respondent was straddling Rashan, he placed both of his hands

around the resident’s neck. Mr. Petersen maintained that respondent’s use of his forearm and

hands on Rashan’s neck to restrain him were not approved SCM holds (Tr. 234).

Mr. Petersen was most concerned, however, about respondent placing his knee on the

resident’s neck. He testified that this restraint creates a high risk of injury to the resident and is

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not a SCM technique. Mr. Petersen testified that JCs are trained to monitor the resident for signs

of asphyxiation while employing a restraint. In his opinion, resident Rashan was showing signs

of asphyxiation in the video because his mouth was open, he was trying to remove respondent’s

knee, and he was squirming to move out of that position (Tr. 235-36). He further observed that

when Rashan attempted to stand, respondent placed him in another chokehold, which violates

SCM protocols.

According to Mr. Petersen, a physical restraint is supposed to help an out-of-control

resident to become compliant. He concluded that respondent’s use of restraints were not only

improper, but also failed to assist resident Rashan to become compliant. To the contrary, it

appeared to exacerbate the situation (Tr. 236-37, 241, 388).

Respondent reviewed the video and explained his involvement in the incident. He

testified that it was chaotic because the residents were charging at Isaac and saying that they

were going to kill Isaac (Tr. 472). The JCs were trying to protect Isaac from the other residents

by pushing the residents back as they tried to get closer to Isaac. Respondent testified that at one

point he was “leaning towards” Rashan and was off balance, so when JC Bristow pushed

Rashan, respondent and Rashan fell together to the floor (Tr. 476-77). Mr. Petersen conceded

that it is not uncommon for a JC and a resident to fall when the JC tries to restrain a resident. If

they land on the floor, however, in a non-approved position, such as here, then the JC should

readjust to use a proper restraint (Tr. 295).

Contrary to Mr. Petersen’s testimony, respondent denied placing Rashan in a chokehold

as they fell to the floor. Respondent insisted that he placed his arm around Rashan’s “chin area”

because he was off balance (Tr. 514). He contended that as he landed on his knee, his arm

“accidentally” went around Rashan’s “head area” (Tr. 478). Respondent asserted that it may

have looked like he placed Rashan in a chokehold but the reality was that Rashan tried to “duck

his head” under respondent’s arm (Tr. 537).

Respondent further denied placing his forearm, hands, and knee on Rashan’s throat. He

acknowledged, however, that once they fell to the floor his forearm was on Rashan’s “chin area”

but explained that his arm was positioned that way because he was off balance. Respondent also

reluctantly admitted that at one point he was straddling Rashan but insisted that his hands were

near Rashan’s “collar bone” and not around Rashan’s neck (Tr. 514-16). With respect to his

knee, respondent initially testified that he accidentally put his knee on Rashan’s “chin area”

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because he was trying to look over his shoulder to see who was standing over him and if they

were going to attack him (Tr. 484). Respondent later contended, however, that he only placed

his knee near Rashan’s “collar bone” because he was off balance (Tr. 516-17). He then testified

that he accidentally placed his knee on the resident’s “chest area” (Tr. 531).

Respondent also denied placing Rashan in a chokehold as Rashan tried to stand up. He

testified that he tried to slip his arm under Rashan to prevent Rashan from flipping him over.

Respondent explained that as Rashan tried to get away, “his head hooked under my arm causing

us both to fall forward and I had my hand placed flat on the floor and I was just holding him

there, just holding him down” (Tr. 485, 520, 537). When asked if this was a chokehold,

respondent insisted that it was not. He maintained that Rashan positioned himself this way as he

tried to move around respondent and in the process placed his head under respondent’s armpit

(Tr. 520). Respondent testified that he held Rashan down in this position and continued to tell

him to calm down. Respondent asserted that he would not let Rashan stand up because he was

already aggressive and could have been more of a threat if he was standing (Tr. 486). According

to respondent, Rashan kept repeating, “get your fucking hands off of me” (Tr. 489).

Respondent acknowledged that there are no circumstances in which it is permissible to

place a resident in a chokehold because it is considered deadly force and limits a resident’s

ability to breathe (Tr. 535). JC Lovick similarly testified that even during a group assault the use

of a chokehold or any hold that would restrict a resident’s ability to breathe is not justified (Tr.

443).

Fortunately, the video was a lot clearer than respondent’s description of the various holds

that he employed on Rashan. Respondent creatively described the location of his forearm, hands

and knee while he was struggling with Rashan on the floor as the “head area,” “chest area,”

“chin area,” and “collar bone.” While it is true that the resident’s neck is near his head, chest,

chin, and collar bone, respondent’s attempts to broaden the areas of contact were fruitless. The

video of this incident establishes that respondent placed his forearm across the resident’s neck,

put both of his hands around the resident’s neck while straddling him, placed his knee on the

resident’s neck, and used a chokehold to prevent him from standing.

