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9/20/04 Contract Update
Support Shanagher 2005
HOW QUICKLY WE FORGET
Local Communities at Risk!
Hey Guys and Gals...
State begins prison fence project
GREAT MEADOW -- BEHIND THE BARS
NEW YORK SUPREME COURT QUEENS COUNTY
FORMER CORRECTIONS OFFICER AT SING SING CONVICTED
Arthur Kill Correctional Facility
Prisons begin filling vacancies

As I look back over my short history on this planet, as well as in the field of unions, I have found one thing in common… how quickly we forget.
Just over the past few years, from the first World Trade Center bombing in 1993, to the devastation of 9-11-2001, people have a way of forgetting the reality of what they felt during these crossroad times in history.
I remember a great sense of pride when President Reagan lobbed a missile into a tent in Libya and took out the son of the leader of that country.
I remember a great sense of pride when "That Wall" finally came down, largely in part due to the actions of a president who had greater vision than ever credited for.
And finally, I remember the great sense of unity we felt on 9-13-01 when George W. Bush stood atop the remnants of the World Trade Center and said “I hear you…and soon the people who did this will hear you too.”
Elections are very partisan by nature, but we cannot miss the opportunity to do what is right for our country and our organization.
What is right you might ask?
I believe that it is right for our country to stand for values, life and freedom.
I believe that it is right for our membership to stand for those among us whom are least capable, and most of all, I believe that it is time that we stopped making the electoral process about who is our friend and whom we like the best…what ever happened to who is the best for the job?
There have been many partisan discussions on this venue as well as “the other net” and the website, however, just like the current election:
IT’S ABOUT OUR VERY SURVIVAL AS AN ORGANIZATION AND A COUNTRY.
During the past few months, I have had plenty of reflection time on the tiers of Coxsackie, and the same variable comes to mind…what did the first administration do so wrong?
I saw a strong and independent organization, which mission was to bring about a new sense of professionalism in the field of corrections.
An organization which sought to take care of our members, from chief to individual, and make possible things which were only dreams a few short years before.
I saw an organization which had garnered the respect of the elected officials of New York, as well as nationwide recognition for our great strides.
I saw an organization which had vowed to once again become “our brother’s keeper”, and the resources provided to enable us to be the best that we were capable of.
During my 4+ years on the road, I had the opportunity to work with a great many of our members, either in providing resources for your local boy scouts troop, little league team, or favorite charity, to bringing one of the many programs we created to all corners of the state.
Whether I spent my time in the LOB, seeking to make life a little better for our membership, writing grants to fund our programs, or attending your local PTA meeting, all was done with one purpose in mind:
To bring about a new sense of professionalism and belief in ourselves, as well as conviction in whom we are, and what we are about.
Much of that has been lost in the minds of a Correction Officer in today’s department. We are by nature, very cynical and unwittingly become a part of the negativity in which we are constantly surrounded. We have been beaten down by zeros and disrespect from our administrations, and are now at the point where the only things which we look forward to are the next contract and our paydays.
Although it took this far to get to it, my point is a simple one:
I ask you all once again to become involved…involved in your future, your fate, and your organization. Now is a time which will be looked back on as a crossroads…both nationally, as well as for our organization.
Take time to become a part of the process, vote your conscience, and educate yourselves on the issues around you.
Strive to break the circle of negativity you are enveloped in by becoming involved in COPS CARE, or your favorite local charity, and show your friends and neighbors just who the Correction Officer next door is, and what we are all about.
During the past few months, we have been looking for the sense of outrage in the dissolution of the relationship between NYSCOPBA & COPS CARE, but have failed to see any.
Sure, we hear occasionally that “its really messed up what they (Harcrow & Company) did”, and “how can they take away something that has been so beneficial to not only the kids, but our organization”,
It is not enough to lament the thoughts of “what could have been”, moreover, it is time to say: WHAT ARE WE GOING TO BECOME.
Please don’t let COPS CARE become a “casualty of strife and apathy”, help us continue our mission to bring the Correction Officer out from behind the walls and back into the community where they belong.
Please don’t let NYSCOPBA become a failed experiment in futility, because independence works…the proof is in the first 3 ½ years.
Most importantly, stay the course, and believe in the future: AND PLEASE MAKE TIME TO VOTE NOVEMBER 2ND and MAY 24TH
Fraternally,
David Martin
As a resident, parent, and home owner in Oneida County I feel obligated to make you aware of a potentially dangerous situation that is developing in our community and communities around the state. Marcy Correctional Facility recently achieved, through mandatory transfer of 20 Officers, the lowest staffing level since the early 1990’s. Since these transfers have taken place Marcy Facility has run at staffing levels well below the minimum staffing levels set in the early 1990’s by the state even though the Marcy Correctional Facility is over 20% above its intended capacity. The only apparent reason is the attempt to save money on overtime costs. State Correctional facilities are dangerous places to be for every person inside of the fence and we, as Correction Officers and your neighbors, do the very best we can to keep all as safe as possible. Staffing cuts in the area of security are not unlike playing Russian roulette. Proper staffing allows not only the proper running of the jail, but it also allows better control of volatile situations that develop in these volatile environments. At least at Marcy, our safety as well as yours is at risk, and it is apparent that neither the Department of Correctional Services nor the Local Administration cares.
Department of Correctional Services has been increasing the practice of minimizing the numbers of Correction Officers on duty inside of the state’s correctional facilities. It was recently reported to the legislature that NYS is closing 600 Correction officer posts per day statewide. The simple explanation of this is the state is trying to save money on overtime. As tax payers and Community members we need recognize the necessity of saving money. We also must recognize the impact of the safety of the every individual inside of the facility along with the surrounding communities. There are plenty of ways to save money in the Department, such not supplying low cost housing to the Superintendents and other Management positions. Some Local Superintendents are living in oversized homes having all expenses paid by the state while making in excess of $100,000 a year. Administrative positions could be scaled back or combined rather than cut security positions. Front line security positions should never be cut because of the danger it creates but right now they are the first positions cut. If you have family or friends that work as cooks or school teachers or maintenance workers at a correctional facility, closing of officers posts endangers them. If you have a family member that is incarcerated in a state facility, closing officers’ posts endangers them. If you live in a surrounding community to a state correctional facility, closing of officer posts endangers you.
Simple statistics can show you that correctional facilities are becoming more dangerous than they have in years. There are presently 66,000 inmates housed in facilities in New York. This total number includes approx 7,400 that are receiving care for mental disorders. Of these 7400 mentally ill inmates incarcerated in this state, we have 1850 that have to live in isolation 23 hours per day. New York State has the largest number of inmates infected with AIDS/HIV in the country. Factor in Gang violence, Hepatitis C, and the amount of drugs that filter in to our facilities it is beyond irresponsible to consider security staff cuts below minimum levels. The State of New York is loading a gun and pointing it at our communities. We can only hope that no one pulls the trigger!
NYSCOPBA Representative
John Gavin
Trenton NY
ust wanted to address something I saw in a recent posting regarding history.
There is a quote which I cannot remember whom to attribute to, but I am sure that you will all recognize "Those of us who choose not to learn from history will be doomed to repeat its mistakes" (rough version after a rough day...lol)
Even in our own little world (as compared to the big picture), we have the practice of revisionist history taking place. This was first made popular by the Clinton clan...no not Dannemora...lol.
Now we see it on our own sight and in our membership...
Lets try to set the record straight.
Firstly, it is my belief, as is being confirmed on an almost daily basis by my membership, that Rick Harcrow and company were elected not by mandate, but by apathy.
I hear on a continual basis statements like "gee, looking at what is going on now, Brian didn't do such a bad job" or "I can't believe what is going on...we are stuck in the same rut as we were with Council 82".
My first question is always "did you vote, and if so, did you vote for a change, if you don't mind my asking?"
Consistently, I am hearing either "No, I was happy with what was being done and figured they (the first administration) would be a shoe-in." or "I didn't realize it was going to be that important", or even better, "I was kind happy with what was going on, but I was still mad about the contract so I voted for a change".
We are not going to re-hash the contract debate, if you haven't read it already, check back to the archives.
My point is simple, History does speak for itself:
For those whom have forgotten, here are some of the accomplishments of the first three years.
Cleanup and streamlining of the grievance process, along with the highest percentages of wins witnessed in years
18 1/4 % in dollars over the last contract
-triborough language for incentive $$$
-sweeping changes in articles 7&8 of the contract
-SLED
-retirement contribution cessation (after 10 years)
-sick leave incentive program
Staffing changes which effected hundreds of man-hours for our officers within the facilities.
13 pieces of legislation accomplished
Binding Arbitration
A working relationship with the department
Respect within the legislative community
And with thanks to Denny Fitzpatrick as well for the following
Image Enhancement Program
Scholarship Program
Catastrophic Program
Retirement Award Program
Valor Award Program
Retiree Chapter
Sponsorships for kids and groups in our communities
Emerald Society Pipe Band
There are countless other smaller things, and probably some which I have left out (unintentionally) however, the point is made...I STILL REMEMBER the correct history and will continue to pass it down to anyone who will take time to listen.
As far as road blocks, there were obstructionist in the first three years as well and these accomplishments were STILL MADE.
That is an excuse, and is unacceptable...and the people who pay the bills deserve better, and more importantly, an answer.
The answer for the lack of production from the current administration is that they are the roadblocks!
They did not ask for or accept any advice from anyone within the organization when they took over and have not to date.
They will not accept any way of doing things besides their own, and will not accept direction from the people whom elected them, in fact, they show disregard and contempt for the members.
Just try to get a call back when you are criticizing their actions...good luck.
One thing can be said for the previous administration...they were involved with the daily operations of the organization from top to bottom.
Brian and Billy may have not known each and every detail of what was going on, but they had a good working knowledge of what each and every staffer was up to and the direction was clear.
Bottom line is that they took the time to ask if they didn't know, they sought out advice from the membership, and they were ACCESSIBLE if you had a complaint. That is why they succeeded in such a grand fashion, and made me proud to be a CORRECTION OFFICER again.
I too cannot wait for the elections, and believe me...I will vote my conscience...and vote to remove the roadblocks...and establish a new board which will lead us back onto the track of prosperity, decency, and most importantly the track we deserve.
