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SEABROOK v. JACOBSON

July 7, 1997

NORMAN SEABROOK, in his capacity as President of the Correction Officers' Benevolent Association; and the Correction Officers' Benevolent Association; FRANCIS BRISTOL, STEVEN DAVIS, VICTOR DeJESUS, MARIO McCASKILL, DEONARD MaGALEE, JOHN MERCARDO, LYDIA TEMPLES, and CHARLES WRIGHT, Plaintiffs, against MICHAEL P. JACOBSON, Commissioner, New York City Department of Correction; NEW YORK CITY DEPARTMENT OF CORRECTION, BERNARD KERIK, as Deputy Commissioner of the New York City Department of Correction; ELIZABETH LOCONSOLO, as Deputy Commissioner of the New York City Department of Correction; ERNESTO MARRERO, as General Counsel; of the New York City Department of Correction; and the New York City Department of Correction, individually, and in their representative capacities; and the CITY OF NEW YORK, Defendants.


The opinion of the court was delivered by: SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 The individual plaintiffs in this action are New York City Corrections Officers indefinitely suspended without pay pending the resolution of criminal charges against them. New York State's Civil Service Law § 75(3) provides that civil servants charged with incompetency or misconduct may be suspended without pay for not more than thirty days. Civil Service Law § 76(4), however, permits the City and a Union to enter into an agreement pursuant to Article 14 of the Civil Service Law supplementing, modifying or replacing Civil Service Law § 75(3). The plaintiffs allege that their Union, the Correction Officers Benevolent Association ("COBA"), has never "supplemented, modified or replaced" Civil Service Law § 75(3) by agreement between COBA and the City as authorized by Civil Service Law § 76(4). Plaintiffs seek, inter alia, a declaratory judgment that defendants' indefinite suspension of plaintiffs without pay under Administrative Code § 9-112, which provides for the indefinite suspension of corrections officers without pay pending resolution of criminal charges, violates Civil Service Law § 75(3) and is unauthorized by Civil Service Law § 76(4). For the reasons to be discussed, I find for the defendants, determining that COBA agreed as part of its collective bargaining contract with the City for the period 1974-1976 to the passage of New York City Administrative Code § 9-112.

 Procedural History

 1. Plaintiffs commenced this action on or about May 15, 1996, asserting claims pursuant to 42 U.S.C. § 1983 and various state laws.

 2. Plaintiffs also moved for a preliminary injunction directing the City to pay the correction officer plaintiffs their salaries while felony charges against them were pending.

 3 By oral decision dated September 11, 1996, the Court denied plaintiffs' request for a preliminary injunction, finding that plaintiffs had failed to demonstrate either irreparable injury or a clear likelihood of success on the merits.

 4 Plaintiffs subsequently withdrew all claims except the state law claim challenging Administrative Code § 9-112 on the ground that it is inconsistent with Civil Service Law § 75(3). The Court has agreed to exercise its discretion to retain jurisdiction over the pendant state law claim.

 STIPULATED FACTS

 I adopt as findings the following undisputed facts agreed to by the parties in their Joint Pre-Trial Order dated June 11, 1997:

 5. On October 14, 1975, plaintiff COBA and defendant The City Of New York (the "City") entered into a collective bargaining agreement.

 6. On October 25, 1974, Leo Zeferetti, then-President of plaintiff COBA, appears to have signed (or authorized another to sign his name [on]) the acknowledgment portion of a letter from John Burnell, Director of the Office of Labor Relations of the defendant City of New York. Mr. Burnell's signature does not appear on the letter.

 7. The text of this letter provides that said parties agree to jointly recommend language to the City Council that correction officers could be suspended without pay indefinitely rather than for thirty days pending the final disposition of departmental charges.

 8. On January 7, 1976, Councilman Theodore Silverman, Chair of the Committee of Civil Service and Labor, introduced as proposed Local Law No. 33, language which was nearly identical to the language which appeared in the Zeferetti/Burnell letter.

 9. As the City Council archival records and the Bill Jacket indicate, when it became clear that plaintiff COBA would not support said proposed local law, plaintiff COBA, defendant City of New York and representatives of the Mayor's office lobbied the New York City Council and worked with various members of the City Council over the course of the next five (5) months until various changes had been made to the language initially proposed by Councilman Silverman.

 10. Said modifications having been made to Councilman Silverman's proposed local law, both plaintiff COBA and defendant City of New York thereafter supported the amended version of Councilman Silverman's original language. This new version of the local law was passed by the City Council on July 6, 1976 and became Administrative Code § 9-112.