Respondent at various times blamed his use of improper holds on being off balance. The

video does indeed show that respondent lost his balance periodically while struggling with

Rashan. The video, however, also establishes that respondent was not off balance when he had

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his forearm, hands, and knee on the resident’s neck. In addition, respondent held Rashan in a

chokehold for several seconds to prevent him from getting off the floor. Although respondent

did not refer to this restraint as a chokehold, his admission that he stayed in this position because

he did not want to let a volatile resident stand up indicates that he was in control of the restraint

and balanced.

Accordingly, I find respondent used impermissible and/or unauthorized force on resident

Rashan in violation of SCM guidelines by pushing the resident to the floor and performing

numerous unapproved physical restraint techniques while Rashan was lying on the floor, such as

placing his arm, hand, and knee on Rashan’s throat, and using a chokehold on Rashan as he

attempted to stand.

Specifications 2 and 3

Respondent is charged with using impermissible and/or unauthorized force on resident

Jason in violation of SCM guidelines by pulling the back of Jason’s boxer shorts while he was

standing on a desk in socks, causing him to fall off the desk onto his back and hit his head on a

plastic chair. Respondent is further charged with using impermissible and/or unauthorized force

on resident Jason by performing an unapproved physical restraint technique when he placed his

hand and knee on Jason’s throat after he fell off of the desk in the dayroom (ALJ Ex. 1).

Respondent testified that he was struggling with Rashan on the floor when he noticed

Jason run past him and get on top of the desk. JC Lovick was behind the desk trying to block

Isaac. Jason was not responding to verbal commands and was throwing punches. Respondent

was so focused on Isaac’s safety that he left Rashan on the floor and followed Jason (Tr. 492-

93). JC Marceis grabbed Jason first. Respondent maintained that he was so fearful that Jason

was going to kick either Isaac or JC Lovick that he reached up and grabbed Jason, too (Tr. 493-

94). He acknowledged that he yanked on Jason’s shorts to get him off the desk and bring him

down to the ground (Tr. 494, 531).

Respondent maintained that he was concerned about the safety of the other residents and

JCs because Jason was on top of the desk, punching down into the crowd, and could have started

kicking them. Respondent also stressed that he was worried about his own safety because he did

not want to pull Jason down on top of him and get injured. JC Lovick echoed respondent’s

safety concerns. She testified that when she saw Jason jump on top of the staff desk, she thought

-14-

to herself, “they want to kill this boy” (Tr. 418). She testified that she had never seen anything

like it before (Tr. 418). She was worried about her safety when Jason was on top of the desk

because he kept swinging and she was standing near Isaac (Tr. 419).

Both respondent and Ms. Lovick testified that they had never been trained on how to

remove someone from the top of a desk (Tr. 419, 494, 534). Respondent argued that since he

was not provided with proper training from the agency, his method of removing the resident

from the desk should not be faulted.

Mr. Watts acknowledged that he is unaware of an approved restraint technique to remove

a resident who is standing on top of a desk. He also conceded that they needed to remove Jason

from the top of the desk because he posed a risk to everyone in his vicinity, but qualified his

response by stating that the resident should never have been permitted to get up there (Tr. 160,

163). Based on his experience, Mr. Watts surmised that the best way to remove Jason from the

desk would have been to have two counselors on either side of Jason who “arm-in-arm should’ve

lift[ed] him off gently and pulled him down, not by his pants” (Tr. 161). However, he

acknowledged that the JCs would not have been able to reach high enough to remove Jason from

the desk in this manner. He then suggested that they could have grabbed Jason’s hands to pull

him closer and then grab his arms to lift him of the desk. Regardless of how they removed him,

Mr. Watts insisted that they should have “helped” the resident off of the desk, not “snatched”

him by the pants or underwear so that he falls down backwards and injures himself (Tr. 162).

Mr. Petersen concurred with Mr. Watts that pulling Jason off of the desk backwards by

his shorts was not an approved SCM technique. He testified that all SCM techniques are

designed with safety in mind and that pulling Jason off of the desk in this manner created a high

risk of injury (Tr. 243-44). Mr. Petersen conceded that he does not know of a specific physical

intervention that they should have used to get Jason off of the desk. He stressed, however, that

even though SCM training does not provide techniques for removing a resident from the top of a

desk, the least restrictive alternative should have been used (Tr. 363-65, 367).

The video shows that Jason is approximately the same height as the male JCs and solidly

built. Mr. Petersen acknowledged that getting him off of the desk could have posed a safety risk

for the JCs. He suggested that the JCs could have held Jason’s legs so that he could not kick

anyone but admitted that this would have left Jason’s upper body free. As an alternative, Mr.

