COBA’s Attorneys, Koehler & Isaacs LLP, File Suits to Protect NYC Correction Officers’ Employment and Contractual Rights

By: Steven Isaacs

Partner, Koehler & Isaacs 

General Counsel, Correction Officers’ Benevolent Association

Under the Correction Officers’ Benevolent Association’s recent Memorandum of Agreement, The New York City Department of Correction (DOC) “shall send the union a copy of any directive or order affecting terms and conditions of employment at least ten (10) calendar days prior to issuance, except where the Department determines emergency circumstances make such a timeframe impracticable, in which case the policy will be shared as soon as practicable prior to issuance.”  This important provision exists for many reasons, including, before the policy comes into effect, (1) providing COBA an opportunity to review it; (2) possibly challenge it in Court; and (3) discuss it with the DOC in order to suggest important changes.  On July 24, 2020, the DOC provided to COBA a copy of Operations Order 10/20, which specifically impacts and modifies the command discipline process.  The DOC did not provide COBA with the ten days for which it bargained.  COBA filed a grievance, seeking arbitration, and is now seeking a Court order to stop the effectiveness of the policy pending arbitration.  

On August 3, 2020, COBA filed an improper practice petition with the New York City Office of Collective Bargaining seeking an immediate injunction preventing the implementation and enforcement of DOC Operations Order 10/20. Operations Order 10/20 permits the DOC to conduct Use of Force disciplinary proceedings as both Command Discipline and Memoranda of Complaints for a single incident. This will result in harsher penalties, duplicate proceeding and an acceleration of the loss of the Command Discipline option for Correction Officers. Operations Order 10/20 was implemented without prior negotiations as required by the New York City Collective Bargaining Law. COBA argues in its petition that the failure to bargain will result in immediate and irreparable harm to officers with both Command Discipline and Memoranda of Complaints currently pending and any who may be charged in either process going forward.  As the City has a mandatory duty to bargain over disciplinary procedure, COBA argues that the failure to bargain over Operations Order 10/20 prior to implementation violates the Collective Bargaining Law and that the instant nature of the harm warrants injunctive relief.

COBA’s Aggressive Legal Actions Prevents Correction Officers from Working Triple Tours of Duty and Postpones Virtual Oath Trials

In April, 2020 at the height of the Coronavirus pandemic, Koehler & Isaacs, as General Counsel to the Correction Officers’ Benevolent Association (COBA), sued the City of New York, seeking a Judicial order that would prevent Correction Officers from being forced to work triple tours of duty.
The lawsuit also sought a judicial order compelling Correction Officers to test negative for COVID-19, prior to returning back to work if they had previously tested positive or self- quarantined. At the time, well over 1,000 Correction Officers had tested positive for COVID-19 and many more were out sick.

As a result, the New York City Department of Correction ordered a number of Correction Officers to work triple tours of duty, often forcing them to miss meals and jeopardize their physical health and welfare.

COBA’s initial request for a temporary restraining order was denied and the case was adjourned to allow the court to hear further arguments.  Upon further review by a different Judge, Judge Pamela Jackman-Brown, COBA’s request was granted and a preliminary injunction is now in place, preventing the City of New York from ordering Correction Officers to work triple tours of duty, pending further proceedings and a possible trial. Commenting on the significance of Judge Jackman-Brown’s decision, COBA’s Attorney, Steven Isaacs, said, “The granting of a preliminary injunction against the City of New York is an extraordinary measure that is rarely achieved. In this action, we maintained that the Department of Correction violated the fundamental rights of Correction Officers to bodily integrity protection, which is firmly established under our State Constitution.” In addition to Judge Blackman-Brown’s decision, Mayor Bill de Blaisio, in a rare move, explicitly agreed that the practice of triple tours was a “horrible, dumb mistake” and would not be allowed moving forward. Concerning the issue of negative testing, the Judge denied COBA’s request for an order requiring negative testing, maintaining that the science is very unclear as to the best testing measures and that the City is following CDC guidelines.
“There is no higher priority for us than ensuring our members work under the safest working conditions possible,” said COBA President Benny Boscio. “We are pleased that the Judge in this matter agreed with our arguments over triple tours and we will continue to hold the Department of Correction accountable whenever it violates our employment rights. This injunction will maintain even greater significance if a second wave of COVID-19 hits our jails again, forcing our members to self-quarantine.”

