N.Y.S. Police Investigators Ass'n v. State, 908458-19

• Decision Date: 10 February 2021
• Docket Number: 908458-19
• Parties: The NEW YORK STATE POLICE INVESTIGATORS ASSOCIATION, LOCAL 4 IUPA, AFL-CIO, BY its President, Timothy M. DYMOND; Timothy M. Diamond, Individually, on behalf of himself and all others similarly situated; John Doe and Jane Roe; Petitioners-Plaintiffs, Hybrid Proceeding/Action For a Judgment Pursuant to Articles 78 and 30 of the CPLR and 42 USC 1983, v. The State of New York, DIVISION OF STATE POLICE, and Keith M. Corlett, in his official capacity as Superintendent of the State of New York, Division of State Police, Respondents-Defendants.
• Court: New York Supreme Court

71 Misc.3d 1007

146 N.Y.S.3d 721

The NEW YORK STATE POLICE INVESTIGATORS ASSOCIATION, LOCAL 4 IUPA, AFL-CIO, BY its President, Timothy M. DYMOND; Timothy M. Diamond, Individually, on behalf of himself and all others similarly situated; John Doe and Jane Roe; Petitioners-Plaintiffs, Hybrid Proceeding/Action For a Judgment Pursuant to Articles 78 and 30 of the CPLR and 42 USC 1983,

v.The State of New York, DIVISION OF STATE POLICE, and Keith M. Corlett, in his official capacity as Superintendent of the State of New York, Division of State Police, Respondents-Defendants.

908458-19

Supreme Court, Albany County, New York.

Decided on February 10, 2021

GLEASON, DUNN, WALSH & O'SHEA, Attorneys for the Petitioners-Plaintiffs

HON. LETITIA JAMES, Attorney General for the State of New York, (Helena O. Pederson, of Counsel), Attorneys for the Respondents-Defendants

Patrick J. McGrath, J. Petitioners-Plaintiffs ("petitioners") commenced this combined proceeding for mandamus to compel, prohibition, and in the alternative, for review pursuant to Civil Practice Law and Rules ("CPLR") Article 78, as well as for declaratory judgment pursuant to CPLR 3001, against Respondents-Defendants ("respondents") regarding administrative subpoenas issued by respondents for internal personnel investigations. Respondents submitted an answer and move for summary judgment pursuant to CPLR 3212. Petitioners submitted a reply and opposition to the summary judgment motion.

Petitioner, the New York State Police Investigators Association ("NYSPIA"), is the duly recognized and certified collective bargaining representative for members of the Investigators and Senior Investigators Unit of the New York State Employees ("Investigators Unit"). The Investigators Unit consists of all persons employed as members of the New York State Division of State Police ("State Police") as Investigators, Senior Investigators or Investigative Specialists. Petitioner, Timothy M. Dymond ("Investigator Dymond") is an Investigator with the State Police, and is the duly elected President of NYSPIA.¹ Petitioners, John Doe ("Investigator Doe") and Jane Roe ("Investigator Roe") are Investigators with the State Police, and believe themselves to be the subjects of pending personnel investigations by respondents.

Respondent, State Police, appoints and employs members of the Investigators Unit, including Investigators Dymond, Doe and Roe. Respondent, Keith M. Corlett is the Superintendent of the State Police ("Superintendent") and has statutory power to impose discipline on appointed members of the State Police after a hearing and in accordance with the due process rights of such members. Respondents issue administrative subpoenas to third-parties to obtain personal information, including personal smart phone information, in connection with internal personnel investigations. Respondents derive their authority to issue the administrative subpoenas from Title 9 of the New York Codes, Rules and Regulations ("NYCRR"), Section 484.2 and New York State Executive Law § 215 (3). Respondents do not maintain written standard operating procedures with respect to the use of their administrative subpoenas.

In this hybrid proceeding, petitioners seek a judgment: 1) prohibiting and enjoining respondents' use, in any personnel investigation of materials obtained through administrative subpoenas that were not issued pursuant to statute and on notice to the members being investigated; 2) prohibiting and enjoining respondents' use of administrative subpoenas in personnel investigations, where such subpoenas are issued based on powers granted to respondents by themselves through regulation; 3) prohibiting and enjoining respondents' use of administrative subpoenas in personnel investigations, unless those subpoenas are subject to a regulatory framework that petitioners argue protects their rights and interests; 4) mandating that any administrative subpoenas issued by respondents in the context of a personnel investigation be issued in accordance with Public Officers Law § 61, and regulated by the CPLR or some other regulatory framework; 5) declaring that respondents' issuance of administrative subpoenas based upon powers respondents granted to themselves through regulation is ultra vires and unlawful; 6) declaring that respondents' issuance of administrative subpoenas without a regulatory framework to adequately protect petitioners' rights and interests is ultra vires and unlawful; and 7) declaring that respondents' issuance of administrative subpoenas for personal cell phone records of members of the State Police based on powers respondents granted to themselves through regulation, and without notice to the members being investigated, is ultra vires and unlawful.