Fraternally
Dave Martin
- Razor wire barrier being built in Elmira in response to July 2003 escape of 2 killers.
By BROOKE J. SHERMAN
Work has started to build two fences topped with razor wire around most of the Elmira Correctional Facility, completing the state's work to make the prison more secure after two murderers escaped in July 2003.
The 2,205-foot-long barrier will consist of an 8-foot inner fence closest to the prison and a 16-foot outer fence, with a 20-foot no-man's land in the middle, said James Flateau, spokesman for the Department of Correctional Services.
There will also be improved lighting near the fences as part of the $7.5 million project, Flateau said.
The fences will stretch across the front of the maximum-security prison at the top of the hill and follow portions of the side walls, but it won't surround the facility, Flateau said.
Motion sensors and a closed-circuit television system will be installed to monitor the no-man's land and the 16-foot fence, he said.
Work will be complete next year, he said.
The fence will not stretch around the rear of the prison because there is already a 30-foot-high wall there with guard towers, Flateau said.
Construction has already begun at the north end of the prison, with the building of a temporary parking lot near the prison's power house, Flateau said.
The temporary lot will provide employee parking during the construction of the fence, which will block access to some of the parking spots in the lower lot along Davis Street and Bancroft Road.
Timothy A. Vail and Timothy G. Morgan hammered their way through the ceiling of their cell on July 7, 2003, crawled through the ventilation system and, with a collection of tied bedsheets, lowered themselves from the roof to the ground. They were caught in Horseheads the following day.
Elmira City Councilman John Corsi, R-3rd District, a vocal proponent for the fence, said he was pleased to finally see construction plans at City Hall this week. But he said he was frustrated with the difficulty the city had in getting information from the state.
"What's discouraging is that we just don't have a very good cooperation or contact from the state with the city," Corsi said.
A community board that was formed to meet with state officials on the planning of the fence was never consulted, Corsi said, calling that disappointing.
Flateau was unapologetic about the lack of community input.
"I don't know that there are too many people in city government with experience with building secure perimeters," he said.
Flateau said the plan should put the community's mind to rest.
"If I was living across the street from the prison, (the fence) would seem both aesthetic and functional to me," he said.
The city is just learning of the full scope of the state's fence plans, which include the acquisition of 15 acres of property on the west side of Bancroft Road, across the street from Woodlawn Cemetery and behind the prison. The property was eyed for expansion for the city-owned Woodlawn Cemetery.
The city is still waiting for a purchase offer on the 15 acres, City Manager Samuel F. Iraci said.
Iraci also complained that the city was kept in the dark through much of the planning process.
"From the very beginning, we wanted to strike a reasonable balance between what is necessary for them to do ... for security means, but not use too much land," Iraci said.
Life on the inside This story was published 10/11/2004 by the News desk It was a routine medical call at Great Meadow Correctional Facility the morning of Aug. 20.
Or so it seemed.
An inmate complained of trouble breathing. Mark Rocque was one of three officers who went to the cell to help.
The prisoner, though, was not really ill.
"As soon as the cell opened, he came flying out like Mike Tyson," Rocque recalled.
He threw a punch at Rocque, missing his head, but connecting with the sergeant standing next to Rocque.
He was fortunate and escaped serious injury. But had the inmate had a homemade weapon, it could have been much different.
No one knew why the prisoner turned violent. For officers like Rocque, who has worked in state prisons for 15 years, you learn to stop asking why.
A prisoner assaults a staff member at Great Meadow every week or so, according to state statistics. Danger lurks around every corner in the old, sprawling prison building, where the denizens are murderers, rapists, robbers or criminals with mental illnesses.
Most of the time, the inmates outnumber officers nearly 10-to-1.
Yet day after day, the tight-knit crew of correction officers charged with minding this unpredictable population comes to work in one of the largest correctional systems in the world, the threat of not only violence but communicable diseases like HIV, hepatitis and tuberculosis heavy on their minds.
It's a job that wreaks havoc with their emotions, takes a toll on their families and can take years off their lives.
"It's no picnic," said Wilson Chapman, a correction officer at Great Meadow who has worked as an officer for 23 years. "People don't understand it."
"I've seen this job drop people to their knees," said Great Meadow officer Tom Jones, also a 23-year veteran.
Misconceptions
Great Meadow Superintendent Gary Greene has been working in the state prison system for 32 years. He has learned the system inside and out, but he believes the public knows little of what takes place inside a maximum-security prison or what corrections officers do there.
Chief among the misconceptions is the belief that prisoners spend their days in their cells, leaving only for meals and recreation.
Recent visits to Great Meadow found the bowels of the 93-year-old prison alive with inmates, all clutching small, white paper passes that give them permission to go to work, school or the infirmary. As they move from cell block to cell block or pass the central rotunda, they flash their passes to show they should be out of their cells.
The prison's inmate-run furniture factory turns out thousands of chairs and desks for schools in New York, and its soap factory produces soap used in state offices.
A small city of nearly 1,700 inmates has plenty of medical needs, so the morning finds plenty of activity outside the infirmary.
Some inmates are handcuffed or shackled, while others sit by themselves. A number of apparently mentally ill inmates are waiting their turn. One handcuffed and shackled prisoner wears a hospital gown and has a far-off look in his eye. His hair is long and greasy and looks like it hasn't been washed for days. Two officers hold onto him, one on each arm, braced for a struggle.
They have only their hands to defend themselves with.
Many people mistakenly believe correction officers carry weapons, Greene said.
The only times they are armed, though, is when dealing with a violent inmate or when taking inmates off prison grounds for transfers or court appearances.
'Do their time'
Greene said most inmates know the drill: Move when told to move. Keep quiet when asked to keep quiet. Follow orders.
Most don't cause trouble.
"Ninety-nine-point-nine percent of them just do their time and move on," he said. "There's really just a small core of inmates that may be unpredictable."
"They don't want it any harder than the rest of us," said Great Meadow corrections officer Chris Hyde, an 18-1/2 year veteran.
All are felons, and most are serving sentences for violent crimes. Those in for nonviolent crimes typically wind up in a maximum-security prison because of disciplinary problems in lower security prisons.
Greene said he's aware of some inmates doing their fourth or fifth stints at Great Meadow.
Much of an inmate's day is spent in a 5-foot-by-8-foot cell. Some are double-bunked two to a cell.
Some cells have 10-inch, black-and-white televisions that inmates can buy from the prison commissary and then pay for a watered-down cable television connection.
They can only listen to music through headphones. One prisoner whose radio was blaring 1970s funk got a warning from Greene as he escorted a reporter on a tour.
Those inmates in their cells occasionally call for assistance from officers assigned to their block, looking for answers to questions such as when they're headed to the infirmary or a certain program.
"C.O., I'm supposed to go to the doctor!" one prisoner yelled repeatedly, until officer Craig Granger explained it wasn't yet time for his appointment.
Inmates get an hour of recreation a day in a sprawling, paved outdoor recreation yard ringed with guard towers. Pickup basketball was the game on this August day, with several courts hosting games. Other inmates jogged or walked, while dozens sat around on tables and chairs, chatting.
When they aren't taking their recreation, prisoners go to classes, some in academic subjects, others to learn trades.
Those who don't work making furniture or soap find work in the mess hall, laundry room, maintenance department or at many other jobs helping the prison run.
The prison also runs treatment programs for those with drug problems, for sex offenders and on other crime-related issues.
"There's quite a myriad programs these guys have access to," Greene said.
In the midst of it all are the officers who escort prisoners here and there, address their needs and try to keep order.
Few moments are quiet.
"It's like a small city here. It's never dull, there's always something going on," Greene said
The SHU
In prison, it's called the "SHU," pronounced "shoe," short for special housing unit.
It's the area where inmates who misbehave wind up, confined to their cells 23 hours a day. They are allowed out of their cells one hour a day for recreation in special areas.
Inmate advocates have criticized this practice of solitary confinement, in particular in a report last year from the watchdog group Correctional Association of New York.
But correction officers and prison administrators consider the SHUs and additional maximum security cells built over the last decade valuable tools to keep inmates in line.
"The availability of these beds sends the message that misbehavior will immediately result in inmates being locked up," said James Flateau, spokesman for the state Department of Correctional Services.
Great Meadow has 69 SHU cells.
One of the inmates in a SHU cell last month was the man who briefly escaped from minimum-security Mount McGregor Correctional Facility. Many land there after disciplinary problems like possession of drugs, homemade weapons or other contraband
Greene said prisoners are surprisingly ingenious. For instance, Great Meadow was locked down for several days in August after one inmate managed to have a visitor smuggle in a high-strength plastic knife.
"These guys have 24 hours a day to try to figure out ways to get one over on us," Greene said.
Security
A sergeant at Great Meadow told a reporter during a recent visit that a passing English bicyclist mistook the prison for a castle and asked when he could take a tour.
He hadn't made it to the front door. If he had, he would have quickly realized Great Meadow is no castle.
Visitors can't get in to the waiting room unless they're buzzed in by officers manning the first security checkpoint.
Visitors are all but strip-searched to pass through the sensitive metal detector, which picks up minute pieces of metal in shoes.
"This is a max security jail. It's not a Boy Scout camp," officer Robert Mueller quips to a griping visitor.
Get through the metal detector and get a sticker identifying you as a visitor.
It's no ordinary name tag, though. It's made of a special paper that quickly biodegrades so it can't be re-used.
Then comes the hand stamp, in a special ink that can be picked up only by ultraviolet scanner used to lessen the chance that an inmate could sneak out by posing as a visitor.
Those wishing to meet Greene have to get through three locked gates and doors just to get to the administrative building.
The clanking of the gates as they slam shut echoes through the corridors of the old prison.
"Pretty scary to hear that gate close behind you, isn't it?" said Bob Hartung, union chief sector steward at the prisoner.
WHAT THEY MAKE
New York state corrections officer salaries:
The gates slammed behind me
COMMENTARY
By DON LEHMAN
There's no sound like the front gate of a maximum-security prison slamming and locking behind you.
You know you're not getting out unless someone lets you out.
