Members LoginPBA files lawsuit regarding policy set by Division of State Police
PBA, 2004-07-09
The State Troopers PBA has filed a lawsuit against the Division of State Police in State Supreme Court seeking a declaratory judgment regarding Division’s policy of ordering members not to attend court even after receiving subpoenas from the Judges mandating their appearance. The lawsuit alleges that Division places our members in a “Hobson’s Choice” situation by forcing them to choose between an directive from their employer vs a lawful order from a judge who can hold them in contempt of court.
Below is the full text of the complaint, as well as a link to and the full text of a story published in The Buffalo News regarding the lawsuit.
STATE OF NEW YORK
SUPREME COURT COUNTY OF ALBANY
___________________________________________________
POLICE BENEVOLENT ASSOCIATION OF NEW
YORK STATE TROOPERS, INC., on Behalf of its
Members William R. Fish, Jacob Rudnick, Dean M. Scirri
and Benjamin J. Campbell; and WILLIAM R. FISH,
JACOB RUDNICK, DEAN M. SCIRRI, and BENJAMIN
J. CAMPBELL, individually,
Plaintiffs, COMPLAINT
– against –
Index No.
DIVISION OF NEW YORK STATE POLICE;
WAYNE E. BENNETT, as Superintendent of the
Division of New York State Police,
Defendants.
___________________________________________________
Plaintiffs, by their attorneys, Gleason, Dunn, Walsh & O’Shea, and for their Complaint, allege as follows:
INTRODUCTION
1. This is an action brought by individual New York State Troopers and their certified collective bargaining representative, the Police Benevolent Association of New York State Troopers, Inc. (“PBA”) seeking declaratory and injunctive relief relative to the rights of individual Troopers when confronted with an order from their superior officer(s) not to appear in court when they have been served with a subpoena or other court mandate and/or made aware that a subpoena or other court mandate seeking their attendance in court has been issued.
PARTIES
2. Plaintiff William R. Fish is a New York State Trooper.
3. Plaintiff Jacob Rudnick is a New York State Trooper.
4. Plaintiff Dean M. Scirri is a New York State Trooper.
5. Plaintiff Benjamin J. Campbell is a New York State Trooper.
6. Plaintiff Police Benevolent Association of New York State Troopers, Inc. (“PBA”) is an employee organization within the meaning of Article 14 of the New York Civil Service Law (“The Taylor Law”) and is the certified and recognized collective bargaining representative for all Troopers employed with the New York State Executive Department, Division of State Police (“the Division”). The Troopers, including the individual plaintiffs herein, are hereinafter referred to as “members” or “plaintiffs”.
7. The defendant Division of State Police is a Division of the Executive Department of the State of New York. The Division of State Police has the power under the New York State Executive Law to discipline and discharge its employees including Troopers for inter alia the failure to follow its orders.
8. The defendant Wayne E. Bennett is the Superintendent of the Division of State Police with all powers and duties conferred by law.
Background
9. Among the job duties performed by Troopers such as plaintiffs Fish, Rudnick, Scirri and Campbell is the enforcement of Vehicle and Traffic Laws as well as other laws.
10. Troopers regularly issue Simplified Traffic Informations (“tickets”) to motorists alleging that the motorist violated one or more provisions of the Vehicle and Traffic Law or other laws.
11. After the issuance of such tickets, the accused motorist may plead guilty or not guilty. If the accused motorist pleads not guilty, he/she will be compelled to appear in a local criminal court on a specified date and at a specified time.
12. The local courts have slightly different methods for the scheduling of the appearances of the accused motorist, but generally after a plea of not guilty is received, a notice is sent to the accused motorist advising of the date and time of the “conference/trial”.
13. The local courts also each have slightly different methods for alerting the Trooper who issued the ticket that his attendance is required for the prosecution and disposition of the ticket.
14. Two of the frequently used methods are 1) subpoenas and 2) court notices.
Subpoenas
15. The Division has published a Field Manual which sets forth certain procedures to be followed by Division employees and contains the following written policy pertaining to subpoenas and appearances.
36H SUBPOENAS OF MEMBERS AND/OR DIVISION RECORDS
36H1 Policy On Receipt – Civil Or Criminal Cases
(a) Personal service of the subpoena is not required. Subpoenas
may be delivered to Troop Headquarters for relay to the
designated Member.
(b) In criminal cases, you may be directed to appear irrespective
of whether a subpoena has been issued.
