Health & Hospitals Corp. (Lincoln Medical & Mental Health Center) v. Huling OATH Index No. 1342/08 (June 26, 2008) Evidence established that respondent abused his authority when he ordered the arrest of the hospital’s administrator on duty and detained him in handcuffs for approximately one hour and twenty minutes; used excessive force when making the arrest; and was insubordinate when he refused orders from two superiors to remove the handcuffs from the administrator. Termination recommended. ______________________________________________________ NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of HEALTH AND HOSPITALS CORPORATION (LINCOLN MEDICAL & MENTAL HEALTH CENTER) Petitioner - against KEVIN HULING Respondent ______________________________________________________

REPORT AND RECOMMENDATION JULIO RODRIGUEZ, Administrative Law Judge The petitioner commenced this disciplinary proceeding pursuant to Rule 7.5 of the Personnel Rules and Regulations of the New York City Health and Hospitals Corporation (“HHC” or “the Corporation”). Respondent Kevin Huling, Senior Special Officer at the time, is charged with seven counts of misconduct stemming from an incident that occurred on October 26, 2007, at Lincoln Medical and Mental Health Center (“hospital”). Specifically, he is charged with abusing his authority when he ordered the arrest of Mr. David Shapiro, the hospital’s administrator on duty, and kept him in handcuffs for approximately one hour and forty minutes; using excessive force to arrest Mr. Shapiro; being insubordinate by refusing two directives to remove the handcuffs from Mr. Shapiro; disrupting hospital operations; failing to maintain a safe work environment and patient safety; and dereliction of duty by failing to follow hospital policy and procedure for making arrests.

-2A hearing was commenced on February 19, and concluded on March 7, 2008. The record closed on April 14, 2008, when the parties submitted written summations. Petitioner called seven witnesses and offered two time-lapsed video recordings.

The first video recording

captured a portion of the events leading up to and including the arrest of Mr. Shapiro (Pet. Ex. 2a). The second video recording depicted what happened in the control room after the arrest (Pet. Ex. 2b). Petitioner also offered a copy of the hospital’s policy and procedure regarding arrests (Pet. Ex. 4), written statements from three of its witnesses (Pet. Exs. 3, 5 & 6) and a crime and incident report completed by respondent (Pet. Ex. 7). Respondent testified, called four witnesses, and offered written statements from three of his witnesses (Resp. Exs. A-C). As discussed below, I find that a preponderance of the credible evidence establishes that respondent is guilty of misconduct. I recommend that respondent’s employment be terminated. ANALYSIS On October 26, 2007, respondent, then a sergeant1 with the hospital police, was assigned as sector chief for the emergency room. At approximately 7:30 p.m., respondent received a notification from the Central Operations Office (“central office”) to respond to the surgical emergency room regarding a patient property check (Tr. 197). When he arrived, Special Officer Richard Flores informed him that Mr. David Shapiro, the administrator on duty, refused to come to the emergency room to witness the patient property check (Tr. 198-199). Respondent and Mr. Shapiro spoke via two to three telephone calls. Respondent explained that there was a pending patient property check that involved over $500. The property could not be vouchered without Mr. Shapiro’s signature; therefore, his presence was required to proceed (Tr. 23, 199-200). Mr. Shapiro testified that he asked respondent to take the initiative and count the money without him because he was handling a pressing patient-care related matter (Tr. 23). Respondent testified that he refused because hospital policy requires that the administrator sign off when funds being vouchered exceed $500 (Tr. 199-200). Mr. Shapiro described respondent’s tone during the telephone calls as demanding (Tr. 230). He became angry and went to the emergency room (Tr. 24). En route, he encountered respondent and Officer Flores as he came off the elevator in the corridor between the surgical 1

On or about September 2007, respondent was promoted to sergeant, his official title being senior special officer. He was in the midst of a probationary period when the incident occurred. Subsequently, respondent was demoted to special officer.

-3and medical emergency rooms. The events that followed, which culminated in Mr. Shapiro’s arrest, are in dispute.