It's scary when you realize you're locked in with some of New York's most incorrigible criminals, many of whom have taken lives before and wouldn't hesitate to do so again.
Recent visits to Great Meadow Correctional Facility in Fort Ann for a series of articles on the life of corrections officers gave a rare glimpse inside a closed world.
The state Department of Correctional Services graciously allowed a reporter and photographer to tour the prison and talk to officers and other staff members to get a picture of what transpires inside the towering walls.
It was an eye-opening experience.
I had never been inside a maximum-security prison and I had many misconceptions.
Foremost on that list was the belief that inmates are always in their cells. That's far from true.
I was surprised how many prisoners roamed the halls on their way to classes, the infirmary, work in the prison factory or other programs.
Many go from place to place without escort, handcuffs, leg shackles or any other restraints.
At one point, Superintendent Gary Greene and I walked alone in a dimly lit hallway, dozens of green-uniformed inmates filing past us with no officer in sight.
After a few seconds, I spotted the correction officer minding the group at the tail of the column. But before I saw him, as prisoners stared (some menacingly) at us, I asked myself, "What am I doing here?"
My fears weren't allayed much as we toured cell blocks.
Inmates stared blankly out from their cells, watching the visitors walk by. Most cell blocks have one officer stationed at a desk to mind 40 or so prisoners.
By the end of my first visit, which lasted about two hours, I felt more comfortable.
The prisoners and staff seemed to co-exist remarkably well. The atmosphere was much lighter and calmer than I'd thought it would be.
Most of the prisoners just want to do their time and move on, officers told me.
No one had attacked me, but I heard a number of stories from officers about inmate-on-staff violence.
One of the parameters of my visit was that I couldn't go in the prison's Special Housing Unit, where the inmates who cause problems -- the "worst of the worst," one guard said -- are held.
I did get to see their cagelike recreation "yards," though.
I was also amazed at the number of women inside.
Eleven female correction officers work in the prison, women among hulking rapists and murderers.
One female officer, Debbie Curcio, talked about how the prisoners treat her no differently than any other officer.
"Everyone's treated the same here," she said nonchalantly.
But women who work in a number of different programs also roam the halls, identification badges clipped to their clothes as they go to and from classes or other offices inside the walls. They seemed at ease.
Being inside gave me a newfound respect for what the officers inside a prison do.
Having covered the police beat here for over a decade, I've heard plenty of stories about prisoners stabbing guards, throwing bodily fluids at them or generally making life as difficult as possible.
I've also gotten to know quite a few officers, as have most residents of the area.
Who around here doesn't know a correction officer?
And I've seen them in action, escorting prisoners into Washington County Court for court cases focusing on prison assault or weapons possession.
But until you go into a facility like Great Meadow, and see how it all works, you just don't know.
Beyond bars and brawn
Mental health care can improve safety, state officials believe
FORT ANN -- The staff at Great Meadow prison is on the cutting edge of the state's efforts to improve care given to mentally ill inmates, which officials believe will make the prison safer.
The prison will soon be home to a new cellblock that will offer inmates with mental health problems more services.
The number of inmates needing mental health care in New York prisons has risen steadily in recent years.
Last year, 12 percent of prisoners in the state prison system received mental health care, a 59 percent rise from eight years earlier, said James Flateau, a spokesman for Department of Correctional Services.
The department's spending on mental health programs has more than tripled over the past eight years, including more training for prison staff and the assignment of more state Office of Mental Health staff members to the prison system.
"Mental health issues are going to be big for us in the future," said Gary Greene, Great Meadow's superintendent.
The 38-bed unit that will open at the Comstock prison next spring as part of a pilot program that officials believe will not only provide better care for prisoners, but make the facility safer for officers and inmates, Flateau said.
It will be used for inmates with disciplinary problems that prison staff deem to be the result of mental illness. Otherwise, the inmates would be sent to the prison's special housing unit, where they are locked in their cells 23 hours a day.
Greene said the inmates will have access to more counselors and more staff with special mental health training.
A similar, 32-bed unit will also open in maximum-security Sullivan Correctional Facility in Sullivan County. It will be used as a second phase for those who have completed the first phase at Great Meadow, Flateau said.
Richard Harcrow, president of the union that represents correction officers, said the union believes officers need more training in mental health issues.
"We have limited training in mental health issues," he said. "We need to get more people with this kind of training."
Experts debate why the number of inmates needing mental health care has risen.
Some say that many mentally ill people put on the street with the closing of state-run mental institutions in the 1980s and early 1990s wound up in state prison.
Flateau, though, said that the state institutions were closed beginning in the 1970s, so many of those let out would be in their 50s now. Only 9 percent of the state prison system's inmates are older than 50, he said.
Glens Falls, page A4 (Full version)
Waiting for trouble
Guards stay on edge at Great Meadow, although attacks have fallen
Wilson Chapman has seen his share of violence during a 23-year career as a state correction officer.
One incident sticks with him, though.
It was the day in 1996 that an inmate knocked him unconscious in the Great Meadow Correctional Facility recreation yard during a melee.
"That was scary, to wake up and realize I had been knocked out," he said.
Attacks like the one that led to Chapman seeing stars aren't unusual.
Great Meadow had about one assault on a staff member every seven days last year, down about half from eight years ago. Similar drops have been seen across the state prison system.
The 568 inmate assaults on staff in New York prisons last year was the fewest since 1981, when the state prison population was about a third of what it is now, said James Flateau, a spokesman for the state Department of Correctional Services.
Corrections officials say there are a number of reasons for the drop.
Flateau said an increase in the number of maximum-security cells has freed up special housing unit space for those who misbehave. Inmates put in prison special housing units are locked up for 23 hours, and the use of such punishment has deterred would-be troublemakers, he said.
"The availability of these beds sends the message that misbehavior will immediately result in inmates being locked up," he said.
Flateau said a statewide push to prosecute more prison crime and a crackdown on gang activity have also played a part.
Greene said the law that made it a felony to throw bodily fluids at officers, enacted in 1996, has helped.
So-called "throwing incidents" have dropped by 45 percent since 1995, according to Flateau.
"That was fantastic for this department," Greene said. "It is one of the most disgusting things that can happen to a person."
Kevin Kortright, a Washington County assistant district attorney who specializes in prosecuting prison crimes, said he believes law changes and better technology for searching inmates and visitors have been effective.
But both he and Greene said the county's policy of prosecuting prison crimes has played a part in reducing problems in Washington County's prisons.
"The inmates know that in Washington County they'll get consecutive prison sentences for dangerous contraband or assaults," he said.
In some ways, life as a correction officer in a medium-security jail can be more dangerous than at a maximum-security facility.
Most of the state's medium-security prisons house inmates in dormitories, which don't have cells for locking up combative or troublesome prisoners.
In 1992, Washington Correctional Facility -- the medium-security prison across Route 22 from Great Meadow -- was the scene of serious unrest. Eventually, a team had to be sent in to quell an inmate strike.
"Maximum-security cell space is at a premium, so they take inmates that used to be in a max and put them in a medium(-security prison)," said Richard Harcrow, president of New York State Correctional Officers and Police Benevolent Association, the union that represents state corrections officers.
State statistics for assaults on staff, though, show Washington has annually averaged about one-tenth the number of assaults on prison staff of Great Meadow.
Officers at Great Meadow say they know trouble can come at any time, and they have to be ready.
"Most of this job is just waiting for something to happen," said Sgt. Anthony Rodriguez.
Veteran officers use their experience to stop trouble before it happens. Gary Greene, superintendent of Great Meadow, said many can sense the change in atmosphere when trouble is brewing.
Harcrow pointed out that several correction officers in New York prisons had been seriously injured by inmates this year, including three who have been stabbed.
On July 24, an inmate in Attica strapped a 7-1/2-inch-long homemade knife to his arm and stabbed an officer five times.
In another case, a prisoner threw hot cooking oil in the face of an officer.
"A lot of times the public doesn't realize that these kind of things happen," Harcrow said.
BY THE NUMBERS
Assaults on staff by inmates, Great Meadow Correctional Facility
Assaults on staff by inmates in state prisons, statewide
Source: State Department of Correctional Services
One of the guys
Great Meadow's superintendent worked his way up
By DON LEHMAN
FORT ANN -- Great Meadow Superintendent Gary Greene has a good rapport with the correction officers who work for him.
That's because he's one of them.
Greene has worked his way up through the state Department of Correctional Services, starting as a corrections officer at Green Haven prison in Dutchess County in 1971.
The Queensbury native has been the superintendent of Great Meadow for 15 months, capping a career of working his way up through the system, from line officer to administrator.
Greene has worked in prisons around the state, from Coxsackie to Auburn to Marcy.
Greene walks the cellblocks and hallways of the aged prison with the confidence of an experienced officer. He seems to know the name of every employee in the sprawling complex as he escorts a reporter around. Inmates stop him to talk.
"This is kind of home to me," he says.
Relationships between prison administrators and the union that represents correction officers in New York aren't always warm and fuzzy.
But Bob Hartung, the union chief sector steward for correction officers at Great Meadow, said Greene's experience as an officer helps.
"We get along good with him. He worked his way up through the ranks," Hartung said.
Greene said he's seen the state prison system, and Great Meadow, change significantly for the better over the years.
In recent years, "unusual incidents" involving inmates -- including such things as weapons possession and assaults on staff -- have dropped dramatically at Great Meadow. The number of inmates being confined to their cells for disciplinary reasons has also dropped, he said.
The average officer at Great Meadow has nearly six years of experience, he said, and few officers transfer to other prisons because it's considered a good place to work.
Greene's hobbies include following NASCAR racing and tinkering with his Chevrolet Corvette but he says he has no plans to make more time for them anytime soon by retiring.
"I still like coming to work," he said. "This is a pretty good job. It's been good to me."
Something else to do
Jobs on the outside can be a stress-reliever
Need a carpenter, electrician, plumber or roofer?
You can find them all at Great Meadow Correctional Facility.
And that doesn't include the maintenance officers who keep the antiquated prison up and running.
One way correction officers at a maximum-security prison deal with the stress of being surrounded by felons all day is to seek part-time work on the side.
