Lynch v. N.Y.C. Civilian Complaint Review Bd.

• Decision Date: 28 June 2022
• Docket Number: 16202 & M-02131,Index No. 154653/21,Case No. 2021-04687
• Citation: 206 A.D.3d 558,171 N.Y.S.3d 482
• Parties: In the Matter of Patrick J. LYNCH etc., et al., Petitioners-Appellants, v. NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD et al., Respondents-Respondents. The New York Civil Liberties Union Foundation and the American Civil Liberties Union, Women's Rights Project, Amici Curiae.
• Court: New York Supreme Court — Appellate Division

206 A.D.3d 558

171 N.Y.S.3d 482

In the Matter of Patrick J. LYNCH etc., et al., Petitioners-Appellants,

v.NEW YORK CITY CIVILIAN COMPLAINT REVIEW BOARD et al., Respondents-Respondents.

The New York Civil Liberties Union Foundation and the American Civil Liberties Union, Women's Rights Project, Amici Curiae.

16202 & M-02131

Index No. 154653/21

Case No. 2021-04687

Supreme Court, Appellate Division, First Department, New York.

ENTERED June 28, 2022

Golenbock Eiseman Assor Bell & Peskoe LLP, New York (Matthew C. Daly of counsel), for appellants.

Sylvia O. Hinds–Radix, Corporation Counsel, New York (Kevin Osowski of counsel), for respondents.

Guadalupe Victoria Aguirre and Christopher Dunn, New York, for the New York Civil Liberties Union Foundation, amicus curiae.

Sandra S. Park, New York, for the American Civil Liberties Union, Women's Rights Project, amicus curiae.

Judgment, Supreme Court, New York County (Laurence Love, J.), entered on or about November 9, 2021, to the extent appealed from as limited by the briefs, denying the petition brought pursuant to CPLR article 78 to the extent it sought declarations that changes to the rules of the Civilian Complaint Review Board (CCRB), approved by vote on February 10, 2021, were void under Public Officers Law § 107, that the CCRB's Statement of Basis and Purpose for the rules was defective, and that the CCRB's definition of "abuse of authority" was invalid; and to the extent it sought an award of costs and attorneys’ fees under Public Officers Law § 107(2), unanimously affirmed, without costs.

In a prior proceeding, this Court determined that a resolution from the CCRB, announcing that it would begin investigating allegations of sexual misconduct by civilians against police officers, was a nullity because the CCRB did not follow the public vetting processes required by the City Administrative Procedure Act (CAPA) for adopting new rules ( Matter of Lynch v. New York City Civilian Complaint Review Bd., 183 A.D.3d 512, 518, 125 N.Y.S.3d 395 [1st Dept. 2020], lv denied 36 N.Y.3d 901, 2020 WL 6878144 [2020] ).

Following our order, the Chair of the CCRB issued a statement that the CCRB was "committed to pursuing the rulemaking process expeditiously" so that an independent entity could review NYPD sexual misconduct. The CCRB's General Counsel drafted a set of proposed revisions to the CCRB's rules and a statement of purpose, which he shared with the members of the CCRB. On July 1, 2020, the General Counsel advised the CCRB's members on the process for revising the CCRB's rules after our decision. The CCRB's members voted to authorize the rulemaking process but did not discuss the substance of the revised rules.

On December 1, 2020, the CCRB issued a notice of public hearing and opportunity to comment. Among the proposed changes to the CCRB's rules was a definition of "abuse of authority." This term was defined as "misusing police powers," including certain specified conduct (see Rules of City of N.Y. Civilian Complaint Review Bd [38–A RCNY] § 1–01). As relevant here, the specified conduct included "intentionally untruthful testimony and written statements made against members of the public in the performance of official police functions, and sexual misconduct." Sexual misconduct was further defined elsewhere in the revised rules (see id. ).

The CCRB held a public hearing (by videoconference) on January 13, 2021. After responding to all questions and comments, the CCRB members voted to enter executive session. The only planned discussion of the rulemaking, which lasted less than 10 minutes, was the General Counsel's legal advice.

Comments about the substance of the revised rules were not invited. Although a few brief comments were made, these did not address particular comments or text of the rules or propose any changes. One CCRB member expressed some concern about the revised rules but declined to specify the nature of that concern during an executive session.

The CCRB did not discuss the proposed rules in any other executive session. On February 10, 2021, the CCRB publicly voted to approve the revised rules in their entirety. On February 24, 2021, the CCRB issued a notice of adoption. The statement of basis and purpose summarized the revised rules and indicated that they would "incorporate the Charter changes, comply with the court ruling, modify the Board meeting schedule, and clarify certain language to make the rules more understandable."

Supreme Court properly denied petitioners’ request for a declaration that the CCRB's enactment of the revised rules was invalid based upon an allegedly defective statement of basis and purpose. While the statement of basis and purpose for the revised rules was succinct, it satisfied the requirements set forth in New York City Charter § 1043(d)(1)(iv) by stating the purpose of the rules, and by providing a clear explanation of those rules and the requirements they would impose. New York City Charter § 1043(d)(1)(iv) does not require that the agency fully explain its rationale for adopting a rule, nor is there any requirement that the agency articulate its rationale at the time of promulgation as long as the record reveals that the rule had a rational basis (see Matter of Tri–City, LLC v. New York City Taxi & Limousine Commn., 189 A.D.3d 652, 652–653, 138 N.Y.S.3d 30 [1st Dept. 2020] ).

As to the content of the revisions, petitioners have "failed to meet their heavy burden" of showing the revised rules to be "so lacking in reason that [they were] essentially arbitrary" ( id. at 652, 138 N.Y.S.3d 30 ). Given the CCRB's expertise in studying and investigating police disciplinary matters, we defer to its interpretation of the term "abuse of authority," unless that definition is irrational, unreasonable, or inconsistent with the governing statute (see Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 418–419, 654 N.Y.S.2d 100, 676 N.E.2d 862 [1996] ).

The CCRB's interpretation of that term—defining "abuse of authority" as "misusing police power," which encompasses both sexual misconduct by officers against civilians and the making of false statements against civilians—is consistent with the plain language of the governing statute (see New York City Charter § 440[c][1]). Moreover, the record before the CCRB provided ample basis to conclude that sexual misconduct against civilians and making false statements against civilians both fall within the meaning of the term "abuse of authority."

Contrary to petitioners’ contention, the governing statute does not prohibit the CCRB from investigating matters that may touch upon criminal conduct (see New York City Charter § 440[f]). While the CCRB had a prior practice of referring such matters to the Police...