In another important legal victory for COBA, COBA’s Attorneys, Koehler and Isaacs, were successful in temporarily preventing the Office of Trials and Administrative Hearings (OATH) from holding virtual disciplinary hearings for Correction Officers, which would have posed serious implications for the rights of Correction Officers litigating their disciplinary charges in a potentially public forum. The union will pursue this litigation in a trial expected to be held in November.

Koehler & Isaacs-Writing the Use of Force or Use of Force Witness Report

By: Steven Isaacs

 General Counsel to NYC COBA

                During the course of your career, as a Correction Officer, you are called upon to write reports about incidents or occurrences related to your employment with the Department. One of the most important reports, if not the most important report you may have to write is a Use of Force Report or a Use of Force Witness Report. This article provides advice on to how to best write either of those reports.

                First, before you begin to write your report, make sure you are physically and mentally able to do so. Your health and safety are always the priority.  If as a result of the Use of Force you are injured, you should seek treatment pursuant to the Directive. A Use of Force or Witness Report is your official version of what occurred and will be reviewed by the Department for truthfulness and accuracy.  If you are unable to complete a report as soon as practicable after an incident because of an injury, the Directive permits you time to do so. You do not want to be rushed into writing your report unless you have a clear mind and can, to the best of your ability, recall the facts that led to your actions or observations.

If you are able to write your report following a Use of Force, you must follow the Department’s procedures set forth in the Use of Force Directive. Whenever you are writing either of these reports, you should have a copy of the Directive with you. The Directive is your guide to what you need to describe in your report. There is no reason you should not have your copy of the Directive with you as you write your report and refer to as needed to make sure you are complying with the Directive. Your report is your opportunity to explain the facts and circumstances, from your perspective, as to why using force was necessary.

One of the issues we have repeatedly seen in regards to Use of Force or Witness Reports is that Officers often report certain actions that they themselves are unsure of.  One of the reasons for this is that Uses of Force are often quick, stressful, and dangerous.  These are not optimal circumstances for complete and accurate recollection.  As you know, most, if not all of the Department’s facilities have cameras that record Uses of Force. Your report will be compared to the video for truthfulness and accuracy. If you are not sure of all of your actions, it is ok to write that. As long as you are providing a truthful and accurate report, you should only report those actions you are sure of.  After your initial report is submitted, the Directive and the Department’s Orders allow you to ask to review video footage of the Use of Force and provide a supplemental report to add to or correct any inaccuracies in your initial report. You will not be able to change your initial report. If your facility does not allow you to review the video after you have requested to do so, you should still write a supplemental report indicating you requested to review the video and provide a supplemental report but your request was denied. This will help us address issues in regards to your report if it is later called into question.

As always, please feel free to call our firm at 917-551-1300 and ask to speak with any of the attorneys in our Criminal/Disciplinary Practice and they will be happy to answer any questions on this subject that you may have.

Koehler & Isaacs Wins Reinstatement & Full Back Pay of $30,000 for NYC CO!

This case involved a Correction Officer, assigned to Horizon Juvenile Detention Center, who was fired for failing to fill out Horizon forms. We brought an Article 78 suit , which argued that the CO should have been given the same chance to fill out forms like everyone else, after initially refusing, but she was denied the opportunity to do so and was terminated. We successfully won her reinstatement with full back pay of $30,000.

Koehler & Isaacs Wins Reinstatement & Full Back Pay of $25,000 for NYC CO!

This case involved a Correction Officer, assigned to Horizon Juvenile Detention Center, who was fired for failing to fill out Horizon forms. We brought an Article 78 suit , which argued that the CO should have been given the same chance to fill out forms like everyone else, after initially refusing, but he was denied the opportunity to do so and was terminated. We successfully won his reinstatement with full back pay of $25,000.

Koehler & Isaacs Wins Reinstatement & Full Back Pay for NYC CO!