Charge I (Abuse of Authority) According to Mr. Shapiro, he approached respondent and said, “I want to speak with you privately outside now.” Respondent refused (Tr. 24). They walked a couple of paces until they reached the entrance to the medical emergency room near Officer Domingo Santana’s post. Respondent then turned around and said “okay outside here.” Mr. Shapiro told respondent, “you don’t tell the administrator on duty what to do.” Respondent instructed Mr. Shapiro to step back. When Mr. Shapiro refused, respondent ordered his arrest. Mr. Shapiro testified that he was shocked and admitted resisting arrest. While attempting to go around respondent, Mr. Shapiro tripped and fell. Respondent and Officers Flores and Santana struggled to handcuff Mr. Shapiro, who ultimately succumbed (Tr. 26). Respondent’s version of the encounter portrays Mr. Shapiro as much more aggressive, both physically and verbally. According to respondent, Mr. Shapiro approached him and pointed his finger in respondent’s face while saying, “Do you know who I am?” Respondent attempted to step aside numerous times but was countered by Mr. Shapiro each time.

Mr. Shapiro

continued to step in front of respondent, ultimately pressing his body against respondent and pinning him against a wall (Tr. 200-202). Respondent worked his way around Mr. Shapiro and walked down the corridor. Mr. Shapiro continued pointing at respondent while yelling, “Do you know who I am? I’m your boss” (Tr. 203). Respondent told Mr. Shapiro, “Sir, please step back and take your hand out of my face” (Tr. 203-204). When Mr. Shapiro refused and continued to pin him against the wall, respondent said “Sir, I’m giving you a lawful order to please step back and take your hands out of my face” (Tr. 204). According to respondent, Mr. Shapiro started shaking and “threw up his hands” balled into fists (Tr. 204-205). Fearing he was about to be attacked, and having “nowhere . . . to go,” respondent ordered Officers Flores and Santana to arrest Mr. Shapiro (Tr. 207). Petitioner offered a time-lapsed video recording that captured the incident from when Mr. Shapiro and respondent approached Officer Santana’s post (Pet. Ex. 2a).

There was no

surveillance camera and, therefore, no recording of what occurred previously near the elevator. The recording did not contain audio. The video recording undermines respondent’s contention

-4that he was about to be attacked and had nowhere to go. It shows respondent walking by Officer Santana, who is standing by the wall on post.

Mr. Shapiro follows behind respondent.

Respondent turns around and appears to be addressing Mr. Shapiro, who is standing in front of respondent. Respondent points his finger at Mr. Shapiro while taking a couple of steps to the side. At this point, Officer Flores walks into view behind Mr. Shapiro, who is standing with his hands at his side facing away from the camera. Respondent is standing facing Mr. Shapiro and the camera. Behind respondent is a corridor, at the end of which Officer Martha Dilone is posted. After approximately 14 seconds, respondent begins to go around Mr. Shapiro, who turns and is now facing the camera. At this point, Officers Flores and Santana take a few steps toward respondent and Mr. Shapiro. Mr. Shapiro puts his arms up in the air and attempts to go around respondent and the officers. While doing so he falls to the ground, where respondent and the two officers converge and after a brief struggle place him in handcuffs. The recording fails to support respondent’s assertion that Mr. Shapiro had him pinned against the wall with nowhere to go when he gave the order to arrest. In fact, it shows that respondent had ample space and could have walked away from Mr. Shapiro had he chosen to. The video also fails to support respondent’s claim that, just before he gave the order to arrest, Mr. Shapiro “put his hands up,” balled into fists. While Mr. Shapiro’s hands cannot be seen clearly, even if his hands were balled up into fists, the video clearly shows Mr. Shapiro standing with his hands continuously by his side. He raised his arms above his head only after Officers Flores and Santana start walking toward him to arrest him. Officer Flores confirmed that Mr. Shapiro pointed his finger at respondent’s face while saying, “I don’t take orders from your, I’m your boss” (Tr. 49). In his written statement Officer Flores wrote, “Mr. Shapiro failed to comply [with respondent’s order to back up] and when about to raise [sic] his both hands, [respondent] gave the order for the arrest” (Pet. Ex. 3). At trial, however, Officer Flores testified that he did not see Mr. Shapiro raise his fists prior to respondent giving the order to arrest (Tr. 54 & 63). When questioned about the inconsistency, Officer Flores testified that he was “confused” when he wrote his statement (Tr. 63). He explained that Mr. Shapiro did raise his arms in the air but only after respondent had given the order to arrest. He added that Mr. Shapiro never touched respondent. I credit Officer Flores’s in-court testimony. He unequivocally stated, and the video corroborates, that Mr. Shapiro had his arms down by his side and did not raise his hands until the officers started moving in to arrest