Many turn to trades they have learned over the years.
"You can find someone to do anything here, plumbing, carpentry, roofing," said Tom Jones, an officer for 23 years.
They say it gives them an outlet and keeps them connected to the community because their full-time job in the prison tends to isolate them.
Jones is among those who run a part-time contracting business on the side, JW Homes, which he says he plans to expand when he retires in a few years.
Many in the prison say they seek out their fellow correction officers for work when they have the opportunity.
"Officers support each other whenever they can," said Bob Hartung, union chief sector steward for corrections officers at Great Meadow.
That camaraderie also shines through in social settings. Officers often prefer socializing with each other because they understand the rigors of the job and the problems they encounter at home.
Gary Ouillette, a former Massachusetts correction officer who runs a program to help law enforcement officers cope with their stressful occupations, said it's common for correction officers to seek work outside, even though they often are required to put in overtime or work holidays in the prison.
"They need to find a way to channel that negative energy, and for a lot of them working outside the prison is a way to do that," Ouillette said.
Richard Harcrow, president of the New York State Correctional Officers and Police Benevolent Association, said he believes many seek side jobs because correction officer salaries in New York are below average.
But James Flateau, spokesman for the state Department of Correctional Services, said the nationwide average maximum salary for correction officers is $40,607, while the average officer in New York makes $41,652 after just five years of service.
Show no weakness
"The job of a New York state correction officer is not for the weak or meek," a
union official said. It is one that weighs on the guards.
Think your job in the office is stressful?
Try moving your desk to the end of a cellblock with dozens of violent felons in cells -- some two to a cell -- just feet away from you.
That's where state correction officers like Bill Rogoza, Craig Granger and Dennis Scuderi spend their workdays, locked inside the myriad gates of Great Meadow Correctional Facility in Comstock.
There's no easy day inside the walls of a maximum security state prison.
It's a negative environment where men are caged for much of the day. Some spend their hours plotting ways to sneak in contraband, make a homemade weapon or attack a rival inmate.
Who's angry? Who has a communicable disease? Who's feuding with whom?
It's a job where there's "no end product," said 15-year veteran officer John Pruiksma.
It's a vocation that takes a toll on those who choose it.
Correction officers and the union that represents them say they have higher rates of divorce and shorter life expectancy than those in other careers, though data supporting those claims is scarce.
The last two years, 43 correction officers in New York have died, at an average age of 48.8 years, according to the New York State Correctional Officers and Police Benevolent Association, the union for state correction officers.
Their deaths came through natural causes, accidents and suicides.
Those figures do not include those who retired but died younger than the average U.S. male, pointed out Bob Hartung, union chief sector steward at Great Meadow. The average lifespan for a man in the United States is 71.8 years.
Hartung said most officers know of co-workers who died while employed in the prison or shortly after they retired.
"The job of a New York state correction officer is not for the weak or meek," he said.
Gary Ouillette, a former Massachusetts correction officer and nationally recognized expert on the effects of stress on law enforcement officers, said some studies have found the divorce rate among officers is double that of the general public.
"They're in an entirely negative environment for eight to 16 hours a day. That takes a toll," Ouillette said.
On the road
The trouble at home can start for officers during their first months on the job.
Most new correction officers start their careers at facilities far from home, wherever there are openings.
With the economy downstate healthier than upstate, jobs often open sooner at prisons closer to New York City, far from the upstate locales most officers call home.
It can take years for an officer to make his way to a prison where he wants to be.
For instance, Greene said, it typically takes about six years for an officer to find an opening at Great Meadow. That can take a toll on the family.
"A lot of guys have trouble with relocation," said Granville resident Mike Jones, an officer for 8-1/2 years who now works at Great Meadow.
Before he made it home to Great Meadow, however, Jones worked at Green Haven, Sing Sing and Bedford Hills prisons, all of them downstate.
Newer officers are often required to work night shifts and holidays since they have less seniority -- which can also lead to problems at home.
Others have to work extra hours to make ends meet, said Richard Harcrow, president of the New York State Correctional Officers and Police Benevolent Association.
"A lot of officers have to work overtime to make a living," he said.
He said in 2001-02, the last year he worked at Attica Correctional Facility, he worked 50 extra days.
Other issues weigh on the minds of officers.
Communicable diseases like HIV, hepatitis and tuberculosis can be found throughout the inmate population.
The negative public perception of the job of correction officer, and the public's lack of understanding of the difficulties of the job, is also difficult for officers, said Ouillette, the law enforcement stress expert.
Don't take it home
The key to keeping prison life from causing trouble at home is to leave what happens at work behind.
"If you don't, it will wreck your home life. It will eat you up," said Great Meadow correction officer Tom Somich. "Some people can do it, some can't. Everyone deals with it differently."
"Once you leave here at 3, you try to go home and put it aside," said 17-year veteran Shawn Dougherty of Fort Ann.
But that's easier said than done, said Harcrow, the union president.
Many spouses of correction officers have trouble understanding why their husband or wife is distant or in a bad mood, said the wife of a Great Meadow officer, who spoke on the condition her name not be used.
They don't know the issues that officers deal with on a daily basis, like the threat of communicable disease or violence by prisoners, she said.
She works in a non-security position at the prison, so she said she has a better understanding of what her husband does than most wives of correction officers.
"I've talked to a lot of wives and they ask me questions and I'll tell them, and they'll say 'He never tells me that,'" the woman said. "For a wife who has no idea what's going on, a lot of things run through her mind. I don't think the wives know what the husbands have to deal with here."
The most stressful situations are when officers are exposed to inmates where diseases can be spread, diseases that could then be given to family members. Many officers don't like to talk about those situations and tend to keep the uncertainty of the situation bottled up inside, she said.
"Sometimes you don't know you have it. All it takes is a little cut on your cuticle and an inmate bleeds on you or bodily fluids get on it," she said. "That's something a lot of people worry about."
Different jobs
Not all state correction officers have the same job description, said James Flateau, spokesman for the state Department of Correctional Services.
Some work on posts where they have little or no direct contact with prisoners, like those who man the guard towers or the gates and control rooms that inmates can't reach.
Those jobs seem to be less stressful.
"COs who work in non-inmate contact jobs suffer a lot less stress than officers working inmate contact posts," Flateau said.
How well an officer is able to withstand the rigors of the job is also dependent on "overall lifestyle" issues, he said.
"All that said, we believe CO is the toughest job title in the state of New York," Flateau said.
Help is out there
A number of places offer officers a place to turn for help in dealing with emotional problems or stress-related issues.
The goal is typically to ensure that officers having trouble get the assistance they need, whether for substance abuse, stress-triggered health problems or other counseling needs.
Bob Hartung said the union offers assistance through a number of programs and counseling services.
The state corrections department also makes efforts to direct those with stress-related problems to the agency's Employee Assistance Program, Flateau said.
Ouillette's program, Respond Law Enforcement Assistance Program, contracts with a number of corrections departments and law enforcement unions to provide help as well.
One of the problems is that officers work in an environment where asking for help is a sign of weakness, Ouillette said.
And showing weakness is the last thing a person working in a prison wants to do.
"Prison is a place where many believe you can't show weakness," he said.
Corrections officers seeking help with stress-related problems can contact Ouillette's program through his Web site, www.respondleap.com BY THE NUMBERS
State Correction officers inmate population ratio (approx.) attrition rate for officers
Westchester County District Attorney Jeanine Pirro announced that former
Sing Sing Correction Officer Quangtrice Wilson, DOB 9/14/72, of 920 Trinity
Avenue, New York, New York pleaded guilty today to the top count of an
indictment charging her with Bribe Receiving in the Third Degree and one count
of Attempted Escape in the First Degree in Westchester County Court. Wilson is
scheduled to be sentenced on October 28, 2004. She is the first defendant in
this case to plead guilty. Wilson pleaded guilty to accepting several thousand
dollars in bribes to assist in planning the escape of inmates, Nicholas
Zimmerman aka Puzz, DOB 2/18/76, currently of Shawangunk Correctional Facility,
Walkill, New York, and Steven Finley, DOB 7/7/77, currently of Sullivan
Correctional Facility. Wilson provided detailed information on the physical
layout of Sing Sing Prison, its operation and security procedures as well as
information on officers� uniforms and employee identification cards. In
addition, Wilson supplied contraband including three cell phones to these
inmates. The inmates, Nicholas Zimmerman and Steven Finley have been indicted
and charged with twenty-one counts, including Attempted Escape in the First
Degree. Both inmates were immediately transferred from Sing Sing. The case stems
from an investigation that began on May 7, 2003, when it is alleged that Tony
Dubose, DOB 12/7/78, of 1240 Sutter Avenue, Brooklyn, New York, attempted to
enter the Sing Sing Correctional Facility posing as a �new transfer�
corrections officer. Dubose had been offered $15,000 in cash to carry out the
escape plan by the other participants in the scheme. This defendant wore a
fraudulent corrections officers� uniform and carried counterfeit
identification credentials, including a fake correction officer badge. In
addition, he carried a canister of aerosol pepper spray which is illegal to
posses inside the facility. Dubose�s attempt was foiled when officials at the
facility questioned his identity and his transfer claim. While Dubose was able
to flee before being apprehended, he left behind a bag containing fake uniform
items and the pepper spray. Corrections authorities immediately locked-down the
facility and the ensuing investigation revealed two additional escape attempts
to break-out two long-term inmates being housed at Sing Sing. Dubose is charged
with Promoting Prison Contraband in the First Degree. In addition to the May 7, 2003 attempt, it is alleged that on April 24, 2003,
Jatanya Belnavis, DOB 5/8/75, of 240-06 142nd Avenue, Rosedale, New York, and a
male accomplice (as yet uncharged) entered Sing Sing Correctional Facility
wearing phony correction officers� uniforms and wigs. The pair carried a bag
containing fake badges and identification cards for the inmates they intended to
break-out of the facility. In addition, they possessed loaded 9mm and .38
caliber handguns. The attempt was aborted when Belnavis suffered a panic attack
and had to exit the facility before the escape plan could be carried out. On May
6, 2003 another alleged attempt was aborted when the defendants, Belnavis,
Alexander and possibly others realized that they were late arriving to the
facility and had missed the shift change. In all three attempts, in order to
carry out the escape plan, the defendants hoped to utilize the confusion of a
change of shift when approximately 300 correction officers enter and exit the
Sing Sing facility. Barry Alexander aka Sidiq, DOB 2/16/69, of 17 East 17th
Street, Brooklyn, New York, and Latrina M. Boyd, (DOB 2/28/77) of 120 West 138th
Street, New York, New York, have been charged with Promoting Prison Contraband
in the First Degree for their roles in allegedly assisting the attempted
break-outs. Boyd is alleged to have assisted in the escape planning as well as
obtaining the bogus identification, badges and uniform items. Alexander, who
assisted in the planning of the escape attempts, was allegedly present at the
facility during the break-out attempts and brought a motorcycle to the vicinity
of the correctional facility in the Village of Ossining to be used by the
inmates to flee the scene once outside of the facility. However, on the morning
of May 7, 2003, prior to the escape attempt that day, an alert Ossining police
officer stopped Alexander and Dubose in the vicinity of the Sing Sing facility
while they were moving the motorcycle. The officer questioned the two males and
obtained NYS driver license and other pedigree information from them. The next
day, after learning of the attempted escape at the facility, Ossining police
contacted investigators of the New York State Police and advised them of the
suspicious activity observed the day before and provided them the names and
pedigree information of the individuals that had been stopped and questioned.
