Disciplinary Proceedings Against Civilian and Uniform Members Before the Deputy Commissioner of Trials

RCNY tit. 38, ch. 15, subch. A

in effect

38 RCNY § 15-01 Definitions.

§ 15-01 Definitions. Advocate. "Advocate" means the Department Advocate or Assistant Advocates of the New York City Police Department and also means an attorney designated by the Commissioner to prosecute a disciplinary proceeding before the Deputy Commissioner of Trials, including an attorney conducting such prosecution on behalf of the Civilian Complaint Review Board in accordance with a Memorandum of Understanding executed on April 2, 2012 by the CCRB and the Department during the period that such MOU is applicable. Charges and Specifications. "Charges and Specifications" means a written accusation or accusations of misconduct against a civilian or uniform member of the Department, specifying the activity or conduct at issue, along with the date, time and place of occurrence. Civilian Complaint Review Board. "Civilian Complaint Review Board" or "CCRB" means the New York City Civilian Complaint Review Board. Department. "Department" means the New York City Police Department. Deputy Commissioner of Trials. "Deputy Commissioner of Trials" means the Deputy Commissioner or Assistant Deputy Commissioners in charge of New York City Police Department disciplinary hearings. Respondent. "Respondent" means a uniform or civilian member of the Department against whom Charges and Specifications have been preferred.

38 RCNY § 15-02 Jurisdiction.

§ 15-02 Jurisdiction. The Deputy Commissioner of Trials shall have jurisdiction over disciplinary matters adjudicated by the Department. This jurisdiction shall include the authority to render any ruling or order necessary and appropriate for the efficient adjudication of disciplinary proceedings instituted against civilian and uniform members of the Department. (a) Applicability. These Rules shall apply to the conduct of all proceedings heard before the Deputy Commissioner of Trials including pre-hearing, hearing and post-hearing proceedings. (b) Construction, Modification and Waiver. These Rules shall be liberally construed in order to promote just and efficient adjudication of disciplinary proceedings. Upon notice to all parties, the Deputy Commissioner of Trials shall have the authority to modify or waive these Rules where no undue hardship or prejudice to any party shall result from such modification.

38 RCNY § 15-03 Pre-Hearing Proceeding.

§ 15-03 Pre-Hearing Proceeding. (a) Charges and Specifications. Charges and specifications shall be served upon the respondent and shall include a brief statement of the disciplinary matters to be adjudicated, including the activity, behavior or incident which is the subject of the disciplinary action and, where appropriate, the date, time and place of occurrence. Additionally, the Charges and Specifications shall identify the contract provision, law, policy, regulation or rule that was allegedly violated. Charges and Specifications may be amended upon notice to all parties. (b) Service of Charges and Specifications. (1) The Department shall be responsible for serving the respondent with Charges and Specifications. The Charges and Specifications shall be accompanied by notice of the respondent's right to reply and the time limits within which to do so pursuant to subdivision (c) of this section, and the requirement that the individual representing the respondent shall file a Notice of Appearance with the Deputy Commissioner of Trials, prior to engaging in any act of representation. (2) Service of the Charges and Specifications shall be made pursuant to statute, rule, contract, or other provision of law applicable to the proceeding being initiated. Absent any such applicable law, service of the Charges and Specifications shall be made in a manner reasonably calculated to achieve actual notice to the respondent. Service by certified mail, return receipt requested, contemporaneously with service by regular first-class mail, to the respondent's last address known to the Department, shall be presumed to be reasonably calculated to achieve actual notice. Appropriate proof of service shall be required. (c) Response to Charges and Specifications. If Charges and Specifications are served personally, the respondent shall have the opportunity to reply to them within eight days of service. If Charges and Specifications are served by mail, the respondent shall have the opportunity to reply to them within thirteen days of their mailing date. Upon good cause shown, the Deputy Commissioner of Trials may fix different time periods within which to reply. (d) Notice of Scheduling Conference or Hearing. (1) The Department shall serve the respondent with notice of the date, time and place of the Scheduling Conference or Hearing. The Scheduling Conference shall be conducted for purposes of setting a timetable within which to proceed with the Hearing. A Hearing shall be afforded to the respondent within a reasonable time. A Notice of Hearing shall contain a statement of the authority and jurisdiction under which the Hearing is being conducted, notice of the respondent's right to be represented by an attorney or other representative, the requirement that the respondent's representative file a Notice of Appearance with the Deputy Commissioner of Trials prior to engaging in any act of representation and notice that failure of the respondent or the respondent's representative to appear may result in an adverse decision and waiver of the right to a Hearing or other disposition as against the respondent. (2) The Notice of Hearing or Scheduling Conference shall be served personally or by mail. Appropriate proof of service shall be required. If the respondent is served personally, there shall be at least eight days notice provided. If respondent is served by mail at least thirteen days notice shall be provided, from the time of mailing. The Deputy Commissioner of Trials may modify these time periods. (e) Adjournments. (1) Hearing dates are firm commitments and will not be adjourned absent extraordinary circumstances. Scheduling Conferences and Hearings will begin promptly at 10 a.m. and continue until 5 p.m., if necessary. All Hearings shall be continued on consecutive days until concluded absent special circumstances. Where appropriate, Hearings may be conducted on weekends and holidays. (2) Applications for adjournments shall be made to the Deputy Commissioner of Trials upon sufficient notice to other parties. Adjournments will be granted or denied by the Deputy Commissioner of Trials upon good cause shown. The Deputy Commissioner of Trials shall have authority to set an adjourned date. If an adjournment is granted, and it is not noted on the record, the requesting party shall confirm the adjournment, in writing, with other interested parties. (3) A party requesting an adjournment because of a conflicting engagement shall file an Affirmation of Actual Engagement with the Deputy Commissioner of Trials, prior to a ruling sought on that basis. A copy of such Affirmation shall be served on the adverse party. The Affirmation shall state the name and nature of the conflicting matter, the court or tribunal hearing the matter, the judge before whom it is scheduled, the date when the conflicting engagement became known to counsel, and the date, time, place and approximate duration of the other engagement. (4) The Deputy Commissioner of Trials may determine that a case will proceed on an expedited basis and direct shortened pre-trial and post-trial proceedings including expedited notice periods and calendaring. (f) Discovery. (1) Informal discovery and the exchange of information is encouraged. Department disciplinary proceedings are not bound by formal discovery techniques or rules of civil procedure. Requests for production of relevant documents, identification of trial witnesses and inspection of real evidence to be introduced at the Hearing may be directed between the parties without leave of the Deputy Commissioner of Trials. Privileged and confidential matters shall not be subject to disclosure. (2) Any discovery dispute shall be presented to the Deputy Commissioner of Trials sufficiently in advance of the Hearing to allow for a timely determination. Discovery motions are subject to the discretion of the Deputy Commissioner of Trials. The timeliness of discovery requests and responses, and of discovery related motions, the complexity of the case, the need for the requested discovery, and the relative resources of the parties will be among the factors within the Deputy Commissioner of Trial's exercise of discretion. (g) Pre-Hearing motions. Pre-Hearing motions and other preliminary matters shall be consolidated and addressed to the Deputy Commissioner of Trials as promptly as possible and sufficiently in advance of the Hearing to permit the rendering of a timely decision.