-5him. Furthermore, the video depicts Mr. Shapiro raising his arms above his head in an effort to avoid arrest, not in an offensive manner as suggested by respondent. Officers Santana and Dilone testified for respondent and provided similar accounts. Officer Santana observed Mr. Shapiro follow respondent into the hallway by his post (Tr. 158). He heard Mr. Shapiro ask respondent out loud, “Do you know who I am?” Officer Santana corroborated that Mr. Shapiro did not touch respondent and that respondent was not pinned against the wall as he alleged (Tr. 162-163). Officer Dilone added that respondent was trying to move away from Mr. Shapiro. She explained that every time respondent moved a step back Mr. Shapiro got closer to him (Tr. 144-145). Rafael Nazario, a clerical associate supervisor for finance at the hospital, testified on respondent’s behalf. He was registering patients from within a glass encased booth in the emergency room when the incident occurred. Mr. Nazario testified that Mr. Shapiro was close to respondent, pointing in his face while saying “I am your boss, I am your boss” (Tr. 132 & 136). He did not see the entire event and could not hear everything that was being said. Mr. Nazario similarly testified that he did not see Mr. Shapiro touch respondent (Tr. 134, 136 & 140). Officer David Lopez testified on respondent’s behalf and explained that he was at Central Operations and observed the incident on the video surveillance monitor. He initially testified that the video recording did not capture the entire event (Tr. 185). He later explained that the difference between what he saw on the day of the incident and what was captured on video is that he had a continuous view of the incident on the monitor while the video is timelapsed and rolls over among different camera views (Tr. 192). Officer Lopez’s testimony did not reveal any additional facts. The evidence is clear. Mr. Shapiro and respondent were locked in a battle of egos. Mr. Shapiro, angered that respondent questioned his authority, confronted respondent while yelling and pointing in his face.

Respondent did not appreciate being chastised in front of his

subordinates. Mr. Shapiro should have handled the situation in a more professional and effective manner. His failure to do so, however, did not form an adequate basis to arrest him. The credible evidence demonstrates that no physical contact occurred between Mr. Shapiro and respondent. Respondent was not pinned against the wall in the seconds leading up to the arrest, as he testified. Nor does the evidence show that Mr. Shapiro raised his arms and was poised to attack. Respondent’s testimony that he felt threatened, despite having two officers with him, is

-6self-serving and belied by the evidence. Conspicuously missing from respondent’s incident report is any mention of being pinned against the wall and having no place to go immediately before ordering Mr. Shapiro’s arrest (Pet. Ex. 7). The credible evidence establishes that Mr. Shapiro’s arrest was not a reasonable and legitimate exercise of respondent’s arrest power. Rather, it was motivated by bad faith. See Police Dep’t v. Crowley, OATH Index No. 583/99 (Mar. 19, 1999) (bad faith arrest in retaliation for complainant’s vulgar retorts to the officers); Police Dep’t v. Bernardini, OATH Index No. 1347/98 (Sept. 21, 1998), modified on penalty, Com'r Decision (Nov. 16, 1998) (bad faith arrest for complainant’s profane verbal criticism at officer issuing parking); Police Dep’t v. Reinhardt, OATH Index No. 306/98 (Feb. 24, 1998) (bad faith arrest following argument about police report); Police Dep’t v. Queally, OATH Index Nos. 1787/97 & 1788/97 (Jan. 14, 1998), aff'd sub nom. Nicastro v. Safir, 266 A.D.2d 167, 698 N.Y.S.2d 481 (1st Dep=t 1999) (bad faith arrest by two officers in retaliation for discourteous remarks by the complainant and his wife). Respondent abused his authority when he ordered the arrest of Mr. Shapiro. Therefore, charge I specification 1 is sustained. After being handcuffed Mr. Shapiro was taken to the hospital police central office located on the hospital’s third floor. It is undisputed that Mr. Shapiro was detained in handcuffs for at least an hour and twenty minutes (Tr. 222). It flows that Mr. Shapiro’s detention while in handcuffs pursuant to an improper arrest is similarly an abuse of respondent’s authority. Therefore, charge I specification 2 is sustained.

