Matter of 35 NY City Police Officers v City of New York

[*1] Matter of 35 NY City Police Officers v City of New York 2006 NY Slip Op 50783(U) [11 Misc 3d 1090(A)] Decided on March 3, 2006 Supreme Court, New York County Abdus-Salaam, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 3, 2006
Supreme Court, New York County

In the Matter of 35 New York City Police Officers, ON BEHALF OF THEMSELVES AND ALL THOSE SIMILARLY SITUATED

against

The City of New York, New York City Police Dept., RAYMOND W. KELLY, As Police Commissioner, RAPHAEL PINEIRO, as Chief of Personnel



101679/06

Sheila Abdus-Salaam, J.

Upon the foregoing papers, it is ordered that this motion by petitioners for a preliminary injunction is granted.

Petitioners are police officers who have applied for positions with the Port Authority of New York and New Jersey ("Port Authority") as Police Officers. As part of the selection process, the Port Authority does a background investigation that includes a comprehensive review of [*2]employment/performance records. Petitioners have signed releases for their employment files. However, respondent Police Department would not release the files. According to the petition, a number of petitioners then submitted requests to see their own files and requested that police investigators assigned by the Port Authority Police Department accompany them for review of the same. The investigators agreed to do so. However, petitioners allege that they and the investigators were advised by agents of the respondent that they may not enter police headquarters for the purpose of reviewing the personnel files or to accompany petitioners for such purpose.

Petitioners have received a letter from the Port Authority's Human Resources Department stating that the Police Applicant Investigation Unit has advised that they have been unable to gain complete and verifiable information about current employment, and that as a result of this incomplete aspect of the investigation process, the applicant's candidacy has been deferred.

In this Article 78 proceeding, petitioners challenge respondent's policy of refusing to release the employment files or to permit Port Authority Police Investigators to review them, as arbitrary and capricious. They seek a permanent injunction restraining respondents from failing or refusing to release petitioners' files for review by law enforcement agencies designated by the police officers.

Pending final determination of this proceeding, petitioners have moved for preliminary injunctive relief which would restrain respondents from refusing to release petitioners files to the Port Authority investigators, or alternatively, from preventing these investigators from reviewing the files at police headquarters. Stated differently, petitioners essentially are asking this court to compel respondents to permit them and/or the Port Authority investigators, access to petitioners' entire personnel files (other than information regarding current investigations) so that petitioners may meet the requirements of the screening process for positions at the Port Authority.

In opposition to this motion, respondents have submitted the affidavit of Deputy Chief George W. Anderson, Executive Director for the NYPD's Personnel Bureau. He states that "[a]lthough the NYPD does not permit individuals from outside entities conducting pre-employment background checks of current or former members of the NYPD to personally review NYPD personnel records, since June 2003 it has been the NYPD's policy to release to such entities certain information if the outside entity submits a written request accompanied by a release signed by the subject officer." (Anderson affidavit, ¶ 3). Deputy Chief Anderson explains that the NYPD has established procedures for members of the Department to view their [*3]personnel files. The policy (Personnel Bureau Memo No. 32) provides that a member of the Department may examine the contents of the folder upon requesting permission to do so and must understand that information relative to pre-employment and current investigations and the findings of the Advancement and Promotion Board will be removed from the folder prior to the inspection. Members of the Department are also permitted to view their Central Personnel Index ("CPI") files. A CPI is a computerized repository of information from various units of the NYPD.

According to Deputy Chief Anderson, if a request and a release is submitted, the NYPD Personnel Records Unit will provide an "abstract" to prospective employers which contains information such as name, last job title, last salary, dates of employment, and if separated, the reason for separation. Additionally, in response to an inquiry from the FBI, the DEA and the ATF, the NYPD will review a members' CPI and inform the federal agency if the CPI has any serious, negative notations. He explains that the NYPD and these federal agencies frequently cooperate and "share" employees who work on joint task forces. No mention of a willingness to share the CPI information with the Port Authority is made in this affidavit. Deputy Chief Anderson does note that with respect to petitioner Matthew A. Susco, an abstract was provided to Detective Bishop of the Port Authority, and when Detective Bishop asked for access to this petitioner's disciplinary records, he was advised to contact the NYPD Freedom of Information Unit. Two other petitioners have made FOIL requests for their records. Respondent has indicated that a determination will be made on May 6, 2006. Another request by the Port Authority for information concerning petitioner Jesus Reyes is under review. Nonetheless, it is clear that under the present policy, only an abstract will be provided. Deputy Chief Anderson states that over the past two years, the Personnel Bureau has only received from the Port Authority two requests to provide personnel files, both requests having been made in January 2006. However, according to the petition, a number of petitioners have requested to see their own files accompanied by the Port Authority investigators and that they have been advised that this will not be permitted (Petition, ¶ ¶ 16, 17).

In order to obtain preliminary injunctive relief, petitioners are "required to make "a clear showing of likelihood of ultimate success on the merits, that the movant will suffer irreparable injury unless the relief sought is granted and that the balancing of the equities lies in favor of the movant"(Faberge International, Inc. v. DiPino, 109 AD2d 235, 240)." (J.O.M. Corp. v. Department of Health of the State of New York, 173 AD2d [*4]153 [1991]). Petitioners have made the required showing here.