38 RCNY § 15-04 Hearings.

§ 15-04 Hearings. (a) Consolidation and severance of Hearings. In the furtherance of justice, efficiency or convenience, all or portions of separate cases may be consolidated for Hearing. Additionally, portions of a single case may be severed for separate Hearing. Cases may be consolidated or severed at the discretion of the Deputy Commissioner of Trials. (b) Witnesses and documents. Attorneys for parties to the proceedings shall have the right to subpoena witnesses. Pro Se parties shall have the right to request that the Deputy Commissioner of Trials issue a subpoena on their behalf. The parties are responsible for having their witnesses available on the Hearing date. Parties intending to introduce documents into evidence shall provide sufficient copies to the Deputy Commissioner of Trials and other parties. (c) Interpreters. A party in need of an interpreter at a Scheduling Conference or Hearing shall advise the Deputy Commissioner of Trials of such need as soon as possible. The Deputy Commissioner of Trials may, within discretion, accept as an interpreter any person who can provide a fair and accurate translation. (d) Failure to appear. If the respondent fails to appear at the Hearing personally or by authorized representative, without good cause, the Deputy Commissioner of Trials may conduct a Hearing in the respondent's absence. If the respondent does not appear, the Deputy Commissioner of Trials shall determine whether to hold an Inquest Hearing or proceed upon written submissions of the parties. Additionally, the Deputy Commissioner of Trials may determine that no further proceedings shall be necessary. (e) Hearing evidence. (1) Compliance with the technical rules of evidence shall not be required. Hearsay shall be admissible and may form the sole basis for making findings of fact, when consistent with existing law. Additionally, principles of civil practice and the rules of evidence may be applied, where necessary, to insure an orderly proceeding, an accurate record and to aid in the formulation of Findings of Fact. Hearing sequence may be altered by the Deputy Commissioner of Trials for the convenience of the attorneys, parties, witnesses and Deputy Commissioner of Trials. Substantial prejudice shall not result to any party as a result of change in Hearing sequence. Findings of Fact shall be made exclusively on the record as a whole. (2) The Deputy Commissioner of Trials may limit examination, the presentation of testimonial, documentary or other evidence, and submission of rebuttal evidence. Objections to evidence offered or to other matters will be noted in the transcript. Exceptions need not be taken to rulings made over objections. The Deputy Commissioner of Trials may call or question witnesses directly. (3) Parties shall be entitled to make opening statements. Closing statements may be made orally or in writing at the discretion of the Deputy Commissioner of Trials. On motion of the Deputy Commissioner or the parties, the Deputy Commissioner of Trials may permit written post-hearing submissions including legal briefs, proposed findings of fact, conclusions of law or any other relevant documents. (4) Except for ministerial matters, and except on consent, or in an emergency, communications with the Deputy Commissioner of Trials concerning a case shall only occur with all parties present. If the Deputy Commissioner of Trials receives an "ex parte" communication concerning the merits of a case to which he or she is assigned, then he or she shall promptly disclose the communication by placing it on the record, in detail, including all written and oral communications and identifying all individuals with whom he or she has communicated. A party desiring to rebut the "ex parte" communication shall be allowed to do so upon request. (f) Official notice. The Deputy Commissioner of Trials may take official notice of any fact which may be judicially noticed by the courts of New York State. Notice may be taken before or after submission of a case for decision on request of a party or "sua sponte". (g) Public access to hearings. Hearings shall be open to the public unless the Deputy Commissioner of Trials finds a legally recognizable ground for closure of all or a portion of the Hearing. The Deputy Commissioner of Trials may also exclude witnesses from the Hearing room during proceedings other than their own testimony. (h) Disposition by settlement. Unless precluded by law, informal disposition may be made of any matter which is the subject of an adjudication by methods of alternative dispute resolution, stipulation, agreed settlement, or consent order. (i) Transcripts. Hearings shall be stenographically recorded. A copy of the transcript or record, or any part thereof, shall be made available to any party to the Hearing for a reasonable cost upon request.

