N.Y. Comp. Codes R. & Regs. tit. 22 § 635.9

Current through Register Vol. 46, No. 22, May 29, 2024

Section 635.9 - Joint Administrative Order No. 453: Control and supervision of city marshals

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

N.Y. Comp. Codes R. & Regs. Tit. 22 § 635.9