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Fire Dep't v. Silvestri
OATH Index No. 613/05 (May 5, 2005)
Firefighter found to have been in possession of alcohol while on duty and to have struck another firefighter with a metal chair, causing severe injuries. ALJ rejected firefighter's defense of lacking any intent to injure victim due to post-traumatic stress disorder. Despite numerous mitigating factors, including possible post-traumatic stress, service during the weeks following 9/11, and an unblemished record, appropriate penalty found to be termination.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
FIRE DEPARTMENT
Petitioner
- against -
MICHAEL SILVESTRI
Respondent
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REPORT AND RECOMMENDATION
JOHN B. SPOONER, Administrative Law Judge
In this case, petitioner, the Fire Department, brought disciplinary charges against respondent Michael Silvestri, a firefighter, alleging that he assaulted and injured another firefighter and was in possession of alcoholic beverages on the night of December 31, 2003.
At the hearing held on January 20 and 31, February 1, and March 1 and 4, 2005, petitioner presented written summaries of the interviews of three eyewitnesses. Without controverting these eyewitness accounts, respondent contended that he suffered from post-traumatic stress disorder ("PTSD") and, in support of this contention, called as witnesses his fiancée, his treating psychiatrist, another firefighter, a psychologist, a Department counselor, and a Department captain.
For the reasons provided below, I find that the two most serious charges should be sustained and that respondent should be terminated.
ANALYSIS
The charges in this case[1] concern a widely publicized incident that occurred on the night of December 31, 2003, at a firehouse in Staten Island, where Firefighter Robert Walsh was struck in the head with a metal chair and severely injured. Following the incident, respondent was charged with a number of misconduct specifications, including possession of alcoholic beverages, engaging in a physical altercation, and failing to notify the department of rule violations. It is undisputed that respondent wielded the metal chair that struck Mr. Walsh in the head and that the incident was witnessed by three other uniformed staff members: Captain Terrence Sweeney, Firefighter Joseph Spitalieri, and Firefighter David Johnsen. At the hearing in this case, none of the eyewitnesses testified. Respondent, on advice of his attorneys, also chose not to testify due to the pending criminal case involving the same incident.[2] Petitioner, apparently at the request of the criminal prosecution, did not order appearances by or subpoena any of the eyewitnesses. The four eyewitnesses, other than respondent, did not respond to subpoenas issued to them on behalf of respondent's attorney.
Witness Statements About Injuries to Firefighter Walsh
Petitioner's evidence in support of the charges thus consisted of hearsay statements of Captain Sweeney and Firefighters Spitalieri and Johnsen, made to a police officer investigating the incident. Detective John Scotto testified that, in the early morning hours of January 1, 2004, he and another police officer responded to Engine 151, Ladder 76, where Firefighter Walsh was injured. After considerable discussion between the union and the upper level supervisors, the detectives were permitted to interview Captain Sweeney and Firefighters Spitalieri and Johnsen (Tr. 21-25). All three
witnesses were interviewed again approximately three weeks later and provided a somewhat more detailed account of the incident (Tr. 32, 44, 49). The statements (Pet. Exs. 4-7) made in these interviews were summarized in reports written by Detective Scotto.
Captain Sweeney stated that, sometime after 5:00 p.m. on December 31, 2003, he gave Firefighter Walsh $20 to buy some beer. Firefighter Walsh returned with a 30-pack of beer and placed it outside in a court yard beside the firehouse in a bag. Captain Sweeney, Firefighter Walsh, and other firefighters began drinking the beer. At around 6:00 p.m., Captain Sweeney went into the kitchen where Firefighters Walsh, Spitalieri, and Johnsen were sitting. Firefighter Walsh was drinking beer. Respondent entered and started mixing some sangria that he had brought into the firehouse. Respondent and Firefighter Walsh began arguing about various things.[3] At one point, respondent called Mr. Walsh a "big fag." Mr. Walsh retorted, "I might be a fag, but you are the one that fucked three guys out of overtime."[4] Respondent angrily walked around the table and struck Mr. Walsh in the face with a heavy metal chair[5] and then jumped on top of Mr. Walsh. Captain Sweeney, Lieutenant Raymond Kane, and other firefighters separated the two. According to Detective Scotto, Captain Sweeney expressly stated that Mr. Walsh was seated at the time he was struck with the chair (Tr. 42, 57).