Petersen posited that the JCs could have held Jason around the waist and counseled him. If the

-15-

JCs could not reach his waist, they could have held him anywhere on his torso to restrict his

movement. Mr. Petersen opined that despite it being a chaotic situation, the two JCs could have

worked together to do a combined hold to remove the resident from the top of the desk that did

not involve pulling him off backwards by his underwear (Tr. 368-371).

The testimony from all of the witnesses demonstrated some gaps in SCM training.

Respondent was not specifically trained to perform a SCM restraint to remove a resident

standing on top of a desk. Moreover, no one is disputing Jason’s size, the risk to everyone

around him, and the chaotic situation. Nevertheless, both Mr. Watts and Mr. Petersen testified

that the method that respondent and JC Marceis employed, yanking Jason backwards off of a

desk by his underwear or shorts is not an approved SCM technique nor was it the least restrictive

intervention. Indeed, respondent was trained to minimize injury to a resident and this technique

increased the likelihood of serious injury. Pulling someone backwards off of a desk by his

underwear is not only reckless, but dangerous. There was no way for Jason to land safely on the

floor while he is being yanked backwards, which is why he landed on his back and hit his head

on one of the bricks.

Accordingly, I find that respondent used impermissible and/or unauthorized force on

resident Jason in violation of SCM guidelines by pulling the back of Jason’s boxer shorts while

he was standing on a desk in socks, causing him to fall off the desk onto his back and hit his head

on a plastic chair.

Respondent is further charged with using an unauthorized physical restraint on resident

Jason after he fell on the floor by placing his hand and knee on Jason’s throat. While reviewing

the video, Mr. Petersen testified that while Jason was on the floor, respondent placed his hand

and knee around the resident’s neck and face area (Tr. 244). Respondent maintained that once

Jason was on the floor, his goal was to keep him away from Isaac. Respondent testified that he

lost his balance as he tried to stand up because someone pushed him from behind. Consequently,

he placed his knee near Jason’s face and his hand was on the back of Jason’s head, “pretty much

just for, for balance” (Tr. 495-98). During cross-examination, however, respondent testified that

the video is dark so it was difficult to see where his hand is but maintained that his knee is on the

floor near the top of Jason’s head (Tr. 523, 525).

The video is dark and part of respondent’s interaction with Jason while he is on the floor

is obstructed by one of the bricks. Nevertheless, playing the video at its slowest speed and

-16-

pausing it permits one to see that respondent places his hand on the side of Jason’s face and

pushes down against it for support as he adjusts his position, then momentarily places his knee

on Jason’s head. The video establishes that respondent was off balance at times, but it also

demonstrates that he was solidly positioned when he had his hand and then his knee on the

resident’s head.

Petitioner charged respondent with improperly placing his hand and knee on resident

Jason’s throat. The evidence presented at trial, however, established that respondent did not

place his hand and knee on the resident’s throat, but instead on the resident’s head. I find it

appropriate to conform the charges to the evidence. Respondent is not prejudiced by this change.

Besides having had an opportunity to view the video before and during the trial, the case was

fully litigated, respondent defended himself against a charge of improperly restraining Jason

while he was on the floor, and he was able to cross-examine witnesses regarding the restraints.

Indeed, respondent acknowledged that his hand was on the back of the resident’s head because

he lost his balance and that he placed his knee near the resident’s head. See Dep’t of Sanitation

v. Davis, OATH Index No. 1523/02 at 5-6 n.2 (July 2, 2002) (“the general rule is that pleadings

‘may be amended to conform to the proof at any time, provided that no prejudice is shown’”

(citing Miles v. City of New York, 251 A.D.2d 667 (2d Dep’t 1998)); Police Dep’t v. Coll, OATH

Index Nos. 245/95 & 252/95 at 7 (Feb. 16, 1995) (respondent was charged with kicking and

striking the complainant, ALJ found it was appropriate to conform the charges to the proof that

respondent punched the complainant). See also Health & Hospitals Corp. (Henry J. Carter

Specialty Hospital & Nursing Facility) v. Williamson, OATH Index No. 986/16 at 17-18 (Oct. 7,

2016); Dep’t of Environmental Protection v. A.M., OATH Index No. 1410/16 at 2 (July 6, 2016);

Dep’t of Correction v. Sostre-Valentin, OATH Index No. 1923/99 at 9 (Sept. 22, 1999), aff’d,

NYC Civ. Serv. Comm’n Item No. CD 00-94-SA (Nov. 14, 2000).

Accordingly, I find that respondent used impermissible and/or unauthorized force on

resident Jason in violation of SCM guidelines by performing an unapproved physical restraint

technique when he placed his hand and knee on Jason’s head after he had fallen off of the staff

desk in the dayroom.

-17-

Specification 4

Respondent is charged with using impermissible and/or unauthorized force on resident

Tyrone in violation of SCM guidelines by performing an unapproved physical restraint technique

when he grabbed Tyrone from behind and threw him to the floor (ALJ Ex. 1).

