A recent decision by Supreme Court Justice Joseph C. Teresi has established that PBA members have the right to counsel during all phases of a critical incident.
The ruling came after the PBA filed a lawsuit seeking a declaratory judgment on whether the Division of State Police could exclude PBA representatives or counsel from consulting with Troopers involved in critical incidents before or during critical incident reviews. Justice Joseph C. Teresi issued a scathing decision against Division, and in favor of the PBA.
Justice Teresi stated that the Division’s “thinly veiled assertion that counsel will diminish the integrity of CIRs (critical incident reviews), troopers continue to have an obligation to give a full and honest account of any critical incident”.
The Court further added that our PBA members did in fact have standing to bring the lawsuit even though no actual injury had yet to occur. Citing a federal case decided in 2006, the Court stated that, “Given the direct threat of personal detriment, troopers are not required to await actual legal consequences before adjudicating their rights.”
In the decision, the Court even used the most recent PERB decision that was issued against the PBA to further our position. If you remember, that decision stated that the PBA could not negotiate CIRs since it was outside the scope of collective bargaining.
Further, the Court disagreed with the Division by stating that their contention that CIRs are not Criminal, Civil or Administrative in nature, the Court described that assertion as “disingenuous at best.” Thus, the Court found that “the Division’s policy of denying trooper’s representation at CIRs would appear to run counter to the New York Constitutional right to counsel”. (emphasis added).
In sum, the Court declared that the Division’s policy and practice of denying members involved in critical incidents the right to consult with available counsel is illegal under Civil Service Law § 75, and members involved in critical incidents have the right to counsel and union representatives prior to answering questions.
To read the entire decision, click on the PDF file posted above. The Times Union newspaper of Albany also wrote an article on the court decision, and that article can be read by clicking on the link below.