author: Read, J.

text:
    [893 NE2d 116, 862 NYS2d 839]
    Robert Falk et al., Appellants, v Timothy Chittenden, Respondent.
    Argued June 4, 2008;
    decided June 26, 2008

      POINTS OF COUNSEL

      Landman Corsi Ballaine & Ford P.C., New York City (Louis G. Corsi and Ameet B. Kabrawala of counsel), and Law Office of Vincent Toomey, Lake Success (Vincent Toomey and Christine A. Gaeta of counsel), for appellants.
    I. The municipality and the police supervisor who brought disciplinary charges against a police officer have standing to seek an attorney’s disqualification from representing the police officer at a disciplinary proceeding when the police supervisor who brought the charges previously consulted with that attorney about substantially related disciplinary problems concerning that police officer. (Kassis v Teacher’s Ins. & Annuity Assn., 93 NY2d 611; Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631; Solow v Grace & Co., 83 NY2d 303; Greene v Greene, 47 NY2d 447; Nichols v Village Voice, 99 Misc 2d 822; Rose Ocko Found. v Liebovitz, 155 AD2d 426; Arifi v de Transp. du Cocher, Inc., 290 F Supp 2d 344; Weinberger v City of New York, 97 AD2d 819; A.F.C. Enters., Inc. v New York City School Constr. Auth., 33 AD3d 736; Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148.) II. The trial court and the Appellate Division had the inherent power and obligation to address sua sponte the issue of attorney conflict in order to prevent the disclosure of privileged attorney-client communications, protect the integrity of an administrative disciplinary proceeding, and ensure both clients and the general public that lawyers will act within the bounds of ethical conduct. (Leviten v Sandbank, 291 NY 352; Rainbow Hill Homeowners Assn., Inc. v Gigante, Inc., 32 AD3d 532; Dorsainvil v Parker, 14 Misc 3d 397; Island Pa-Vin Corp. v Klinger, 76 Misc 2d 180, 47 AD2d 627; HF Mgt. Servs. LLC v Pistone, 34 AD3d 82; Rosen v Rosen, 5 Misc 3d 1031[A], 2003 NY Slip Op 51736[U]; Booth v Continental Ins. Co., 167 Misc 2d 429; Develop Don’t Destroy Brooklyn v Empire State Dev. Corp., 31 AD3d 144; Nichols v Village Voice, 99 Misc 2d 822; Kevlik v Goldstein, 724 F2d 844.) III. Because there are no triable issues of fact, this Court should direct the Supreme Court to enter judgment in favor of plaintiffs declaring that defendant’s counsel is disqualified from representing him in the pending disciplinary proceedings. (Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106; Dunham v Hilco Constr. Co., 89 NY2d 425; Igbara Realty Corp. v New York Prop. Ins. Underwriting Assn., 63 NY2d 201;
      Matter of Town of Islip v Cuomo, 64 NY2d 50; Hecht v City of New York, 60 NY2d 57.)

      Lovett & Gould, LLP, White Plains (Jane Bilus Gould of counsel), for respondent. Plaintiffs have failed to sustain their burden of establishing that disqualification is warranted. (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123; Campolongo v Campolongo, 2 AD3d 476; Heim v Merritt-Meridian Corp., 236 AD2d 367; Reem Contr. Corp. v Resnick Murray St. Assoc., 43 AD3d 369; Gaspar v Hollrock Poured Concrete, Inc., 7 AD3d 871; Solow v Grace & Co., 83 NY2d 303; Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631; Waehner v Northwest Bay Partners, Ltd., 30 AD3d 799; Greene v Greene, 47 NY2d 447; Medical Capital Corp. v MRI Global Imaging, Inc., 27 AD3d 427.)
   OPINION OF THE COURT

Read, J.

In 2003, Robert Falk, in his capacity as a lieutenant in the City of Rye’s Police Department, commenced a disciplinary proceeding against Officer Timothy Chittenden pursuant to Civil Service Law § 75 and the Police Department’s Rules and Regulations. Falk, who supervised Chittenden, preferred five misconduct charges alleging insubordination by Chittenden toward another police lieutenant, Joseph Verille, in December 2002. Chittenden ultimately retained Jonathan Lovett, Esq. to represent him at the hearing on these charges.

Falk moved before the hearing officer to disqualify Lovett on the ground that he had an attorney-client relationship with him, which created a conflict of interest. Chittenden opposed the motion, and the hearing officer concluded that he did not have authority to decide it. The hearing officer consequently “strongly recommend[ed] that this Motion to Disqualify Counsel be referred to the Supreme Court,” noting that “many issues of credibility” existed, and that the parties “total[ly] disagree[d] with regard to the [alleged prior] legal representation of Lieutenant Falk by Mr. Lovett.”

By summons dated May 17, 2004 and verified complaint dated April 28, 2004, Falk and the City of Rye commenced this action against Chittenden in Supreme Court. They sought a declaration that Lovett had a conflict of interest precluding him from representing Chittenden in the disciplinary proceeding and an order directing Chittenden to discontinue his representation by Lovett and his law firm. They alleged that in late 2000 and/or early 2001, Chittenden falsely complained to the newly appointed City Manager that Falk was incompetent, causing Falk to worry that the City Manager and Mayor might terminate his employment based on these complaints. As a result, Falk allegedly sought Lovett’s advice on how to retain his position, met with him personally approximately five times, communicated with him many times via telephone and in writing, discussed Chittenden’s acts of insubordination and shared numerous confidential documents with him, including e-mails from Chittenden evincing insubordination and Falk’s private records on Chittenden, other police officers and city officials.

Based on these materials, Lovett allegedly advised Falk that disciplinary action could be taken against Chittenden, and the two men discussed using Lovett’s services as a prosecutor in such an action. According to Falk, he offered to pay Lovett for his advisory services but Lovett demurred, suggesting a contingency fee arrangement in the event that Falk brought suit against the City.

Although Falk did not bring disciplinary charges against Chittenden at that time, he continued to consider Lovett his attorney and claims that he communicated with Lovett periodically. Lovett did not advise Falk of his intention to represent Chittenden in the 2003 disciplinary proceeding and Falk did not consent to the representation. After Falk learned that Lovett was representing Chittenden, Lovett allegedly called Falk and advised him that he would continue to represent Falk in other matters.