This information was the break investigators were looking for. The investigation
was conducted by the Public Integrity Bureau of the District Attorney�s Office
in conjunction with the New York State Police and the New York State Department
of Correctional Services Inspector General�s Office. Bribe Receiving in the
Third Degree and Promoting Prison Contraband in the First Degree are both class
�D� felonies punishable by a maximum of 7 years in state prison. Attempted
Escape in the First Degree is a class �E� felony and is punishable by a
maximum of 4 years in state prison. In compliance with Disciplinary Rule 7-107A of the Code of Professional
Responsibility, you are advised that a charge is merely an accusation and that a
defendant is presumed innocent until and unless proven guilty.
Saturday, November 06, 2004 When Edwin Rodriguez began working at the Arthur Kill Correctional Facility
in 1979, he wasn't afraid.
But 25 years later, staffing levels have dropped to an all-time low in the
medium-security prison in Charleston, union officials claim, leaving Rodriguez
and his colleagues fearing for their lives on every shift.
"Back then posts were filled and overtime was high as needed," said
Rodriguez, a New Springville resident. "Security spoke, and the money was found
to deal with security issues, as opposed to excuses."
Rodriguez was one of dozens of Arthur Kill correction officers who took to
the street across from Borough Hall in St. George yesterday to protest what they
call an unsafe staffing situation.
"If something goes wrong, we don't have enough people to respond,"
Rodriguez said. "They want to save in their pocketbooks and that's the bottom
line."
STATEWIDE PROBLEM
Richard Harcrow, president of the New York State Correctional Officers and
Police Benevolent Association, the correction officers' union, said staffing
problems are not isolated to Arthur Kill, but exist at all state Department of
Correctional Services prisons.
"We've got skeleton crews running the prisons," Harcrow said. "The thin
blue line is stretched as thin as it could be."
At Arthur Kill, 306 officers -- up from 303 last year -- guard between 900
and 1,000 inmates, including murderers, rapists, child molesters and drug
dealers nearing the end of their sentences.
In some cases, one officer is left to guard 60 inmates and in the yard, two
officers may watch up to 300 inmates at once. Posts are often closed mid-shift,
Harcrow said, sometimes leaving one officer in the yard. Also, shifts are not
always covered when officers are on vacation or out sick.
The end result, Harcrow said, is increased incidents of violence between
inmates and against officers.
Harcrow pointed to several violent episodes at Arthur Kill he said were
directly related to staffing, including an attack on an officer in April in the
prison dormitory; an assault by an inmate last year on three correction officers
and a civilian employee in the infirmary, and the slashing of one inmate by
another during a fight last year in a prison TV room.
ABSENTEEISM CITED
James Flateau, a Correctional Services spokesman, denies staffing is at an
inadequate level, blaming the uncovered shifts on the officers
themselves.
"Overtime and staffing at Arthur Kill prison would cease to be significant
issues -- for taxpayers and employees -- if its correction officers simply came
to work," he said.
Flateau said Arthur Kill officers will work an average of 165 days this
year, while their counterparts across the state are projected to work 205 days,
with officers at some prisons logging up to 218 days.
Overtime paid to Arthur Kill officers reached $1.3 million from April
through October of this year, Flateau said, compared to $965,789 during the same
period last year.
"State taxpayers have paid considerable overtime at Arthur Kill, much of it
occasioned by staff absences," he said.
Arthur Kill "remains a safe and secure prison," he said, citing two
inmate-on-staff assaults through last month, compared to four last year and 10
in 2000.
Last year, there were five inmate-on-inmate assaults, a decrease from 11 in
2000.
Flateau did have some praise for the correction officers.
"The largest difference between this year and last is the professionalism
of the staff," Flateau said. "While contraband incidents totaled just six last
year, staff vigilance has already contributed this year to the seizure of
contraband in 20 incidents."
Still, the officers say they feel unsafe and place the blame squarely on
the agency for not increasing staffing levels.
"You fear for your life because it is not safe," said Glen O'Gilvie of
Stapleton, a correction officer at Arthur Kill since 1982.
"Anything can happen. There's no telling if you're going to come back out
and the inmates know this. They know we are understaffed."
By Amaris Elliott-Engel / The Citizen
After years of hiring freezes that brought complaints from correctional
officers, the state prisons this fall have quietly started filling long-vacant
position, including a number of posts at Auburn Correctional Facility and Cayuga
Correctional Facility in Moravia.
Following the attrition of 1,144 state Department of Correctional Services
staff statewide through retirement, disabilities, disciplinary actions and death
over a four-year period, transfers by DOCS staff into vacant posts resumed at
the beginning of September.
As part of those transfers, 13 positions were filled at the
maximum-security Auburn Correctional Facility and 10 positions were filled at
the medium-security prison in Moravia.
DOCS officials said the freezes were needed because the inmate population
dropped, but the union representing the guards argued the state went too
far.
"The whole process has been a very painful process," said Grant Marin, the
western region vice president for the New York State Correctional Officers and
Police Benevolent Association, the union representing corrections officers.
"It's not a process I ever want to go through again. There have been recent
hires, which is the step in the right direction. Adding new officers
unequivocally helps us out."
The number of inmates in New York's prisons ballooned through the
mid-1990s, and temporary DOCS positions were created to match the double-bunking
required at many facilities.
But the state's inmate population has dropped by 6,800 since 1999, making
double-bunking unnecessary and the temporary staff extraneous, DOCS officials
said.
Beginning in 2000 correctional officers faced a freeze ordered by the
Department of Correctional Services commissioner on their transfers into 36
medium-security and minimum-security prisons. Typically correctional officers
are able to select preferred facilities based on their seniority level and can
transfer into open vacancies.
Those 36 facilities were ordered to downsize staff levels to match inmate
levels. Maximum-security prisons were not included in the freeze because only
minimum-security and medium-security prisons were targeted for the downsizing at
the time.
"We maintained at least minimum staffing levels (at the targeted
minimum-security and maximum-security prisons). That was the whole point of the
freeze was that we had too much staff," said Jim Flateau, a DOCS
spokesman.
Cayuga Correctional Facility in Moravia was one of the facilities targeted
for downsizing, and 420 bunks were vacated.
"The rule was that inmates had to go before staff," Flateau said. "So that
at any time, Cayuga and other facilities had at least enough staff."
At the same time, 123 temporary excess officers transferred from the Cayuga
facility into permanent positions at the Five Points maximum facility in Seneca
County, which opened in 2000.
"It was serendipitous of the officers at Cayuga that Five Points was
opening," Flateau said.
With the lifting of the freeze this year, Flateau said some officers
temporarily assigned to Cayuga were able to transfer closer to home, leaving
positions those open.
Despite the transfer freeze being lifted, DOCS is still down 307 officers
statewide, but technically there are 503 permanent posts vacant because 195
officers have chosen not to leave their excess temporary positions, according to
DOCS.
The freezing measure to eliminate excess staff out of the system led to the
affected 36 facilities being "cut bare bones" in recent years, Marin
said.
Marin said that during the freeze many facilities were kept below the
levels guaranteed in the state budget. He said the union wants the state to fill
the 307 vacant positions because safety is at risk.
"They will close multiple posts in facilities and just hope nothing
occurs," Marin said. "The more officers you have in a facility the less likely
management can engage in high risk post closing activities.
"We want the ability to protect our staff and protect inmates that we're
charged with the care of. We're also interested in protecting the public; we
don't want someone convicted of a serious crime getting out of a
facility."
Of those DOCS staff leaving temporary positions and not having the
seniority to get into their most desired facility, some have left for permanent
vacancies that were not necessarily their first desire. Others have gone back to
their permanent holds, the initial prison they were assigned into.
While DOCS employees may not be working in their ideal prison, Flateau
said, the freeze was designed to prevent layoffs.
"We ensured every single employee had an option," Flateau said.
Please sign My Guest Book - I like to know my Visitors ACOAP
* All States DOCS * Facility
Addresses * Forgotten Cop
Star-Gazette
[email protected]
GREAT MEADOW -- BEHIND THE BARS
By DON LEHMAN
Source: state Department of Correctional Services.
[email protected]
NEW YORK SUPREME COURT QUEENS COUNTY
Present: Honorable, ALLAN B. WEISS ]AS PART 2
Justice
NEW YORK STATE
CORRECTIONAL OFFICERS
AND POLICE BENEVOLENT ASSOCIATION, INC., Index No:
14585104 RICHARD
HARCROW, Pres., CARL CANTERBURY,
Exec. V.P.,
MITZIE VILSAINT,V.P., GRANT Motion Date: 8!1$104
MARIN, V.P., ANTHONY FARDA,
V.P. DANIEL
STUART, Tres., RICHARD ATKINS, Member Motion Cal. No: 33
and
on Behalf of all others similarly
situated
Petitioners against
HINMAN STRAUB, P.C., WILLIAM SHEEHAN, Esq., RICHARD CASAGRANDE, Esq.,
LAWRENCE FLANAGAN JR., V.P. and DIANE DAVIS, Rec. Secy.
