IN RE: Petition of Eric STRAKER (1999)

Order and judgment (one paper), Supreme Court, New York County (David Saxe, J.), entered January 22, 1998, which, inter alia, granted the motion of petitioners pursuant to CPLR 4403 conforming the referee's report and directed that each of the petitioners be designated as a “ Detective Third Grade” with the New York City Police Department retroactive to the date each completed 18 months of investigative service, unanimously reversed, on the law, without costs and disbursements, the directives in said judgment vacated, and the matter remanded for a hearing on the issue of whether Special Operations Squad members performed investigative duties similar in scope and duration to those Transit Career Path officers who did receive appointment to Detective Third Grade.

The petitioners are former members of the Special Operations Squad (SOS) of the Transit Police Department.   As of the date of the merger of the Transit Authority Police Department with the New York City Police Department on April 2, 1995, 17 of the petitioners had served in that squad for more than 18 months and 13 for fewer than 18 months.   Petitioners assert that as a result of the merger with the New York City Police Department, they have the right pursuant to Administrative Code § 14-103(b)(2) to be appointed detectives.   That section of the Administrative Code provides, as relevant, that:

Any person who has received permanent appointment as a police officer and is temporarily assigned to perform the duties of a detective shall, whenever such assignment exceeds eighteen months in duration, be appointed as a detective and receive the compensation ordinarily paid to a detective performing such duties.

The IAS court found that the intent of all the parties was to treat Transit officers on a parity with New York Police Department officers so that if petitioners' SOS positions “actually consisted of ‘detective duties' or ‘investigative duties,’ the challenged determination must be set aside as arbitrary or capricious.”

At the outset, we agree with the IAS court that there was ample evidence that SOS members performed at least some detective functions.   Thus, the evidence at the hearing before the referee established that SOS members performed some investigative work during the night hours after a robbery, but that an SOS member surrendered responsibility for the case in the morning when the assigned detective arrived at work, and then worked closely with the detective during the investigation, and that SOS was primarily a decoy unit.

However, the issue remains whether the investigative duties performed by SOS members was such that the Police Commissioner acted arbitrarily in not granting them detective status, while affording such status to officers in the Terrorist Task Force, the Internal Affairs Division, the Civilian Complaint Unit, and the Applicant Investigations Unit. The City's answer conclusorily asserts that officers in those divisions “were performing investigative duties ․ comparable to units in the NYPD investigative track.”   However, there is little in the record to determine whether this was a rational conclusion or to ascertain whether the SOS members performed investigative work on a par with members of these units.   It is understandable that this was not addressed by the referee since the scope of his inquiry was “whether the petitioners' work with the TAPD Career Path Programs “SOS” involved investigative duties.”   Thus, a remand is necessary for a hearing on whether the investigative duties performed by SOS members was similar in scope and duration to those performed by other officers in the Career Path Program who did receive promotion to detective status.   Thus, although the respondent Police Commissioner had a rational basis to deny petitioners' detective status based on the hearing testimony if the only issue were whether the SOS officers performed work similar to the street decoy unit, the appropriate test of rationality herein is whether the SOS officers performed detective and investigative work comparable to that performed by the Transit officers who did receive detective status after the merger.   Since the record before us is not sufficient to address this issue, a remand for a hearing is necessary.

We have examined the remaining contentions of respondents-appellants and find them to be without merit.

MEMORANDUM DECISION.