Charge II (Excessive use of force) This tribunal has held that the use of any force to effect an arrest is excessive where the arrest is made in bad faith. See Police Dep’t v. Celis, OATH Index Nos. 2141/99, 2284/99 & 2285/99 (May 18, 2000); Crowley, OATH 583/99; Police Dep’t v. Pinnisi, OATH Index No. 178/99 (Apr. 29, 1999); Police Dep’t v. Queally, OATH Index Nos. 1787/97 & 1788/97. This tribunal has so found even in cases where the person being arrested resisted arrest. See Police Dep’t v. Morales, OATH Index No. 321/92 (Feb. 10, 1992); Police Dep’t v. Tracey, OATH Index No. 1139/91 & 1142/91 (Jan. 13, 1992). Here, it is undisputed that Mr. Shapiro resisted arrest and that respondent, along with Officers Flores and Santana, used force to handcuff him. Having concluded that respondent

-7acted in bad faith in arresting Mr. Shapiro, I further conclude that the force respondent used was improper. Therefore, charge II is sustained.

Charge III (Insubordination) Petitioner alleges that respondent was insubordinate when he refused directives from Gregory Bullock, assistant director for hospital police (specification 1), and Sgt. Pierre Gardner, tour commander (specification 2), to remove the handcuffs from Mr. Shapiro. To prove that respondent refused to follow the directive(s) to remove the handcuffs from Mr. Shapiro, petitioner must establish that (1) an order was communicated to respondent, which he heard and understood; (2) the contents of the order were clear and unambiguous; and (3) the respondent willfully refused to obey it. Dep’t of Homeless Services v. Chappelle, OATH Index No. 1918/07, at 3 (Aug. 30, 2007) (citing Dep’t of Homeless Services v. Ferguson, OATH Index No. 1611/02, at 6 (Jan. 22, 2003)); Dep’t of Correction v. Hipp, OATH Index No. 337/00 (Dec. 3, 1999). Respondent and Sgt. Gardner shared the rank of senior special officer or sergeant at the time of the incident. However, as the tour commander on duty Sgt. Gardner had supervisory powers over respondent (Tr. 94-95). Sgt. Gardner testified that he headed to the central office upon receiving notification that an arrest had been made. As he approached the area respondent told him, “I have a package for you” (Tr. 97). Sgt. Gardner opened the door and saw Mr. Shapiro sitting on a bench in handcuffs. Sgt. Gardner testified that he immediately told respondent, “You will have to take the [administrator on duty] out of the handcuffs because I need to know what’s going on. I don’t know what’s going on.” Respondent refused to remove the handcuffs, stating that Mr. Shapiro was under arrest (Tr. 97). Sgt. Gardner insisted that he remove the handcuffs but respondent continued to refuse (Tr. 108 & 104). Sgt. Gardner called Captain Edward Santiago, the captain on duty, and Mr. Bullock to inform them of the arrest.

Both Capt. Santiago and Mr. Bullock

spoke with respondent directly. Capt. Santiago testified that respondent told him that he spoke with Mr. Bullock and explained the situation.

Respondent said that Mr. Bullock instructed him to remove the

handcuffs from Mr. Shapiro. Capt. Santiago asked respondent if he had removed the handcuffs

-8and respondent said “yes they’re off” (Tr. 113). Capt. Santiago then spoke with Sgt. Gardner who also told him that the handcuffs had been removed. Mr. Bullock testified that respondent told him that he locked up Mr. Shapiro for menacing and resisting arrest because Mr. Shapiro “got in his face, crowded his space” and spoke to him loudly (Tr. 68-69 & 83-84). When Mr. Bullock asked if there was anything else, respondent stated, “I’m locking him up on that alone” (Tr. 69). Mr. Bullock told respondent that he did not have enough to arrest Mr. Shapiro. Respondent disagreed and said that he was going to call the District Attorney’s Office. Mr. Bullock told respondent, “do not place him under arrest, do not put him in handcuffs” and that the matter would be handled administratively (Tr. 70 & 78-79). He concluded by warning respondent that if he locked up Mr. Shapiro he would be looking for a new job (Tr. 69). Mr. Bullock called Mr. Guillermo Magdaleno, director of the hospital police to inform him of the arrest. Messrs. Bullock and Magdaleno proceeded to the hospital. Mr. Bullock explained that Mr. Magdaleno got to the hospital first and was speaking with respondent when he arrived. Mr. Bullock listened as respondent explained what happened. He interjected and reiterated to respondent that he did not have a valid arrest and ordered respondent to release Mr. Shapiro.