The captain and other staff members then tried to stop Mr. Walsh's bleeding with towels and coffee filters. Around 6:30 p.m., as Captain Sweeney and Firefighter Spitalieri took Mr. Walsh by car to the hospital, Mr. Walsh stated, "Tell them I fell down the stairs."
At the hospital, Captain Sweeney initially told the medical staff that Mr. Walsh had fallen down the stairs. As the reports of his condition became more serious and he slipped into a coma due to the severe loss of blood, the captain told a nurse that Mr. Walsh had been struck with a chair. Captain Sweeney's interview statements were commemorated in a report (Pet. Ex. 4) written by Detective Scotto soon after the interview.
In his interview statement (Pet. Ex. 6), Firefighter Spitalieri stated that he had reported to work around 5:00 p.m., only to find that he had not been scheduled to work. Before going home, he went with Captain Sweeney into the kitchen where he found Firefighters Walsh, Johnsen, Salvatore Velez, and respondent. Mr. Walsh and respondent were arguing about various topics, including overtime. Firefighter Velez left the kitchen. As the argument between Mr. Walsh and respondent became more heated, Firefighter Johnsen got up from the table and walked over to a bulletin board. From there, Mr. Spitalieri heard respondent say to Mr. Walsh, "I should hit you with a chair." Mr. Walsh replied, "I will pay to see you do it." Mr. Spitalieri then heard the sound of a chair hitting something, and turned around to see Captain Sweeney jumping over the table as respondent and Mr. Walsh punched each other on the floor. Captain Sweeney shouted at respondent to "pack your stuff and get out of here." Mr. Spitalieri told Mr. Walsh he had to get him to a hospital. Mr. Walsh tried to use coffee filters to cover his injury, while Mr. Spitalieri got some towels. After Mr. Spitalieri ran and got his car, he drove Mr. Walsh and Captain Sweeney to the Staten Island University Hospital North. Mr. Spitalieri heard Captain Sweeney tell Lieutenant Kane over his cell phone, "Bobby said he fell. We are going with that." Captain Sweeney then said, "It's your career on the line." Around 7:00 p.m., they arrived at the hospital and told the medical staff that Mr. Walsh had fallen down the stairs. Some time later Mr. Spitalieri overheard Captain Sweeney tell a nurse that Mr. Walsh had been struck with a chair.
In his interview, Firefighter Johnsen told Detective Scotto (Pet. Ex. 7) that he went into the kitchen around 6:00 p.m. and saw Firefighters Spitalieri, Walsh, and Captain Sweeney with respondent in the kitchen. He heard respondent tell Mr. Walsh, "You are an asshole. You think you are a big shot. You think you know everything. Why don't you leave?" In reply, Mr. Walsh said, "I am on two hours of overtime, not 15." At this, respondent said, "I have to get away from the kitchen. I'd like to hit you with a chair." Mr. Walsh retorted, "I would pay to see that." Respondent then picked up a chair and struck Mr. Walsh and then either fell or jumped on Mr. Walsh. Captain Sweeney jumped over the table to separate the pair. Firefighter Johnsen looked at the clock and saw it was 6:45 p.m. According to Detective Scotto, Mr. Johnsen also stated that Mr. Walsh was seated and not looking at respondent at the moment he was struck with the chair. Mr. Johnsen also indicated that, in hitting Mr. Walsh with the chair, respondent swung the chair hard, "swinging for the bleachers" (Tr. 53).
Mr. Johnsen heard Mr. Walsh tell another firefighter that he had fallen down the stairs. Mr. Johnsen told Mr. Walsh he had to go to the hospital, but Mr. Walsh replied, "Give me five minutes" and walked over to the sink and got some coffee filters to put on his face. Firefighters Johnsen and Velez mopped and cleaned the kitchen. Respondent stayed in the locker room. At some point, Firefighter Velez reported that respondent told him he did not remember what had happened. He also said that respondent was upstairs cleaning out his locker and he apologized for what had happened.
According to the medical evidence (Pet. Ex. 20), Mr. Walsh received a "3-4 cm large deep laceration to his right maxillary region." His blood alcohol reading was .054 per cent, which would constitute evidence that he had been drinking but was probably not intoxicated. See Vehicle and Traffic Law §1195 (2)(b) (Lexis 2005).
