Exhaustion of administrative remedies a condition precedent to seeking judicial relief

Exhaustion of administrative remedies a condition precedent to seeking judicial relief
Dobrin v NYC PBA, Inc., Supreme Court, New York County, [Not selected for publication in the Official Reports]

It is clear that courts, as a general rule, will not consider lawsuits filed by public employees protesting some administrative determination unless the individual has exhausted his or her administrative remedies.*

The major exception to this rule: any attempt to exhaust the available administrative remedy would constitute an exercise in futility. Typically, the courts apply this exception when it is decided that the administrative decision is a foregone conclusion.

As the Dobrin case demonstrates, the same general rule applies in lawsuits filed by an individual against his or her union.

Dobrin, a New York City police officer, apparently had sexual intercourse with a woman in the backseat of his car. The woman later filed a complaint alleging that Dobrin had raped her.

A Grand Jury declined to indict Dobrin. Dobrin, however, was also served with administrative disciplinary charges by the New York City Police Department, found guilty and dismissed from his position.*

Dobrin was a member of the New York City Patrolmen’s Benevolent Association [PBA] at the time the disciplinary hearing was held.

Dobrin complained that although the PBA was supposed to provide legal counsel to its members in such situation, it failed to do so in his case. This, he argued, constituted a breach of contract because PBA failed to supply an attorney to represent him in defending him in the disciplinary action.

Although Dobrin alleged that the PBA wrongfully, negligently, and improperly denied him counsel, State Supreme Court Justice Ira Gammerman pointed out that before Dobrin could bring such a claim, he was required to exhaust the administrative remedies available to him.

As Dobrin had not made any attempt to utilize the appeal procedures available to him under the Constitution and By-Laws of the PBA and the New York City Collective Bargaining Law, Judge Gammerman dismissed his petition.

In the words of the court, [a]lthough, [Dobrin] was allegedly denied representation, he elected not to utilize the available [PBA] appeal procedures. Instead, he brought this action. His failure to exhaust the administrative remedies available to him mandates dismissal of his complaint.

Judge Gammerman commented that the PBA’s By-Laws set out a procedure for a member to appeal a decision by the PBA denying or curtailing a request for legal assistance. In addition, said the court, the City’s Collective Bargaining Law established a Board of Collective Bargaining and gives the Board exclusive jurisdiction to prevent and remedy improper public employer and public employee organization practices.

* The courts will reject a law suit if the party filing the action failed to exhaust his or her administrative remedies and such an effort would not constitute "an exercise in futility" such as its finding that the administrative decision would be "a foregone conclusion."

** See Dobrin v. Safir, 272 A.D.2d 134, in which the Appellate Division sustained Dobrin’s termination.