* * *
36H2 Procedure Upon Receipt Of Subpoena
(a) If you receive a subpoena addressed to you, promptly send a
FILE 25 Terminal Message to your Troop Headquarters,
ATTN: First Sergeant, and include the following:
(1) Title of Case;
(2) Time, date and place of appearance.
(3) Name of attorney or court clerk who issued the
subpoena;
(4) Address and phone number of the issuing authority;
(5) Whether the nature of the case is criminal or civil;
and
(6) Whether or not you intend that transportation be
provided by the Division.
(b) First Sergeant: When you receive the Terminal Message from
the receiving Member, acknowledge its receipt by sending a
REPLY Terminal Message and instruct the Member
concerning attire and transportation.
(c) If you receive a subpoena addressed to another Member:
(1) Immediately send it to the Member with fees, if
any; or
(2) If that Member is assigned to another Station, send
a FILE 25 Terminal Message to that Station
indicating that the subpoena was received for the
Member and is being sent to them.
(emphasis in original). A copy of the pertinent parts of the Field Manual is attached hereto as Exhibit A.
16. A subpoena is a mandate of the Court within the meaning of General Construction Law §28-a.
Court Notices
17. In addition to subpoenas, another method used by the local criminal courts to advise a Trooper that his attendance is required is the court notice, which is sent to the accused motorist and to the Trooper issuing the ticket and which contains language such as:
“The attendance of the Trooper is required.”
or
“The arresting officer’s presence is required.”
A copy of a court notice is attached hereto and marked as Exhibit B.
18. A court notice is a mandate of the court within the meaning of General Construction Law §28-a.
Facts Giving Rise to this Dispute
19. In 2003, the Division adopted certain “Court Procedures”, at least in Niagara County, and upon information and belief, Erie and other counties, whereby Troopers are not permitted to appear in local criminal courts that have a Town Prosecutor for Vehicle and Traffic Law offenses (violations only). A copy of a memorandum outlining such new “Court Procedures” is annexed hereto and marked as Exhibit C.
20. This “procedure” creates a conflict in duties for individual Troopers in that they have an obligation to obey subpoenas and court notices but have been given orders not to appear pursuant to such subpoenas and court notices.
21. For example, on January 8, 2003, plaintiff Trooper William R. Fish was subpoenaed by the Pendleton Town Court (Niagara County) to be in attendance at 6:00 p.m. A copy of that subpoena is annexed hereto and marked as Exhibit D.
22. After being made aware of the subpoena and upon following the procedures identified above, plaintiff Trooper Fish’s Sergeant ordered him not to appear in response to the subpoena.
23. On or about March 17, 2004, Trooper Fish advised his superior officer that he was in receipt of a subpoena from the Town of Pendleton Town Court for a vehicle and traffic trial.
24. At that same time, he advised his superior officer that the subpoena had been submitted for approval pursuant to applicable protocols but had been returned unapproved on two occasions and remained unapproved.
25. Trooper Fish further advised his supervisor that the Town Justice had reminded him of his required appearance in Court that evening.
26. Thereafter and after discussion between Trooper Fish’s immediate supervisor and the Zone Sergeant, Trooper Fish was told not to attend and was advised that in substance “the Courts should know the State Police’s policy”.
27. Trooper Fish obeyed the order and did not attend placing himself at risk of a contempt of the Court’s mandate. The Town Justice advised Trooper Fish he would not hold him in contempt of court on that occasion but expressed his extreme displeasure and made no allowances for him in the future.
28. On or about April 6, 2004, plaintiff Trooper Jacob Rudnick was ordered by superiors in the Division of State Police not to attend a Town Court proceeding for which the Court of Royalton Town Justice had subpoenaed them. A copy of his subpoena is annexed hereto and marked as Exhibit E.
29. In obeying the order, plaintiff Trooper Rudnick put himself at risk of being held in contempt of the Court’s mandate.
30. As set forth in paragraph 15 above, pursuant to Division policy, subpoenae are not required to be served personally upon Troopers.
31. Subpoenae and Court Notices are frequently received at the particular station by mail from the Courts and are disseminated therefrom to the subpoenaed or noticed Trooper.
32. Plaintiff Trooper Dean Scirri was also subpoenaed to attend the same Court proceeding as plaintiff Trooper Rudnick. However, Trooper Scirri was never notified of the fact that he had been subpoenaed and, upon information and belief, the subpoena was intentionally withheld from Trooper Scirri by his superiors.
33. Plaintiff Trooper Benjamin J. Campbell was subpoenaed, pursuant to such procedure, to attend to a Court proceeding on or about April 14, 2004 by the Town of Pendleton Town Justice. However, plaintiff Trooper Campbell was not notified that he had been subpoenaed and, upon information and belief, such notification was intentionally withheld from Trooper Campbell by his superiors. A copy of that subpoena is annexed hereto and marked as Exhibit F.