Respondent disagreed and said he was going to call the District

Attorney’s Office. Mr. Bullock again ordered respondent to release Mr. Shapiro immediately. Respondent told Mr. Bullock to sign his memo book to memorialize that he ordered the release. When he refused, respondent asked Mr. Magdaleno to order Mr. Bullock to sign his memo book. Mr. Magdaleno refused. Respondent then walked out of the room and released Mr. Shapiro (Tr. 74-75). Respondent denied that Sgt. Gardner ever ordered him to release Mr. Shapiro, speaking with Captain Santiago (Tr. 217), or being ordered by Mr. Bullock by telephone to release Mr. Shapiro. Respondent testified that Mr. Bullock’s only direction to him was to call Ms. Johnson, who respondent said was a higher-up with corporate security (Tr. 209). Respondent explained that he released Mr. Shapiro when Mr. Bullock arrived at the hospital and told him that he was “breaking the arrest” (Tr. 210). Resolution of these specifications rests on the credibility of the witnesses. Respondent denies being instructed to remove the handcuffs from Mr. Shapiro until Mr. Bullock broke the arrest (Tr. 209-210). Mr. Bullock and Sgt. Gardner say otherwise. I find the Corporation’s

-9witnesses to be more credible and reliable than respondent. Respondent is an interested witness and his motivation to deny the charge is self-evident. It is clear that Mr. Bullock, Sgt. Gardner, and Captain Santiago were all skeptical, to say the least, of the validity of Mr. Shapiro’s arrest. Mr. Shapiro, as the administrator of duty, was in charge of the entire hospital, including the hospital police. Surely the administrator on duty may be arrested if there is legal basis to do so. Here there was none. I credit Mr. Bullock’s and Sgt. Gardner’s testimony that they instructed respondent to remove the handcuffs from Mr. Shapiro and that he refused.

Respondent’s

argument that Sgt. Gardner’s testimony strained credibility because he did not remove the handcuffs himself after respondent allegedly refused misses the mark. Sgt. Gardner’s “failure” to release Mr. Shapiro himself sheds no light on whether he ordered respondent to do so. Charge III is sustained.

Charges IV, V & VI (Disruption of hospital operations; failure to maintain a safe work environment; failure to maintain patient safety) Petitioner alleges that respondent disrupted the operations of the hospital when he detained Mr. Shapiro (charge IV, specification 1) and prevented him from communicating with the next in command of the hospital (charge IV, specification 2); and failed to maintain a safe work environment and patient safety when he prevented Mr. Shapiro from answering his cellular phone and pager (charges V & VI, specification 1) and communicating with the next in command of the hospital (charges V & VI, specification 2). It is undisputed that the administrator on duty is in charge of the entire hospital and is vested with decision making authority to resolve operational issues. The administrator on duty’s general responsibilities include managing the facility in the event of a disaster, dealing with the media, and maintaining keys needed to access supplies for critical care units and other items. The administrator communicates with the hospital and is continuously accessible through a pager and cellular phone. Under hospital procedure the assistant director of nursing is to assume the duties of the administrator on duty when the administrator is incapacitated or otherwise out of communication with the hospital. Mr. Shapiro testified that his pager went off while in custody. He attempted to respond by using his cellular phone despite being handcuffed. Mr. Shapiro was not permitted to use his

cellular phone to answer the pager.