Falk and the City argue in this declaratory judgment action that Lovett’s representation of Chittenden in the disciplinary proceeding creates a conflict of interest—for example, Chittenden could use the confidential information acquired through Lovett and Falk’s attorney-client relationship during cross-examination. In his answer, Chittenden disputed much of Falk’s description of the nature and frequency of the communications between Lovett and Falk.

Chittenden moved for summary judgment to dismiss the lawsuit, asserting that Falk and the City lacked capacity and standing to seek Lovett’s disqualification, that the court was without subject matter jurisdiction, and that the complaint failed to state a cause of action. In an order dated April 18, 2005, Supreme Court granted the motion, opining that “the issue presented [wa]s not ripe for resolution, would result in an advisory opinion and is based upon events that might not occur.”

Falk and the City appealed. In a decision and order dated December 12, 2006, the Appellate Division affirmed on a different ground. Disagreeing with Supreme Court, the Appellate Division determined that the controversy was ripe for judicial review because disqualification of Lovett would “have an ‘immediate and practical effect’ on the conduct of the parties” (Falk v Chittenden, 35 AD3d 531, 532 [2d Dept 2006], quoting New York Pub. Interest Research Group v Carey, 42 NY2d 527, 532 [1977]). The court concluded, however, that “Chittenden . . . demonstrated, in support of his motion for summary judgment, that the plaintiffs [Falk and the City] lack standing to seek the relief requested in the complaint[, and] the plaintiffs failed to raise a triable issue of fact [in opposition]” (id.).

The Appellate Division stated that “[a] party has no standing to seek the disqualification of an attorney with whom the party has no present or former attorney-client relationship”; and that “[t]he plaintiff City of Rye asserts no such relationship” (id). “Rather,” according to the Appellate Division,

“the complaint is predicated upon Falk’s alleged private consultation with Lovett in connection with a related matter. As the plaintiffs’ attorney conceded at oral argument, however, Falk’s presence as a plaintiff in this action is in his official capacity as a lieutenant of the Rye City Police Department. Falk’s private consultation with Lovett did not establish an attorney-client relationship between Lovett and Falk, the lieutenant. The plaintiffs therefore lack standing to seek disqualification of Lovett in this action in which Falk appears only in his official capacity” (id. at 532-533 [citation omitted]).

We subsequently granted leave to appeal, and now reverse.

Code of Professional Responsibility DR 5-108 (a), which describes an attorney’s duty to maintain the confidences and secrets of former clients, provides in relevant part that

“a lawyer who has represented a client in a matter shall not, without the consent of the former client after full disclosure . . . [t] hereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client” (22 NYCRR 1200.27 [a] [1]).

As we stated in Jamaica Pub. Serv. Co. v AIU Ins. Co. (92 NY2d 631 [1998]), DR 5-108 (a) requires a party seeking disqualification of an opponent’s lawyer to show that there was a prior attorney-client relationship; that the matters involved in both representations are substantially related; and that the present interests of the attorney’s past and present clients are materially adverse (id. at 636). Indeed, DR 5-108 (a) mandates disqualification where these three conditions are met (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 132 [1996] [“where the movant satisfies all three inquiries . . . the irrebuttable presumption of disqualification arise(s)”]). All three conditions have been fulfilled here.

As an initial matter, those elements of the two parties’ 2000/ 2001 interactions that are undisputed establish that some kind of attorney-client relationship existed between Lovett and Falk. The record shows that Falk sought Lovett’s legal advice at least partly in a professional capacity. The record further establishes that conversations between Lovett and Falk touched on the matter of disciplining Chittenden. Lovett acknowledges that he rendered some legal advice on that issue, advising Falk to be wary of Officer Chittenden’s First Amendment rights. Moreover, while disciplining Chittenden might have been a personal desire of Falk’s, a request for legal advice as to whether discipline against an inferior officer is a viable course of action falls squarely within a commanding officer’s professional responsibilities. Accordingly, Falk in his official capacity had an attorney-client relationship with Lovett, and therefore has standing as a prior client to bring this action for declaratory judgment.

The other prongs of DR 5-108 (a) are satisfied as well. Seeking advice about a potential disciplinary case against Chittenden for insubordination in 2000/2001 is “substantially related” to actually bringing just such a case in 2003. More specifically, Chittenden’s prior conduct might bear on the issue of punishment, and Falk’s prior consideration of pursuing charges for insubordination might likewise be relevant. Together, these factors create a sufficient nexus between the two representations. And Falk’s and Chittenden’s interests are materially adverse in the disciplinary proceeding, which pits these two parties—obvious antagonists—against one another.

As a final matter, Falk and the City have asked us to declare that Lovett is disqualified from representing Chittenden in the pending disciplinary proceeding. They did not, however, cross-move for summary judgment for this relief, which we may not grant in the absence of an appeal from the denial of such a cross motion (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110 [1984]).

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.

Chief Judge Kaye and Judges Ciparick, Graffeo, Smith, Pigott and Jones concur.

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    [893 NE2d 120, 862 NYS2d 842]
    Carmel Reddington, Appellant, v Staten Island University Hospital et al., Respondents.
    Argued May 28, 2008;
    decided July 1, 2008

      POINTS OF COUNSEL

      Behrins & Behrins, P.C., Staten Island (Jonathan Behrins of counsel), for appellant.
    I. Since a time-barred claim is not one initiated “in accordance” with section 740 of the Labor Law, it does not trigger the waiver provision set forth in section 740 (7). II. A cause of action under Labor Law § 741 is not subject to the waiver provision of Labor Law § 740 (7). (Pipia v Nassau County, 34 AD3d 664.) III. Even if the Labor Law § 740 (7) waiver extends to a Labor Law § 741 claim and is triggered by the initiation of a time-barred action under section 740, a plaintiff may properly avoid that consequence through an amended pleading that omits the section 740 claim. (Collette v St. Luke’s Roosevelt Hosp., 132 F Supp 2d 256; Testa v Katt, 330 US 386; Ferres v City of New Rochelle, 68 NY2d 446; Shields v Citytrust Bancorp, Inc., 25 F3d 1124; Gonzalez v John T. Mather Mem. Hosp., 147 Misc 2d 1082; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35; Rotwein v Sunharbor Manor Residential Health Care Facility, 181 Misc 2d 847; Pipas v Syracuse Home Assn., 226 AD2d 1097.) IV The definition of “employee” in Labor Law § 741 encompasses an individual who, though not rendering medical treatment, renders the kind of services that Carmel Reddington provided under her job titles for defendant Staten Island University Hospital.