This case involved a Correction Officer, assigned to Horizon Juvenile Detention Center, who was fired for failing to fill out Horizon forms. We brought an Article 78 suit , which argued that the CO should have been given the same chance to fill out forms like everyone else, after initially refusing, but he was denied the opportunity to do so and was terminated. We successfully won his reinstatement with full back pay.

Koehler & Isaacs Wins Reinstatement & Full Back Pay for NYC CO!

Koehler & Isaacs successfully represented a New York City Correction officer who was injured in two Use of Force cases. The CO was MMR for a year and then returned to work full duty. The DOC subsequently terminated him months after he returned to duty. Koehler & Isaacs sued, alleging violation of disability discrimination laws. Thanks to our vigorous legal representation and advocacy, we secured his reinstatement with full back pay.

Koehler & Isaacs Wins Significant Legal Victory for NYC Correction Officers

State Supreme Court Judge Acknowledges, for the First Time, That the City Has Failed to Keep Correction Officers Safe, Gives The Green Light for Potentially Precedent-Setting Case

By: Steven Isaacs & Liam Castro

The Correction Officers’ Benevolent Association brought a case, by its attorneys Koehler and Isaacs LLP, and the first of its kind in New York, against the City because of its failure to provide to correction officers proper training to deal with, and equipment to protect themselves against violent inmates. COBA believes the City’s failures have resulted, and continue to result in unnecessary, preventable, and serious injuries to its members. This is unacceptable.

The City asked the Supreme Court to dismiss the action because it believed this involved a dispute over tactics, over which the Court has no jurisdiction. On July 12, 2019, the Court released its decision entirely rejecting the City’s argument. The Supreme Court held the City failed to address the danger caused by violent inmates. “This systematic failure is due, in large part, to DOC’s decision not to properly train and equip correction officers so that they can maintain order and security in the jail system, and protect themselves and others from these dangerous inmates…” The City had “not shown that DOC has implemented the controls mandated by the (Workplace Violence Law) or conducted risk assessments for incidents of violence, or defused areas of concern by taking mitigating steps, such as considering the propensities of a part of a jail population, as well as properly training and equipping correction officers to address some of these problems.”

COBA General Counsel Steven Isaacs said that he “hopes the City, instead of the usual defensive reaction and appeal, carefully examines the Judge’s reasoning and addresses the violence in the jails by ensuring it provide proper training and equipment to protect correction officers. Furthermore, the Judge’s decision in this case can benefit all municipal employees in the state whose employers are not properly addressing and protecting them from injuries.”

“In 2013 the NYS Department of Labor found 5 serious systematic violations of the law by the City’s Correction Department,” said COBA Director of Legal Affairs Marc Steier. “Since then, and particularly under the current union administration, the COBA has constantly pointed out the ineffectual Workplace Violence program at the Department. This is a historic judicial decision that gives all municipal workers a meaningful avenue of redress. The Judge’s denunciation of the Department’s reckless disregard of Officer’s safety validates what we have always known – Correction Officers did not “sign up” to be punching bags for inmates or cannon fodder for political ends. Unbelievably, the City’s attorneys made this very argument and even suggested the matter unworthy of judicial review. The reality is that the Department has a special relationship to keep its workers safe – a relationship they have long ignored in favor of so-called reform changes that make everyone unsafe. Perhaps with Judge Rubén Franco’s assistance, we can finally see sanity restored along with security.”

DAILY NEWS – Mercedes Maldonado, proves why K&I is the law firm union members turn to when defending their employment rights!

Correction officer fired after being injured at work settles suit with DOC

Chelsea Rose Marcius, New York Daily News
July 14, 2019

Correction Officer Michael Dispigno is back on the job after winning a wrongful termination suit against the Department of Correction that stemmed from his treatment for damage to his right knee, union officials told the Daily News.

Dispigno, 27, tore his anterior cruciate ligament and meniscus while going through an agility course at the DOC academy in Middle Village, Queens in February 2016 — hearing a sickening pop, but treating the pain with ice packs and reporting to work the next day.

But when the pain persisted, the Brooklyn officer went to a doctor, who told him he needed surgery. The DOC’s Health Management Division approved his time off for the procedure.

Dispigno had the operation, but opted out of full ACL reconstruction that would’ve required a much longer post-surgical rehabilitation — and a lot of missed work time.

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