Respondents
The following papers numbered 1 to 74 read on this motion by petitioners for a
declaratory judgment and preliminary injunctive relief and counterclaim by
respondents for declaratory judgment
PAPERS
NUMBERED
Order
to Shaw Cause Petition Affidavits Exhibits .... 1 12
Memorandum of
Law in Support 13
Verified Answer Affidavits Exhibits 14 36E
Memorandum of Law in
Opposition to Petition 37
Replying
Affirmations Affidavits Exhibits 38 73 Memorandum of Law in
Reply _ 74
Upon the foregoing papers it is ordered that this petition and
counterclaims are granted in part and denied in part in accordance with the
annexed Memorandum Decision dated October 18, 2004 signed herewith.
Dated: October 18, 2004
SUPREME COURT: QUEENS COUNTY IAS PART 2
MEMORANDUM
NEW YORK STATE CORRECTIONAL INDEX NO. 14585104
OFFICERS AND
POLICE BENEVOLENT
ASSOCIATION, INC., etc , et al. BY: WEISS, J.
against DATED: OCTOBER 18, 2004
HINMAN STRAUB, P.C., et al.
In this
action for a declaratory judgment, petitioners seek an order
granting a preliminary injunction and declaring the amendments to the
Certificate of Incorporation, Constitution and Bylaws to be null and void.
Petitioner, New York State Correctional Officers and Police Benevolent
Association (Association) is a labor union comprised of New York State
employees in security services units, whose 23,000 members are located in
nearly every county. This case involves a power struggle for control of the
union pitting the union President, Richard Harcrow, the Executive Vice
President, Carl Canterbury, Vice Presidents, Mitzie Vilsaint, Grant Marin,
Anthony Farda, Sector Stewart, Richard Arkins, and Treasurer, Daniel
Stuart, petitioners herein, against respondents, Lawrence Flanagan, Jr.,
a.Vice President of the union, and Diane Davis, the Recording Secretary of
the union. Respondent law firm of Hinman Straub has represented the
Association since 1998, and respondents, William Sheehan, and Richard
Casagrande, are partners in the law firm.
Hinman Straub and the
Association entered into a retainer agreement
effective May 1, 2003, whereby
the law firm would be paid an annual
retainer of $2,450,000.00 for the
services of regional counsel, including
lobbying services in the annual
amount of $150,000.00. At stake in this
action is the command of a large
union, a lucrative retainer agreement and
the union " s ability to provide
continuous legal services to its members
who are or may become parties to
grievances, law suits and other matters
which require legal representation.
Ordinarily the judiciary will not interfere in the internal affairs of a
not
for profit corporation, including a labor union, absent a showing of
fraud
or substantial wrongdoing
see Matter of Gilheany v Civil Serv. Employees
Assn., 59 AD2d 834 [1977];
but see Simoni v Civil Service Employees
Association, Inc., Local 1000,
AFSCME, AFL CIO, 133 Misc 2d 1 [19861).
However, it is clear that the
instant controversy could paralyze the
operation of this 23,000 member
public employee union, to the detriment of
its members and the general
public. Consequently, declaratory relief is
appropriate.
At present, the Association s Executive Board consists of 10
members, who
are sharply divided six to four over the choice of counsel and
the running
of the union. Petitioners through the actions of several members
of the
Executive Board sought to discontinue the legal services provided by
Hinman
Straub, with the exception of lobbying services, and to engage the
law firm
of Cronin & Byczek, LLP, as General Counsel to the Association.
Respondents, in response, engineered a purported vote during an Executive
Assembly session to amend the Certificate of Incorporation so that certain
duties and responsibilities of the Executive Board, including that of
hiring and firing legal counsel,
2
were terminated or
diminished, and the duties and responsibilities of the
Executive Assembly
were enlarged.
The law firm of Hinman Straub which had a valuable retainer
agreement with
the Association, is a party respondent in this action and
represents the
respondents. The law firm of Cronin & Byzcek represents the
petitioners in
this proceeding and seeks to maintain its recent appointment
as the law
firm for the Association.
Neither Hinman Straub nor Cronin&
Byczek are neutral advocates for their
respective clients and each has a
substantial pecuniary interest in the
outcome of this litigation.
The
Association adopted its Constitution and Bylaws on August 18, 1 398.
Article
IX(A) and (B) of the Constitution and Bylaws provides that "[t]he
Executive
Board shall be the managing body of the Association and shall
consist of a
President, an Executive Vice President, a Treasurer, a
Secretary and seven (7) Vice Presidents..." and that "[t]he Executive Board
shall have general supervision and control over the day to day affairs of
the Association, and for the implementation of policies adopted by the
Executive Assembly. Except as otherwise provided in this Constitution and
Bylaws, all decisions of the Executive Board shall require a vote of the
majority of the Executive Board members at a meeting. Each Executive Board
member shall have one (1) vote. A quorum of the Executive Board shall be
seven (7) members." The Executive Board is required to meet "at least once
monthly at the call of the President or by a majority of the Executive
Board_" (Article IX[C]).
In August 2002, the Association was
decertified as the bargaining
representative for the police unit. The
Executive Board Vice President
position that was held by a member of the
police unit is vacant and cannot
be filled under the terms of Article IX(F)
of the Constitution and Bylaws.
The Executive Board, therefore, now has ten
members, rather than the eleven
stated in the Constitution and Bylaws. Each
member of the Executive Board
has one vote, and each member is directly
elected by the Association's
general members (Article V).
Sector
Stewards are elected by each sector and the sector stewards elect
one steward
from that sector as, chief sector steward (Article VI). The 10
members of
the Executive Board and the 83 chief sector stewards together
constitute the
Executive Assembly. Article X(D) of the Constitution and
Bylaws provides
that "jt]he Executive Assembly shall be the governing body
of the
Association with respect to its overall policies, aims and purposes"
and
that meetings shall be convened no less than five times a year, with an
interval of no less three months between Executive Assembly meetings. The
"Executive Assembly shall be charged with aiding the Executive Board and
the Collective Bargaining Committee in the development of contractual
strategies, language and monetary proposals, and any other issues having a
direct impact on the membership at large. The Executive Assembly shall have
the authority to interpret this Constitution and Bylaws and all
controversies thereunder. Any interpretation adopted by majority vote of
the Executive Assembly in good faith shall be binding upon all members,
ofcials and officers" (Article X[Dj).
Article XV sets forth a
detailed procedure for amending the Association" s
Constitution and
Bylaws. In general, proposed amendments are voted on by
the Executive
4
Assembly, and if adopted by a two thirds vote, the entire membership of
the
Association is entitled to vote in favor or against the amendment.
On
May 19, 2004, the Executive Board held a meeting, which was attended by
President, Richard Harcow, Executive Vice President, Carl Canterbury,
Treasurer, Daniel Stuart, Vice Presidents, Lawrence Flanagan, Lyndon
Johnson, Paul Mikolajczyk and Mitzie Vilsaint. Recording Secretary, Diane
Davis, and Vice Presidents, Anthony Farda and Grant Martin attended via
telephone. Also present was an attorney from Hinman Straub and two other
guests from Hinman Straub. Linda Cronin, a partner with Cronin & Byczek was
also present, although this is not reflected in the Executive Board minutes.
At this meeting a motion was made to rescind or repeal the proposed 2004
budget for the Association and to adopt in its stead the original
treasurer' s proposed budget for 2004, to eliminate three union leave
positions, to eliminate certain events, and to eliminate a regional office,
due to a deficit of approximately $500,000. Petitioners Canterbury, Stuart,
Farda, Marin and Vilsaint all voted in favor of the motion. VicePresident,
Lawrence Flanagan, and Recording Secretary, Diane Davis, respondents
herein, and Vice President, Paul Mikolajczyk, voted against the motion and
Vice President, Lyndon Johnson, was absent. The minutes do not record a
vote by the President Richard Harcow and the minutes do not indicate
whether he was present at the time the vote was taken.
A second motion
was made to terminate the legal services of respondent
Hinman Straub, P.C.,
and to retain Cronin & Byczek, LLP as General Counsel
to the
Association. The minutes of the meeting state that at the reading of the
second motion, Flanagan and Mikolajczyk left the room and that Davis who
had been attending via a telephone conference was no longer connected.
Board Members Canterbury, Stuart, Farda, Marin and Vilsaint voted in favor
of the motion to terminate the legal services of Hinman Straub. The minutes
state that "by ruling of counsel" Johnson was absent and Flanagan, Davis
and Mikolajczyk had abstained. The minutes do not state who made this
°ruling". The minutes do not record a vote by President Harcow and do not
state whether he was present at the time this vote was taken.
After
this meeting, respondents Lawrence Flanagan and Diane Davis, as
well as
Executive Board members Lyndon Johnson and Paul Mikolajczek met
with Hinman
Straub, and sought legal advice concerning the quorum
requirement, and the
vote to terminate Hinman Straub as legal counsel, as
well as other issues.
The Executive Assembly held a two day meeting on June 16 17, 2004.
Petitioners allege that on June 16, 2004, during a recess and outside of
the
presence of a
majority of the Executive Board and outside of the presence of
a.majority
of the
Executive Assembly, respondents Flanagan and Davis met
inside a conference
room and
with the assistance of respondents Hinman
Straub, Sheehan and Casagrande,
created an
amendment to the Certificate
of Incorporation. Respondents assert that at the
Executive Assembly session
on June 16, 2004, a motion was made by Chief Section
Steward, Louis
Giampaglia, to amend the Certificate of Incorporation, as
regards the
powers and authority of the Executive Board and Executive Assembly, and that
President Harcow ruled the motion out of order. Respondents allege that the
Executive Assembly then voted to overrule Harcow, that Harcow attempted to
recess the meeting, that Davis called for a voice vote on the amendment and
commenced a roll call vote, and that Harcow succeeded in turning off the
microphone and ordered the stenographer to stop taking minutes and stop
recording the meeting.
