Matter of Malone

In 1980, correction officer Robert Lewis confidentially reported to his superiors that he had witnessed an incident involving undue force by several other correction officers against a prison inmate. It was highly unusual for a correction officer to inform against his fellow officers, for fear of retaliation for breaking their “code of silence.” Brian Malone (defendant), the inspector general of the New York Department of Correctional Services (the department), initiated an investigation. Malone and his team conducted confidential interviews of Lewis, whose report was corroborated by the assaulted inmate and the inmate’s medical records. On October 20, 1981, Lewis provided testimony under oath regarding the incident. Malone stated on the record at the time that his plan was for Lewis to provide a false, contradictory statement the next day, to protect Lewis’s identity as an informer. The next day, on October 21, Malone interviewed six correction officers, including Lewis, at the prison. Each officer gave sworn testimony regarding the incident, denying any assault. Lewis denied witnessing an assault as well, having been instructed by Malone to lie. Lewis successfully evaded suspicion as an informant. Thereafter, the department charged three correction officers with using undue force and giving false testimony. The officers filed grievances with their union, and the union initiated arbitration on behalf of the accused officers. During the arbitration, Lewis disclosed how Malone had directed him to provide two contradictory statements. In 1983, the state committee on professional standards (plaintiff) charged Malone with professional misconduct based on his role in directing Lewis’s false testimony. Malone admitted the underlying facts. A court referee found that Malone had committed professional misconduct. Malone filed a motion to disaffirm the referee’s report.