| Matter of Doe v City of Schenectady |
| 2011 NY Slip Op 03694 [84 AD3d 1455] |
| May 5, 2011 |
| Appellate Division, Third Department |
| In the Matter of John Doe et al., Respondents, v City ofSchenectady et al., Appellants. |
—[*1] Gleason, Dunn, Walsh & O'Shea, Albany (Michael P. Ravalli of counsel), for John Doe andanother, respondents.
Egan Jr., J. Appeal from an order and judgment of the Supreme Court (Kramer, J.), enteredSeptember 14, 2009 in Schenectady County, which, among other things, granted petitioners'application, in a combined proceeding pursuant to CPLR article 78 and action for declaratoryjudgment, to, among other things, permanently enjoin respondents from conducting publicdisciplinary hearings.
In June 2007, respondent Wayne E. Bennett, the Public Safety Commissioner for respondentCity of Schenectady, advised the City Council of his intention to modify the City's policedisciplinary process without regard to the collective bargaining agreement between the City andpetitioner Schenectady Police Benevolent Association (hereinafter SPBA). In response, SPBAfiled an improper practice charge against the City with the Public Employment Relations Board(hereinafter PERB). The City filed its own improper practice charge against SPBA with PERB,asserting, as is relevant here, that SPBA had impermissibly sought to negotiate disciplinaryproceedings, which the City contended was a prohibited subject of collective bargaining. Then, inApril 2008, Bennett issued a general order setting forth the new disciplinary proceedings policyproviding, among other things, that such proceedings would in the future be governed by SecondClass Cities Law § 137, under which Bennett would be the sole trier of fact and theformerly-confidential disciplinary hearings would be open to the public. Several months [*2]later, the SPBA filed an amended improper practice charge allegingthat the parties' collective bargaining agreement governed disciplinary procedures and could notbe unilaterally modified by respondents.[FN1]
While the City's and SPBA's charges were pending before PERB, petitioners James Roe andJohn Doe—police officers employed by the City's police department—were eachserved with a notice of discipline and advised that, pursuant to Second Class Cities Law §137, the City would be conducting public hearings with respect to those disciplinary charges.Thereafter, Roe, Doe and the SPBA—on behalf of all its similarly-situatedmembers—commenced the instant combined declaratory judgment action and proceedingpursuant to CPLR article 78 seeking, among other things, an order permanently enjoiningrespondents from conducting public hearings in connection with police disciplinary proceedings.The petition/complaint alleged two causes of action—first, that pursuant to Civil RightsLaw § 50-a and Public Officers Law article 6-A, petitioners were entitled to declaratoryrelief in that police disciplinary hearings must be confidential and, second, that respondents'"unilateral use of public hearings . . . in connection with [police] disciplinaryproceedings . . . [was] in excess of [respondents'] jurisdiction, illegal and contraryto law, in violation of lawful procedure and the [D]ue [P]rocess [C]lauses of the State andFederal Constitutions and [was] arbitrary, capricious and an abuse of discretion." Afterpetitioners sought, and were granted, a temporary restraining order, respondents cross-moved fordismissal of the petition/complaint, arguing that Supreme Court lacked subject matterjurisdiction, that SPBA lacked standing and that the petition/complaint failed to state a cause ofaction or a legally cognizable claim. Supreme Court denied respondents' cross motion and,finding that Civil Rights Law § 50-a superseded Second Class Cities Law § 137 andthat the legislative intent of section 50-a would be thwarted by public disciplinary hearings,granted the petition/complaint and permanently enjoined respondents from conducting publicpolice disciplinary hearings. Respondents now appeal.
