The Chief
November 12, 2004

Police Union Sues Kelly on Discipline

By Reuven Blau

The union representing Police Officers has filed a class-action lawsuit against Police Commissioner Raymond W. Kelly, charging that he is violating city regulations by punishing officers and supervisors via a “phantom” disciplinary process.

The suit alleges that the Police Commissioner has exceeded his powers outlined in the City Charter by improperly placing officers in a new probationary system called the Performance Monitoring Program (PMP) without due process.

Hurt Careers

Officers in the program are denied choice overtime assignments, promotions, and permission for off-duty job opportunities, the complaint alleges. The 14 officers named as plaintiffs in the suit are seeking a total of $125,000 in restitution for lost wages and attorney fees.

“Your career is dead while you’re in this program,” said Michael T. Murray, the lawyer handling the case for the Patrolmen’s Benevolent Association. “It severely impacts your life and your livelihood.”

The Law Department and the NYPD declined to comment on the pending litigation. A preliminary court conference has been scheduled for later this month, Mr. Murray said.

The city’s Office of Labor Relations has maintained that the program is not a subject of collective bargaining because it involves discipline matters which are exclusively the right of the Police Commissioner.

Not Part of Regs

The suite charged that the department arbitrarily places officers in the three-level probationary system. Officers who have civilian complaints filed against them are automatically placed in the system for up to two years. That occurs, the suit contended, even if the complaints are not substantiated by the Civilian Complaint Review Board.

Such a setup is particularly upsetting, the PBA contends, because historically most CCRB complaints are not ultimately validated. In the first half of 2003, there were 3,966 allegations against officers, of which only 3.68 percent were substantiated.

The police unions have long argued that criminals who are familiar with the complaint process have manipulated the system by getting their friends to file a multitude of false complaints against a particularly effective officer. They claim the NYPD is responding by transferring and demoting some of the best and most active officers away from troubled neighborhoods where they are most needed. The ease with which complaints can be lodged has also made officers wary of doing their jobs properly, the unions contend.

Officers who have accepted a disciplinary punishment such as a loss of a vacation day or a suspension are automatically placed into the PMP without their knowledge, according to the lawsuit. That arrangement, the PBA argued, results in officers being punished twice for the same infraction.

The department can also put officers in the PMP for “negative behavior” or because they were administratively transferred, the complaint alleges. The PBA adds that there are no objective standards for why or when an officer is removed from the monitoring program. Probationary periods for evaluation purposes cannot exceed one year, according to the city’s Administrative Code.