NYC MAYOR v. COUNCIL OF NYC
| Decision Date | 31 August 1999 |
| Citation | 696 N.Y.S.2d 761,182 Misc.2d 330 |
| Parties | MAYOR OF THE CITY OF NEW YORK et al., Plaintiffs,<BR>v.<BR>COUNCIL OF THE CITY OF NEW YORK, Defendant. |
| Court | New York Supreme Court |
Richard M. Weinberg, New York City, and Camhy, Karlinsky & Stein, New York City (Oliver Koppell of counsel), for defendant.
Michael D. Hess, Corporation Counsel (Jeffrey D. Friedlander and Meredith A. Feinman of counsel), for Mayor of City of New York, plaintiff.
Robert M. Morgenthau, District Attorney of New York County, New York City, plaintiff pro se, and Mark Dwyer for Robert M. Morgenthau, plaintiff.
This action addresses whether defendant the Council of the City of the New York (Council) has overstepped its powers and in doing so infringed upon those of plaintiffs the Mayor of the City of New York (Mayor) and the District Attorney of the County of New York (District Attorney) in enacting Local Laws, 1997, No. 91 of the City of New York (Local Law No. 91) which created the Independent Police Investigation and Audit Board (Board). (NY City Charter § 450 et seq.) Plaintiffs sued defendant in this action requesting declaratory and injunctive relief based on the New York Constitution, laws of New York State, and New York City Charter, in order to have Local Law No. 91 declared invalid and to have its operation and implementation permanently enjoined.
Defendant moves for an order dismissing the complaint; granting summary judgment in favor of defendant; declaring Local Law No. 91 valid, lawful, and in force and effect; and directing plaintiff Mayor to abide by the law's terms and implement it. Plaintiffs cross-move for summary judgment seeking a declaratory judgment that Local Law No. 91 is invalid, and without force and effect, and that plaintiffs and City agencies are under no obligation to abide by its terms; a permanent injunction enjoining the operation and implementation of Local Law No. 91; and dismissal of defendant's counterclaim and motion.
First, defendant asserts no counterclaim, and plaintiffs show no reason why defendant's motion should be dismissed, as opposed to their alternative argument that it should be denied and the cross motion granted. Thus, those branches of plaintiffs' cross motion must be denied. Second, it is undisputed that there are no issues of fact on the motion and cross motion. Therefore, summary judgment is appropriate.
On July 24, 1992, the Commission to Investigate Allegations of Police Corruption and the Anticorruption Procedures of the Police Department (Mollen Commission) was established by Executive Order of former Mayor David Dinkins. The Mollen Commission conducted extensive investigations of the New York City Police Department (NYPD) and held public hearings. On July 7, 1994, a comprehensive final Commission report was issued. In it, the Mollen Commission found that the most significant corruption in the NYPD related to the drug trade and that corruption had become more serious than in the past. The Mollen Commission determined that the NYPD's corruption controls had virtually collapsed and that the NYPD had mostly abandoned its responsibility to police itself.
The Mollen Commission made numerous recommendations. Included among them was the establishment of a permanent Police Commission which would be independent of the NYPD. The Mollen Commission recommended that the Police Commission would perform continuing assessments and audits of the NYPD's anticorruption systems, assist the NYPD with anticorruption programs and policies, assure that the NYPD's command accountability system would be successful, conduct its own corruption investigations, and give to plaintiff Mayor and the Police Commissioner of the NYPD periodic reports of the Police Commission's findings and recommendations. The Mollen Commission stated that the Police Commission must have its own capacity to investigate the state of police corruption, including the Police Commission's having subpoena power.
In 1995, in order to implement the recommendations of the Mollen Commission, defendant Council enacted Local Laws, 1995, No. 13 of the City of New York (Local Law No. 13). That law created an earlier version of the Board. Under that law, two members of the Board were to be appointed by plaintiff Mayor, two by defendant Council, and one by plaintiff Mayor and defendant Council jointly.
Plaintiff Mayor sued defendant Council to have Local Law No. 13 invalidated and moved for summary judgment. That law was declared to be invalid (Mayor of City of N.Y. v Council of City of N.Y., 235 AD2d 230 [1st Dept], lv denied 89 NY2d 815 [1997]). The basis for the holding was that, under that law, defendant would have limited or impaired the power of plaintiff Mayor under New York City Charter § 6 (a) to appoint all nonelected officers of City government, which the members of the Board under that law would have been, and executive power of plaintiff Mayor would have been improperly transferred, in contravention of Municipal Home Rule Law § 23 (2) (f).