Respondent maintained that he was unaware that the other JCs managed to remove Isaac

from the dayroom and place him in the corridor behind a locked door. He testified that while he

was struggling with Jason on the floor, he noticed Tyrone trying to “slip by” TC Eromosele, he

thought in an effort to reach Isaac. Concerned for Isaac’s safety, respondent stood up and

grabbed Tyrone around the waist from behind (Tr. 501, 539). Respondent asserted that once he

grabbed Tyrone, Tyrone started pushing backwards into him. Respondent had trouble sustaining

Tyrone’s weight because of his bad knees. He testified that he “placed him” on the floor and

then got down on his knees to prevent Tyrone from standing up (Tr. 501-02, 527). When pressed

about “placing” Tyrone on the floor, respondent acknowledged that he did not place Tyrone on

the floor “gently” or “carefully” (Tr. 527). After further questioning, respondent reluctantly

admitted that he lifted Tyrone in the air and then “dropped” him to the floor (Tr. 528, 534).

Mr. Petersen described respondent’s actions as placing Tyrone in a bear hug and

slamming him into the floor. He noted that neither restraining a resident in a bear hug or

slamming a resident to the floor are approved SCM techniques because they create a substantial

risk of injury (Tr. 246-47).

Respondent’s understated description of his physical encounter with resident Tyrone

contradicts the video of the incident. The video clearly shows respondent forcefully grabbing

Tyrone around his torso in a bear hug, lifting him about a foot in the air, and throwing him to the

floor. Once Tyrone was on the floor, respondent jumped on top of him as though he were a

professional wrestler body slamming an opponent. Respondent’s physical restraint of Tyrone

was overzealous and unnecessary regardless of whether he thought Isaac was still in the

dayroom.

Accordingly, I find that respondent used impermissible and/or unauthorized force on

resident Tyrone in violation of SCM guidelines by performing an unapproved physical restraint

technique when he grabbed Tyrone from behind and threw him to the floor.

-18-

Specification 6

Respondent is charged with submitting a false and/or misleading incident report with

material omissions concerning the August 25, 2015, incident on A-Hall (ALJ Ex. 1).

Administrative Order 01/2012, regarding the reporting of incidents, requires a staff

member to prepare the report within one hour of the time of the incident, using his own

observations (Pet. Ex. 2 at 3). The administrative order also requires the report to contain a list

of participants, witnesses, and persons the writer observed present at the incident and their

actions (Pet. Ex. 2 at 3).

Mr. Watts testified that incident reports are legal documents and should accurately reflect

the incident that occurred (Tr. 25). He acknowledged that the agency’s reporting policy permits

the writer to correct or explain discrepancies (Pet. Ex. 2; Tr. 93). Specifically, the policy

requires a supervisor to request an addendum in writing if additional information or clarification

is required. Mr. Watts testified that, in this instance, no one requested an addendum from

respondent (Tr. 94-95). Respondent testified that he was never informed that his report was

inaccurate or asked to submit an addendum (Tr. 505).

Respondent admitted that he is required to indicate which restraints were used in his

report and that he did not do so (Tr. 510, 532). Although he acknowledged that his report had

some inconsistencies and inaccuracies, he faults petitioner for failing to adhere to its incident

report policy by not requesting an addendum. In essence, respondent asserted that even though

there were misstatements in his report, he should have been given an opportunity to correct it.

Since petitioner did not request that he correct his report, respondent contends he should not be

held accountable for its inaccuracies. In support of his argument, respondent cites

Administration for Children’s Services v. Hutchinson, OATH Index No. 1562/14 (Oct. 29, 2015),

rev’d on other grounds, NYC Civ. Serv. Comm’n Case No. 2015-1444 (May 6, 2016), a prior

decision issued by me.

Respondent’s reliance on Hutchinson, however, is misguided. In Hutchinson, I noted that

it was extremely plausible that details may have been omitted from Hutchinson’s report because

it was written quickly after a distressing incident. Although there were some omissions in the

report, I found that it was not fundamentally false and could have been remedied in an

addendum. Hutchinson, OATH 1562/14 at 26.

-19-

Respondent erroneously asserts that there were mere inaccuracies in his report.

Respondent failed to mention placing his forearm across Rashan’s neck or straddling Rashan

while both of his hands were around Rashan’s neck. Although respondent admits that his knee

fell across Rashan’s chest, he attempts to minimize his culpability by claiming that he was off

balance as he was trying to stand up. I find that including only the information that respondent

believes he can justify and excluding the unauthorized restraints that he cannot explain is very

misleading.