In the face of this overwhelming evidence that respondent struck Mr. Walsh with a chair, respondent's attorney offered no evidence of his own as to what took place.[6] Instead, he suggested that petitioner's evidence was either contradictory or supported a conclusion that respondent acted, not out of anger, but due to fear of being attacked by Mr. Walsh. Counsel grounded this latter argument upon a contention that, at the time Mr. Walsh was struck by the chair, Mr. Walsh was not seated and was walking toward respondent. However, there was no evidence to support such a finding. All three eyewitnesses recalled that Mr. Walsh was seated facing away from respondent at the time respondent struck him with the chair. Counsel's argument in his closing that the severe injuries to the right side of Mr. Walsh's face are inconsistent with Mr. Walsh being seated was entirely unpersuasive. It was unsupported by any of the evidence presented, which all indicated that Mr. Walsh was struck as he was seated and looking away from respondent. Although counsel insisted that it would have been "impossible" for respondent to have swung the chair in such a way as to have struck Mr. Walsh on the right side of his face, it seemed imminently possible that respondent swung the chair in a counter-clockwise circular motion toward Mr. Walsh, striking him first on the right side of his face. This certainly seemed far more plausible than respondent's proposed scenario, in which Captain Sweeney, Mr. Spitalieri, and Mr. Johnsen were making false statements in order to suppress a minor movement by Mr. Walsh just before he was struck.
Some other credibility matters warrant mention. As argued by respondent's attorney, Captain Sweeney apparently participated in the attempted cover-up of the incident by initially telling the medical staff that Mr. Walsh had fallen down the stairs. This is, of course, an important factor to consider in assessing the truthfulness and reliability of the hearsay statements. It was also true that, according to Detective Scotto as well as Mr. Spitalieri and Mr. Johnsen, after the condition of Mr. Walsh deteriorated, Captain Sweeney revealed the truth to a nurse and stated that Mr. Walsh had not fallen but had been struck with a metal chair. While this retraction of the previous lie does not totally negate its significance, it does suggest that in general Captain Sweeney ultimately provided a truthful and reliable account of what happened in the kitchen and how Mr. Walsh was injured.
It is also notable that the accounts of the three eyewitnesses, while not so similar as to suggest collaboration, were consistent and corroborate one another to a considerable extent. Other than an initial motive to conceal the managerial negligence of permitting alcohol to be imbibed at the firehouse, none of these eyewitnesses had any apparent motive to lie about the cause of Mr. Walsh's injuries. The initial statements by the three eyewitnesses were made within hours of the incident, and the follow-up statements within three weeks after the incident, at a time when the details should have been fresh in the witnesses' memories. The hearsay statements were further corroborated by the other hearsay statements of firefighters who entered the kitchen seconds after the injury and were apparently told that respondent had struck Mr. Walsh. The eyewitness accounts were consistent with the fact that, according to Mr. Velez, respondent immediately stated that he had no memory of what had happened to Mr. Walsh or of his own role in the incident.
For all of these reasons, I found the three hearsay accounts to be highly reliable and worthy of considerable weight.
Based upon these three hearsay statements, I find that the incident occurred as follows. On the night of December 31, 2003, at around 6:45 p.m., Captain Sweeney, Firefighter Johnsen, and respondent were all seated at a table in the kitchen at Engine 151, with Firefighter Spitalieri looking at a bulletin board along one wall. Respondent had been mixing sangria and Captain Sweeney and Mr. Walsh had been drinking beer. Respondent and Firefighter Walsh began arguing about various things. At one point, respondent called Mr. Walsh a "big fag." Mr. Walsh retorted, "I might be a fag, but you are the one that fucked three guys out of overtime." Respondent told Mr. Walsh, "I'd like to hit you with a chair." Mr. Walsh retorted, "I would pay to see that." Respondent angrily walked around the table, picked up a heavy metal chair, struck Mr. Walsh on the right side of his face, and then jumped on top of Mr. Walsh. Captain Sweeney jumped over the table and separated the two firefighters. The blow from the chair caused a deep gash to Mr. Walsh's face and resulted in a severe loss of blood. Captain Sweeney drove Mr. Walsh to a hospital and initially told the emergency medical personnel that Mr. Walsh had fallen down some stairs, changing this story only after Mr. Walsh's condition became increasingly perilous. At the time of the incident, respondent stated that he had no recollection of what had occurred.