      Epstein Becker & Green, P.C., New York City (Kenneth J. Kelly
      and Jennifer M. Horowitz of counsel), for respondents.
    I. The institution of a time-barred claim pursuant to Labor Law § 740 triggers section 740 (7)’s waiver provision and bars a Labor Law § 741 claim. (People v Finnegan, 85 NY2d 53; People ex rel. Harris v Sullivan, 74 NY2d 305; Desiderio v Ochs, 100 NY2d 159; Matter of Killian [General Motors Corp., Delco Chassis Div.— Sweeney], 89 NY2d 748; Murphy v American Home Prods. Corp., 58 NY2d 293; Collette v St. Luke’s Roosevelt Hosp., 132 F Supp 2d 256; Feinman v Morgan Stanley Dean Witter, 193 Misc 2d 496; Rotwein v Sunharbor Manor Residential Health Care Facility, 181 Misc 2d 847; Pipas v Syracuse Home Assn., 226 AD2d 1097; McGrane v Reader’s Digest Assn., Inc., 863 F Supp 183, 60 F3d 811.) II. Labor Law § 741 does not afford protection to employees such as appellant who do not “perform” health care services.
   OPINION OF THE COURT

Read, J.

The United States Circuit Court of Appeals for the Second Circuit has certified two questions to us: the first involves the relationship between the waiver clause in Labor Law § 740 (New York’s Whistleblower Law) and Labor Law § 741 (New York’s Health Care Whistleblower Law); the second relates to the scope of section 741’s coverage. We begin by summarizing the facts alleged in the amended complaint.

I.

The Allegations in the Amended Complaint

Plaintiff Carmel Reddington was employed at defendant Staten Island University Hospital from December 19, 1994 to October 30, 2002. Reddington was first hired as a coordinator of volunteer services; in March 1998, she was promoted to the position of manager of volunteer services.

In early 2002, the Hospital launched a new program to attract cancer patients from Italy for stereotactic radiosurgery treatment at its facilities in New York. In May 2002, Hospital management tapped Reddington, who spoke Italian and was familiar with Italian culture and customs, to serve as a translator for patients being treated in this new program—eventually dubbed the International Patient Program—and their families. Reddington agreed to take on this extra responsibility until the Hospital hired someone for the job.

Upon meeting the Italian families for the first time, Reddington was “besieged with complaints of inadequate and non-treatment, abandonment, and failure to provide a translator.” Although she reported this to Hospital management, nothing was done and complaints persisted.

In June 2002, Reddington served as a translator at a meeting between Hospital management and “two supposed ‘doctors’ from Italy.” The attendees discussed opening a second office in Italy to be managed by one of the Italian doctors, who would receive a referral fee for each patient he sent to the Hospital for treatment. The other doctor was already receiving referral fees in connection with an existing office in Naples, Italy. When Reddington conveyed her uneasiness about the propriety and legality of this arrangement to Hospital management, she was treated dismissively by her supervisor.

Over the next two months, Reddington “worked feverishly with Italian patients and their families,” who continued to report problems to her, which she, in turn, conveyed to her supervisor. In August 2002, Reddington was asked to be the Program’s director, and she took the job. She claims that Hospital management repeatedly assured her that her former position “would always be available to her” if her new job did not work out. When Reddington “expressed reservations . . . about leaving for vacation without properly training” her replacement as manager of volunteer services, she was told “ ‘not to worry’, since [the Hospital] already had someone in mind.”

Reddington returned from her vacation and, on August 30, 2002, received and signed a written job description for her new position as “Director-International Patient Program.” Her duties and responsibilities, as set forth in the job description, were to

“1. Coordinate arrival, transportation and lodging for international patients and ensure continuity with clinical services staff.
“2. Coordinate and develop with Chief Medical Officer and appropriate medical personnel, services to be offered to international patients.
“3. Coordinate marketing of the international patients program with Senior Staff.
“4. Manage and train personnel providing transíation services and maintain an on-call schedule to ensure coverage.
“5. Maintain International Patients Welcome Center to promote positive image of Staten Island University Hospital and its services.
“6. Develop calendar of activities for international patients to further enhance their experience at Staten Island University Hospital.
“7. Maintain up to date data base on patients serviced.
“8. Distribute, collect and analyze patient satisfaction questionnaires to continually enhance services.
“9. Communicate with consulate to coordinate patient[s’] letters of service.”

In time, Reddington came to believe that her leadership as the Program’s director was being undermined by another Hospital employee, who reported to the senior vice-president of human resources. She objected about this to her supervisor.

On October 25, 2002, Reddington received a telephone call from the vice-president of human resources, who requested a meeting with her. At this meeting, Reddington repeated her grievances about the other employee’s role in the Program. She complained, for example, that this other employee had given her “orders that there would be no more trips to the Retreat House; changed the schedule for bringing the patients to a prayer group and Mass; and cancelled the weekday trips to Manhattan.” The vice-president “conceded . . . that [Reddington] had some ‘legitimate concerns’ ” and committed to “investigate the matter.”

The vice-president also advised her, however, that the other employee “was to be ‘the point person’ ” between Reddington and her supervisor. When asked if she “was ‘okay’ with that,” Reddington responded “that she had no problem with [the] arrangement, and was merely asking for some clarification on the logistics of her department.” The vice-president then asked Reddington to meet with her again on October 30th “so they could try to clear up any misunderstandings.”

At the meeting on October 30th, the vice-president “accused” Reddington of calling her supervisor after having been directed not to do so. Reddington replied that she “was unaware that she was prohibited from speaking with” her supervisor at all, and, in any event, had done so to coordinate the transportation of a dead patient’s body back home to England. When the vice-president commented that Reddington’s job responsibilities related only to Italian patients, Reddington “explained” that “this was untrue,” and that she had, in fact, spent several hours the previous day with the British patient’s family, “mak[ing] the necessary arrangements, and comforting them.”

At the conclusion of this meeting, the vice-president fired Reddington. When Reddington asked to return to her former position as manager of volunteer services, the vice-president refused. When Reddington “pleaded” for an explanation of “what she had done wrong,” she was informed that she had “ ‘disobeyed orders,’ ” and was told to “ ‘pack up and leave.’ ” In November 2002, Reddington contacted the New York State Department of Labor, which advised her to obtain the Hospital’s reasons for firing her in writing. After several requests by Reddington, the Hospital sent her a letter dated December 10, 2002, which stated that she had been dismissed “ ‘due to probationary failure.’ ” According to Reddington, she was never informed that her new position involved a probationary period.

