Opinion
00-CV-4384 (ILG)
July 17, 2001
MEMORANDUM ORDER
SUMMARY
Plaintiff David Weintraub, a licensed teacher with the City School District of the City of New York, alleges that defendants engaged in a campaign of retaliation, in violation of 42 U.S.C. § 1983, for his complaining about defendant Douglas Goodman's ("Goodman") inaction when plaintiff referred a student who physically assaulted him to Goodman. Plaintiff also alleges a cause of action for malicious prosecution, and seeks compensatory and punitive damages for his injuries. Plaintiff now moves to disqualify Corporation Counsel of the City of New York ("Corporation Counsel") from representing defendants Goodman, Daisy O'Gorman, Felix Vazquez, Frank Miller, Lawrence Becker, and Jerry Cioffi (collectively, the "individual defendants") because there exists an inherent conflict of interest between the individual defendants, and the Board of Education of the City School District of the City of New York and Community School District 32, City of New York (collectively, the "municipal defendants"). For the reasons that follow, plaintiff's motion will be decided after an inquiry is made of the individual defendants.
BACKGROUND
This action arises from an incident involving plaintiff, Goodman, the assistant principal at Public School 274, and a student in plaintiff's fifth grade class. Plaintiff alleges that this student threw books at him in the classroom, and plaintiff sent the student to Goodman, but Goodman did nothing. This inaction is allegedly in contravention of the municipal defendants' policy which requires the student to be suspended. (Compl. ¶¶ 40-43) This incident replayed itself three days later, and plaintiff complained to some co-workers and his union representative about Goodman's inaction. (Id. ¶¶ 46-49) Thereafter, plaintiff contends that the defendants engaged in a campaign of retaliation including — giving plaintiff unfavorable evaluations, placing allegations of misconduct in plaintiff's personnel file, charging plaintiff with sexual abuse of a student, arresting plaintiff for assaulting a fellow teacher, and ultimately terminating plaintiff's employment with the municipal defendants.
DISCUSSION
Plaintiff now moves to disqualify Corporation Counsel from representing the individual defendants as well as the municipal defendants because there exists an inherent conflict between the municipality and its employees. The conflict flows from the fact that plaintiff may only recover against the municipal defendants if the individual defendants acted pursuant to official policy, however the individual defendants have an incentive to argue that they were acting within the scope of their employment or in accordance with official policy in order to shift part or all of the liability, and the burden of compensation, to the municipal defendants. See Monell v. Dep't of Social Services, 436 U.S. 658 (1978). That is, plaintiff may only recover against the municipal defendants if he can establish that the individual defendants were acting in furtherance of an established policy or custom. Thus, the municipal defendants have an interest in establishing that the individual defendants were acting outside the scope of their employment and thus escape liability. Conversely, the individual defendants have an interest in establishing that they were acting within the scope of their employment and thus be indemnified by the municipal defendants.
Corporation Counsel does not represent defendants Dawn and Jamin Felder.
Plaintiff relies heavily on Dunton v. Suffolk County, 729 F.2d 903 (2d Cir. 1984), amended, 748 F.2d 69 (2d Cir. 1984), to support his motion to disqualify Corporation Counsel. The plaintiff in Dunton sued, among other persons, Suffolk County, the Suffolk County Police Department, and Robert Pfeiffer, a Suffolk County police officer, for violations of 42 U.S.C. § 1983. Plaintiff Dunton attended a retirement party for a fellow employee that was also attended by Anita Pfeiffer, Robert Pfeiffer's wife. Id. at 905. At the end of the party, Dunton accompanied Mrs. Pfeiffer to her car, in which, Dunton alleges, she willingly participated in his sexual advances. Id. Robert Pfeiffer came upon the scene in his patrol car, ejected Dunton from Mrs. Pfeiffer's car, and then repeatedly struck Dunton. Id. The Suffolk County Attorney ("County Attorney") represented Mr. Pfeiffer and Suffolk County and answered Dunton's complaint by asserting by way of defense that Mr. Pfeiffer was acting in good faith and according to his official duties. Id. at 906. Only at trial did the County Attorney assert a new theory of the case, that is that Mr. Pfeiffer was acting "`with the human spirit as a husband, not really as an officer.'" Id.