38 RCNY § 15-05 Rules of Conduct.

§ 15-05 Rules of Conduct. (a) Conduct. Individuals appearing before the Deputy Commissioner of Trials shall conduct themselves in a dignified and orderly manner at all times. Disruptive conduct, including failure to comply with the orders and directives of the Deputy Commissioner of Trials, will not be tolerated. The Deputy Commissioner of Trials may bar a disruptive individual from the proceedings. (b) Withdrawal and substitution of representatives. A representative who has filed a Notice of Appearance, in accordance with paragraph (1) of subdivision (d) of 38 RCNY § 15-03, may not withdraw from representation of a party without the permission of the Deputy Commissioner of Trials. Withdrawal shall be granted upon sufficient showing of good cause and, where an attorney is the respondent's representative, consistent with the Code of Professional Responsibility. (c) Hearing Officers. The Deputy Commissioner of Trials and Assistant Deputy Commissioners shall be assigned solely to adjudicative and related duties.

38 RCNY § 15-06 Report to Police Commissioner.

§ 15-06 Report to Police Commissioner. (a) (1) After the Hearing is concluded the Deputy Commissioner of Trials will review the testimony and evidence adduced and prepare a Draft Report and Recommendation. (2) The Draft Report and Recommendation shall consist of a summary and analysis of the testimony, recommended findings of fact and conclusions of law, and recommendations for the disposition of the Charges and Specifications. (b) All parties, and their counsel or other representative shall be sent a copy of the Draft Report and Recommendation in order to afford them an opportunity to comment thereon. It is the party's or the party's representative's responsibility to submit written comments timely or a final determination may be made without such comments having been considered. (c) The parties will be allowed a specified period of time from the receipt of the Draft Report and Recommendation to submit comments. Such comments must be in writing and confined to the evidence in the record. The parties shall provide copies of such comments to the Deputy Commissioner of Trials who will, upon receipt of all such comments, forward them to the adverse parties. Upon receipt of such comments, the Deputy Commissioner of Trials will finalize the Report and Recommendation. The Report and Recommendation will then be forwarded to the Police Commissioner along with the transcript of the proceeding, unless waived, all exhibits received in evidence, and any comments submitted by the parties pursuant to this section. (d) If the Deputy Commissioner of Trials finds the respondent guilty of any charges, the respondent's employment record will be reviewed prior to determining a recommended penalty. The respondent may review his or her employment record prior to its submission to the Deputy Commissioner of Trials.

38 RCNY § 15-07 Penalties.

§ 15-07 Penalties. (a) The penalty imposed upon a respondent should take into account the respondent's employment history as well as the nature of the proven misconduct. (b) Penalties shall be imposed upon a respondent consistent with applicable provisions of the Civil Service Law and Administrative Code of the City of New York. (c) An alternative penalty may be agreed upon by the parties, pursuant to subdivision (h) of 38 RCNY § 15-04, outside the scope of applicable statutes.

38 RCNY § 15-08 Final Review.

§ 15-08 Final Review. (a) After reviewing the record of the proceeding and the Report and Recommendation of the Trial Commissioner, the Police Commissioner will make a final determination. The Police Commissioner may approve the recommendation or modify the findings or the penalty consistent with the record. (b) In the event a respondent enters a plea of guilty in return for a specific recommended sanction by the Trial Commissioner, and the Commissioner upon review imposes a greater sanction, the respondent will be allowed to accept the Commissioner's penalty or withdraw his or her guilty plea and proceed to a Hearing. (c) The written final determination shall be served on the respondent, his or her attorney or representative if one appeared at the Hearing, and the Advocate.

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-78144Fetched: 10/24/2026