On February 27, 1995, plaintiff Mayor issued an Executive Order in which he established a Police Commission to combat police corruption. The Police Commission is made up of five members, all appointed by plaintiff Mayor. The duties of the Police Commission are to monitor conditions and attitudes within the NYPD which may tolerate or perpetuate corruption, and check on the performance of the anticorruption systems of the NYPD. The Police Commission may accept complaints or information from the public regarding specific allegations of police corruption. Under the Executive Order, specific allegations of corruption against individual NYPD personnel shall continue to be investigated by the NYPD, and those allegations may not be investigated by the Police Commission unless the Police Commissioner and the Commissioner of the New York City Department of Investigation (DOI), with plaintiff Mayor's approval, determine that there are exceptional circumstances that require the investigation of the allegations in order to assess NYPD's anticorruption systems. The Police Commission is to make reports to the Police Commissioner of NYPD and plaintiff Mayor. Any use of subpoena power would be by the DOI where the Police Commission and DOI jointly determine that issuance of a subpoena is appropriate.
The Police Commission established by plaintiff Mayor was unacceptable to defendant Council because it believed that the Police Commission was not independent of plaintiff Mayor. The specific objections by defendant Council were that the Police Commission is not a sufficiently independent body because it can only investigate specific allegations of corruption against members of the NYPD where the DOI Commissioner, who is a mayoral appointee, and plaintiff Mayor determine that the above-stated exceptional circumstances exist, and because the Police Commission cannot issue subpoenas on its own but can only have the DOI do so if DOI agrees.
In an attempt to remedy the infirmities in Local Law No. 13, as held by the trial court and the Appellate Division, defendant Council passed Local Law No. 91 in 1997. Plaintiff Mayor vetoed the law, but defendant Council overrode the veto. That law explicitly states that plaintiff Mayor appoints all five members of the Board. Two of them are to be selected and appointed by plaintiff Mayor, two are to be designated by defendant Council but appointed by plaintiff Mayor, and the chairperson is to be appointed by plaintiff Mayor after consulting with the Speaker of defendant Council.
Under Local Law No. 91, the Board has the power to perform assessments and audits of the NYPD's anticorruption systems; make recommendations to the NYPD as to improvement of those systems regarding the formulation and implementation of anticorruption policies and programs; undertake independent investigations of possible corruption within the NYPD, and in addition any investigations of possible corruption that plaintiff Mayor or the Police Commissioner of the NYPD requests be undertaken; and issue subpoenas. If the Board in the course of an assessment, audit, or investigation reasonably believes that "criminal activity or other wrongdoing" has taken place or is occurring, then the Board must report the facts which support that belief to the Police Commissioner of the NYPD and the appropriate prosecutor (NY City Charter § 451 [b]; § 452). Section 456 of the New York City Charter provides that Local Law No. 91 shall not be construed to limit the authority of the NYPD Police Commissioner to investigate corruption within the NYPD, or prevent or interfere with the investigation or prosecution of members of the NYPD by any Grand Jury, District Attorney, or other authorized officer or entity. The law requires that the Board establish within a specified time period protocols with the NYPD, each of the City of New York's District Attorneys, and the Civilian Complaint Review Board.
Plaintiffs attack Local Law No. 91 on several grounds. The first argument is that Local Law No. 91 transfers the governmental functions of plaintiff Mayor to members of the Board who are not solely appointed by plaintiff Mayor, in violation of New York City Charter § 6 (a) and Municipal Home Rule Law § 23 (2) (f). Second, plaintiffs assert that Local Law No. 91 infringes upon the mandate of New York City Charter § 8 (a) that plaintiff Mayor and plaintiff Mayor's appointees, including the Police Commissioner of the NYPD, insure the effectiveness and integrity of City government operations. The third contention is that the law curtails and infringes upon the investigative and prosecutorial functions of plaintiff District Attorney, in contravention of NY Constitution, article XIII, § 13; County Law §§ 400 and 927; and CPL articles 190 and 610. Fourth, plaintiffs maintain that the law is an unlawful transfer of defendant Council's own investigative and oversight powers under section 29 of the New York City Charter.
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