34. The Division of State Police is a paramilitary organization.
35. The Division of State Police requires its Members to obey orders first and grieve the lawfulness thereof after obedience and compliance.
36. Troopers are from time to time discharged from employment for failing to first comply with an order of a superior. Annexed hereto as Exhibit G is a redacted copy of a decision of a disciplinary panel terminating a Trooper from employment for failure to comply with an order, the legality of which he questioned.
37. The Troopers such as plaintiff Trooper Fish have been put in an untenable situation where they must obey the subpoena or court notice as mandates of the court and thereby disobey an order of their public employer which could cause them to be disciplined and/or discharged from their employment.
38. The only other choice of such a Trooper is to violate a known mandate of the court and risk being found to be in contempt of court.
39. Under the circumstances existing, the likelihood that the above Hobson’s Choice will repeat itself is strong and a ripe and justiciable controversy requiring a declaration of the rights of the parties exists.
AS AND FOR A FIRST CAUSE OF ACTION
40. Plaintiffs repeat and reallege each and every allegation contained in the paragraphs above as if each were more fully set forth herein.
41. A subpoena is a mandate of a court.
42. A court notice is a mandate of a court.
43. As citizens and sworn members of the Division, the plaintiff Troopers have an obligation to comply with lawful court mandates above all other obligations.
44. The orders of the plaintiff Troopers’ superiors in the Division of State Police not to obey or comply with subpoenas and court notices are unlawful and should be declared to be such.
WHEREFORE, plaintiffs demand judgment declaring:
1. A mandate of a court to appear before it must be complied with.
2. A subpoena is such a mandate.
3. A court notice is such a mandate.
4. An order from a superior of a Trooper, who is aware of a subpoena and/or court notice requiring the Trooper’s attendance in court, not to appear in court at the time and place designated in the court notice and/or subpoena is not a lawful order and not an order which must be obeyed.
5. Such other, further and different relief as to this Court may seem just and proper.
DATED: July 9, 2004 Yours, etc.
Albany, New York
MARK T. WALSH, ESQ.
GLEASON, DUNN, WALSH & O’SHEA
Attorneys for Plaintiffs
Office and P.O. Address
40 Beaver Street
Albany, NY 12207
http://www.buffalonews.com/editorial/20040709/1041070.asp
Troopers, State Police in court suit in dispute over court appearances
By TOM PRECIOUS
News Albany Bureau
7/9/2004
ALBANY – The State Police is illegally ordering troopers to ignore subpoenas that mandate their appearance in court to testify in traffic infraction cases, a lawsuit against the agency by the troopers union alleges.
State Police officials said the lawsuit is without merit and said the union’s effort is really about trying to drive more overtime pay to troopers while they sit unneeded in courtrooms.
The legal fight centers over a 2003 policy change issued by the State Police in Erie, Niagara and other counties that restricted troopers’ appearances at initial traffic court proceedings. Several years ago, the union charged that thousands of tickets were being tossed out by judges because troopers weren’t being sent to court.
The lawsuit, filed in State Supreme Court in Albany, was brought by the Police Benevolent Association of the New York State Troopers and four troopers in Niagara County who were ordered by superiors not to appear in town courts in Pendleton and Royalton, even though the troopers had been ordered to do so by judges.
"Our troopers should not be ordered to break the law, and that is what the State Police administrators in Albany are ordering them to do," said Daniel De Federicis, president of the troopers’ union.
De Federicis said troopers are being caught in an unfair "Hobson’s choice" of picking whether to ignore a judge’s subpoena that could result in a contempt of court charge or ignore a superior’s edict that could get them fired.
"A governmental agency cannot and should not be in a position to tell its employees to ignore our judges and the courts," De Federicis said.
"It’s devoid of merit," Glenn Valle, chief counsel for the State Police, said of the lawsuit. He said the case has a single goal: "It’s all about collecting overtime."
"Our policy is very simple: Troopers should appear when needed for the trial of a vehicular and traffic case. When they’re needed, they’re sent," Valle said. "Our policy is equally simple in that troopers should not be appearing in court to plea bargain cases or to stand around in the courtroom with no role at taxpayer expense."
The lawsuit asks the court to allow troopers to disobey a superior’s order to ignore a traffic court subpoena.
The 2003 policy was meant, Valle said, to keep troopers from hanging around a courtroom for hours when their attendance was not necessarily needed.