Defendants argue that plaintiff only identifies an inherent conflict, one perhaps intrinsic to any § 1983 case involving a municipality, and short of identifying a factual basis for an actual conflict, plaintiff's motion should be denied. See Gordon v. Norman, 788 F.2d 1194, 1198 (2d Cir. 1986) (noting the Court's guidance in Cuyler v. Sullivan, 446 U.S. 335, 350 (1979), "prejudice would be presumed only if the defendant demonstrated that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance"). Defendants also note that the Dunton court rejected a per se rule that would require automatic disqualification.See 729 F.2d at 908, n. 4. As a matter of municipal law, Corporation Counsel further asserts that it has a statutory duty to represent individual employee defendants and has made an initial determination that plaintiff's suit arises "out of an alleged act or omission which the corporation counsel finds occurred while the employee[s] w[ere] acting within the scope of [their] public employment and in the discharge of [their] duties and was not in violation of any rule or regulation of [their] agency at the time the alleged act or omission occurred." New York Gen. Municipal Law § 50-k(2).
The procedural stance of Dunton does not, as plaintiff here argues, require the court to now disqualify Corporation Counsel from representing both the municipal and individual defendants. Disqualification of the County Attorney in Dunton became necessary at trial because it was only then that the defenses of Mr. Pfeiffer and Suffolk County were at odds. "As soon as the County Attorney began to undermine Officer Pfeiffer's good faith immunity defense by stating that Pfeiffer acted as an `irate husband' and not as a police officer, he was not only failing to act as a conscientious advocate for Pfeiffer, but was acting against Pfeiffer's interest. The seriousness of this conflict made disqualification appropriate." 729 F.2d at 908. Whether that is now or will be the case hereafter is uncertain given the inconsistencies in Corporation Counsel's submissions. In his Memorandum in Opposition to Plaintiff's Motion to Disqualify the Office of the Corporation Counsel, he states, "[u]nlikeDunton, where the county attorney vigorously argued that the individual defendant was not acting within the scope of his employment, in the present case, a determination has been made that the individual defendants were acting within the scope of their employment. In fact there are no facts to indicate that any individual defendant was acting outside the scope of their employment. (Defs.' Mem. in Opp'n, 7) (emphasis added) This unequivocal declaration can only be construed to mean that the individual defendants have been carefully interviewed and a thorough investigation revealed that "there are no facts" which will give rise to the conflict presented by Dunton.
By contrast, in Corporation Counsel's Declaration, he states: "Without waiving any attorney-client privilege, the individual defendants have been informed, however, that if the Office of the Corporation Counsel later concludes that any individual defendant was acting outside the scope of their employment, were in violation of rules and regulations of the City or [Board of Education], or any actual conflict of interest emerges. the Corporation Counsel may be compelled to withdraw from representation." (Kurtz Decl. ¶ 5) (emphasis added) The inconsistencies are patent. The Declaration belies the unequivocal disclaimer of a conflict or possibility of one and makes questionable the propriety of invoking an estoppel against the municipal defendants based upon it. Given the inconsistency, the court is obliged to discharge its "duty to ensure that the attorney's client . . . is frilly aware of the nature of the conflict and understands the potential threat to the protection of his interests." Dunton, 729 F.2d at 908 (internal quotation and citation omitted).
CONCLUSION
Accordingly, the parties are directed to appear at 10 a.m. on July 31, 2001 so that the court can ensure that the individual defendants are properly advised. The plaintiff's motion to disqualify Corporation Counsel will abide the event. Notice to the individual defendants to appear as directed shall be given by the Corporation Counsel.
SO ORDERED