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In re Application of Scotto v. Giuliani

Appellate Division of the Supreme Court of New York, First Department
Nov 20, 2001
288 A.D.2d 102 (N.Y. App. Div. 2001)

Summary

In Scotto, the Court noted that section 14-103 (b) (2) "was enacted to remedy morale and inequity problems resulting from indefinitely assigning officers to detective/investigative duties without providing proportionate benefits and security" (id. at 213 [citations omitted]).

Summary of this case from In the Matter of Brown v. Kerik

Opinion

November 20, 2001.

Judgment, Supreme Court, New York County (Edward Lehner, J.) entered October 17, 2000, which granted the article 78 petition to the extent of compelling the respondent New York City Police Department to designate the individual petitioners detectives pursuant to Administrative Code of the City of New York § 14-103[b][2], but denied them retroactive relief as barred by laches, and denied petitioner organization standing, unanimously modified, on the law, the petition dismissed in its entirety, and otherwise affirmed, without costs.

Michael C. Axelrod, for petitioners-appellants-respondents.

Janet L. Zaleon, for respondents-respondents-appellants.

Before: STom, J.P., Andrias, Wallach, Buckley, JJ.,


Petitioner Detectives Endowment Association (DEA) is the collective bargaining unit authorized by the New York City Charter to represent police officers who have been detailed as First, Second or Third Grade Detectives. The individual petitioners, who have not been promoted to detective, are not DEA members. The two individual petitioners are police officers who have performed detective duties for at least 18 months with the New York City Police Department's Application Processing Division ("Application Division"). The Application Division investigates employment applications for the Police Department. Pursuant to a 1986 departmental order (NYPD Interim Order No. 60), these positions formerly were within a command that was considered to be "investigative track." This means that officers doing such investigative work were entitled to promotion to detective after the successful completion of a probationary period. A 1990 amendment to the New York City Administrative Code (§ 14-103[b][2]) required, insofar as is pertinent, that police officers temporarily assigned to detective duties for more than 18 months are to be appointed to detective positions. The NYPD's 1991 Interim Order No. 61 restricted the application of the 1990 interim order to specified types of detective assignments, not including the Application Division. Interim Order 61, though, ultimately was voided (Scotto v. Dinkins, 85 N.Y.2d 209,affg 194 A.D.2d 415). We specifically had found that the 1990 amendment to the Administrative Code "clearly and unambiguously applies to all permanently appointed police officers performing detective duties, without qualification," ( 194 A.D.2d 415), and that its legislative purpose was to curtail the "widespread abuse of designating police officers to perform detective duties for indefinite periods of time without designating them as detectives, with the accompanying salary and benefits" (id., at 416). The focus in that case, though, was on the position being filled rather than the nature of the work being done. The department's subsequent attempted evasion of this directive by requiring that transferees into detective-track commands waive, in writing, their rights to promotion to detective, was invalidated (Scotto v. Giuliani, 172 Misc.2d 395, affd 243 A.D.2d 388). In 1997, the NYPD advertised vacancies in the Application Division but indicated that the positions were considered to be non-investigative assignments. Interim Order No. 42, issued in August 1998, excluded the Application Division from officially designated investigative track commands. Interim Order No. 42 also defined "detective position" as "uniform core positions within the detective-track commands that require the [would be detective] . . . to conduct the significant aspects of criminal investigations reflective of the mission of the particular detective-track commands."

Presently, non-detective police officers as well as detectives are assigned to the Application Division which, as noted, no longer has positions designated for detectives. However, some degree of investigative work is inherent in the nature of the command, although under Interim Order No. 42, such non-criminal investigative work is not deemed to be detective work. Non-designated police officers, including the individual petitioners, undertake the same kind of investigative work as detectives assigned to the Application Division.

By letter dated November 15, 1999, the NYPD rejected the request set forth in DEA's October 26, 1999, letter that these and other officers be promoted to detective. The present article 78 petition was filed in January 2000. The article 78 court, after finding the proceeding to have been timely commenced, found that DEA lacked standing as to officers not yet designated detectives, and thus considered the merits only as to the individually named petitioners. On the merits as to those individuals, the court found the departmental policy to violate Scotto v. Dinkins (supra), directed that these petitioners be promoted to detective, but, finding delay in their making application for such, denied their request for retroactive benefits. The parties have taken cross-appeals.

Initially, under standard canons of New York law pertaining to organizational standing, we agree with the court below that DEA cannot demonstrate that the departmental policy challenged here harms any of its members, and that it lacks standing to assert claims on behalf of nonmembers (see, Rudder v. Pataki, 93 N.Y.2d 273; Guild of Administrative Officers of Suffolk County Community College v. County of Suffolk, 126 A.D.2d 725, lv denied 69 N.Y.2d 609).

On the merits, the NYPD has designated the Application Division not to be a detective-track command. It happens to assign detectives to fill some of the Division's non-designated positions. This is its prerogative (cf., Scotto v. Giuliani, 280 A.D.2d 315). The analysis does not turn on whether police officers conduct investigative-type work, but, rather, on the classification of the job being done. We reiterate that the legislative intent of the 1990 amendment was to prevent the department, for budgetary reasons, from using non-detective track officers in detective-track positions, while denying those officers the benefits of those positions. Logically, this does not preclude the department from using detectives to do non-detective track work, or non-detectives filling non-designated positions to undertake work that happens to have some investigative characteristics. Hence, Interim Order No. 42 violates neither the relevant Code provision nor interpretive case law, and remains a valid exercise of departmental authority.

Accordingly, we modify the judgment to dismiss the petition in its entirety.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

In re Application of Scotto v. Giuliani

Appellate Division of the Supreme Court of New York, First Department
Nov 20, 2001
288 A.D.2d 102 (N.Y. App. Div. 2001)

In Scotto, the Court noted that section 14-103 (b) (2) "was enacted to remedy morale and inequity problems resulting from indefinitely assigning officers to detective/investigative duties without providing proportionate benefits and security" (id. at 213 [citations omitted]).

Summary of this case from In the Matter of Brown v. Kerik
Case details for

In re Application of Scotto v. Giuliani

Case Details

Full title:IN RE APPLICATION OF THOMAS J. SCOTTO, ETC., ET AL.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 20, 2001

Citations

288 A.D.2d 102 (N.Y. App. Div. 2001)
733 N.Y.S.2d 159

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