The genesis of this decision was a claim advanced by five State Troopers and their Union, the Police Benevolent Association [PBA] that troopers have a right to counsel or union representation in "critical incident reviews." A "critical incident" is defined in the State Police Administrative Manual, in part, as action by a trooper that results in death or serious injury to the trooper or another person, or discharge of a firearm.
In the event a “critical incident” occurs, an initial inquiry termed the "critical incident review," a critical incident investigation team is dispatched to written and oral statements from the involved troopers in order to provide the Superintendent with accurate information regarding such significant events both for timely reporting to the Governor, the public and the media, and for the Superintendent's own oversight of police operations.
The question to be resolved by the Court of Appeals: Is the Trooper entitled to consult with an attorney or the PBA during a "critical incident review?"
Initially both the PBA and the Division assumed that a trooper's collectively bargained right to representation during administrative interrogations (which may lead to discipline or removal) applied to critical incident reviews, relying on a provision in the Collective Bargaining Agreement (CBA) that, in relevant part, stated:
"In all cases wherein a member is to be interrogated concerning an alleged violation of the Division Rules and Regulations which, if proven, may result in the member's dismissal from the service or the infliction of other disciplinary punishment upon the member, the member shall be afforded a reasonable opportunity and facilities to contact and consult privately with an attorney of the member's own choosing and/or a PBA troop representative before being interrogated. An attorney of the member's own choosing and/or a PBA troop representative may be present during the interrogation, but may not participate in the interrogation except to counsel the member" (CBA § 16.2 [A] [8]).
Subsequently the Division decided that a different CBA section applied to critical incident reviews. That section provided:
"Occasions will arise when there is a need for inquiry into a member's official actions or activities either as a principal or as a witness so that there will be a recording of facts, for the protection of the member or of the Division, or to rebut, explain or clarify any allegations, criticism or complaints made against a member of the Division. Under such circumstances members may be requested and are expected to properly respond and if requested, submit written memoranda detailing all necessary facts. Such memoranda will not be considered as admissions against self-interest in evidence submitted in a disciplinary proceeding under Rule 3 of the Rules, unless the member was offered the representation to which the member is entitled in an interrogation pursuant to paragraph 16.2A(8) below" (CBA § 16.1 [D]).
In 2001 the Division initiated a number of steps leading to a restatement of its critical incident review policy. Ultimately this restated policy provided that “Before a critical incident review, the investigating team would have to inform the trooper to be questioned that he or she would be ‘expected to respond to . . . questions and/or submit memoranda detailing all necessary facts’; that the trooper was not being given representation to which he or she would be entitled under the CBA if this questioning were an administrative investigation; and that the trooper was being offered use immunity for compelled statements or memoranda.” Additionally, any statements by the trooper could not be used in disciplinary proceedings as admissions against interest.
In response to PBA concerns, in August 2005 the Division distinguished the critical incident review process from administrative investigations examining possible disciplinary infractions. The Division said that critical incident review personnel could not be the same personnel who conducted the administrative investigation, and administrative investigative personnel would not have access to critical incident memoranda or other information derived from the review.
In January 2006, the PBA and five troopers who had also been denied counsel or union representation during a critical incident review sued, seeking a court order holding that the Division's restated critical incident review policies violated Civil Service Law § 75 (2) and the troopers' constitutional right to counsel.
Other elements in the complex series of event leading to the law suit: (1) In 2005 PERB determined that trooper disciplinary matters were not subject to collective bargaining because Executive Law § 215 (3) vests sole disciplinary authority in the State Police Superintendent (see 38 PERB 3007 [2005] and (2) After a PERB Administrative Law Judge concluded that critical incident reviews were related to discipline (39 PERB 302 ), in 2007 Supreme Court annulled the ALJ's decision and concluded that the critical incident review was not related to discipline within the meaning of Executive Law § 215 (3) but rather was part of the process leading up to the decision whether or not to discipline, and therefore a mandatory subject of collective bargaining.
However, the Court of Appeal noted that although the Taylor Law (Civil Service Law Article 14.) requires public employers to bargain in good faith concerning all terms and conditions of employment, citing Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, the court said that when there is legislation that vest police discipline in the hands of local authorities, as a matter of public policy, discipline is a prohibited subject of collective bargaining. In contrast, with respect to other terms and conditions of employment, so long as statutes or public policy do not forbid their negotiation, can be negotiated in collective bargaining.
The Court of Appeals dismissed PBA’s appeal, noting that “Here, although the [PBA and the Division] negotiated a right to representation for administrative interrogations, they failed to enumerate any such right with regard to critical incident reviews.” The assumption that this right also attached to critical incident reviews, held by both parties prior to the Division's change in policy in 2001 … did not, however, amount to a negotiated right.”
Finding that the PBA agreed to a right to counsel only during administrative interrogations, the Court of Appeals concluded that it necessarily waived any representation right troopers may have had during critical incident reviews.
The decision also sets out a footnote, Footnote 3, which reads as follows: The Division filed an appeal but has advised the Court that, if we conclude that critical incident reviews are not discipline — as we now do — the Division will withdraw its appeal.
Comment: This decision demonstrates the importance of draftsmanship in constructing the provisions of a collective bargaining agreement. In Matter of Bolin v Nassau County Bd. of Coop. Educ. Servs., 2008 NY Slip Op 05692, Decided on June 17, 2008, Appellate Division, Second Department, a case involving the liquidation of leave accruals upon an employee's separation, the absence of "parallel" language in two relevant contract clauses resulted in a decision in the employee's favor. In contrast, in the PBA case, the absence of "parallel" language in the two relevant contract clauses resulted in a decision in the employer's favor.
The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/right-to-attorney-in-administrative.html
