Answers To Questions Frequently Asked By Union Members

The City of New York and the Department of Correction (DOC) were sued in 2011 by a class of inmates. The suit was subsequently amended twice in 2012. In essence, it alleged inmate abuse, unfair treatment, excessive force and unduly harsh confinement. The lead plaintiff in the class was an inmate by the name of Mark Nunez, hence the name “Nunez”.

In the lawsuit, the city of New York and DOC were accused, amongst other things, of engaging in a pattern and practice of using excessive force against inmates. Particular emphasis was placed upon inmates between the ages of 16 to18 with regard to their treatment, alleged inadequate protection against violence, and the accusation that punitive segregation was being improperly imposed.

Instead of fighting the lawsuit, the city and DOC decided to settle the matter. In doing so, they entered into a “consent decree,” which permits the federal court to oversee the DOC’s compliance with various mandates. A “Monitor” was appointed to ensure that DOC carries out all of the requirements imposed in the agreement and that they are in compliance. This compliance is tracked in a number of reports that are issued periodically. The first such report covered the period of October 22, 2015, to February 29, 2016, with the 9th (and most recent) report covering between July 1, 2019, to December 31, 2019. These reports, which have not been favorable, are arguably misleading, inaccurate, and not necessarily objective.

The Monitor cannot be removed until the department is found to be in “substantial compliance” with various mandates for two years. To the extent that a finding of “substantial compliance” would mean that the monitor and his staff would lose their jobs, it calls into question who is monitoring the monitor. It also calls into question how likely the monitor is to notice how well correction officers are doing their jobs.

The mandates imposed upon the DOC are significant, and include: investigations of all uses of forces; strict reporting and tracking requirements of all use of force instances; adequate staffing to investigate these occurrences; the installation of proper cameras within the facilities; guidelines for punishment and accountability; procedures to limit promotions and job assignments based upon an officer’s history; limiting punitive segregation; and a host of other measures. Based upon past monitor’s reports, it is likely to conclude that the monitor will be around for a while.

Unfortunately, there is no way to actually avoid discipline. Every officer wearing a uniform and working inside of a facility is subject to the whim of a supervisor or investigator who believes that an action they did, or did not take, is improper. Cameras are everywhere to observe, scrutinize and dissect Officers‘ actions. Additionally, those in positions of authority often play Monday morning quarterback with regard to what an Officer could have or should have done. What’s more, false allegations may be leveled against you by an inmate. And finally, a supervisor may see things differently from you.

While all of these things may lead to baseless discipline, fear not. JOEY JACKSON LAW, PLLC., understands that “accusations” of wrongdoing does not equal guilt. We will fight for your interests and rights, and do all within our ability to protect you, your job, and your future. So if you are charged with violations of rules, policies and directives, Not to worry – help is on the way.

As a result of being disciplined, the Department may be looking to exact harsh penalties against you. Just because DOC is seeking severe discipline doesn’t automatically mean they will get what they want. This depends upon what happened, when it happened, how it happened, and what the facts and circumstances are surrounding the incident.

JOEY JACKSON LAW, PLLC., will work with you to assess the facts, review the reports, documents, video, statements and other evidence to prepare your case. We will discuss your defense, give you a fair and objective view of what to expect, and provide you with our expert advice. Most importantly, we will stand up for you, fight for you, and work to protect you from harsh discipline.

Continue to show up every day and be the best officer you can be. Act reasonably and responsibly to protect yourself and your fellow officers. The easiest way to encounter a problem is to be involved in an excessive force case. A monitor has been appointed to micro-manage everything that officers do, and to find fault in the actions that you’ve taken.

If you must use force, make sure you do so because you are in immediate fear of series physical injury, or worse. Also make sure that the force you use is proportionate to the threat being posed. And finally, use your interpersonal communication skills first – if you can’t.

When writing any report, indicate what happened by giving a general and accurate description to the best of your ability. The DOC examines reports for false and misleading information. It’s usually pretty difficult to have a photographic memory of what happened, so just be careful. With the stress, anxiety and adrenaline resulting from a use of force for example, it may be quite difficult to get everything in your report correct.

For this reason, just provide general information to the best of your recollection. You’re not permitted to watch the video before or during the writing of your report in an instance of a use of force. DOC investigators, however, get to review the video tape multiple times to look for any discrepancy. So just be careful and use your best judgment. But avoid being overly specific about the amount of blows, where they landed or the exact sequence of events. Humans are not built to recount and recreate every detail of an event, particularly right after the incident occurs.

