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Monday, December 29, 2008

No Right To Union Representation During Criminal Investigatory Interview

Union presence during an interrogation of a unit member by the appointing authority
Seabrook v City of New York, 2008 NY Slip Op 09471, Decided on December 4, 2008, Appellate Division, First Department

Norman Seabrook, individually and as President of the Correction Officers' Benevolent Association, challenged the policy of not allowing an employee to consult with a union representative after a question is posed and before an answer must be given, at an interrogation conducted pursuant to [New York City] Mayoral Executive Order No. 16.

Mayoral Executive Order 16 requires city employees to report allegations of corruption to City's Department of Investigation.

The exclusion of union representatives, said the court, "ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors."

Holding that this policy “was reasonably designed to promote truthful responses by discouraging coaching,” the Appellate Division concluded that such action did not deprive the employee of his right to union representation under Civil Service Law §75(2) (p. 24) or National Labor Relations Bd. v J. Weingarten, Inc. (420 US 251 [1975]).
( See also Civil Service Laws and Rules - Editor)

A similar issue was addressed by the Appellate division in City of Rochester v Public Employment Relations Board, 15 AD3d 922, Leave to appeal denied, 4 N.Y.3d 710. In Rochester the Appellate Division, Fourth Department, held that PERB abused its discretion when it decided that the City of Rochester committed an improper employer practice in violation of Civil Service Law §209-a(1)(a) (The Taylor Law) by denying city police officers, who were union members, access to union representation during a criminal investigation interview.

The Fourth Department said that "PERB abused its discretion in expanding a public employee's rights to include the right to have a union representative present during a criminal investigation" as New York State "has a strong public policy that prohibits union interference with criminal investigations."

The full text of the Seabrook decision is posted on the Internet at:

The text of Executive Order 16 (see below - Editor) is posted on the Internet

Reprinted with Permission From New York Public Personnel Law
Mitchell H. Rubinstein

From Betsy:
Below is Executive Order No. 16, and the mandate to report corruption if you are a public employee. Then, you will be subjected to the NYC policy of "killing the messenger". You will be retaliated against.
You Are Obligated To Report Corruption

Most public employees are honest, hardworking people. However, as in any other business, there are always a few people who think they're above the law. For instance, there have been City workers who have asked for a 'tip' just to provide a service that residents and taxpayers are entitled to free of charge; or they used a City-owned car or equipment for personal business or pleasure; or stole money or property from the City; or faked an injury in order to collect disability pay. That's where DOI comes in. As the Mayor's watchdog over City government, DOI roots out fraud, waste and corruption wherever it may be.

Pursuant to Mayoral Executive Order 16, City employees must report allegations of corruption to DOI. This ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors.

If a City employee has knowledge of criminal activity and doesn't report it, that employee could face disciplinary action or termination, or other more serious penalties in a court of law. A City employee who interferes or obstructs a DOI investigation could be removed from office or employment, or face criminal or civil penalties.

For your convenience, we have included a copy of E.O. 16 on this page and a link to a flyer that was published and distributed by the Department of Investigation. Click here to view the flyer.

Executive Order No. 16
The document that follows is an electronic reproduction of the actual one in Web Page format. As such, errors may have occurred when the information was converted to this format, and therefore should not be considered an authorized version of the original document.

Go to Sections

1. Responsibilities of Commissioner
2. Responsibilities of Agency Heads
3. Responsibilities of Inspectors General
4. Investigations (Read this section for the duty to report corruption)
5. Formal Disciplinary Proceedings
6. Informal Disciplinary Proceedings
7. Background Investigations
8. Dissemination of Information
9. Regulations and Procedures
10. Waiver of Provisions
11. Construction with Other Law
12. Preservation of Rights
13. Revocation of Executive orders
14. Effective Date

Go to Amendments


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