In addition, I find several of respondent’s statements in his report to be patently false. He

stated in his report that he fell to the floor because resident Rashan pulled on his shirt. The

video, however, does not support this allegation. Moreover, contrary to his report, respondent

testified at trial that he lost his balance and fell when JC Bristow pushed Rashan backwards. The

evidence also does not support respondent’s statement that the residents continued to

aggressively punch and kick him. It was a chaotic situation and residents were pushing and

shoving to get past the JCs but they were not aggressively punching and kicking respondent.

Similarly, respondent wrote in his report that resident Tyrone jumped on his back. The video

shows otherwise. Tyrone bumped into respondent while he was on the floor with Jason, but he

never jumped on respondent’s back.

Also of note is that respondent’s report mentions that a resident jumped up on the staff

desk, yet it does not explain how the resident was removed from the top of the desk. The video

demonstrated that respondent and JC Marceis yanked resident Jason off of the desk backwards

by his underwear and shorts. Respondent also failed to include that he grabbed Tyrone around

the torso, lifted him in the air, and then dropped him to the floor. His failure to mention these

two uses of unauthorized and improper force in his report is a glaring concealment of material

facts.

Accordingly, I find respondent submitted a false and/or misleading incident report with

material omissions concerning the August 25, 2015, incident on A Hall.

FINDINGS AND CONCLUSIONS

1. Petitioner established that respondent used impermissible and unauthorized force on resident Rashan by placing his arm, hand, and knee on Rashan’s throat while Rashan was lying on the floor.

-20-

2. Petitioner established that respondent used impermissible and unauthorized force on resident Rashan by placing Rashan in a chokehold as he attempted to stand.

3. Petitioner established that respondent used impermissible and unauthorized force on resident Jason by pulling Jason backwards off of the staff desk, causing Jason to fall on his back and hit his head on a hard plastic chair.

4. Petitioner established that respondent used impermissible and unauthorized force on resident Jason by placing his hand and then his knee on Jason’s head.

5. Petitioner established that respondent used impermissible and unauthorized force on resident Tyrone by grabbing him from behind and throwing him to the ground.

6. Petitioner established that respondent submitted a false and misleading report.

RECOMMENDATION

Upon making the above findings and conclusions, I obtained and reviewed an abstract of

respondent’s personnel record provided to me by petitioner. Respondent was appointed to his

position as a juvenile counselor on February 21, 2006, with the Department of Juvenile Justice,

which was merged into the Administration for Children’s Services in 2011. Respondent has

been formally disciplined on only one occasion, in June 2015. He served a five-day suspension

for using excessive force on a resident and subsequently filing a false and/or misleading incident

report.

During his tenure with the agency, respondent received three commendations or honors.

In 2008 respondent was commended for his due diligence in searching and discovering

contraband. Respondent was honored by the Department of Youth and Family Justice in 2013

for his dedication to strengthening youth, families, and communities, and for helping young

people to be positive contributing members of society. In 2014, respondent received an

Appreciation Award from the Department of Youth and Family Justice for his tireless effort and

dedication for taking the time to educate and mentor youth in the Summer Youth Employment

Program and making a difference in their lives.

-21-

Petitioner submitted three of respondent’s performance evaluations. Respondent’s July 1,

2012 through March 31, 2013 evaluation has an overall rating of “good.” The evaluation states

that respondent prepares reports accurately and in a timely manner. In addition, respondent was

given a “good” rating for the task of intervening to maintain order and preventing destruction of

property because he can identify potential hostility and counsel residents accordingly.

Respondent received an overall rating of “unsatisfactory” on his April 1, 2014 through March 31,

2015 performance evaluation. He received an “unsatisfactory” on two tasks because of two

allegations, one of which was pending at the time and the other of which required corrective

action. The third evaluation for the period of April 1, 2015 through March 31, 2016, has an

overall rating of “good,” despite receiving a “conditional” for the task of complying with

established agency policies and procedures. The conditional rating was due to the pending

charges stemming from this case.

Petitioner requested that respondent be terminated from his position as a juvenile

counselor if the charges are sustained. Respondent served a thirty-day pre-trial suspension

without pay. This tribunal has repeatedly held that due to the heightened responsibility given to

those who care for juveniles in institutionalized settings, incidents of excessive force must be

severely punished. Such cases often result in termination. See Admin. for Children’s Services v.

Patterson, OATH Index No. 904/16 (Sept. 2, 2016), aff’d, NYC Civ. Serv. Comm’n Case No.

2016-085 (Dec. 16, 2016) (termination of employment recommended for a juvenile counselor

who used unauthorized or excessive force on four juvenile residents, submitted a false report,

made false statements in an official interview, and directed profane and threatening language

towards a supervisor); Admin. for Children’s Services v. Silva, OATH Index No. 1275/15 at 18

(June 26, 2015) (termination recommended for a juvenile counselor who used unauthorized and

excessive force on a juvenile resident and submitted a false and misleading report); Admin. for

Children’s Services v. Green, OATH Index No. 2153/11 at 18 (June 6, 2011), adopted, Comm’r

Dec. (July 9, 2015) (termination recommended for a juvenile counselor who grabbed and threw a

resident to the floor and wrestled with him, placed the resident in a chokehold and punched him

in the mouth, failed to monitor the other residents in his care, and filed a false report about the

altercation).