-10His pager, cellular phone, and facility keys were

subsequently removed by Officer Flores on orders from respondent (Tr. 28, 59). Officer Flores corroborated Mr. Shapiro’s testimony that his beeper went off several times and that he attempted to make a phone call. He testified that he asked respondent whether Mr. Shapiro could make a telephone call and that respondent said no. Instead, respondent ordered him to remove Mr. Shapiro’s phone and pager (Tr. 59). Ms. Corazon Poblete is an assistant director of nursing at the hospital. She testified that she learned of Mr. Shapiro’s arrest from the emergency room head nurse (Tr. 118). Ms. Poblete went to the control room to verify that Mr. Shapiro had been arrested so that she could assume his duties. At some point, Ms. Poblete saw Sgt. Gardner and asked to speak with Mr. Shapiro. When Sgt. Gardner said no, she asked him to retrieve the pager, cellular phone, and keys from Mr. Shapiro and to inform Mr. Shapiro that she would temporarily assume his responsibilities. Upon getting the pager, Ms. Poblete responded to a pending request from the inpatient unit for food (Tr. 120-121). Respondent conceded that Mr. Shapiro was out of communication with the hospital once he was arrested and taken to the central office. He also conceded that he did not inform anyone other than his superiors of Mr. Shapiro’s arrest (Tr. 214 & 223). However, he testified that Mr. Shapiro never asked him whether he could use his cell phone or respond to his pager. Respondent further testified that he did not recall seeing Mr. Shapiro make any efforts to answer his cellular phone or pager while handcuffed (Tr. 210). He denied directing Officer Flores to take the beeper and phone from Mr. Shapiro (Tr. 216). Respondent argued that petitioner did not establish that Mr. Shapiro had anything he needed to tell Ms. Poblete; that he asked respondent to use the phone but was denied; and that the alleged prevention of communication affected the “safe work environment” or “patient safety.” Respondent’s arguments are misplaced. I credit Officer Flores’ testimony that respondent refused to allow Mr. Shapiro to use the phone and ordered him to remove his pager and phone. Respondent’s conduct caused Mr. Shapiro to be out of communication with the hospital and resulted in the hospital being temporarily without executive authority. This absence of authority could have jeopardized the operations and safety of the hospital and patient safety. The fact that the hospital was not adversely affected by the temporary absence of executive authority is irrelevant in determining

-11whether respondent is guilty of misconduct. See Health & Hospital Corp. v. Doxen, OATH Index No. 630/97 (Apr. 16, 1997), aff’d, HHC Personnel Review Bd. Dec. No. 903 (May 19, 1998). Based on a preponderance of the credible evidence I find respondent guilty of charges IV, V and VI.

Charge VII (Dereliction of duty) Respondent is charged with dereliction of duty for failing to follow hospital police policy and procedure for making an arrest. The corporation introduced a written arrest procedure that Mr. Bullock testified, and respondent conceded, was in effect on the date at issue (Pet. Ex. 4, Tr. 71 & 225). The arrest procedure delineates several responsibilities that an arresting officer must undertake. The corporation alleges that respondent violated the arrest procedure by failing to contact a supervisor before arresting Mr. Shapiro; failing to advise Mr. Shapiro of the reason for his arrest; and failing to complete the necessary reports and forms. Respondent countered that he was not obligated to contact a supervisor prior to making the arrest because that requirement does not apply where there is an immediate physical threat. As discussed above, I rejected respondent’s argument that he arrested Mr. Shapiro because he was about to be attacked as unsupported by the evidence. I similarly reject his argument regarding his failure to notify his supervisor before making the arrest. I further find that respondent failed to inform Mr. Shapiro of the reason for his arrest. Respondent testified that he told Mr. Shapiro, “the reason why you’re being arrested is due to your actions sir” (Tr. 226). Even if credited, respondent’s explanation failed to satisfy his obligation under the hospital’s arrest procedure. Charge VII is sustained.

FINDINGS AND CONCLUSIONS Petitioner established, by a preponderance of the credible evidence, that on October 26, 2007: 1. Respondent abused his authority when he ordered the arrest of Mr. Shapiro and detained him in handcuffs for approximately one hour and twenty minutes; 2. Respondent used excessive force when arresting Mr. Shapiro;

-123. Respondent was insubordinate when he refused orders from Mr. Bullock and then Sgt. Gardner to remove the handcuffs from Mr. Shapiro; and 4. Respondent disrupted the hospital’s operations and failed to maintain a safe work environment and patient safety when he detained Mr. Shapiro and prevented him from communicating with the next in command and from answering his cellular phone and pager. 5. Respondent was derelict in his duties when he failed to follow hospital policy and procedure while arresting Mr. Shapiro.

