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SUFFOLK CTY. PATROLMEN'S BENEVOLENT ASSN.

October 18, 1984

SUFFOLK COUNTY PATROLMEN'S BENEVOLENT ASSOCIATION, INC., P.O. ROBERT PFEIFER, P.O. ROBERT RYAN, P.O. ATTILLA NEMES, P.O. RAY CAMPO, DET. DENNIS ROMANO, P.O. FRANK DELGAUDIO, P.O. JIM MEEHAN, P.O. ROBERT PFLAUM, P.O. BILL BENNETT, P.O. RODGER LAROCCA, P.O. HOWARD McAULBY, P.O. ED FITZGERALD, P.O. SAM DEJUSUS, P.O. KEITH FONTANA, P.O. LOUIS BRUNO, P.O. BRUCE KLIMECKI, P.O. PHILIP BUZZANCA, P.O. ROBERT HAISMAN, P.O. GERRY GOZALOFF, P.O. ARTHUR DOWLING, DET. ANTHONY BIVONA, P.O. DONALD BERZOLLA, P.O. FRANK GIULIANO, P.O. JOHN NIEDZIELSKI, P.O. DENNIS GREEN, DET. JOHN CHRISTIE, and DET. FRANK PACIFICO, Plaintiffs, against COUNTY OF SUFFOLK: JAMES O. PATTERSON, individually and in his official capacity; MARTIN ASHARE, individually and in his official capacity, JOHN P. FINNERTY, JR., individually and in his official capacity, CHRISTOPHER TERMINI, individually and in his official capacity, Defendants.


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 Like a phoenix, this case has risen from the ashes of the decision of the Second Circuit Court of Appeals in Dunton v. County of Suffolk, 729 F.2d 903 (2d Cir. 1984), an action brought pursuant to 42 U.S.C. § 1983. *fn1" In Dunton, the plaintiff sought to recover damages against Suffolk County police officer Robert Pfeiffer, Pfeiffer's wife and the County for personal injuries inflicted upon him by Officer Pfeiffer. The Suffolk County Attorney, a defendant here, undertook representation of both Pfeiffer and the County. The County Attorney originally raised the affirmative defense that Pfeiffer was acting in good faith pursuant to his official duties when the incident occurred. However, the Circuit Court found that during the trial, the County Attorney asserted that Pfeiffer acted not as police officer, but as an "irate husband," when Pfeiffer allegedly committed the acts complained of. The trial resulted in a dismissal against the County and assessment of compensatory and punitive damages against Pfeiffer.

 The circuit court held that the County Attorney's assertion that Pfeiffer acted as an irate husband undermined his good faith immunity defense and gave rise to an impermissible conflict of interest. The court decided that in such a case, the County is required to provide separate, independent counsel to defend the police officer properly.

 This action, brought by the Suffolk County Patrolmen's Benevolent Association ("PBA"), a membership organization, and twenty-six police officers *fn2" (the "police plaintiffs"), each of whom is currently a defendant in a § 1983 action, alleges that defendants are engaged in a massive and intentional scheme to deprive the police plaintiffs of their rights to a fair trial. Specifically, plaintiffs allege that defendants, while aware that Dunton-type conflicts of interest existed in actions where the officers and County were co-defendants, continued to permit members of the Suffolk County Attorney's office to represent both the police officers and the County in § 1983 actions.

 Based upon the premise that conflicts of interest warranting separate counsel exist in the twenty-six underlying § 1983 actions against the police plaintiffs, plaintiffs urge that these policemen have an unfettered right to counsel of their choice in those actions, with the cost of such representation to be borne entirely by the Suffolk County Self-Insurance Fund. Plaintiffs assert, as will be further detailed, that by denying the police plaintiffs this right, defendants have violated plaintiffs' constitutional and state law rights to be represented by counsel of their choice.

 Jurisdiction in this case is predicated on 42 U.S.C. § 1983, and principles of pendent jurisdiction. *fn3" Plaintiffs allege nine causes of action as follows: 1) deprivation of a due process property interest, i.e., the right to a proper and independent defense in the underlying § 1983 actions; 2) deprivation of a due process liberty interest, in that defendants have caused the police plaintiffs to remain defendants in the § 1983 suits much longer than necessary and have deprived the policemen of the right to control their defenses in such actions; 3) denial of equal protection, in that separate counsel is arbitrarily designated for some § 1983 police officer defendants and not for others; 4) breach of the PBA-Suffolk County labor agreement; 5) fraud, in that defendants knowingly failed to disclose to the police plaintiffs conflicts of interest; 6) violations of 18 U.S.C. 1961 - 1964, 1961-1964, the civil provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in that in carrying out the alleged intentional fraudulent dual representation, defendants frequently used the United States mail; 7) breach of fiduciary duty; 8) negligence and legal malpractice in connection with defendants' duty to safeguard the personal and property interests of the officers; and 9) entitlement to a permanent injunction against the actions allegedly taken by defendants. Plaintiffs seek declaratory and injunctive relief, $100 million in damages, and attorneys' fees pursuant to 42 U.S.C. § 1988.

