Court of Appeals Rules Troopers Not Always Entitled to Union Rep; Contract Doesn't Provide For Counsel During Incident Reviews
By TOMMY HALLISSEY
The State Court of Appeals has affirmed a ruling dismissing a State Trooper Police Benevolent Association suit seeking the right to have lawyers or union representatives present with Troopers during critical incident reviews.

JUDITH KAYE: Union waived right to counsel.

The decision further separates critical incident reviews from disciplinary proceedings where Troopers have the right of union representation, because the Trooper PBA contract provides only for representation during administrative interrogation. The state's highest court upheld an Appellate decision overturning a State Supreme Court Justice's ruling in favor of the Troopers.

Barred Rep From Questioning

In May 2001, Trooper Matthew Taney was involved in a high-speed automobile accident where a civilian died. At the hospital, the Critical Incident Officer required Mr. Taney to submit a memorandum detailing the accident, and prevented his union delegate from participating in the interview by telling Mr. Taney that he was not the potential target of discipline.

STEVE CASSIDY: Has reps at all safety interviews.

The Trooper PBA filed a grievance in Mr. Taney's case under the collective-bargaining agreement, and an improper practice charge with the Public Employment Relations Board. The grievance was denied. On July 5, 2002, the arbitrator found no violation because Mr. Taney was absolved from any wrongdoing in the accident.

The next week several Troopers shot and killed a double-homicide suspect who barricaded himself inside a house. The critical incident review team interviewed the Troopers, and denied their rights to representation. The PBA and Trooper Kurt Schafsteck filed a grievance. An arbitrator determined that by failing to give the Troopers assurance that they were absolved of wrongdoing, or not allowing counsel or union representation, the Division of State Police violated the collective-bargaining agreement. State Supreme Court Justice Joseph Teresi in Albany confirmed the award.

While Mr. Schafsteck's case was awaiting a final ruling, the State Police revised its critical incident review policy to say a Trooper could have counsel or union representation present for questioning but could not speak to those representatives privately prior to the critical incident interview. The State Police also stated that any compelled statements would not be shared with criminal investigators or a District Attorney until the Trooper was absolved of criminal liability.

Wouldn't Be Used to Discipline

Later, the State Police re-clarified its position, stating that before critical incident reviews, investigating teams would have to inform Troopers that they would be expected to respond to questions and/or submit memoranda detailing the facts of the cases. Furthermore, Troopers would not be given representation they were entitled to under collective bargaining if the questioning was considered an administrative investigation and the Trooper was being offered immunity. The Division also said any statements by the Troopers in critical incident reviews could not be used in disciplinary proceedings.

In August 2005, the Division further separated the critical incident reviews from administrative investigations examining possible disciplinary infractions. Different personnel would be used for the two reviews, and administrative investigations could not have access to information from critical incident reviews.

In January 2006 the PBA, Mr. Taney, Mr. Schafsteck and three other Troopers filed suit seeking an injunction because they claimed the critical incident review policy violated Civil Service Law and the Troopers' Constitutional right to counsel.

On Sept. 20, 2006, State Supreme Court Justice Teresi concluded that, at a minimum, the revised protocols violated the Troopers' right to counsel, because at the time of the review he was the potential subject of disciplinary action. On July 26, 2007, the Appellate Division reversed the ruling and dismissed the complaint.

Police Supt.'s Prerogative

The basis for the reversal lies in two separate cases. In 2005, PERB determined that Trooper disciplinary matters were not subject to collective bargaining because of an executive law, which places sole disciplinary authority in the State Police Superintendent. In December 2006, Justice Leslie Stein affirmed PERB's decision, concluding that the express language of Executive Law places control with the Superintendent, removing discipline from collective bargaining.

In 2006, the Troopers' PBA brought improper practice charges about the denial of representation during critical incident reviews. The Division argued that, if critical incident reviews were in fact related to discipline, they were prohibited subjects of bargaining. The PBA countered that if the reviews were related to discipline, Troopers had a right to representation under the Civil Service Law.

In 2007, an Administrative Law Judge concluded that the reviews were related to discipline. Later that year, the State Supreme Court annulled that decision and said the reviews were not related to discipline within the meaning of Executive Law, but were part of the process leading towards a decision to discipline and therefore a mandatory subject of collective bargaining.

Two months later, the Appellate Division dismissed the complaint because of the remoteness of possible criminal or disciplinary sanctions.

'Waived Their Right'

The Court of Appeals last month affirmed the appellate court's decision, 5-0 with one abstention. "Because the PBA agreed to a right to counsel only during administrative interrogations, it necessarily waived any representation right Troopers may have had during critical incident reviews," Chief Judge Judith S. Kaye wrote in the opinion.

In February 2007, the Court of Appeals ruled in a different case that public employees do not have an automatic right to union representation during conferences with their supervisors which could lead to disciplinary action. That decision reversed two lower-court rulings upholding a PERB determination in favor of Transport Workers' Union Local 100. The board had ruled state workers were entitled to Weingarten rights stipulating that a worker is entitled to union representatives during investigatory interviews.

In June, the Uniformed Firefighters Association protested after the Fire Department issued an order that barred firefighters who are witnesses in an investigation from consulting with representation before speaking with chief officers. Firefighters who refused faced disciplinary action even though suspects in investigations are entitled to representation.

UFA President Steve Cassidy said in June that the union had represented its members in safety interviews for the last six years. "It's always been that way in the past," he said. Mr. Cassidy said Firefighters who were witnesses in the Manhattan District Attorney's Office's investigation of the fatal Deutsche Bank fire last August sought union counsel.