We first address respondents' contention that Supreme Court erred in failing to grant its crossmotion to dismiss the petition/complaint for failure to state a cause of action (see CPLR3211 [a] [7]; 7804 [f]).[FN2]On such a motion, "the allegations in the complaint are accepted as true and accorded the benefitof every possible favorable inference to determine if the facts, as alleged, fit within anycognizable legal theory" (Keehle vDiocese of Syracuse, 80 AD3d 974, 974 [2011] [internal quotation marks and citationomitted]; see Matter of Niagara Mohawk Power Corp. v State of New York, 300 AD2d949, 952 [2002]). "[T]he dispositive inquiry is whether [petitioner] has a cause of action and notwhether one has been stated" (IMSEngrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [2008], lvdenied 11 NY3d 706 [2008]).
As an initial matter, we note that individual police officers possess no private right of actionfor claimed violations of Civil Rights Law § 50-a (see Matter of 35 N.Y. City Police Officers v City of New York, 34AD3d 392, 394 [2006]; Reale v Kiepper, 204 AD2d 72, 72-73[*3][1994], lv denied 84 NY2d 813 [1995]; PoughkeepsiePolice Benevolent Assn. v City of Poughkeepsie, 184 AD2d 501, 501 [1992]; Carpenterv City of Plattsburgh, 105 AD2d 295, 298 [1985], affd 66 NY2d 791 [1985]). "Sinceinjunctive relief is granted only to protect a legal right, petitioners, therefore, [are] not entitled tothis relief based on a cause of action under [Civil Rights Law § 50-a]," and for this reasonalone the petition/complaint should have been dismissed to that extent (Reale v Kiepper,204 AD2d at 73; see Poughkeepsie Police Benevolent Assn. v City of Poughkeepsie, 184AD2d at 501).
In any event, petitioners' contention that Civil Rights Law § 50-a mandates thatdisciplinary hearings be closed to the public is belied by both the language of the statute and itslegislative history. Section 50-a (1) provides, in pertinent part: "All personnel records, used toevaluate performance toward continued employment or promotion, under the control of anypolice agency or department of the state or any political subdivision thereof including authoritiesor agencies maintaining police forces of individuals defined as police officers in [CPL 1.20]. . . shall be considered confidential and not subject to inspection or review withoutthe express written consent of such police officer . . . except as may be mandated bylawful court order." Section 50-a created, for reasons that will be discussed below, an exemptionfrom document disclosure that might otherwise occur under the Freedom of Information Law(see Public Officers Law art 6; Matter of Capital Newspapers Div. of Hearst Corp. vBurns, 67 NY2d 562, 567 [1986]). Nothing in section 50-a mentions the word disciplinaryhearing, let alone requires that such hearings be held in private, and we discern no import fromthis omission other than the obvious—that the failure of the Legislature to include it withinthe statute is an indication that its exclusion was intended (see Pajak v Pajak, 56 NY2d394, 397 [1982]; Matter of Collins vDukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 699-700 [2010], lv granted15 NY3d 713 [2010]; see also McKinney's Cons Laws of NY, Book 1, Statutes§§ 74 ["(T)he failure of the Legislature to include a matter within the scope of an actmay be construed as an indication that its exclusion was intended."], 94 ["The legislative intent isto be ascertained from the words and language used, and the statutory language is generallyconstrued according to its natural and most obvious sense, without resorting to an artificial orforced construction"]; Bright Homes v Wright, 8 NY2d 157, 162 [1960] ["Courts are notsupposed to legislate under the guise of interpretation, and in the long run it is better to adhereclosely to this principle and leave it to the Legislature to correct evils if any exist"]; People vOlah, 300 NY 96, 102 [1949] ["A statute must be construed and applied as it is written bythe Legislature, not as some judges may believe it should have been written" (citation omitted)];Matter of Kittredge v Planning Bd. ofTown of Liberty, 57 AD3d 1336, 1339 [2008] ["In construing a statute, a court mustattempt to harmonize all its provisions and to give meaning to all its parts, considered as a whole,in accord with legislative intent. Such intent and meaning is best determined from the plainlanguage of the statutory text" (citations omitted)]).