Prior Proceedings

After receiving a right-to-sue notice from the Equal Employment Opportunity Commission, Reddington filed a complaint in the United States District Court for the Eastern District of New York on March 16, 2004, naming the Hospital and North Shore-Long Island Jewish Health System, Inc., which allegedly owned and/or controlled the Hospital, as defendants. In her complaint, Reddington asserted numerous causes of action: violations of federal, state and municipal laws prohibiting age discrimination in employment; violation of New York’s Whistleblower Law (Labor Law § 740); violation of the New York’s Health Care Whistleblower Law (Labor Law § 741); violation of the Fair Labor Standards Act; intentional infliction of emotional distress; and breach of contract.

After defendants moved to dismiss for failure to state a claim and for lack of subject-matter jurisdiction as well as for an award of attorneys’ fees under Labor Law § 740 (6), Reddington amended her complaint on August 24, 2004. She withdrew her claim under Labor Law § 740—which was time-barred—and the Fair Labor Standards Act, as well as her claim for intentional infliction of emotional distress. Defendants again moved to dismiss and for an award of attorneys’ fees.

On June 21, 2005, the District Court ruled on the defendants’ motion, granting it in part by dismissing Reddington’s claims under Labor Law § 741 and for breach of contract, and denying it in part by concluding that Reddington had stated claims under federal, state and municipal age discrimination laws (see Reddington v Staten Is. Univ. Hosp., 373 F Supp 2d 177 [ED NY 2005]). The Judge declined to award attorneys’ fees to the Hospital.

With respect to Reddington’s Labor Law § 741 claim, the District Court found that “plaintiff waived this claim when she asserted a claim for retaliatory termination under § 740 in her original complaint,” citing the “waiver” or “election of remedies” provision in Labor Law § 740 (7) (Reddington, 373 F Supp 2d at 187). The District Court Judge rejected Reddington’s argument that amending her complaint to omit the section 740 claim precluded any section 740 (7) waiver; he concluded that the plain text of section 740 (7) refers to “instituting] an action” (id. at 186). In addition, in a footnote the Judge offered as an alternative basis for dismissal that section 741 did not apply to Reddington because

“[t]here [were] no allegations in the complaint that [she] performed health care services while employed by [the Hospital] or was a health care employee. Instead, the complaint alleges that she acted as an interpreter and that she held the positions of Coordinator and Manager of Volunteer Services and later Director of the [Program]” (id. at 187 n 7 [internal quotation marks omitted]).

After discovery on the age discrimination claims, the parties stipulated to their dismissal with prejudice, which led to entry of final judgment. Reddington then appealed the dismissal of her Labor Law § 741 claim to the Second Circuit, which observed that the District Court

“based its conclusion [that Reddington failed to state a claim under section 741] on two alternative grounds: first, that Reddington waived her claim under section 741, the health care whistleblower provision, by previously initiating an action under section 740, New York’s general whistleblower provision; and second, that Reddington was not an employee within the meaning of section 741” (Reddington v Staten Is. Univ. Hosp., 511 F3d 126, 132 [2d Cir 2007] [citation omitted]).

Finding no controlling decision of this Court on either issue, and substantial disagreement among state and federal courts on both, the Second Circuit certified the following two questions to us:

“(1) Does the institution of a time-barred claim pursuant to New York Labor Law § 740 simultaneously with a claim pursuant to New York Labor Law § 741 trigger section 740(7)’s waiver provision and thereby bar the section 741 claim, even if the section 740 claim is subsequently withdrawn?
“(2) Does the definition of employee in New York Labor Law § 741 encompass an individual who does not render medical treatment, and under what circumstances?” (Id. at 136.)

For the reasons that follow, we answer both questions in the negative.

II.

Section 740 (7), which contains the Whistleblower Law’s so-called “waiver” provision, states as follows:

“Existing rights. Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any other law or regulation or under any collective bargaining agreement or employment contract; except that the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law” (emphasis added).

The plain text of this provision indicates that “instituting]” an action—without anything more—triggers waiver. And in New York, an action is instituted with the filing of a complaint and service upon opposing parties. Moreover, documents in the Bill Jacket repeatedly refer to section 740 (7) as an election-of-remedies provision, thus contemplating that a plaintiff will choose whether to file a section 740 whistleblower claim or some other claim (see e.g. Mem of Pub Empl Relations Bd, Bill Jacket, L 1984, ch 660, at 16).

Although Reddington argues that either filing a time-barred section 740 claim (as she did), or amending a complaint to omit a section 740 claim (as she also did), precludes waiver, section 740 (7)’s language and legislative history do not support her position. A “cause of action will be deemed the same if the amended and original complaints both seek to enforce the same obligation or liability” (Abrams v Maryland Cas. Co., 300 NY 80, 86 [1949] [citations omitted]). In short, Reddington clearly “instituí[ed] ... an action in accordance with [section 740].” We conclude, however, that Reddington nonetheless did not waive the right to pursue her section 741 claim. This conclusion flows from the uniquely interconnected elements of sections 740 and 741; specifically, every section 741 claim expressly relies on and incorporates section 740 for purposes of enforcement.

Labor Law § 741 (4) states: “Enforcement. A health care employee may seek enforcement of this section pursuant to paragraph (d) of subdivision four of section seven hundred forty of this article” (emphasis added). Importantly, Labor Law § 740—unlike section 741—explicitly creates a private right of action, stating in relevant part:

“Violation; remedy, (a) An employee who has been the subject of a retaliatory personnel action in violation of this section may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within one year after the alleged retaliatory personnel action was taken” (Labor Law § 740 [4] [a]).

Paragraph (d) of section 740 (4)—specified in section 741 (4) as the means to enforce section 741—provides that

“o health care employee who has been the subject of a retaliatory action by a health care employer in violation of section seven hundred forty-one of this article may institute a civil action in a court of competent jurisdiction for relief as set forth in subdivision five of this section within two years after the alleged retaliatory personnel action was taken. In addition to the relief set forth in that subdivision, the court, in its discretion, based upon a finding that the employer acted in bad faith in the retaliatory action, may assess the employer a civil penalty of an amount not to exceed ten thousand dollars, to be paid to the improving quality of patient care fund, established pursuant to section ninety-seven-aaaa of the state finance law” (emphasis added).

This provision was enacted concurrently with section 741 (see L 2002, ch 24, §§ 1, 2); it was not enacted with the rest of section 740 (see L 1984, ch 660, § 2).