THEREFORE: The charges are sustained.

RECOMMENDATION Upon finding respondent guilty, I requested and reviewed his personnel abstract. Respondent was appointed special officer on October 19, 1987. His disciplinary history is relatively minor. It consists of three counseling sessions for attendance and lateness (January 8, 1997 and October 4, 2006) and insubordination (March 30, 2006) and two warnings for attendance and lateness (July 27, 1998) and unprofessional conduct (October 4, 2006). Respondent’s lengthy tenure and lack of any substantial disciplinary record would ordinarily be mitigating factors. See Admin. for Children’s Services v. Goodman, OATH Index Nos. 986/05 & 1082/05 (Aug. 12, 2005) (lack of a prior disciplinary record is a mitigating factor); Dep’t of Correction v. Passe, OATH Index No. 1917/02 (June 4, 2003) (13-year tenure and clean record are mitigating factors). Additionally, the concept of progressive discipline suggests that a lesser penalty be given for a first offense. See, e.g., Dep’t of Transportation v. Jackson, OATH Index No. 299/90, at 14 (Feb. 6, 1990) ("it is a well-established principle in employment law that employees should have the benefit of progressive discipline wherever appropriate, to ensure that they have the opportunity to be apprised of the seriousness with which their employer views their misconduct and to give them a chance to correct it"). Here, however, respondent’s misconduct was so significant and evidenced such an appalling lack of judgment that it warrants the highest penalty.

-13As a special officer respondent is held to a higher standard than other employees. Health & Hospitals Corp. v. Jimenez, OATH Index No. 1381/07 (June 21, 2007), modified on penalty, Hosp. Dec. (July 19, 2007). Respondent has significant authority, including the power to arrest, thereby taking away someone’s liberty.

This power must be exercised judiciously. Here,

respondent ordered the arrest of Mr. Shapiro who, as administrator on duty, had authority over the hospital police and was essentially respondent’s boss. The only credible reason that can be gleaned from the record for the arrest is that Mr. Shapiro pointed his finger in respondent’s face while yelling at him that he was the boss, not respondent. Mr. Shapiro’s conduct may have been rude and unprofessional, but it failed to provide a legal basis for which to arrest him. Respondent had other recourses available to him. He could have walked away and handled the matter administratively, as suggested by his superiors. Respondent maintained throughout the trial that Mr. Shapiro’s arrest was valid. The record, including respondent’s own witnesses and the video recording, however, do not support his account. Rather, the credible evidence shows that respondent’s order to arrest Mr. Shapiro was motivated by bad faith. Particularly troublesome is whether respondent would act in a similar fashion when confronted by someone of lesser or no authority over him, such as a patient or a visitor at the hospital. The very nature of being a special officer would require respondent to occasionally deal with confrontational, rude, or uncooperative individuals.

The Health and Hospitals

Corporation can no longer trust that respondent will act appropriately in the future. Respondent’s misconduct in arresting Mr. Shapiro was exacerbated by his insubordination in refusing directives from two superiors to remove the handcuffs. Despite having time to cool-off and reflect, respondent remained undeterred. Respondent’s profound lack of judgment became more evident when he kept Mr. Shapiro from communicating with the next in command, thereby leaving the hospital temporarily without executive authority. While it is true that the hospital did not suffer any adverse consequences, this is insufficient to mitigate respondent’s misconduct. The hospital’s main mission is patient care and safety. By improperly detaining the hospital’s top administrator, respondent jeopardized the very functioning of the hospital and put it at risk of not being able to carry out its mission. Respondent abused the authority vested in him and demonstrated an astounding lack of

-14judgment. Petitioner seeks respondent’s termination as the appropriate measure of discipline. I concur and so recommend.

Julio Rodriguez Administrative Law Judge June 26, 2008 SUBMITTED TO: JOSE R. SANCHEZ Executive Director APPEARANCES: SANDRA AUNG, ESQ. Attorney for Petitioner MEYER, SUOZZI, ENGLISH & KLEIN, P.C. Attorney for Respondent BY: AYANNA M. BROOKS, ESQ.