 Currently before me are defendants' motion to dismiss the tort claims against the three attorney defendants, and plaintiffs' second, fifth, sixth, seventh and eighth causes of action, *fn4" as well as plaintiffs' motion for partial summary judgment on the selection of counsel issue. For the reasons set forth herein, partial summary judgment on the selection of counsel issue is granted in defendants' favor. Because I also find that plaintiffs' other federal claims are without merit as hereafter indicated, I am constrained to dismiss them and plaintiffs' pendent state claims as well. See Dunton v. County of Suffolk, supra, 729 F.2d at 910-11 (where federal claim is unsubstantial, state claims must be dismissed); United Mine Workers v. Gibbs, 383 U.S. 715, 725, 727, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (to the same effect). Therefore, the parties' motions are discussed below only as they pertain to plaintiffs' federal causes of action.

 Background

 The procedural history of this case is intertwined with the core issue -- the right of the police plaintiffs, in cases where potential conflicts of interest exist, to representation by counsel of their choice at County expense. Simultaneously with the commencement of this action, plaintiffs, by order to show cause, sought a preliminary injunction seeking the following relief: 1) disqualification of the County Attorney as counsel for the police plaintiffs in the underlying § 1983 actions (based on the alleged conflicts of interest); 2) substitution of the PBA's attorneys, the law firm of DeMartin, Kranz, Davis & Hersh ("the DeMartin firm"), as counsel for the police plaintiffs in the underlying actions; and 3) reimbursement for the expense of such representation by the County Self-Insurance Fund.

 Insofar as it dealt with disqualification of the County Attorney, plaintiffs' motion for injunctive relief was based upon their charge that the County Attorney could not fairly represent both the County and the defendant police officers (the police plaintiffs here) in the underlying § 1983 actions due to Dunton-type conflicts of interest.Prior to oral argument on the motion, at which they vigorously opposed plaintiffs' allegations of misconduct, defendants voluntarily withdrew as counsel to the individual officers in the underlying actions. That withdrawal was necessitated by the conflict of interest created by this action, i.e., the clients suing their attorney. *fn5"

 In response to the County's withdrawal as counsel in the underlying actions, plaintiffs withdrew their motion for a preliminary injunction. However, the representation of the police plaintiffs in the underlying actions still remains an issue in controversy for the following reasons.

 First, although the County Attorney communicated to the police plaintiffs that it could no longer represent them, this disqualification is not yet effective and the police plaintiffs currently remain unrepresented in the underlying § 1983 actions. This is due to the requirement of General Rule 3(c) of the Southern and Eastern Districts of New York, which requires a court order to effect withdrawal of counsel of record. At this time, no application for leave to withdraw has been made nor has such an order been issued by the judges before whom the other actions are pending, thus preventing those twenty-six underlying actions from proceeding until the resolution of the instant action. *fn6"

 Second, the core issue of this action, namely, whether the police plaintiffs are entitled to counsel of their choice in conflict situations at County expense, is currently unresolved. Although the parties disagree as to the source of the instant conflict of interest between the County and the individual officers, *fn7" there is no doubt that such conflict exists.

 Assuming that court orders are issued permitting withdrawal of counsel in the underlying actions, see supra note 3, the issue of who shall represent the officers is vigorously contested by the parties. As has been alluded to and will be further discussed, plaintiffs contend that the individual officers have a right to select their own counsel in any conflict situation. Defendants, on the other hand, urge that although the police officers are entitled to a defense in a § 1983 action at County expense, the County is statutorily permitted to name a panel of attorneys from which any police officer may select one as his counsel.As authority for this position, defendants rely upon Suffolk County Local Law 30 of the year 1981 ("Local Law 30"), entitled "A Local Law to Provide for the Defense and Reimbursement of Legal Fees of County Employees in Connection with Lawsuits Arising Out of the Performance of Public Dutiies or Responsibilities." *fn8" Section 3(c) of Local Law 30, which lies at the heart of this dispute, provides that if a County employee is entitled to private counsel based upon a determination by the County Attorney that dual representation would be inappropriate, a court has determined that a conflict of interest exists, or the County Department of law lacks sufficient resources to conduct an adequate defense,

 the County Attorney shall notify the employee in writing of such determination and shall present to the employee the names of three (3) attorneys for representation. The employee shall then select one (1) of these three (3) attorneys as counsel to be retained by the employee and shall notify the County Attorney in writing of such determination. Reasonable attorney's fees and litigation expenses shall be paid by the County to such attorney employed or retained, from time to time, during the pendency of the civil action or proceeding. Payment of such fees and expenses shall be made in the same manner as other claims and expenses of the County. Any dispute with respect to representation of multiple employees by the County Attorney or by an attorney employed or retained for such purpose, or with respect to the amount of the fees or expenses, shall be resolved by the court.

 (emphasis added). Plaintiffs urge that defendants' imposition of the three attorney panel pursuant to § 3(c) of the local law unlawfully restricts a right they assert to select any counsel, at County expense, as allegedly mandated by state law.

 Having laid the factual and procedural foundation of this dispute, I now turn to the examination of plaintiffs' federal claims.

 A. Plaintiffs' Claim Under 42 U.S.C. § 1983

 Plaintiffs' motion seeks partial summary judgment or declaratory judgment ordering defendants to permit the police plaintiffs to be represented by the counsel of their choice in the underlying § 1983 actions at the expense of the County Self-Insurance Fund. Plaintiffs assert that they have a due process property interest in such reimbursed representation based on sections 50-j and 6-n of New York's General Municipal Law, section 39 of the "Agreement between Suffolk County, N.Y. and the Suffolk County Patrolmen's Benevolent Association, Inc., January 1, 1983 - December 31, 1985" ("the PBA - County Agreement" or "the Agreement"), and New York common law. Defendants do not deny that plaintiffs may select counsel of their choice in ...


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