The Appellate Division, First Department, has recalled its decision allowing New York City to end union-mandated “release time” for police officers involved in a ticket-fixing scheme after attorneys for the police union invoked a little-known provision in a court rule on cases heard by four-judge panels.
The panel originally assigned to the police union case, Patrolmen’s Benevolent Assn. v. City of New York, 113039/11, consisted of Justices Richard Andrias (See Profile), Leland DeGrasse (See Profile), Judith Gische (See Profile), Peter Tom (See Profile) and Dianne Renwick (See Profile). Renwick recused herself. She is married to Bronx District Attorney Robert Johnson.
The remaining panel split 2-2. Andrias and DeGrasse ruled for the city while Gische and Tom found for the union. Justice Sallie Manzanet-Daniels (See Profile) was brought in to break the tie, and joined the conclusion of Andrias and DeGrasse (NYLJ, Dec. 4, 2013).
The practice of bringing in a fifth judge to break a tie is laid out in First Department’s Rule 600.1, which states, “When a cause is argued or submitted to the court with four justices present, it shall, whenever necessary, be deemed submitted also to any other duly qualified justice of the court, unless objection is noted at the time of argument or submission.”
Crucially, attorneys for the Patrolmen’s Benevolent Association, the police union involved in the case, had invoked the last clause of that rule at argument, reserving the right to demand a hearing with a full five-judge panel in the event of a tie.
“Nobody does that,” said Ronald Dunn, a partner at Gleason, Dunn, Walsh & O’Shea, one of the attorneys for the union. Dunn said he believed that because the rule has rarely, if ever, been used, the justices “just forgot” and issued a decision with Manzanet-Daniels as the tiebreaker anyway.
James Catterson, who served as a justice with the First Department for nine years and is now a special counsel at Kaye Scholer, also said that as far as he knew, Rule 600.1 had never been used in this way.
“I’ve never heard of anyone remotely contemplating it,” he said.
The union moved to recall the decision. It tapped James McGuire, a former First Department justice who is now a partner at Dechert, to handle the motion to reargue. The court granted the motion in a short order issued Jan. 23. No date has yet been set for the rehearing.
In addition to Dunn, the union is represented by Mark Walsh, also a partner at Gleason, Dunn, Walsh & O’Shea, and by Michael T. Murray, general counsel of the PBA, and Gaurav Shah and David Morris of the general counsel’s office.
The city is represented by assistant corporation counsels Ellen Ravitch and Pamela Dolgow of the Law Department.
The underlying case involves three members of the PBA, not named in the First Department’s December decision, who were elected to four-year terms as PBA representatives for police officers in the Bronx. A 1975 executive order from the mayor allows city employees to take a paid leave of absence to work for their union.Such leave is known as release time.
In October 2011, the officers were indicted as part of a ticket-fixing scheme and pleaded not guilty. The city subsequently rescinded their release time certificates, offering to issue new certificates to three new representatives of the PBA’s choice. The PBA rejected that offer and filed a grievance with the Office of Labor Relations, which was denied.
The PBA then filed a request for arbitration with the Office of Collective Bargaining, and a lawsuit in Manhattan Supreme Court seeking a preliminary injunction preventing the city from rescinding the certificates. Justice Joan Lobis granted the injunction in December 2011.
The city appealed, and the First Department reversed Lobis.
Andrias, who wrote the majority opinion, noted that release time certificates themselves state that they may be revoked or modified. He also pointed to language in the executive order on release time stating that employees on release time “shall at all times conduct themselves in a responsible manner.”
Gische, who wrote the dissent, said that the release time could not be revoked because the officers had not been convicted of a crime, only charged.