Thus, rather than creating its own private right of action, Labor Law § 741 contemplates enforcement through a Labor Law § 740 (4) civil suit. This is critically important, as it completely changes the nature of the waiver inquiry in a case involving sections 740 and 741. That is, the plain language of section 741 (4) indicates that a claim under that provision necessarily involves section 740 (4) (d) and therefore section 740, to that extent, remains in the case, eliminating any notion of waiver. This is so whether or not a separate section 740 claim is pleaded in the original complaint.

Put another way, section 740 (7), as noted previously, is an election-of-remedies provision (see e.g. Reddington, 511 F3d at 132; Collette v St. Luke’s Roosevelt Hosp., 132 F Supp 2d 256, 268-269 [SD NY 2001]). Yet no election of remedies is implicated when sections 741 and 740 are pleaded together, or section 741 is pleaded after a plaintiff has instituted a section 740 claim, because section 741 provides no independent remedy. Section 741 sets out substantive legal requirements while explicitly relying on section 740 for their enforcement (see Labor Law § 741 [4]). Importantly, as the entire point of section 740 (7)’s waiver provision is to prevent duplicative recovery, a plaintiff health care employee can only recover damages for a section 741/740 (4) violation (specific) or a section 740 violation (general), but not for both.

The dissent objects that section 740 (7) does not itself include “the words . . . ‘election of remedies’ ” or state that “there should be no duplicative recovery” (dissenting op at 94). By the same token, however, the Legislature did not, as previously noted, choose to create a right of action to enforce section 741 independent of section 740, which it surely would have done if it had intended for a plaintiff who initiates a section 740 action to thereby waive any subsequent claim under section 741 relating to the same alleged retaliatory action.

III.

The specialized protection offered by Labor Law § 741 extends only to those health care employees who “perforad ] health care services” (Labor Law § 741 [1] [a]). Specifically, section 741 (2) states:

“Retaliatory action prohibited. Notwithstanding any other provision of law, no employer shall take retaliatory action against any employee because the employee does any of the following:
“(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or
“(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”

The terms “employee” and “improper quality of patient care” are defined in section 741 (1) (a) and (d) respectively. For purposes of section 741, “employee” is defined as “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (Labor Law § 741 [1] [a] [emphasis added]) and “improper quality of patient care” is defined to

“meant ], with respect to patient care, any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient” (Labor Law § 741 [1] [d] [emphasis added]).

Unlike Labor Law § 740, which defines “employee” to “meant ] an individual who performs services for and under the control and direction of an employer for wages or other remuneration” (Labor Law § 740 [1] [a]), Labor Law § 741 therefore has an exactingly specific definition of “employee”: “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (Labor Law § 741 [1] [a] [emphasis added]). This definition of employee contains two limitations: first, it applies only to those employed by “employer[s] . . . providing] health care services,” and second, the category of covered workers is further narrowed to those “performing] health care services.” It is important that section 741 (1) (a) limits both type of employer (“employer which provides health care services”) and—given a qualifying employer—the type of employee (“any person who performs health care services”). This puts a clear outer boundary on employees covered by section 741: in order to give effect to both limitations within section 741 (1) (a), the universe of covered employees must be smaller than all those employed by a health care provider, who are afforded the more generalized protection of section 740 (see Labor Law § 740 [2] [a]; see also Budget Report on NY Assembly Bill A9454, at 1, Bill Jacket, L 2002, ch 24 [“The instant bill would build upon (section 740’s) protections and would specifically address the employment situations of health care workers”]).

Because some limiting principle is mandated by section 741, the question becomes the meaning of the phrase “performs health care services.” Webster’s Collegiate Dictionary defines “perform” as “carry out; do” or “to do in a formal manner or according to prescribed ritual” (Merriam-Webster’s Collegiate Dictionary 863 [10th ed 1998]), while the Oxford English Dictionary defines perform as “to carry through to completion; to complete, finish, perfect (an action process, work, etc.)” (10 Oxford English Dictionary 543 [2d ed 1989]). Similarly, Roget’s Thesaurus defines “perform” as “[t]o begin and carry through to completion” and supplies the synonyms “do,” “execute,” and “prosecute” (Roget’s II: The New Thesaurus 721 [3d ed 1995]). Nowhere is the term “perform” defined to mean “coordinate,” “communicate,” or “develop.”

We have observed that “[i]n construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998], quoting Tompkins v Hunter, 149 NY 117, 122-123 [1896] [additional citation omitted]). Here, the “natural signification” of section 741 (1) (a) is quite definite: to be subject to the special protections of section 741, an employee of a health care provider must “perform[ ] health care services,” which means to actually supply health care services, not merely to coordinate with those who do.

A review of the rest of Labor Law § 741, as well as the statute’s legislative history, further bolsters the plain-text interpretation of section 741 (1) (a). The Assembly memorandum in support of Laws of 2002 (ch 24)—which enacted Labor Law § 741 as well as Labor Law § 740 (4) (d)—states, under the subtitle “JUSTIFICATION”:

“This legislation does not specifically mention adherence to acceptable standards of professional practice or a code of ethics. The bill does allow a professional to go to court to be made whole after retaliatory action when the professional reasonably believes that a state law, rule or regulation has been violated. It is expected that a professional would reasonably believe that a practice identified in their professional standard or ethic as best practice or prohibited practice would be reflected in the determinations of the state agencies that regulate professional practice. A professional who knows that a colleague or a facility has been sanctioned or disciplined by the state for improper patient care could reasonably believe that the state’s penalties were based upon a violation of state law, rule or regulation. Department of Health regulations (Section 405.5) require facilities to provide nurse staffing ‘to ensure, when needed in accordance with generally accepted standards of nursing practice, the immediate availability of a registered professional nurse for bedside care of any patient.’ Nurses would reasonably believe when, in their professional judgment, they were not immediately available to meet a patient’s needs that there was a violation of state regulations. Therefore, they would be able to have their day in court following retaliation for speaking out about their perception of inadequate staffing levels” (Assembly Rules Comm Mem in Support, at 1, Bill Jacket, L 2002, ch 24 [emphases added]).

