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URYEVICK v. ROZZI

October 1, 1990

ANTHONY URYEVICK, PLAINTIFF,
v.
SAMUEL J. ROZZI, COMMISSIONER OF POLICE OF THE COUNTY OF NASSAU, THE NASSAU COUNTY POLICE DEPARTMENT, AND THE COUNTY OF NASSAU, DEFENDANTS. ARTHUR WICKERS, PLAINTIFF, V. SAMUEL J. ROZZI, COMMISSIONER OF POLICE OF THE COUNTY OF NASSAU, THE NASSAU COUNTY POLICE DEPARTMENT, AND THE COUNTY OF NASSAU, DEFENDANTS.



The opinion of the court was delivered by: Mishler, District Judge.

MEMORANDUM OF DECISION AND ORDER

Plaintiffs, Anthony Uryevick and Arthur Wickers, former police officers of the Nassau County Police Department, bring these consolidated actions pursuant to 42 U.S.C. § 1983, 1985 and 1988 against the Police Department, the Commissioner thereof (the "Commissioner") and Nassau County, seeking compensatory and punitive damages for the alleged deprivation of their federal constitutional rights. Plaintiffs attack the constitutionality and application of the Rules and Regulations of the Police Department and Collective Bargaining Agreement which required an officer on sick leave to remain in his residence between the hours of 9:00 am. and 5:00 p.m. except when permission to leave home was granted by the Desk Officer, and, which required an officer, upon his designation by the Commissioner as a "sick leave abuser," to remain in his residence for 24 hours a day.

Defendants have moved for judgment on the pleadings, pursuant to Fed.R.Civ.P. 12(c), and/or summary judgment, pursuant to Fed.R.Civ.P. 56 (b). Plaintiffs have cross-moved for partial summary judgment.

BACKGROUND

The following facts are either conceded or not in dispute. Plaintiff Uryevick was employed as a police officer with the Nassau County Police Department (the "Police Department") from May 5, 1972 to July 3, 1986. In May 1982, he allegedly injured his back while on duty at, the Police Department, and he was thereafter placed on sick leave. Plaintiff Wickers was employed as a police officer from April 16, 1965 to February 21, 1987. In April 1986, he allegedly was injured while on duty, and he was thereafter placed on sick leave.

As officers on sick leave, plaintiffs were subject to Section 8.11-4 (E) of the Collective Bargaining Agreement between the defendant County of Nassau and the Patrolmen's Benevolent Association of the Police Department of the County of Nassau, as well as the Police Department's Rule and Regulation Article 7, Rule 6, Subdivision 7(a), 7(b).

Section 8.11-4(E) of the Collective Bargaining Agreement provided:

  An employee on sick leave is only required to remain
  in his/her residence between the hours 9:00 am. and
  5:00 p.m. on a day he/she was regularly scheduled to
  have a tour of duty. The employee may be visited by a
  supervising officer at any time during the hours of
  9:00 am. and 5:00 p.m. In any event, however, if the
  Commissioner of Police in his discretion identifies an
  employee as a sick leave abuser, the employee, upon
  the personal

  direction of the Commissioner of Police, may be
  required to remain in his/her residence and be
  visited beyond the hours prescribed above.

In addition, Section 8.11-1 of the Collective Bargaining Agreement provided that "[v]acations, sick leave, and personal leave days shall be granted utilizing the administrative procedures provided in Rules and Regulations of the Police Department." One of these Police Department Regulations was Police Department Rule and Regulation Article 7, Rule 6, Subdivision 7(a), 7(b) ("Regulation 7(a)" and "Regulation 7(b)") which provided:

7. Confinement While on Sick Leave

  a. Members of the Department, while on sick leave,
    shall not leave their place of residence or
    confinement during the hours of 0900 to 1700 on a
    regularly scheduled work day, except when permission
    is granted. Whenever a member who is on sick leave
    requests permission to leave the place of residence
    or confinement, either to report to the Surgeon or
    to report to the Command for the purpose of
    returning to duty or for a personal emergency, the
    member shall contact the Desk Officer of the
    Precinct of residence who, after ascertaining the
    identity and present location of the member, the
    place the member wishes to visit, the reason why it
    is necessary for the member to leave the place of
    residence or confinement, and the estimated time the
    member will be away from the place of residence or
    confinement, shall determine whether the request is
    for a reasonable purpose and time. If and when
    approval is granted, the Desk Officer shall cause an
    appropriate entry to be made in the Blotter and on
    PDCN Form 200. Upon the member's return to the place
    of residence or confinement, the member shall notify
    the Desk Officer of the Precinct of residence, who
    again shall cause an appropriate entry to be made in
    the Blotter and on PDCN Form 200. All other requests
    by a member to leave the place of residence or
    confinement shall be submitted, in writing, to the
    Police Surgeon. When such approval is given by the
    Police Surgeon, the Chief Surgeon's Office shall
    promptly notify the Desk Officer of the member's
    Precinct of residence of this fact, and said Desk
    Officer shall cause appropriate entries to be made
    in the Blotter and on PDCN Form 200.
  b. A member of the Department identified by the
    Commissioner of Police as a sick leave abuser, upon
    the personal direction of the Commissioner of
    Police, shall be required to remain in his residence
    and be visited beyond the hours prescribed in
    Article 7, Rule 6, subdivision 7a.

There were no written guidelines for the application of these procedures.

The Commissioner designated Uryevick a "sick leave abuser" on February 1, 1982, and so designated Wickers on February 25, 1983, such designations remaining in effect until plaintiffs were approved for Accident Disability Retirement and retired as such. Because of the Commissioner's designation of plaintiffs as sick leave abusers, plaintiffs were required to remain in their residences for 24 hours a day on their regularly scheduled tour of duty days, absent permission from the Police Department's to leave, were visited by members of the Police Department up to four times a day during those days, and were visited on their days off as well.*fn1

Plaintiffs allege that, as a result of Section 8.11-4(E), Regulations 7(a) and 7(b), and the Commissioner's designation of plaintiffs as sick leave abusers, each plaintiff was

(Uryevick Verified Complaint, ¶ 32; Wickers Verified Complaint, ¶ Nineteenth).

The rules and regulations of the Police Department, plaintiffs allege in their first cause of action, prevented each from

  practicing his religion, exercising his right to
  vote, associating with family and friends; limited his
  right to attend political meetings, to consult with
  his attorneys, and to travel. Such abridgements are in
  direct violation of the Constitution of the United
  States, the First Amendment thereof, and ...

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