We at JOEY JACKSON LAW, PLLC., understand this, and make it our business to make sure that judges deciding these cases understand it as well.

OATH is the Office of Administrative Trials & Hearings. It is the tribunal which resolves disciplinary disputes involving Officers and the Department. Upon being served with Disciplinary Charges, which allege violations of Departmental Rules, Regulations & Directives, Officers are ultimately provided with a date to appear for a pretrial conference. Prior to appearing for this conference, an experienced attorney from JOEY JACKSON LAW, PLLC., will review the charges with you, learn your side of the story, familiar themselves with the facts and circumstances, and be prepared to defend you. We will also confer with the DOC lawyers to learn the Department’s position on the case, including the recommended penalty. In doing so, we will clarify our views on the case and inform them of our position.

When you appear at OATH, an Administrative Law Judge (ALJ) will preside over the pre-trial conference. What the judge does is provide their point of view as to the strength and weakness of DOC’s case and the officers case in an effort to settle the matter. Nothing the judge says is binding or required to be followed. They are merely providing thoughts and perspective. You are free to reject whatever they say and go to trial as the judge at the pretrial conference will not be the one overseeing the trial.

If a trial is scheduled, your lawyer will prepare you. In addition, your lawyer will examine records, reports, video tape(s), documents and analyze all of the evidence. In short, our firm will be ready to vigorously defend and protect your interests. Ultimately, in order to be found guilty, DOC must prove that “it is more likely than not” that you committed the offenses charged. This is called a “preponderance of evidence” standard. Our lawyers are very familiar with it, and will do within our ability to stand up and fight for you.

An NPA is an agreement entered into by the department and an officer which reflects a resolution and settlement of the disciplinary charges that are pending. As a general matter, it ends the case and imposes a penalty that has been negotiated and agreed upon by the Parties. This agreement, if reached, is usually signed at OATH by the parties, and usually results in the conclusion of the case.

It is important to note that the agreement (NPA) is later reviewed by supervisory personnel in the department and must ultimately be approved by the commissioner. If the commissioner does not agree with the penalty imposed, the agreement can get returned and otherwise “kicked back” to OATH for renegotiation of a stiffer penalty. If the officer disagrees with taking an enhanced penalty, as is often the case, then all bets are off. The NPA, or any modification of it, is then deemed void, and the matter is scheduled for Trial. An OATH Judge will then resolve the dispute after hearing all of the facts and evidence.

Even after an OATH Judge decides the case, it is subject to the commissioner’s review. As a general matter, the commissioner does afford deference to an OATH judge’s determination. There are those instances, however, where the OATH Judge is overruled by the commissioner. In that case, the officer can take the case to the Civil Service commission. JOEY JACKSON LAW, PLLC., is here to guide you through that process.

The Civil Service Commission (CSC) is an administrative body that, amongst other things, hears appeals of disciplinary cases brought to it by officers. It is composed of five commissioners who are appointed by the mayor for six-year terms.

In the event that an officer wishes to appeal an unfavorable disciplinary determination, you may do so by filing an appeal with the CSC. JOEY JACKSON LAW, PLLC., will do so for you, of course, when given your permission and authority to do so. The very reason this entity exists is to make sure that Civil Service Rules are uniformly applied, and that DOC regulations, directives and policies are similarly applied fairly and properly.

An MEO 16 interview is an interview conducted by DOC investigators under the authority of Mayoral Executive Order #16. The interview can pertain to a variety of subjects and issues for which the department is seeking additional information and/or clarification from an officer. The interviews are taped by investigators, and counsel is present to ensure that your rights and interests are fully protected. Prior to any questioning, you will sit down with a skilled attorney from JOEY JACKSON LAW, PLLC., who will discuss how you should handle the questions. There are a few important ground rules to keep in mind. First, limit your answer to the questions being posed. Second, if you don’t understand any aspect of the question(s) being asked, request that the investigator clarify, repeat or rephrase the question. Your lawyer can certainly do this – if necessary. Third, understand that you are sitting next to your lawyer, who is present to assist you in every way. In that regard, if you need to speak to your lawyer at any time, just say so. The interview will be halted, and you will be given ample time to confer with counsel.

Keep in mind that the department will not hesitate to level disciplinary charges against you if your answers to questions are in any way false or misleading. As such, it’s important to be mindful of that before going into the interview. Your attorney will confer with you beforehand, and advise you accordingly. Just know that we have your back at all times.