This legislative history indicates that the specialized protections of Labor Law § 741 were meant to protect professional judgments regarding the quality of patient care. The example given in the Assembly memorandum—the only concrete example provided by the bill’s sponsors—is illustrative: a nursing regulation requiring “immediate availability” of bedside nursing care is cited. This is not to say that section 741 only covers employees who possess professional licenses; there may be cases where an employee without a professional license performs health care services in the employment of a health care provider. Nonetheless, section 741, which offers exceptional and specialized whistleblower protection over and above the generalized protection afforded by section 740, is meant to safeguard only those employees who are qualified by virtue of training and/or experience to make knowledgeable judgments as to the quality of patient care, and whose jobs require them to make these judgments.

Accordingly, the certified questions should be answered in the negative.

Smith, J. (dissenting in part). I dissent from the majority’s negative answer to the first question, and would hold that the institution of a claim under Labor Law § 740 bars a claim under Labor Law § 741.

Labor Law § 740 (7) says that “the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law.” This is an unusual statute. While it raises a number of interpretative questions, its basic thrust is clear enough: a plaintiff who sues under Labor Law § 740 waives his or her other rights. The message this sends to potential plaintiffs is: Do not sue under Labor Law § 740 unless you are confident that your claim is excellent.

There is much to be said for encouraging such a cautious approach to bringing lawsuits. That approach, however, is utterly alien to the shoot-first-and-ask-questions-later atmosphere so familiar to most American litigators. Perhaps for this reason, the waiver clause of section 740 (7) has had a checkered career.

Some courts have refused to hold, despite the plain language of the statute, that the mere “institution” of an action under section 740 triggers the waiver provision. They have held, in effect, that an action can be “un-instituted” if the section 740 claim is promptly dismissed or abandoned (Gonzalez v John T. Mather Mem. Hosp., 147 Misc 2d 1082, 1083-1084 [Sup Ct, Suffolk County 1990]; Clarke v TRW, Inc., 1994 WL 591677, *3-4, 1994 US Dist LEXIS 15423, *10-13 [ND NY 1994]; cf. Gaughan v Nelson, 1997 WL 80549, *2, 1997 US Dist LEXIS 1942, *5-7 [SD NY 1997]). Clarke also suggests that a section 740 claim dismissed for a legal deficiency “prior to judgment” may not trigger the waiver because it was not instituted “in accordance with” section 740 (1994 WL 591677 at *3, 1994 US Dist LEXIS 15423 at *10)—thus suggesting to prospective plaintiffs that it is safe to begin a bad lawsuit, but not a good one. I agree with today’s majority in disapproving of these two theories.

An extensive analysis by a federal district court, proceeding from the indisputable premise that a plaintiff filing under section 740 does not waive all other rights—she does not, for example, give up the right to sue her husband for divorce or her doctor for malpractice—concludes that only other whistleblower claims are waived (Collette v St. Luke’s Roosevelt Hosp., 132 F Supp 2d 256 [SD NY 2001]). The Collette court reached this conclusion at a time when New York had no other whistleblower statute. Other courts have given section 740 (7) a less restrictive reading (see e.g. Pipas v Syracuse Home Assn., 226 AD2d 1097 [4th Dept 1996] [holding the waiver applicable to all claims that “relate to the retaliatory discharge”]; Kraus v Brandstetter, 185 AD2d 302, 302-303 [2d Dept 1992] [same]; Rotwein v Sunharbor Manor Residential Health Care Facility, 181 Misc 2d 847, 853-856 [Sup Ct, Nassau County 1999] [same]; see also Owitz v Beth Israel Med. Ctr., 1 Misc 3d 912[A], 2004 NY Slip Op 50046[U], *4 [Sup Ct, NY County 2004] [referring to “the Collette Court’s very narrow interpretation of the § 740 waiver”]).

Though New York had no other whistleblower statute when Collette was decided, it has one now—and the majority today holds that a claim under the new statute, section 741, is immune from the waiver. The basis for the majority’s holding is “the uniquely interconnected elements of sections 740 and 741” (majority op at 88). The majority says that “no election of remedies is implicated” when both sections are pleaded, “because section 741 provides no independent remedy” {id. at 89). But the words of the statute are not “election of remedies,” but “waiver of the rights and remedies available under any other . . . law” (Labor Law § 740 [7]). I see nothing in these words to suggest that they do not apply to claims under section 741. The majority seems to hold that section 741 is not an “other” law, but that holding is logically unsound. Laws can be, as these two statutes are, closely related to each other and still distinct.

The majority says that “the entire point of section 740 (7)’s waiver provision is to prevent duplicative recovery” (majority op at 89). It offers no reasoning and no authority in support of this assertion, which seems to me simply wrong. If the authors of this statute wanted only to prevent duplicative recovery, they could have provided there should be no duplicative recovery. What they apparently did want was to require plaintiffs who brought section 740 cases to give up their other claims—a goal that is frustrated by the majority’s holding today.

This case, in short, must be added to the curious collection of decisions that have declined to give effect to the clearly expressed purpose of the waiver clause in Labor Law § 740 (7). If the New York Legislature really wants to require plaintiffs who begin section 740 actions to waive all their related claims, it will have to speak even more clearly.

Chief Judge Kaye and Judges Graffeo, Pigott and Jones concur with Judge Read; Judge Smith dissents in part and votes to answer certified question No. 1 in the affirmative in a separate opinion; Judge Ciparick taking no part.

Following certification of questions by the United States Court of Appeals for the Second Circuit and acceptance of the questions by this Court pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR 500.27), and after hearing argument by counsel for the parties and consideration of the briefs and the record submitted, certified questions answered in the negative.


author: Chief Judge Kaye.

text:
    [893 NE2d 803, 863 NYS2d 387]
    Police Benevolent Association of New York State Troopers, Inc., et al., Appellants, v Division of New York State Police et al., Respondents.
    Argued May 29, 2008;
    decided July 1, 2008

      POINTS OF COUNSEL

      Gleason, Dunn, Walsh & O’Shea, Albany (Mark T. Walsh of counsel), for appellants.
    I. Plaintiffs have suffered injury-in-fact sufficient for them to have standing to sue and present a ripe controversy. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6; New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801; People v West, 81 NY2d 370; People v Skinner, 52 NY2d 24; People v Townes, 41 NY2d 97; People v Rice, 176 Misc 2d 751; People v Hawkins, 55 NY2d 474; People v Wilson, 89 NY2d 754.) II. Plaintiffs have a right to counsel and union representation at all stages of the critical incident review and investigation.

