MATTER OF LYNCH v. Giuliani

• Decision Date: 07 January 2003
• Citation: 301 A.D.2d 351,755 N.Y.S.2d 6
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of PATRICK J. LYNCH et al., Appellants-Respondents,<BR>v.<BR>RUDOLPH W. GIULIANI, as Mayor of the City of New York, et al., Respondents-Appellants.

301 A.D.2d 351

755 N.Y.S.2d 6

In the Matter of PATRICK J. LYNCH et al., Appellants-Respondents,

v.RUDOLPH W. GIULIANI, as Mayor of the City of New York, et al., Respondents-Appellants.

Decided January 7, 2003.

Concur — Nardelli, J.P., Mazzarelli, Andrias, Rosenberger and Friedman, JJ.

The CCRB was formed in 1953 to provide citizens with a venue for registering complaints of police misconduct. It has been a subject of continued controversy since its inception. Presently, the Board has 13 members, all of whom must be residents of the City of New York, must "reflect the diversity of the city's population" and are appointed by the Mayor (NY City Charter, ch 18-A, § 440 [b] [1]).

The New York City Charter authorizes the City Council, the Police Commissioner (the Commissioner) and the Mayor to designate individuals to serve on the CCRB. It provides that: "(i) five members, one from each of the five boroughs, shall be designated by the city council; (ii) three members with experience as law enforcement professionals shall be designated by the police commissioner; and (iii) the remaining five members shall be selected by the mayor. The mayor shall select one of the members to be chair." (NY City Charter § 440 [b] [1].)

The City Charter confers upon the CCRB the following powers and duties:

"1. The board shall have the power to receive, investigate, hear, make findings and recommend action upon complaints by members of the public against members of the police department that allege misconduct involving excessive use of force, abuse of authority, discourtesy, or use of offensive language, including, but not limited to, slurs relating to race, ethnicity, religion, gender, sexual orientation and disability. The findings and recommendations of the board, and the basis therefor, shall be submitted to the police commissioner. No finding or recommendation shall be based solely upon an unsworn complaint or statement, nor shall prior unsubstantiated, unfounded or withdrawn complaints be the basis for any finding or recommendation.

"2. The board shall promulgate rules of procedure in accordance with the city administrative procedure act, including rules that prescribe the manner in which investigations are to be conducted and recommendations made and the manner by which a member of the public is to be informed of the status of his or her complaint. Such rules may provide for the establishment of panels, which shall consist of not less than three members of the board, which shall be empowered to supervise the investigation of complaints, and to hear, make findings and recommend action on such complaints. No such panel shall consist exclusively of members designated by the council, or designated by the police commissioner, or selected by the mayor.

"3. The board, by majority vote of its members, may compel the attendance of witnesses and require the production of such records and other materials as are necessary for the investigation of complaints submitted pursuant to this section * * *" (NY City Charter § 440 [c]).

NY City Charter § 440 (e) assigns the Police Commissioner absolute authority in matters of police discipline, stating, "The provisions of this section shall not be construed to limit or impair the authority of the police commissioner to discipline members of the department. Nor shall the provisions of this section be construed to limit the rights of members of the department with respect to disciplinary action, including but not limited to the right to notice and a hearing, which may be established by any provision of law or otherwise."

Civilian complaints are presently processed as follows: if the CCRB finds a complaint substantiated, it forwards that determination to one of two branches of the Police Department's internal disciplinary system. These are the Department Advocate's Office (DAO) and the Office of the Special Prosecutor (SPO). Employees of DAO and SPO, who are not necessarily lawyers, are then responsible for determining whether, and how, to prosecute the claims. DAO prosecutes the majority of the disciplinary cases, while SPO handles the more serious allegations of misconduct. Police Department Advocates and Assistant Special Prosecutors (collectively Department Advocates) employed by the Police Department lead prosecution of cases and, where warranted, present them before the department's "Trial Rooms"^[1] or OATH.^[2] Allegations of corruption are the responsibility of the Police Department's Internal Affairs Bureau (IAB), and police misconduct involving criminal acts is generally investigated and prosecuted by the District Attorney in the county where the crime took place.