Respondent’s misconduct is too egregious to consider mitigation. He used multiple

unauthorized and dangerous restraints on three residents during this incident, including picking

-22-

up and tossing a resident like a rag doll, placing his knee on a resident’s throat, and employing

chokeholds even though the agency’s policies expressly prohibit chokeholds. Moreover,

respondent refused to accept any responsibility for any wrongdoing. Respondent attempted to

transfer the blame to the agency for failing to provide training for group assaults. This, however,

does not absolve him of blame. Both Mr. Watts and Mr. Petersen testified that the same

approach should have been used in a group assault as employed in an individual assault. In the

end, his explanations and excuses do not justify his use of unauthorized physical restraints, many

of which impaired a resident’s breathing.

The video of this incident is shocking at times. It was a chaotic and, most likely, a

frightening situation. But, chaotic, frightening situations may be expected within facilities which

hold incarcerated juveniles. Respondent received training to provide him with the tools and

knowledge to deal with combative residents. The chaotic nature of the situation did not give

respondent license to restrain residents however he may choose.

Respondent’s use of multiple improper and dangerous restraints on multiple residents

warrants a severe penalty. Accordingly, I recommend that respondent be terminated from his

position as a juvenile counselor.

Kara J. Miller Administrative Law Judge January 20, 2017 SUBMITTED TO: GLADYS CARRIÓN Commissioner

APPEARANCES: THOMAS LAVANDER, ESQ.

ELVIN WILLIAMS, ESQ.

Attorneys for Petitioner

KREISBERG, MAITLAND, LLP

Attorneys for Respondent

BY: JEAN O’HEARN, ESQ.

CITY OF NEW YORK

CIVIL SERVICE COMMISSION NANCY G. CHAFFETZ, CHAIR RUDY WASHINGTON, VICE CHAIR ALLEN P. CAPPELLI LARRY DAIS CHARLES D. MCFAUL COMMISSIONERS

1 CENTRE STREET - ROOM 2300

NEW YORK, NY 10007

212-615-8915 www.nyc.gov/csc

appeals@nyccsc.nyc.gov

MARCIE A. SERBER

GENERAL COUNSEL

JOAN RICHARDS DIRECTOR OF ADMINISTRATION

NOTICE OF CITY CIVIL SERVICE COMMISSION ACTION Alain Massena, Esq. Massena Law, P.C. 305 Broadway, Suite 1001 New York, NY 10007

Date: 07/06/2017 Case No.: 2017-0253 Appeal Type: 76 Disciplinary Appellant: Mathews Judge Position/Title: Juvenile Counselor Agency: ACS Final Decision: Modify

The New York City Civil Service Commission has made a final decision in connection

with your appeal. A copy of the decision is attached.

Please consult with your attorney or union representative to determine whether any further appeal is available to you.

NEW YORK CITY CIVIL SERVICE COMMISSION c:

Mathews Judge

Martin Rainbow, Esquire Senior Attorney / Law Clerk Office of Administrative Trials and Hearings 100 Church Street, 12th Floor New York, NY 10007 (email: MRAINBOW@oath.nyc. gov)

Melina Gesell, Esq. Director NYC Administration for Children’s Services Employment Law Unit 110 William Street, 20th Floor New York, NY 10038

THE CITY OF NEW YORK CITY CIVIL SERVICE COMMISSION

In the Matter of the Appeal of

MATHEWS JUDGE Appellant

-against-

ADMINISTRATION FOR CHILDREN'S SERVICES Respondent

Pursuant to Section 76 of the New York State Civil Service Law

CSC Index No: 2017-0253

DECISION

MATHEWS JUDGE (' Appellant") appeals from a determination of the ew York City

Administration for Children's Services ("ACS") finding him guilty of incompetency and

misconduct and imposing a penalty of termination following disciplinary proceedings conducted

at the Office of Administrative Trials and Hearings ("OATH") pursuant to Civil Service Law

("CSL") Section 75. The Civil Service Commission ("CSC" or "Commission") conducted a

hearing on June 1, 2017.