It is asserted that 54 of the 93 members of the
Executive Assembly who were
present voted in favor of the amendment to the
Certificate of
Incorporation. The amended Certificate of Incorporation was
filed with New
York State Division of Corporations on June 16, 2004, and
states that the
provision added "is intended to clarify certain internal
procedures by
adding Article 10 to the Certificate of Incorporation, the
full text which
reads as follows:
"10. The Executive Board, as the board
of directors of the corporation,
shall manage the day to day affairs of the
corporation subject, however, to
the authority of the Executive Assembly,
comprised of the elected
representatives of the members chosen in accordance
with the Bylaws, as
follows:
(a) The Executive Assembly shall have
final authority with respect to all
budgetary matters, including the
adoption of the corporation, s budget.
(b) The Executive Assembly shall
approve all contracts, purchases or
expenditures having an aggregate value
of Twenty Five Thousand ($25,000) or
more.
(c) The Executive Assembly
shall have final authority with respect to the
approval of professional
agreements and the retention of professional
advice and services.
(d)
The Executive Assembly shall have final authority with respect to the
hiring
and dismissal of all employees, consultants and staff.
(e) The actions
and proceedings of the Executive Assembly shall not be
subject to annulment
or supersession by the board of directors."
The amended certificate
states that the undersigned were authorized to
execute and file the
Certificate of Amendment by "the concurring vote of a
majority and quorum of
the Executive Assembly comprised of the
representatives of the members and
exercising all the rights, powers and
privileges of members pursuant to
Section 603(d) of the Not For Profit
Corporation Law..." and is accompanied by an affidavit executed by Flanagan
and Davis.
The Executive Assembly on June 17, 2004, in response to a
dispute as to
what constitutes a quorum for the Executive Board adopted the
following
resolution: "...that the Executive Assembly interprets Article
IX(B) of the
Constitution, which states that "a quorum of the Executive
Board shall be
seven (7) members to mean that a quorum of the Executive
Board shall be
seven (7) members". In addition, on June 17, 2004, the
Executive Assembly
unanimously passed a motion "to direct our retained
attornies (sic) to
bring any appropriate legal action necessary against any
Executive Board
members who fail to follow the direction of the Executive
Assembly".
Respondents also assert that the Executive Assembly passed a
resolution
stating that "a representative of our retained law firm, Hinman
Straub,
P.C., shall be present at all Executive Assembly meetings and shall
be
available to members of the Assembly for advice and counsel as
requested."
Respondents now allege that as the Certificate of Incorporation
had been
amended, the Executive Board lacked the authority to terminate
Hinman
Straub's retainer and to replace this law firm with another law firm.
Petitioners commenced this special proceeding on June 25, 2004 by way of
8
an order to show cause and also sought a temporary restraining order
enjoining respondents from taking any actions based upon the amended
Certificate of Incorporation. The court signed the order to show cause,
granted the temporary restraining order, and set a return date of August
18,
2004, which was necessitated by the summer recess. The respondents
thereafter sought to accelerate the hearing date in order to modify or
vacate the temporary restraining order and after a hearing held for that
purpose on July 9, 2004, the court fashioned a new temporary restraining
order, which was placed on the record. The issues raised by the parties
regarding the language and provisions of the temporary restraining order
have now been resolved and will not be revisited here.
Petitioners seek
to have the court declare the June 16, 2004 amendment to
the Certificate of
Incorporation and attempted amendment to the
Constitution and Bylaws null and void. Petitioners assert that the June 16,
2004 amendment to the Certificate of Incorporation usurped the
responsibilities and powers of the Executive Board and illegally
transferred these responsibilities and powers to the Executive Assembly, in
violation of Article X of the Constitution, and the provisions of the Not
For Profit Corporation Law. Petitioners further seek to enjoin the
respondents from taking any further actions based upon the amended
Certificate of Incorporation.
After the within action was commenced,
Richard Harcow, Carl Canterbury,
Daniel Stuart, Grant Marin, Anthony Farda
and Mitzie Vilsaint attended a
meeting of the
Executive Board on July 7,
2004 and unanimously passed a motion to terminate
Hinman Straub, s legal
services retainer, with the exception of lobbying
services. It was
provided that Hinman Straub would remain on retainer through August $,
2004, in order
9
to provide the members with continuous legal
services. These six members of
the Executive Board also unanimously passed a
second motion to retain
Cronin & Byczek, L.L.P, to provide full legal
services, with the exception
of lobbying. In addition, they voted to cancel
the August 2004 meeting of
the Executive Assembly. On .July 7, 2004, these
six members of
the Executive Board sent a letter to Hinman Straub
stating that its legal
services had been terminated for cause. The motion to
terminate Hinman
Straub's services, as well as the letter of termination,
specifically cited
the assistance provided by Hinman Straub in obtaining and
filing amendment
to the Certificate of Incorporation and its conduct at the
Executive
Assembly sessions of July 19 27, 2004.
Petitioners assert that
as a majority of the Executive Board members were
present at the meetings of
May 19, 2004 and July 7, 2004 the actions taken
at these meetings were
proper and valid. Respondents assert that as fewer
than the required quorum
of seven were present, petitioners actions were
illegal, and without effect.
Respondents served an answer to the petition and interposed seven
counterclaims. The first counterclaim seeks a declaration to the effect
that the amended Certificate of Incorporation is valid and in full force
and effect, and that as the Association I s governing body, the Executive
Assembly has the final and ultimate authority for budgetary matters,
employment matters, professional services agreements and the approval of
ail contracts in excess of $25,000.00. The second counterclaim seeks a
declaration to the effect that pursuant to a validly executed retainer
agreement, dated May 1, 2003, and resolutions of the Executive Assembly
dated October 3, 2002 and ,June 17, 2004, Hinman Straub, P.C. is the
general counsel for the Association. The
third counterclaim seeks a
declaration that a quorum of the Executive Board
means that seven members
must be present. The fourth counterclaim seeks to
declare null and void all
actions taken by petitioners in the name of the
Association' s Executive
Board at the meetings of June 15, June 25 and July
7, 2004. The fifth
counterclaim seeks a declaration that this action was
wrongfully commenced
using union funds. The sixth counterclaim seeks to
enjoin the petitioners
and to direct them to follow all motions and
resolutions passed by the
Executive Assembly, including the amended
Certificate of Incorporation. The
seventh counterclaim seeks a declaration
that the petitioners violated the
Association , s Constitution and Bylaws
by commencing this action.
The
first issue to be determined is whether a quorum was present at the
time the
Executive Board acted on May, 19, 2004, and on subsequent dates.
At issue is
whether a quorum consists of six or seven members of the
Executive Board in
light of the fact that the police unit has been
decertified, thereby
permanently reducing the number of Executive Board
members from 1 I to 10.
Not For Profit Corporation Law § 707 is entitled
"Quorum of directors" and
provides as follows:
"Unless a greater proportion is required by this
chapter or by the
certificate of incorporation or by a by law adopted by the
members, a
majorityofthe entire board shall constitute a quorum for the
transaction of
business or of any specified item of business, except that
the certificate
of incorporation or the by laws may fix the quorum at less
than a majority
of the entire board, provided that in the case of a board of
fifteen
members or less the quorum shall be at least one third of the entire
number
of members and in the case of a board of more than fifteen members
the
quorum shall be at least five members plus one additional member for
every
ten members (or fraction thereof) in excess of fifteen."
Here, the
Association's Constitution and Bylaws specifically provide for..
an
Executive Board consisting of 11 members, and
unequivocally states that a
quorum consists of seven members of the
Executive Board. The fact that the
Executive Board now consists of 10
members due to the decertification of one
unit does not affect the number
of members needed to form a quorum. The
Constitution and Bylaws do not
permit the Vice President from the
decertified unit to be replaced by an
individual from any other unit, and do
not permit a reduction in the number
needed to form a quorum. Rather, the
Constitution and Bylaws fix a precise
number of members to form a quorum and
does not utilize a mathematical
formula to determine the number of members
necessary to form a quorum.
Therefore, contrary to petitioners' assertions,
the number of Executive
Board directors needed for a quorum cannot be
reduced to six, using a
proportional formula of 213 of the number of
the members of the Executive
Board, It is noted that although the police
unit was decertified in 2002,
the Constitution and Bylaws was not amended to
alter the number of
Executive Board members necessary to form a quorum. It
is, therefore, the
declaration of this court that seven members of the
Executive Board must be
present at an Executive Board meeting in order to
form a quorum at the time
a vote is taken.
Section 708(d) of the Not For
Profit Corporation Law is entitled "Action by
the board" and provides that
"[e]xcept as otherwise provided in this
chapter, the vote of a majority of
the directors present at the time of the
vote, if a quorum is present at
such time, shall be the act of the board."
A review of the minutes of the
Executive Board meeting of May 19, 2004
reveals that at the time the motion
to "rescind/repeal" the 2004 budgetwas
presented and voted upon, seven
members of the Executive Board were
physically present and an eighth member
was present via a conference call.
Therefore, a quorum was present at the
vote on the budget.
However, at the time the motion to terminate the legal
services of Hinman
Straub was read and taken, only five members of the
Executive Board were
present and actually voted. Diane Davis was no longer
connected and
available via a conference call, and Flanagan and Mikolajczyk
had left the
room where the meeting was held. It is undisputed that Mr.
Johnson was not
present at this meeting. Therefore, as seven members of the
Executive Board
were not present at the time the vote to terminate Hinman
Straub was taken,
a quorum was not present and the decision to terminate
Hinman Straub was
not a valid act of the Executive Board.
The court
rejects the "ruling by counsel" that Flanagan, Mikolajczyk and
Davis
abstained from voting, which is cited in the minutes of the meeting.
Such a
ruling, by an unidentified attorney, was not authorized by the
Association I
s Constitution and Bylaws or the Not For Profit Corporation
Law and,
therefore, is without force and effect.