The legislative history of Civil Rights Law § 50-a is similarly unavailing to petitioners'position. The "statute was intended to apply to situations where a party to an underlying criminalor civil action is seeking documents in a police officer's personnel file, and was apparentlydesigned to prevent 'fishing expeditions' to find material to use in cross-examination" (Matterof [*4]Capital Newspapers Div. of Hearst Corp. v Burns, 109AD2d 92, 95 [1985], affd 67 NY2d 562 [1986] [citation omitted]; see Matter of DailyGazette Co. v City of Schenectady, 93 NY2d 145, 154 [1999]; Matter of Dunnigan vWaverly Police Dept., 279 AD2d 833, 834 [2001], lv denied 96 NY2d 710 [2001];Carpenter v City of Plattsburgh, 105 AD2d at 298; Senate and Assembly Introducer Memin Support, Bill Jacket, L 1976, ch 413; Mem of Div of Crim Justice Servs, Bill Jacket, L 1976,ch 413). The Court of Appeals has confirmed that "the legislative intent underlying the enactmentof Civil Rights Law § 50-a was narrowly specific, to prevent time-consuming and perhapsvexatious investigation into irrelevant collateral matters in the context of a civil or criminalaction" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 569[internal quotations marks and citation omitted]). Significantly, none of the legislative historymentions the topic of disciplinary hearings.
Simply put, Civil Rights Law § 50-a neither speaks of, nor was intended to, prohibitpublic police disciplinary hearings. Whether these hearings should be conducted in public orprivate—and there are persuasive arguments both ways—is a policy decision for theLegislature, not the courts, to make (seePeople v Boothe, 16 NY3d 195, 198 [2011]; People v Finnegan, 85 NY2d 53,58 [1995], cert denied 516 US 919 [1995]; Bright Homes v Wright, 8 NY2d at162; People v Olah, 300 NY at 102; People v Reynolds, 307 AD2d 391, 392[2003], lv denied 1 NY3d 578 [2003]).
We are also unpersuaded that Public Officers Law § 89 (2) and § 96, both ofwhich prevent an agency's disclosure of records constituting an unwarranted invasion of privacy,operate to bar publically held police disciplinary hearings (see Public Officers Law§§ 84, 86 [4]; § 92 [7], [9]; see also Governor's Approval Mem, BillJacket, L 1983, ch 652, at 11-12; Budget Rep on Bills, Bill Jacket, L 1983, ch 652, at 15-17).Indeed, the City of Schenectady already has the right to conduct public police disciplinaryhearings under Second Class Cities Law § 137. Accordingly, in liberally construing thepetition/complaint and affording petitioners the benefit of every favorable inference (see Sawyer v Prusky, 71 AD3d1325, 1326 [2010]; Matter of Niagara Mohawk Power Corp. v State of New York,300 AD2d at 952), we find that petitioners failed to state a cause of action or legally cognizableclaim (see CPLR 3211 [a] [7]; 7804 [f]), and Supreme Court erred in denyingrespondents' cross motion for dismissal of the petition/complaint. Finally, we decline to divestPERB of its exclusive jurisdiction over the improper practice charges, including whether policedisciplinary matters are a prohibited subject of negotiations (see Civil Service Law§ 205 [5] [d]; § 209-a [1], [2]; Matter of Zuckerman v Board of Educ. of CitySchool Dist. of City of N.Y., 44 NY2d 336, 342 [1978]; Buffalo Police Benevolent Assn.v City of Buffalo, 79 AD2d 186, 190 [1981]).
Peters, J.P., Spain, Rose and Kavanagh, JJ., concur. Ordered that the order and judgment isreversed, on the law, without costs, cross motion granted and petition/complaint dismissed.
Footnote 1: While this agreement hadexpired, by operation of law, it remained in effect until such time as a new agreement wasentered into (see Civil Service Law § 209-a [1] [e]).
Footnote 2: Respondents, in their reply brief,have conceded that Supreme Court has subject matter jurisdiction.