Background

ACS charged Appellant, a Juvenile Counselor ("JC"), with the following:

Specification 1: On or about August 23, 20 15, Appellant used impermissible and/or unauthorized force on a resident in vio lation of Safe Cri sis Management Guidelines ("SCM") and/or procedures pertaining to verbal and psychical strategies for handling residents;

Specification 2: On or about August 23, 2015, Appellant used impermissible and/or unauthorized force on a resident in violation of SCM and/or procedures pertaining to verbal and psychical strategies for handling residents;

Specification 3: On or about August 23, 2015, Appellant used impermissible and/or unauthorized force on a resident in violation of SCM and/or procedures pertaining to verbal and psychical strategies for handling residents;

Specification 4: On or about August 23, 2015, Appellant used impermissible and/or unauthorized fo rce on a resident in violation of SCM and/or procedures pertaining to verbal and psychica l strategies for handling residents;

Specification 5: On or about August 23, 2015, Appellant used impermissible and/or unauthorized force on a resident in violation of SCM and/or procedures pertaining to verbal and psychical strategies for hand! ing residents; 1 and

Specification 6: On or about August 25, 20 15, Appellant submitted a fa lse and/or misleading Incident Report with material omissions concerning an incident involving numerous residents.

After a tri al at OATH, Administrative Law Judge ("ALJ") Kara J. Miller sustained all of

the charges and recommended a penalty of termination. ACS accepted ALJ Miller's

recommended decision and penalty, and terminated Appellant' s employment on February 4,

2017. In addition, Appellant had served a thirty-day pre-trial suspension without pay in

connection with the present case from January 4, 20 16 to February 3, 20 16.

Appellant had previous ly served a five-day suspension in June of 2015 for usmg

excessive force on a resident and subsequently filing a false and/or misleading report regarding

that incident.

Appellant's Position

Appellant's counsel submitted a brief in support of Appellant and appeared at the hearing

on Appellant's behalf. Appellant's counsel argued that ALJ Mi ller's recommendation to

terminate Appellant was not appropriate given the difficult environment in which JCs are

1 Specification 5 was wi thdrawn at the commencement of the OATH trial.

2

employed. In addition, JCs are not trained for the "gang assault" scenari o that occurred in this

case. Appellant served as a JC at the Crossroads Juvenile Detention Facility in Brooklyn, NY,

which is " a secure detention center reserved for yo uth who pose the highest risk or who have

been accused of committing serious offenses." Appellant 's counsel contended that this facili ty

was akin to a correctional facility, and despite the fact that it is used to house chi ldren under the

age of eighteen, Appellant' s actions to quell a group assault should be viewed in that context.

Appellant' s counsel also contended that because the SCM is silent on how to handle a group

assault, Appellant had not been properly trained. In support, Appellant's counsel cited the

testimony given at OATH by Keith Peterson, the Director of Juvenile Justice Training, wherein

he acknowledged that SCM does not train staff on how to handle group assaults, but focuses

exclusively on de-escalation techniques used to prevent such a situation fro m occurring. In

response to Specification 6, submitting a fa lse or misleading report about the incident,

Appellant 's counsel stated that Appellant did not have the opportunity to view the video before

preparing the report and may have unintentionally left out important details, but that this

infraction should not resul t in his termination. Lastly, Appellant 's counsel also argued that

Appellant's termination runs afoul of the principle of progressive di scipline as he only has a fi ve­

day suspension on hi s di sciplinary record and has received commendations on at least three

occasions over the course of hi s eleven years of employment.

Respondent's Position

ACS argued that termination is warranted in this case because Appellant 's multiple

impermissible holds and unwarranted physical contact with several residents were observed on

the video recording of the incident. ACS argued that JCs charged with excessive fo rce against a

res ident should be severely di sciplined. Specifically, a JC ' s use of an impermissible choke hold,

3

which Appellant employed on two residents in this incident, is so inherently dangerous and life­

threatening that it warrants termination. Further, ACS argued that Appellant in hi s testimony

took no responsibility for his actions and attempted to transfer the blame to ACS for failing to

properly train him, and therefore, his testimony is self-serving and of limited value. ACS further

argued that while the SCM does not explicitly provide procedures for dealing with a group or

gang assault, the techniques that are taught are applicable to such an incident. ACS contends that

Appellant failed to use these procedures properly to prevent this assault from escalating to what

it ultimately became, and subsequently, resorted to impermissible physical contact to subdue the

attacking residents. Lastly, ACS argued that Appellant has already served a suspension for

similar behavior in 2015, and as such, has had notice that this conduct is unacceptable. Thus,

there is no acceptable penalty short of termination.

In support of the decision to terminate, ACS cited three OATH decisions. In Admin. for

Children 's Services v. Patterson, OATH Index No. 0904/ 16 (Sept. 2, 20 16), aff'd, NYC Civ.

Serv. Comm' n Case No. 2016-0856 (Dec. 16, 2016), the respondent, a JC, was charged with

using unauthorized or excessive force, submitting fa lse reports related to the use of force, making

false statements during an interview and using profane language towards a supervisor. The ALl

at OATH recommended a penalty of termination, which was accepted by ACS and subsequently

affirmed by the Commission. fn Admin. for Children 's Services v. Green, OATH Index No.