Initially, respondents' argument that this proceeding is premature because no final determination has been made of the FOIL requests is unpersuasive. Petitioners are not challenging a final FOIL determination (which determination is to be made long after petitioners need the information in order to continue their application process), but are challenging respondents' policy not to permit a Port Authority investigator to review the files at police headquarters.

Regarding the likelihood of success on the merits, there has been no rational basis shown for respondents' policy of allowing NYPD members access to their personnel files, but prohibiting these members from sharing this information with investigators from a different police agency in furtherance of their application for employment to that agency. In fact, no explanation is proffered, other than that this is the policy and that the Commissioner should be able to promulgate any policy that he thinks is best. Nor is there any explanation given for the practice of removing information relative to pre-employment and current investigations and the findings of the Advancement and Promotion Board from the file before it is shown to an NYPD member.[FN1] Petitioners have alleged and come forth with proof that this policy has the effect of barring them from employment as Port Authority police because they cannot supply the required information to the Port Authority. While respondents have denied this allegation in their answer, there is no proof in this record that the Port Authority will process the applications without the information contained in the personnel files. Under these circumstances, and where respondents have not offered any rational basis for applying this policy when it serves to prevent police officers from obtaining employment with the Port Authority, petitioners have shown a clear likelihood of demonstrating that this policy as applied in these circumstances is arbitrary and capricious.

As for irreparable injury, petitioners claim that this policy is preventing them from pursuing employment with the Port Authority, employment which pays substantially more than their current positions, and which offers "different and less onerous working conditions" (Petition, ¶ 23). Respondents assert that petitioners have not shown that they will suffer irreparable harm absent the granting of injunctive relief, and they stress that even loss of employment does not constitute irreparable injury. However, [*5]this is not a situation where the aggrieved parties are facing a loss of employment, which can ultimately be compensated by reinstatement and an award of back pay. Thus, respondents' reliance on Suffolk County Association of Municipal Employees, Inc. v. County of Suffolk (163 AD2d 469 [1990]) and the cases cited therein, is misplaced. It is settled that "[t]he existence of an adequate legal remedy will bar the issuance of an injunction (see Kane v. Walsh, 295 NY198, 205-206)."(Rosenthal v. Rochester Button Company, Inc., 148 AD2d 375 [1989]). But what is the adequate legal remedy available to petitioners if the current policy of respondents is found to be arbitrary and capricious, and that policy has prevented petitioners from participating in the Port Authority's selection process for the currently planned Police Academy class? Petitioners assert that if they do not have a chance to be selected for this class, there is no guarantee that a new written test will be given in the near future, that they will pass it, or that they will be randomly selected to participate in the appointment process, as they were in this instance [FN2]. Significantly, the Port Authority has a rule that officers must be under the age of 35 on day one of the police academy, and some petitioners will be turning 35 this year (for example, petitioner Richard A. Dube will turn 35 years old on August 9, 2006). Thus, if petitioners lose the opportunity to be selected for this police class, for a variety of reasons, they may not have that opportunity again. This harm is irreparable because it cannot be adequately compensated by monetary damages. Petitioners cannot seek damages from respondents based upon a breach of contract theory and even if they did have such a cognizable claim, there would be "difficulty and uncertainty in calculating" these future damages (Pfizer Inc. v. PCS Health Systems, Inc., 234 AD2d 18 [1996]; see also Paddock Construction, Ltd. v. Automated Swimpools, Inc., 130 AD2d 894 [1987] " . . . any such damages would be difficult to calculate since they would be based, in part, on speculation.") Nor do they have protected property rights (see e.g. Prue v. Hunt, 157 AD2d 160, affd 78 NY2d 364 [1991]) that would entitle them to an award granting them positions as Port Authority police officers with the attendant salary and benefits.

Here, as in Drywall Tapers and Pointers of Greater New York, Local 1974 v. Operative Plasterers' and Cement Masons' International Association of the United States and Canada (537 F.2d 669, 675 [2d Cir. 1976]), there [*6]is a loss of employment opportunities and other intangible benefits (in this case the chance to work under "less onerous conditions") which warrants the granting of injunctive relief.

Finally, the equities favor petitioners. As noted, respondents have not offered any rational basis for applying their policy even under circumstances where the policy effectively prevents NYPD members from seeking other, more gainful employment. Nor have they identified any harm that they would suffer from an erroneous grant of this injunctive relief whereas petitioners have shown that they will suffer harm from a denial of the injunction (see generally Foulke v. Foulke, 896 F. Supp. 158, 162 [S.D.NY 1995]).

Accordingly, the application is granted to the extent that respondents are directed to allow petitioners access to petitioners' entire employment files (excluding materials relating to current investigations) at police headquarters and to permit investigators from the Port Authority Police Department to review these files along with petitioners at police headquarters.

Dated: March 3, 2006

J.S.C.

Check one: FINAL DISPOSITION NON-FINAL DISPOSITION

Check if appropriate: DO NOT POST REFERENCE Footnotes

Footnote 1: Petitioners have indicated that they do not seek disclosure of materials relating to current investigations.

Footnote 2:According to the petition, because the number of applicants who passed the written test exceeded the projected staffing needs of the Port Authority, candidates were selected at random to continue with the evaluation and selection process.