      Andrew M. Cuomo, Attorney General, Albany (Victor Paladino, Barbara D. Underwood and Andrea Oser of counsel), for respondents.
    I. Plaintiffs lack standing to challenge the clarified critical incident policy. (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207; Community Bd. 7 of Borough of Manhattan v Schaffer, 84 NY2d 148; Matter of New York State Psychiatric Assn., Inc. v Mills, 29 AD3d 1058, 7 NY3d 708; Rudder v Pataki, 93 NY2d 273; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761; Matter of Matt v Larocca, 71 NY2d 154, 487 US 1250; Matter of Boyd v Constantine, 81 NY2d 189; Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647; Boryszewski v Brydges, 37 NY2d 361; Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) II. Plaintiffs waived any statutory or constitutional rights they otherwise may have had to counsel in their Collective Bargaining Agreement. (Matter of Grippo v Martin, 257 AD2d 952; Dye v New York City Tr. Auth., 88 AD2d 899, 57 NY2d 917; Antinore v State of New York, 49 AD2d 6, 40 NY2d 921; Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 8 NY3d 226; Matter of Fortune v State of N.Y., Div. of State Police, 293 AD2d 154; Matter of Hall v Town of Henderson, 17 AD3d 981, 5 NY3d 714.) III. Plaintiffs have no statutory right to counsel or union representation under Civil Service Law § 75 (2) for purposes of critical incident reviews. (Matter of Ward v Chesworth, 125 AD2d 912, 69 NY2d 610; Matter of Brusco v Braun, 84 NY2d 674; Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563.) IV. Troopers have no constitutional right to counsel or union representation in a critical incident review. (People v Mitchell, 2 NY3d 272; Brewer v Williams, 430 US 387; Kirby v Illinois, 406 US 682; People v Hawkins, 55 NY2d 474, 459 US 846; Arrington v County of Dallas, 970 F2d 1441; Miranda v Arizona, 384 US 436; Chavez v Martinez, 538 US 760; Garrity v New Jersey, 385 US 493; Lefkowitz v Turley, 414 US 70; People v Avant, 33 NY2d 265.)
   OPINION OF THE COURT

Chief Judge Kaye.

This appeal by the Police Benevolent Association (PBA) and five state troopers seeks a judgment declaring that troopers have a right to counsel or union representation in “critical incident reviews.”

A “critical incident” is defined in the State Police Administrative Manual, in part, as action by a trooper that results in death or serious injury to the trooper or another person, or discharge of a firearm. After every critical incident, the Division of New York State Police conducts both a criminal and an administrative investigation to ascertain whether the troopers complied with criminal statutes and Division rules. Representation rights during those investigations are not at issue on this appeal. Before any criminal or administrative investigation occurs, however, the Division dispatches a critical incident investigation team, which obtains written and oral statements from the involved troopers. The purpose is promptly to provide the Superintendent with accurate information regarding such significant events both for timely reporting to the Governor, the public and the media, and for the Superintendent’s own oversight of police operations. It is this initial inquiry that constitutes the “critical incident review” now before this Court.

Until some time in 2001, both the PBA and the Division assumed that a trooper’s collectively bargained right to representation during administrative interrogations (which may lead to discipline or removal) applied to critical incident reviews. That Collective Bargaining Agreement (CBA) section provided, in relevant part:

“In all cases wherein a member is to be interrogated concerning an alleged violation of the Division Rules and Regulations which, if proven, may result in the member’s dismissal from the service or the infliction of other disciplinary punishment upon the member, the member shall be afforded a reasonable opportunity and facilities to contact and consult privately with an attorney of the member’s own choosing and/or a PBA troop representative before being interrogated. An attorney of the member’s own choosing and/or a PBA troop representative may be present during the interrogation, but may not participate in the interrogation except to counsel the member” (CBA § 16.2 [A] [8]).

Apparently around 2001-2002, the Division believed a different CBA section applied to critical incident reviews. That section provided:

“Occasions will arise when there is a need for inquiry into a member’s official actions or activities either as a principal or as a witness so that there will be a recording of facts, for the protection of the member or of the Division, or to rebut, explain or clarify any allegations, criticism or complaints made against a member of the Division. Under such circumstances members may be requested and are expected to properly respond and if requested, submit written memoranda detailing all necessary facts. Such memoranda will not be considered as admissions against self-interest in evidence submitted in a disciplinary proceeding under Rule 3 of the Rules, unless the member was offered the representation to which the member is entitled in an interrogation pursuant to paragraph 16.2A (8) below” (CBA § 16.1 [D]).

In May 2001, plaintiff Trooper Matthew Taney was involved in a high-speed automobile accident, resulting in the death of a civilian. At the hospital, the critical incident officer (CIO) required Taney to submit a memorandum detailing his actions, and prevented his union delegate from participating in the interview, telling Taney that, based upon other witnesses’ accounts of the accident, he was not the potential target of discipline. As a result of the investigation, the PBA filed a grievance under the CBA and an improper practice charge with the Public Employment Relations Board (PERB) challenging the Division’s change in practice. After the grievance was denied, the PBA and the Division arbitrated the dispute. On July 5, 2002, the arbitrator found no violation because, when the Division denied Taney’s request, the CIO told Taney that he was absolved of any responsibility for the accident, and thus he could not have believed that he was subject to discipline.

The following week, several troopers surrounded a house in which a double-homicide suspect had barricaded himself, ultimately resulting in an exchange of gunfire and the suspect’s death. The critical incident review team arrived at the scene and interviewed the troopers, including the five who had fired shots, denying their requests for representation. Afterward, plaintiff Trooper Kurt Schafsteck, along with the PBA, filed a grievance, alleging a violation of the CBA, the Administrative Manual and past practice. In the arbitration that followed, the arbitrator determined that by failing to give the troopers assurance that they were absolved of wrongdoing, or by not permitting them to consult with counsel or union representatives, the Division had violated the CBA. Supreme Court confirmed the award, and the Division did not appeal.

Between filing and determination of the Schafsteck grievance, the Division restated its critical incident review policy. While a trooper could have counsel or a union representative present for questioning, private conversations prior to the critical incident interview would not be permitted; moreover, any compelled statements would not be shared with criminal investigators or a district attorney until the trooper was absolved of any criminal liability.

Some time later, the Division again restated its policy. Before a critical incident review, the investigating team would have to inform the trooper to be questioned that he or she would be “expected to respond to . . . questions and/or submit memoranda detailing all necessary facts”; that the trooper was not being given representation to which he or she would be entitled under the CBA if this questioning were an administrative investigation; and that the trooper was being offered use immunity for compelled statements or memoranda. Additionally, any statements by the trooper could not be used in disciplinary proceedings as admissions against interest.