215311 I (June 6, 20 II), ACS alleged that the respondent, a JC, initiated contact with a resident,

used unnecessary and excessive physical restraints, including the use of a headlock, punched a

resident, used a key as a weapon, and submitted a fa lse or misleading report. The ALl sustained

the majority of the charges and recommended the JC be terminated. In Admin. for Children 's

Services v. ilva, OATH Index No. 1275/ 15 (June 26, 20 15), the respondent, a JC, was found

4

guilty of using unauthorized and excessive force against a juvenile resident and falsely reporting

the use of that force. The ALJ recommended that the J C be terminated.

Analvsis

The Commission has carefully reviewed the record below and considered the arguments

on appeal. We have no reason to disturb the ALJ's basic findings of fact and determination of

guilt. At issue is whether Appellant 's behavior rises to a level that warrants his termination.

ALJ Miller·s characterizations of the video of the incident as "shocking at times,"

"chaotic," and "frightening" accurately describe the situation as it appeared on camera. In her

decision, ALJ Miller concluded, " the chaotic nature of the situation did not give respondent

license to restrain residents however he may choose" and recommended Appellant be terminated.

The Commission acknowledges the inherent difficulties and potential dangers JCs are

exposed to when they are employed in a quasi-correctional setting, coupled with the paramount

responsibility of keeping minor residents safe. The Commission finds that Appellant's behavior

in responding to this chaotic situation constitutes misconduct and is deserving of a severe

penalty, but we do not find that the record supports the ultimate pena lty of termination.

Regarding the case law submitted by AC in support of the decision to terminate

Appellant, these cases are distingui shable from the facts and circumstances of the present case.

In Silva, the respondent first initiated the physical contact with the resident, then proceeded to

use impermissible holds, and finally, charged at the resident after they were separated. In

addition. the JC in Silva was an employee for less than two years at the time of the incident

giving rise to his termination. In Green, the JC a lso initiated contact with the resident, which

then led to the impermissible holds employed by the respondent and ultimately resulted in the

respondent pursuing and striking the resident. Although Green was a twelve-year employee, he

5

had two previous suspensions of twelve days and thirty days, respectively. In Patterson, the

respondent was found guil ty of committing four separate acts of unnecessary or excessive force

on four different occasions spanning the period of a few months. Patterson was employed by

ACS fo r approximately two years before he was term inated.

Each of these cases is di stinguishable from the case currently before the Commission in

that Appell ant was not the instigator, but was responding to a group assault scenario in which he

was tryi ng to protect a resident from other residents. In contrast, in all of the cases submitted, the

respondents initiated the aggress ive contact with the residents and then used some form of

excessive fo rce or impermissible hold, or both, in an attempt to restrain the resident.

As noted above, Appellant did not instigate or prolong the chaotic situation, but acted to

contain the violence. The circumstances surrounding this incident, therefore, provide some

mitigation of Appellant's ri sky and unsanctioned actions in controlling a res ident. His behavior,

therefore, does not rise to the level of a terminable offense irrespective of his employment

record, nor does his employment record of one five-day suspens ion fo r similar miscond uct

require that Appellant now be terminated.

Regarding Appellant's term of employment, only one of the respondents in the cases

submi tted to the Commission had a similar length of serv ice to the Appell ant. The respondent in

Green was employed by ACS fo r approx imately twelve years before he was terminated, but he

had served two prior suspensions of twelve days and thirty days for similar misconduct. In the

case before the Commission, Appellant was appointed to his position as JC in 2006, but has only

been suspended once for five days prior to the present disciplinary action.

The principle of progressive di scipline requ ires that long-term employees be g1ven

adequate warning that repeated acts of misconduct may result in termination of employment.

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NYCHA v. Murden, CSC Index No. 20 16-0397 (Nov. 30, 20 16). See also Dep 't of Correction v.

Pelle, OATH Index No. 1410/07 at 8 (May 22, 2010), aff'd, NYC Civ. Serv. Comm'n Item No.

CD 08-11 -SA (Feb. 20, 2008), ci ting Transit Auth. v. Ondeje, OATH Index No. 1339/04 (Dec.

30, 2004) and Dep 't of Transportation v. Jackson, OATH Index No. 299/90 at 12 (Feb. 6, 1990).

As an eleven-year employee, Appellant should be afforded the benefit of progressive di scipline

as hj s formal disciplinary record contains no more than a five-day suspension for similar

misconduct. Further, Appellant's record also includes three commendations during the course of

hi s career with ACS, which serves to further mitigate the penalty in this case. Neverthe less,

Appellant should be on notice that any further misconduct may subject him to termination from

employment.

Decision

Accordingly, the Commission hereby modifies the determination of ACS to a penalty of

Charles D. McFaul , Commissioner

Dated:

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