Smith v. O’Neill, 2020 WL 369505 (N.Y. App. Div. 1st Dep’t, Jan. 23, 2020)

Smith v. O’Neill: 
NYPD Evidence Collection Team members may be entitled to Detective status and compensation. 

{5 minutes to read}  The New York City Police Department (“NYPD”) has a long history of attempting to use non-Detective police officers to perform Detective-level work in order to curtail costs. In one of our cases, Smith v. O’Neill,^[1] members of the NYPD’s Evidence Collection Team (“ECT”) challenge this practice and assert their statutory rights to recognition as Detectives (and the associated compensation) once they have performed Detective-level work for at least 18 months. If the ECT members prevail, they will be entitled to recognition as Detectives and the increased compensation and benefits corresponding to that rank.

Background of the Dispute: Prior to 1990, the NYPD frequently “designat[ed] police officers to perform detective duties for indefinite periods of time without designating them as detectives, with the accompanying salary and benefits.” ^[2] By doing so, the NYPD benefited from additional Detective level labor while paying those performing the work lower, non-Detective wages. This practice led to serious inequity and morale problems within the police force.

In 1990, following repeated calls for reform, the New York City Council enacted § 14-103(b)(2) of the New York City Administrative Code (the “Code”) to combat this “widespread abuse.” ^[3] The statute is intended to ensure that those officers who perform detective work are paid accordingly. Under the Code, NYPD police officers who “perform the duties of a detective” for more than 18 months are entitled to Detective status and the associated compensation and benefits.

After it was enacted, the NYPD immediately resisted the requirements of the Code, determining that certain police officers fell outside of its scope and denying them Detective status and compensation. NYPD’s actions were challenged in a lawsuit, Scotto v. Dinkins, where the NYPD argued that the Police Commissioner retained discretion to interpret which police duties fell within the confines of the Code. The New York State Court of Appeals rejected NYPD’s argument, holding that the statute was intended “to eliminate the very discretion which the Commissioner now seeks to reclaim.” ^[4] The Court explained that the proper inquiry for determining whether a police officer is entitled to Detective status is whether the officer has performed the duties of a detective, not whether the Commissioner has classified the officer’s position as being a Detective-track position.

Following Dinkins, the NYPD attempted to circumvent the Code’s requirements by asking police officers to sign waivers foregoing the Detective level pay required by the Code. When this practice was challenged in the matter of Scotto v. Giuliani, the Court invalidated NYPD’s waiver program, noting that the waivers were unlikely to be truly voluntary and that they undermined the purpose of the Code.^[5]I

In a lawsuit brought in 2006, Brown v Kerik, ECT members claimed that they were entitled to Detective status and pay because they performed duties equivalent to those of the Crime Scene Unit (“CSU”) Detectives. The Court disagreed, finding that CSU members’ duties differed in 4 important ways: CSU detectives received more training, used more sophisticated equipment, investigated more serious crimes, and coordinated more extensively with the DA’s office to prosecute crimes.^[6]

Since Kerik was decided, the duties of ECT members have changed, and the NYPD indicated that it was willing to recognize them as Detectives. When the NYPD failed to follow through, ECT members filed a union grievance, and the NYPD refused to grant them Detective status. 

The ECT members filed a new lawsuit in response, alleging that they should be recognized as Detectives under the Code once they have performed their duties for more than 18 months because they now receive more extensive training, use more sophisticated equipment, investigate the most serious of crimes, and work directly with the DA’s office. In short, the ECT members argue that the Kerik court’s rationale for denying them Detective status and pay no longer applies. 

In response, the NYPD contends that the ECT members’ duties have remained essentially unchanged since the Kerik case. To resolve this factual dispute, the court will conduct a hearing to determine what duties are performed by ECT members and whether those duties are comparable to those performed by other NYPD detectives.

If you are an NYPD officer and have been performing work comparable to that of Detectives for more than 18 months, and believe that you are entitled to Detective status and compensation, you may wish to consult with the attorneys at Valli Kane & Vagnini LLP to determine your rights.

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^[1] Smith v. O’Neill, 2020 WL 369505 (N.Y. App. Div. 1st Dep’t, Jan. 23, 2020). 

^[2] See Matter of Scotto v. Dinkins, 194 A.D.2d 415, 416 (1st Dep’t 1993).

^[3] Id.

^[4] Matter of Scotto v. Dinkins, 85 N.Y.2d 209, 212-13 (1995).

^[5] Scotto v. Giuliani, 243 A.D.2d 388, 389 (1st Dep’t 1997). 

^[6] See Matter of Brown v. Kerik, 29 A.D.3d 478 (1st Dep’t 2006).

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