City of New York v. DeCosta

176 Misc. 2d 936, 675 N.Y.S.2d 517, 1998 N.Y. Misc. LEXIS 205
CourtNew York Supreme Court
DecidedMay 26, 1998
StatusPublished
Cited by1 cases

This text of 176 Misc. 2d 936 (City of New York v. DeCosta) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of New York v. DeCosta, 176 Misc. 2d 936, 675 N.Y.S.2d 517, 1998 N.Y. Misc. LEXIS 205 (N.Y. Super. Ct. 1998).

Opinion

OPINION OF THE COURT

Harold Tompkins, J.

The issues before this court are whether the New York City Department of Investigation’s investigatory procedures are restricted by a labor contract between the City and the Uniformed Fire Officers Association, whether a determination of the Board of Collective Bargaining of the City of New York that this dispute is a subject for arbitration between the parties improperly impinges on public policy, whether the resolution of this issue is premature since the arbitration has not yet been held and whether the Board’s determination, that the claim that the Investigation Department was violating the collective bargaining agreement, is within the scope of the agreement and is subject to arbitration, should be upheld as reasonable and not arbitrary. These issues arise in the context of a determination by the Board of Collective Bargaining that the union’s claim that the City is violating the labor agreement by the method the Investigation Department uses to investigate claims of criminal conduct is a proper grievance under the contract and a fit subject for arbitration. The City has challenged this finding as beyond the scope of the Board’s authority.

PROCEDURAL BACKGROUND

The Department of Investigation is a separate1 agency established by New York City Charter (Charter) chapter 34, with the power and responsibility to investigate the “affairs, functions, accounts, methods, personnel or efficiency of any [City] agency” (Charter § 803). The Commissioner’s jurisdiction to investigate extends to any person or entity that receives money or does business with the City. The Commissioner has the authority to compel testimony of witnesses, to receive evidence and to obtain documents (id., § 805; Matter of Dairymen’s League Coop. Assn., 274 App Div 591 [1st Dept 1948], affd 299 [938]*938NY 634 [1949]). The Commissioner has the responsibility of forwarding written reports to either the appropriate prosecutor, if allegations of criminal conduct are involved, or to the Board of Ethics if an actual or potential conflict of interest is involved. Under Charter § 1128, cooperation with an investigation is mandatory. The applicable City-wide collective bargaining agreement2 includes provisions for individual employee rights under article XVII and arbitration of grievances under articles XVIII and XXI. The individual rights article includes provisions relating to interrogations, interviews, trials and hearings.3 These protections include 10 days’ written prior notice, notice of the subject matter, requirements that where an employee is “a suspect in a departmental trial or investigation,” the employee must be advised of the right to refuse to answer questions, that the answers may not be used against him in criminal proceedings so long as they are truthful and that failure to answer renders him subject to dismissal. The employee must be advised of the right to counsel and the right to representation. If the employee invokes the right to counsel or representation, the matter must be adjourned at least two working days. There are restrictions on the scope of questioning as to personal behavior outside of work except as to matters pertaining to official business, extra departmental employment, conflict of interest, injuries or illness, residency, performance as volunteer firefighter or loss or improper use of departmental property. Additionally, nonsuspect employees are required to cooperate and their statements may not be used.

In February 1996, the Department of Investigation subpoenaed several fire officers in connection with an investigation of a false alarm that was allegedly to be used for a false claim of a line-of-duty injury for a fraudulent pension claim. On or about February 29, 1996, the Investigation Department interview occurred and the union representative was excluded over the objections of the union counsel. A firefighter later pleaded guilty to a crime. On February 14, 1996, a lieutenant [939]*939appeared pursuant to subpoena in connection with an interview concerned with pension fraud. The union counsel objected to inadequate notice under article XVII, the employee rights provision. On April 30, 1996, the union filed a request for arbitration of the grievance that stated the City was violating article XVII by the failure of the Investigation Department to abide by article XVII. The City challenged the arbitrability of the request. On or about October 28, 1997, the Board of Collective Bargaining issued its determination denying the City’s petition and holding that the applicability of article XVII to the interviews, examinations and other matters conducted by the Investigation Department was an issue of contract interpretation for the arbitrator. The Board directed that the matter proceed to arbitration and reserved the merits of the union’s grievance to the arbitrator. A dissenting opinion was issued that would have upheld the City’s position that arbitration was an improper violation of the public policy to eliminate corruption by restricting the authority of the Department of Investigation. The City filed this petition to set aside the Board’s determination on November 28, 1997. On March 17, 1998, the court granted the City’s application for a temporary restraining order enjoining the arbitration pending the hearing of the petition. On April 1, 1998, the court heard oral argument on the record on the City’s petition and continued the interim stay pending a determination of the petition.

REVIEW OF PUBLIC SECTOR LABOR DISPUTES

The general standard in reviewing determinations of administrative agencies is well settled. The court’s review is limited to whether the agency’s determination is arbitrary or capricious or contrary to law (see, Matter of Levitt v Board of Collective Bargaining, 79 NY2d 120 [1992]). The court cannot substitute its judgment for that of the agency and should defer to the specialized expertise of an administrative agency involved in the implementation and enforcement of a statute (supra; Matter of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations Bd., 48 NY2d 398 [1979]).

In the context of public sector labor relations, where the Taylor Law (codified as Civil Service Law art 14) and the New York City Collective Bargaining Law (Administrative Code of City of NY § 12-301 et seq.) impose on both the governmental employer and a certified employee organization (the union), a duty to bargain in good faith on the terms and conditions of employment, the Court of Appeals has adopted a different anal[940]*940ysis (see, Matter of Levitt v Board of Collective Bargaining, supra, at 126-127; Matter of Blackburne [Governor’s Off. of Empl. Relations], 87 NY2d 660, 665 [1996]). There is a two-step process in which the court must first determine whether the arbitration claims at issue are within the scope of the collective bargaining process and, secondly, whether the terms of the particular arbitration clause include the subject area (see, Matter of Committee of Interns & Residents [Dinkins], 86 NY2d 478 [1995]; Matter of New York City Dept. of Sanitation v MacDonald, 87 NY2d 650 [1996]). The initial question is a threshold in which the “courts must determine that there is nothing in statute, decisional law or public policy which would preclude the municipality and its employee or group of employees from referring the dispute to arbitration” (Matter of Committee of Interns & Residents [Dinkins], supra, at 484).

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Related

City of New York v. Uniformed Fire Officers Ass'n
739 N.E.2d 719 (New York Court of Appeals, 2000)

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176 Misc. 2d 936, 675 N.Y.S.2d 517, 1998 N.Y. Misc. LEXIS 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-decosta-nysupct-1998.