 ADDITIONAL FINDINGS OF FACT

 Based on the testimony presented and the exhibits admitted during the bench trial of June 16, 1997, my additional factual findings pursuant to FED. R. CIV. P. 52 are as follows:

 The Parties And The Claims

 11. The Correction Officers' Benevolent Association ("COBA") is the duly authorized collective bargaining representative of correction officers employed by the New York City Department of Correction ("DOC") and the City of New York.

 12. Plaintiff Norman Seabrook is the current president of COBA. He has been a member of COBA since 1988.

 13. Leo Zeferetti was the president of COBA in the period June 1968 to November 1974. Mr. Zeferetti currently lives in Florida and the parties submitted transcripts of his two depositions as part of the trial evidence.

 14. Following Mr. Zeferetti's election to Congress in November 1974, Harold Brown, Mr. Zeferetti's Vice-President, became President of COBA for a period of approximately three to four years. Mr. Brown is deceased.

 15. Mr. Brown's Vice-President, Donald Cranston, succeeded Mr. Brown as President of COBA. The parties also submitted Donald Cranston's deposition as part of the trial evidence.

 16. Frank Prial was the General Counsel for COBA during the tenure of Messrs. Zeferetti and Brown. Mr. Prial is currently in ill health and was not available to the parties.

 17. Benjamin J. Malcolm was the Commissioner of DOC in the early to mid-1970's. Mr. Malcolm is also deceased.

 18. The following individual plaintiffs are current or former correction officers who were suspended without pay following their arrests for various felonies: *fn1"

 
a. Francis Bristol: arrested and charged with theft of services on January 24, 1996. He was suspended the same day. Mr. Bristol is charged with making $ 26,000 worth of phone calls to Guyana while working at a Rikers Island Correctional Facility.
 
b. Steven Davis: arrested and charged with conspiracy in the first degree, criminal possession of a controlled substance in the second and third degrees, and endangering the welfare of a child. He was arrested on February 24, 1996, and suspended that same day. Mr. Davis, along with two associates -- one of whom was a 15 year old minor -- is charged with the purchase of crack cocaine. At the time of the purchase, Mr. Davis allegedly was wearing a bullet proof vest and carrying a firearm.
 
c. Victor DeJesus: arrested for a physical assault on an inmate on September 19, 1995. He was suspended the same day.
 
d. Mario McCaskill: arrested and charged with murder in the second degree for an off-duty shooting on December 31, 1995. He was suspended the same day. Officer McCaskill was subsequently acquitted and is awaiting a DOC administrative trial.
 
e. Denard MaGalee: arrested and charged with criminal possession of stolen property in the third degree;
 
g. Lydia Temples: arrested and charged with tampering with public records in the first degree. She was arrested and suspended on December 4, 1995.
 
h. Charles Wright: arrested and charged with reckless endangerment in the first degree. He was arrested on March 4, 1994, and suspended that same day. Mr. Wright was arrested with eight vials of crack cocaine and two glassine envelopes of cocaine. He resigned on March 9, 1994.

 The Pertinent Statutes

 19. This lawsuit challenges the validity of Local Law No. 33, codified as New York City Administrative Code § 9-112, and signed into law by then-Mayor Abraham Beame on July 2, 1976.

 20. Local Law No. 33 provides as follows:

 
A LAW
 
To amend the administrative code of the city of New York, in relation to suspension and resignation of members of the uniformed force of the department of correction.
 
Be it enacted by the Council as follows:
 
Section 1. Title A of chapter twenty-five of the administrative code of the city of New York is hereby amended by adding thereto two new sections, to be sections 623(4)-3.1 and 623(4)-3.2, to read, respectively, as follows:
 
§ 623(4)-3.1. Suspension of members of the uniformed force. - Where a member of the uniformed force shall be charged with the commission of a crime, he may be suspended without pay for the duration of the time that said criminal charges are pending final disposition. If the member is found not guilty of such criminal charges he shall be paid full back pay for the period of suspension. However, after the final disposition of said criminal charges no member of the uniformed force shall be suspended without pay for more than thirty days while awaiting disposition of departmental charges against him. If the member is found not guilty of the departmental charges he shall be paid full back pay for the period he had been suspended while awaiting disposition of the departmental charges against him. In the event an award of back pay is made pursuant to this section, the amount of any salary or income earned by the member of the unformed force during the period of suspension shall be deducted from the award.
 
§ 623(4)-3.2. Resignation by members of the unformed force. - Absence, without leave and without an explanation, of any member of the force for five consecutive work days, shall be deemed and held to be a resignation, and the member so absent shall, at the expiration of such ...

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