Pursuant to Public Officers Law § 61, "[e]very state officer, in any proceeding held before him, or in any investigation held by him for the purpose of making inquiry as to the official misconduct of any subordinate officer or employee, shall have the power to issue subpoenas for and require the attendance of witnesses and the production of all books and papers relating to any matter under inquiry." Furthermore, "[a] subpoena issued under this section shall be regulated by the civil practice law and rules." (Id. ) Pursuant to CPLR 2303 (a), a "copy of any subpoena duces tecum served in a pending civil judicial proceeding shall also be served ... on each party who has appeared in the civil judicial proceeding so that it is received by such parties promptly after service on the witness and before the production of books, papers or other things." Furthermore, CPLR 3120 (3) provides that, "[t]he party issuing a subpoena duces tecum ... shall at the same time serve a copy of the subpoena upon all other parties and, within five days of compliance therewith, in whole or in part, give to each other party notice that the items produced in response thereto are available for inspection and copying".

Pursuant to Executive Law § 215 (3), the Superintendent has the authority, among other things, to "make rules and regulations subject to approval by the governor for the discipline and control" of the State Police. State Police regulations for internal investigations, including subpoenas, are found under 9 NYCRR Part 484 ("Part 484"), wherein statutory authority is cited as Executive Law § 215 (3). The purpose of Part 484 is stated as, "[t]he security of the State depends to a great extent upon the manner in which the New York State Police performs its duties. Conduct by members or employees that impairs their integrity or the propriety of their performance may jeopardize the safety of the public and raise questions regarding the integrity of other division members and employees" ( 9 NYCRR 484.1 ).

The Superintendent is "responsible for the prompt and thorough investigation of every complaint and accusation made against a member" of the State Police. (Id. ) With regard to subpoenas, "[t]he superintendent ... shall have the power to issue subpoenas and subpoenas duces tecum requiring persons to appear before a designated division commissioned officer and be examined with reference to a matter within the scope of the administrative personnel investigation being conducted, and to produce books, payrolls, personnel records, correspondence, documents, papers, or any other evidence relating to such investigation" ( 9 NYCRR 484.2 ). Furthermore, 9 NYCRR Part 479 ("Part 479") addresses reports of accusations of a member of the State Police and states that, "[e]very such accusation or information shall be thoroughly investigated, in order to protect the accused member, the division, and the people of the State of New York, and all such investigations shall be handled in accordance with current written division instructions outlining the procedure for reporting and investigating complaints against personnel" ( 9 NYCRR 479.1 ).

Petitioners argue that respondents issue the administrative subpoenas without any express statutory authority, without promulgated standards to restrict the scope, relevancy or type of data that may be collected, without any notice or opportunity for affected persons to object to the nature or scope of the subpoenaed information and without any review by a neutral party to determine whether the information subpoenaed, including from personal smart phones, is an unnecessary or unwarranted invasion of constitutional rights or privacy.

Petitioners claim that respondents do not give the subjects of the personnel investigations notice that administrative subpoenas are being, or have been, issued. Petitioners further claim that members of the State Police being investigated in connection with personnel matters are not given copies of any materials that are received by respondents in response to those subpoenas. Petitioners claim that respondents issue the administrative subpoenas in secret, without notifying the parties in interest, or affording those parties the opportunity to challenge the factual basis, relevancy or scope, of the subpoenas.

Petitioners note that they do not object to necessary and appropriate internal investigations to ensure the integrity and professionalism of the State Police, or respondents' use of administrative subpoenas that are authorized by statute and governed by fair and appropriate regulatory standards. However, petitioners argue that any administrative subpoenas must be issued pursuant to statutory authority expressly granted to respondents by the New York State Legislature ("Legislature") and subject to a regulatory framework that adequately protects petitioners' interests. Petitioners assert that 9 NYCRR 484.2 does not provide any standards for, or limitations on, the use of administrative subpoenas, nor does it require that subpoenas issued by respondents in connection be reasonably limited in subject matter or scope, or be regulated by the CPLR. Petitioners argue that while Part 484 states that its statutory...