Petitioners, assertion that Diane
Davis, Larry Flanagan, Lyndon Johnson and
Paul Mikolajczk, deliberately and
consistently absented themselves from
Executive Board meetings in an attempt
to prevent a quorum and stop the
Board from carrying out its duties, is
unsubstantiated. The court notes
that the minutes of the May 19, 2004
meeting reveal that although Flanagan
and Mikolajcyzk left the Board room
for some 40 minutes, they left their
personal belongings in the Board room,
which evidences an intention to
return to the meeting.
The court
recognizes that the issue of which law firm will be the recipient
of a
valuable retainer, worth in excess of two million dollars per year, is
at
the heart of this litigation. Control of the Executive Board of this
23,000
member union was crucial. The possibility that either counsel, for
its own
beneft, influenced the actions of Executive Board members to either
absent
themselves or to force a vote is not inconceivable. Nevertheless,
the court
finds that petitioners, mere allegation is insufficient to
establish
that Board members intentionally and deliberately absented
themselves from a
portion of the May 19, 2004 meeting so as to deprive the
Board of a quorum
necessary to vote on the motion to terminate the legal
services of Hinman
Straub (cf. Gearing v Kelly, 11 NY2d 201 [19621).
As regards the Executive
Assembly, it is undisputed that the Executive
Assembly meeting of June 16
17, 2004 was a highly contentious session. The
question to be decided here
is whether the actions taken by the Executive
Assembly comported with the
provisions of the Constitution and Bylaws and
the provisions of the NotFor
Profit Corporation Law. The Executive Assembly
is purported to have voted to
amend the Certificate of Incorporation. The
amendment clearly was designed
to limit the powers of the Executive Board
and to increase the powers of the
Executive Assembly to include the hiring
and firing of legal counsel. The
paramount issue to be determined is
whether such changes pertaining to the
governance of the Association can be
effectuated by amending the Certificate
of Incoporation, orwhether an
amendment to the Constitution and Bylaws is
required.
Petitioners, argument that only the Executive Board has the
power to select
legal counsel for the Association, is based upon Section
XIX of the
Constitution and Bylaws. This section provides that: "Attorneys
shall be
available to the membership for arbitrations, negotiations,
administrative
agency and state and federal court litigation and other
services, including
disciplinary proceedings, which the Executive Board may
deem necessary,
based upon the guidelines recommended by the Grievance/Legal
Assistance
Committee and adopted by the Executive Assembly." This provision
sets forth
discrete legal services that are .provided to members of the
Association,
and gives the Executive Board the power to determine the
circumstances
under which legal services will be provided to members, based
upon
guidelines that were adopted by the Executive Assembly. This provision,
however, is silent as to which governing body within the Association is
charged with deciding who to retain as legal counsel. However, the retainer
agreement with Hinman Straub was signed by President Harcow, and the
Constitution and Bylaws provides that . the president "with the consent of
the Executive Board, signs all agreements for the Association" (Article
.XVI, section A.4.). The retainer agreement was approved by the Executive
Board and was not presented to the Executive Assembly for its approval. The
Executive Board is charged with running the daily affairs of the union, and
there is nothing in the Constitution and Bylaws that requires the Executive
Assembly to approve a retainer agreement, or any other agreement, that the
president may enter into with the consent of the Executive Board. The
;Executive Board, thus, has the authority to determine who the Association
will contract with, including the choice of General Counsel for the
Association.
Section 801 of the Not For Profit Corporation Law permits a
not for profit
corporation to amend its Certificate of Incorporation
provided that "such
provisions as might be lawfully contained in an original
certificate of
incorporation filed at the time of making such amendment" (N
PCL § 801 [a])
and in particular may "strike out, change or add any
provision not
inconsistent with this chapter or any other statute relating
to the affairs
of the corporation, its rights or powers or the rights or
powers of its
members, directors or officers, including any provision
required or
permitted to be set forth in the by laws ....' (N PCL § 801
[b][3]).
Section 802 of the Not For Profit Corporation Law provides that:
Amendment
or change of the certificate of incorporation shall be authorized:
(1) If
there are members entitled to vote thereon, by majority vote of such
members at a meeting as provided in paragraph (c) of section 613 (Vote of
members)... (b) Notwithstanding any provision in the certificate of
incorporation or by laws, members of a class shall be entitled
to
vote and to vote as a class upon the authorization of an amendment and,
in
addition to __ . ~~ _.___. __ _.___ __._._ __._._.__ _. _ __ ____.___
_ __._
_ __ _. __.______. _ .___ _ _
the authorization of the amendment r.
eq
red by paragraph (a)(1), the amendment shall be authorized by majority
vote
of the members of the class, when the proposed amendment would exclude
or
limit their right to vote on any matter except as such right may be
limited
by voting rights given to members of an existing class or of a new
class."
.... (d) This section shall not alter the vote required under any
other
section for the authorization of an amendment referred to therein,
nor alter
the authority of the board to authorize amendments under any
other section."
Not For Profit Corporation Law § 603(d) states that a corporation may
provide that its members elect representatives or delegates who when
assembled exercise
all of the powers, rights and privileges of
members of the corporation.
Although some 23,000 people belong to the
Association, the Constitution and
Bylaws provide that the Executive Board
may call for statewide general
membership meetings. In addition, the
Constitution and Bylaws provide that
each sector which is defined as a work
site or facility where Association
members are employed shall elect sector
stewards, and the sector stewards,
in turn, elect a chief sector steward
from each sector. The chief sector
stewards along with the members of the
Executive Board make up the
Executive Assembly. Each member of the Executive
Assembly has one vote
except where 20°l0 of the voting membership requests
voting by weighted
votes. When such a request is made those sectors who have
a greater number
of members at their work site or facility have a greater
number of votes.
Clearly this is a delegate system in which the chief sector
stewards are
the representatives of the union rank and file.
. _.__
_____ _______ _ ._._ ___.______________.__ _ _ _ _ _._The
courthowever finds that eVen
if the roll call vote on the motion to amend the
Certificate of
Incorporation comported with the voting procedures
established by the
Executive Assembly, the amendment could not be filed absent the consent of
the Industrial Board of Appeals. Section 404 (j) of the Not For Profit
Incorporation Law provides that "[e]very certifcate of incorporation which
includes among its purposes the organization of wage earners for their
mutual betterment, protection and advancement; the regulation of hours of
labor, working conditions, or wages; or the performance, rendition or sale
of services as labor consultant, labor management advisor, negotiator,
arbitrator, or specialist; and every certificate of incorporation in which
the name of the proposed
corporation includes `union, ',labor,,
'council, or industrial
organization,, or any abbreviation or derivative
thereof in a context that
indicates or implies that the corporation is
formed for any of the above
purposes, shall have endorsed thereon or annexed
thereto the approval of
the industrial board of appeals. The board shall
make such inquiry into the
purposes of the proposed corporation as it shall
deem advisable and shall
order a hearing if necessary to determine whether
or not such purposes are
in all respects consistent with public policy and
the labor law. Notice of
the time and place of hearing shall be given to the
applicants and such
other persons as the board may determine."
Section
804(a) of the Not For Profit Corporation Law provides that "[a]
certificate
of amendment shall not be filed if the amendment adds, changes
or eliminates
a purpose, power or provision, the inclusion of which in a
certificate of
incorporation requires consent or approval of a governmental
body or officer
...unless such consent or approval is
endorsed on or annexed to the
certificate of amendment." The amended
Certificate of
__.____ ____
_________._____________...________ __ ________
_________._________.__..____
________.______..___.___.._ _ _____
Incorporation filed herein did not
contain the consent or endorsement of
the Industrial Board of Appeals and,
therefore, is without authorization
(see generally 7 8 White on New York
Corporations § N804.02).
The court finds that although the Executive Assembly
may vote to amend the
Certificate of Incorporation in order to change the
powers and duties
allotted to the Executive Board and to the Executive
Assembly, they must do
so in a manner consistent with all of the provisions
of the Not For Profit
Corporation Law. This was not done here.
In view of
the foregoing, the within petition is granted and the first
branch of the
respondents F counterclaims is denied and it is the
declaration of the court
that the
June 16, 2004 amendment to the Certificate of Incorporation is
null and
void, any actions taken by respondents in reliance on the amended
Certificate of Incorporation is null and void, and respondents may not take
any further actions based upon this amended Certificate of Incorporation.
As regards the remainder of respondents, counterclaims, it is the
declaration of the court that as quorum of seven members of the Executive
Board was not present at the Board meeting of May 19, 2004, the vote by
five
members of the Executive Board to terminate the legal services of
Hinman
Straub was not a valid exercise of power and, therefore, is void.
It is the
further declaration of the court that the actions taken by
Richard Harcow, Carl Canterbury, Daniel Stuart, Grant Marin, Anthony Farda
and Mitzie Vilsaint at a meeting of the Executive Board on July 7, 2004,
including the termination of Hinman Straub as counsel for the Association
and the retention of Cronin& Byczek as counsel for the Association, is
without force and effect, as a vote by the majority of the members at a
meeting, in the absence of a quorum of seven members of the Executive
Board, and is invalid.
It is the further declaration of the court that in
light of the foregoing
Hinman Straub remains the General Counsel to the
Association. The court
further declares that any other actions taken by
members of the Executive
Board in the absence of a quorum, and after the
original temporary
restraining order was in force are without force and
effect.
Respondents counterclaims for a declaration that this action was
wrongfully
commenced using union funds, and for a declaration that the
petitioners
violated the Association's Constitution and Bylaws by commencing
this
action are denied, as a justiciable controversy existed between members
of
the Association. It is, therefore, the declaration of the court that
petitioners were entitled to commence this action on behalf of the
Association, using union funds.
A copy of this memorandum decision with
short form order has been e mailed
to respective counsel this day.
The
court directs that on or before October 20, 2004 Petitioner, New York
State
Correctional Officers and Police Benevolent Association, shall post a
copy
of this memorandum decision on its website and the same shall remain
posted
for the information of the membership for a period of twenty one
(21)
consecutive days.
This constitutes the decision and judgment of the court.
Short form order
signed herewith.
FORMER CORRECTIONS OFFICER AT SING
SING CONVICTED
DATE: September 09, 2004
Arthur Kill Correctional Facility
By STEPHANIE SLEPIAN
ADVANCE STAFF WRITER
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