Responding to PBA concerns, the Division in August 2005 further separated the critical incident review process from administrative investigations examining possible disciplinary infractions: critical incident review personnel could not be the same personnel who conducted the administrative investigation, and administrative investigative personnel would not have access to critical incident memoranda or other information derived from the review.

In January 2006, the PBA, Taney, Schafsteck and three troopers who had also been denied counsel or union representation during a critical incident review commenced this action for declaratory and injunctive relief claiming that the Division’s restated critical incident review policies violated Civil Service Law § 75 (2) and the troopers’ constitutional right to counsel. On September 20, 2006, Supreme Court granted plaintiffs’ summary judgment motion, concluding that, at a minimum, the revised protocols violated the troopers’ statutory right to counsel because, at the time of the critical incident review, the trooper was a potential subject of disciplinary action. The Appellate Division, on July 26, 2007, reversed on the ground that plaintiffs lacked standing to bring the action, and dismissed the complaint. This Court dismissed the plaintiffs’ appeal as of right and granted their motion for leave to appeal.

Decisions in two related cases provide additional backdrop for the present appeal. First, in 2005, as a result of improper practice charges lodged by the State against the PBA arising from attempts to negotiate a new CBA, PERB determined that trooper disciplinary matters were not subject to collective bargaining because Executive Law § 215 (3) vests sole disciplinary authority in the State Police Superintendent (Matter of State of New York [Div. of State Police], 38 PERB ¶ 3007 [2005]). On December 27, 2006, Supreme Court (Stein, J.) affirmed PERB’s 2005 determination, concluding that the “express language of Executive Law § 215 (3) evinces a ‘plain and clear’ legislative intent to vest the Superintendent of the State Police with the authority over police officer discipline, effectively removing the subject of discipline from collective bargaining” (Matter of Police Benevolent Assn. of N.Y. State Troopers, Inc. v State of N.Y. State Pub. Empl. Relations Bd., 39 PERB ¶ 7013 [2006]).

Second, in 2006, the PBA asserted improper practice charges concerning representation rights during critical incident reviews. In response, the Division—in addition to arguing that critical incident reviews were not related to discipline and thus trooper representation rights during those reviews were subject to collective bargaining—applied the rationale of PERB’s decision in the context of critical incident reviews. Specifically, the Division argued that, if critical incident reviews were in fact related to discipline, they were prohibited subjects of bargaining. The PBA rejoined that, if critical incident reviews were related to discipline, then troopers had a right to representation under Civil Service Law § 75 (2).

After PERB concluded that critical incident reviews were related to discipline (see 39 PERB IF 3023 [2006]), Supreme Court (Devine, J.) in 2007 annulled PERB’s decision and held that the critical incident review was not related to discipline within the meaning of Executive Law § 215 (3) but rather was part of the process leading up to the decision whether or not to discipline, and therefore a mandatory subject of collective bargaining (Police Benevolent Assn. of N.Y. State Troopers, Inc. v New York State Pub. Empl. Relations Bd., 40 PERB If 7003 [2007]). Two months later, the Appellate Division dismissed plaintiffs’ present complaint, holding that,, given the remoteness of possible criminal or disciplinary sanctions, plaintiffs lacked injury-in-fact necessary for standing.

While the Taylor Law (Civil Service Law § 200 et seq.) requires public employers to bargain in good faith concerning all terms and conditions of employment (Matter of City of Watertown v State of N.Y. Pub. Empl. Relations Bd., 95 NY2d 73, 78 [2000]), when legislation commits police discipline to the discretion of local authorities, as a matter of public policy, discipline is a prohibited subject of collective bargaining (Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]). Other terms of employment, so long as statutes or public policy do not forbid their negotiation, can be negotiated in collective bargaining (Matter of Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 NY2d 660, 666 [1990]). Indeed, statutory and due process rights may even be surrendered during collective bargaining (Matter of New York City Tr. Auth. v New York State Pub. Empl. Relations Bd., 8 NY3d 226 [2007] [statutory right to exclusion of statements made during disciplinary questioning without representation may be surrendered in collective bargaining]; Matter of Fortune v State of N.Y., Div. of State Police, 293 AD2d 154, 158 [3d Dept 2002] [troopers waived due process right to a hearing through collective bargaining]).

This Court now assumes standing for purposes of the present appeal, and affirms the order of the Appellate Division dismissing the complaint.

The Division argues that critical incident reviews do not relate to discipline, and thus concedes—as plaintiffs do not dispute— that critical incident reviews are subject to collective bargaining.

Here, although the parties negotiated a right to representation for administrative interrogations, they failed to enumerate any such right with regard to critical incident reviews. The CBA provides that during “administrative interrogations,” which can lead to dismissal or other punishment for violations of the Division’s rules and regulations, troopers have a right to counsel (CBA § 16.2 [A] [8]). The assumption that this right also attached to critical incident reviews, held by both parties prior to the Division’s change in policy in 2001—while perhaps disadvantaging the PBA—did not, however, amount to a negotiated right. In fact, a close reading of CBA §§ 16.1 and 16.2 should have informed the PBA of the potential applicability of the former section, which provided for no bargained-for right to counsel when a trooper is “expected to properly respond and if requested, submit written memoranda detailing all necessary facts” to account for the trooper’s official actions (CBA § 16.1 [D]). Compared to section 16.2 (A) (8), section 16.1 (D) is conspicuously silent on the right to counsel.

Because the PBA agreed to a right to counsel only during administrative interrogations, it necessarily waived any representation right troopers may have had during critical incident reviews. We note, finally, that if the PBA disagreed with the Division applying CBA § 16.1 (D) to critical incident reviews, it was obligated to, and did, submit that grievance to binding arbitration (CBA § 15.4).

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Judges Graffeo, Read, Smith, Pigott and Jones concur; Judge Ciparick taking no part.

Order affirmed, with costs.

      . Plaintiffs claimed that, some time after the critical incident reviews, either a statement or a memorandum was used in further investigations. None of the individual plaintiffs, however, alleged that he faced disciplinary or criminal sanctions as a result of the critical incident reviews.

      . The PBA filed a notice of appeal from this judgment but has since abandoned the appeal.

      . The Division filed an appeal but has advised the Court that, if we conclude that critical incident reviews are not discipline—as we now do—the Division will withdraw its appeal.