Current through Register Vol. 46, No. 39, September 25, 2024
The Appellate Division of the Supreme Court, First
Judicial Department, and the Appellate Division of the Supreme Court, Second
Judicial Department, pursuant to the authority vested in each of them, and for
the purpose of providing controls and close supervision of city marshals, do
hereby jointly order as follows:
(1)
The Commissioner of Investigation of the City of New York, or his designee, is
empowered to supervise and monitor the official acts of New York City marshals
and to take complaints, make inquiries and conduct investigations into all
aspects of marshals' activities.
(2) The Commissioner of Investigation or his
designee, in order to investigate and monitor the activities of city marshals,
may hold hearings, compel the attendance of and examine under oath a marshal
and his employees regarding the official acts of any marshal.
(3)
(a)
Each marshal shall keep detailed books and records and maintain bank accounts
as prescribed by the Appellate Divisions or the Department of
Investigation.
(b) A city marshal's
official books, records and bank accounts are public records and as such are
subject to unannounced inspections by the Department of Investigation or anyone
designated for that purpose by the Commissioner of Investigation or the
Appellate Divisions.
(c) Should the
Commissioner of Investigation deem it proper, the Department of Investigation
may take into its custody any or all of the official records of a city marshal
for the purpose of inspecting them.
(d) Each city marshal shall surrender all
official books and records, including but not limited to cash books, docket
books, checkbooks, bank statements and cancelled checks, to the Department of
Investigation upon termination of office. Should it become necessary, access to
such official books and records for the purpose of examination shall be
accorded to the city marshal surrendering the same. Upon termination of office,
each city marshal shall further prepare a final report of his official acts, as
prescribed by the Department of Investigation, which shall include a final
statement of monies held in trust, expenses incurred, and fees
earned.
(e) A city marshal is
entitled to only those fees for those services which are prescribed by law and
set forth in an official schedule of fees issued by the Commissioner of
Investigation. A city marshal shall perform all other services required of him
by law without any other fees or charges, except as otherwise expressly
prescribed by law. No fee to which a city marshal is entitled may be waived
without specific written authorization of the Commissioner of
Investigation.
(f) Each city
marshal shall henceforth, in accordance with the procedures prescribed by the
Department of Investigation, provide for a fiduciary who shall, upon the death
or incapacity of said marshal, assume complete responsibility for the marshal's
bank accounts and official records, and shall distribute any monies held in
trust or otherwise collected by the marshal to the proper judgment creditors or
to any other individual(s) to whom such monies are due and owing. Such a
fiduciary shall be compensated at the marshal's own expense.
(4)
(a) The Commissioner of Investigation is
empowered to continue to issue directives regarding marshal's official
day-to-day activities, including, but not limited to, the official records to
be kept by city marshals, the procedures for performing their duties, and the
conduct of marshals and their employees. Copies of all directives shall be
forwarded to the Appellate Divisions, and each directive shall remain in full
force and effect unless and until nullified by joint order of both Appellate
Divisions.
(b) Any handbook of
regulations for city marshals which may be promulgated by the Department of
Investigation shall become effective upon the approval of both Appellate
Divisions. Any substantial policy changes therein shall require similar
approval. However, copies of any other changes therein by directive or
otherwise shall be forwarded to the Appellate Divisions, and such changes shall
remain in full force and effect unless and until nullified by joint order of
both Appellate Divisions.
(5) The Director of the Bureau of Marshals at
the Department of Investigation or any other person or persons designated by
the Commissioner of Investigation may, after an investigation, present evidence
of incompetency, misconduct, or other wrong doing as set forth in subdivision
(6) of this section to the Commissioner of Investigation. The commissioner may
accordingly designate a deputy commissioner, assistant commissioner or other
qualified person to hear charges as provided herein or, in the alternative, at
the option of the commissioner, refer these charges and this evidence to the
Appellate Divisions for disciplinary action or removal proceedings.
(6)
(a) The
Commissioner of Investigation may, after a hearing on charges preferred against
a city marshal, impose penalties upon him including, but not limited to,
suspension from the performance of his official duties for a period not to
exceed six months for violation of the civil laws, the rules of the Appellate
Divisions of the First and Second Departments, the rules of the Civil Court of
the City of New York, the directives of the Department of Investigation, or for
incompetency or misconduct.
(b) A
city marshal against whom such disciplinary action is proposed shall have
written notice thereof and of the reasons therefor, shall be furnished a copy
of the charges preferred against him, and shall be allowed at least eight days
for answering the same in writing. The marshal shall be entitled to a full and
complete hearing with the assistance and presence of counsel.
(c) The hearing upon which such charges shall
be held by such deputy commissioner, assistant commissioner or other person
designated by the Commissioner of Investigation for that purpose. Such deputy
commissioner or assistant commissioner may, pursuant to chapter 34 of the New
York City Charter, issue subpoenas, administer oaths and shall take evidence
and make a record of such hearing which shall, with his recommendation, be
referred to the Commissioner of Investigation for review and
decision.
(d) The deputy
commissioner or assistant commissioner holding such hearing shall, upon the
request of the city marshal against whom charges are preferred, permit him to
be represented by counsel, and shall allow him to summon witnesses in his
behalf. The burden of proving incompetency, misconduct or other wrongdoing
shall be upon the Director of the Bureau of Marshals or other person designated
by the Commissioner of Investigation for the purpose of preferring charges and
shall be by a fair preponderance of evidence. The deputy or assistant
commissioner holding such hearing shall receive evidence in the same manner as
if this hearing were held pursuant to section
75 of the
Civil Service Law, in that compliance with technical rules of evidence shall
not be required.
(e) If the city
marshal is found guilty, a transcript of the hearing, and a written statement
of the determination and the reasons therefor, shall be filed in the office of
the Department of Investigation. A copy of the transcript shall, upon request
of the city marshal affected, be furnished to him without charge.
(f) If desired, the city marshal may appeal
any decision by the Commissioner of Investigation to the Appellate Divisions.
The marshal shall file such appeal in writing within 20 days after service of
written notice of the determination to be reviewed, such written notice to be
delivered personally or by registered mail to the last known office address of
such city marshal. When notice is given by registered mail, such city marshal
shall be allowed an additional three days in which to file such an
appeal.
(7) A marshal,
after being furnished with a copy of the charges preferred against him, may
knowingly waive a hearing as provided in subdivision (6) of this section, and
agree to a penalty prescribed by the Commissioner of Investigation.
(8) Perjury by a city marshal or his failure
to testify concerning his official duties at an investigative or administrative
hearing held at the Department of Investigation after being granted immunity
from the use of the testimony in a criminal prosecution shall be ground for
removal.
(9) Failure to comply with
penalties imposed by the Commissioner of Investigation shall be ground for
removal.
This Order is effective immediately and shall remain
in full force and effect unless and until modified or nullified by Joint Order
of both Appellate Divisions.
Dated: November 12, 1975