In 1995, the Mayor executed an order establishing the New York City Commission to Combat Police Corruption (Corruption Commission) to "evaluate, on a permanent basis, the effectiveness of Department policies and procedures to combat any conditions and attitudes that `tolerate, nurture or perpetuate corruption'" (Executive Order No. 15 [Feb. 27, 1995] "Establishment of Commission to Combat Police Corruption" at 4, quoted in July 2000 Commission to Combat Police Corruption Report, "The New York City Police Department's Prosecution of Disciplinary Cases" [hereinafter, Commission Report] at 1). The Corruption Commission conducted a study of the existing system for prosecuting disciplinary actions, collecting statistics from November 1998 through October 1999. It analyzed the effectiveness of the processing of both civilian-initiated and non-civilian-initiated complaints.

In its report, the Commission found an inordinate delay in the prosecution of civilian-initiated disciplinary cases, and it attributed substantial lapses to the transfer of information between the CCRB and the Police Department. The Commission also concluded that staffing and training improvements are needed within the DAO (Commission Report at 92). One of a number of recommendations by the Commission was that the CCRB be allowed to follow up with the prosecution of certain civilian-initiated complaints. Specifically, the Commission wrote: "While ultimate responsibility for disciplinary decisions needs to remain with the Police Commissioner, including the right to accept or reject plea agreements, the prosecution of CCRB cases should be handled in-house by CCRB. Such a system would provide an incentive to CCRB to substantiate only cases that can be successfully prosecuted and prevent the Department and CCRB from being able to blame each other for the failure of CCRB prosecutions. Increasing accountability for these cases and eliminating the reciprocal finger pointing which often takes place currently should also enhance public confidence in how these complaints are being addressed. Additionally, having one agency both investigate and prosecute these cases should produce some corresponding reduction in the time it takes for these cases to be completed. Pursuant to this proposal, the Commissioner would retain the existing statutory power to approve or disapprove all trial results." (Commission Report at 93.)

The Memorandum of Understanding

In January 2001, based upon the Commission's recommendations, the Mayor and the Police Commissioner announced a plan to make amendments to the City's rules. These proposed rule changes were intended to facilitate the prosecution by the CCRB of all the cases which arose from substantiated civilian complaints. In April 2001, the Police Department and the CCRB entered into a memorandum of understanding (MOU) which permitted the CCRB to prosecute all complaints substantiated on or after July 25, 2001.^[3] The MOU also stated, "All substantiated civilian complaints prosecuted by CCRB in accordance with this Memorandum of Understanding (MOU) in which Charges and Specifications are preferred against NYPD uniformed officers and for which a hearing is required shall be heard by the New York City Office of Administrative Trials and Hearings (OATH)." The proposed administrative rule changes were published in the City Record for public comment, and the final changes became effective on May 23, 2001.

The MOU and its implementing rules directed the CCRB to establish a unit of attorneys and staff to conduct the prosecutions formerly forwarded to either the DAO or SPO. The CCRB attorneys were given the authority to file formal charges, which necessitated an administrative hearing, or to recommend lower level disciplinary action for less serious offenses (see 38 RCNY 15-12). As outlined in the MOU, under the proposed rule changes, CCRB attorneys would have the authority to negotiate plea agreements with police officers and their attorneys, subject to the Commissioner's final approval, or to recommend that a case be dismissed or not be prosecuted. CCRB attorneys would also be entitled to receive a summary of the employment history of the subject of a substantiated complaint, and, under specified circumstances, limited information could be obtained concerning police officer witnesses (38 RCNY 15-15).

Finally, 38 RCNY 15-12 provided that, "Where [CCRB] prosecutions include the filing of Charges and Specifications against the subject officer, an Administrative Law Judge of the Office of Administrative Trials and Hearings (OATH) shall conduct any hearing necessary to the prosecution of the case and issue a report containing proposed findings of fact and a recommended decision to the Police Commissioner."

The Judgment Appealed

Petitioners are heads of the various unions representing uniformed police officers, sergeants, lieutenants, captains and detectives. They commenced this proceeding, alleging that the MOU and the rule changes in question violated City Charter § 11, Administrative Code of the City of New York (Administrative Code) § 14-115 (b), Municipal Home Rule Law § 23 (2) (f), Civil Service Law § 75, McKinney's Unconsolidated Laws of New York § 891, and Civil Rights Law § 50-a. Respondents are the Mayor, the Police Commissioner, the Chair of the...