Divisions within oversight agency may imperil lawsuit against DOC

A landmark lawsuit filed by the Board of Correction against the New York City Department of Correction could be undone thanks to upcoming changes in the Board’s membership. Earlier this month, the Board – an independent agency charged with monitoring the city’s jails system – sued DOC, which unilaterally cut off the Board’s access to video footage from city jails back in January. The Board asked a state court judge to declare that the DOC acted “arbitrarily and capriciously,” order the DOC to restore the Board’s direct access to video databases and issue an injunction prohibiting DOC from eliminating the Board’s access to the video footage in the future. 

The judge overseeing the case, Paul Albert, posted a notice on the docket notifying the parties and the public that the next hearing in the proceedings will be on Sept. 21 at 9:30 a.m. at the Bronx County Courthouse.

But that’s just the first hearing in the case. A final decision may not come for weeks or months after the hearing. In the meantime, two new appointees could join the nine-member Board of Correction, enough to potentially change the balance of power. At that point, Board members could enter into executive session and vote to abandon the lawsuit.

The Board of Correction charter spells out the formula for appointments: “Three members shall be appointed by the mayor, three by the council, and three by the mayor on the nomination jointly by the presiding justices of the appellate division of the supreme court for the first and second judicial departments.” Five of the current Board members support the lawsuit against DOC, while three do not. A ninth seat on the Board remains vacant.

That seat has been open since Freya Rigertink, who was appointed by de Blasio, resigned in March of 2022. Rigertink’s replacement will be appointed by Mayor Eric Adams, who has been supportive of DOC Commissioner Louis Molina. Another vacancy will occur on Oct. 23, when Jacky Sherman’s term on the Board expires. Sherman, who supports the lawsuit against DOC, was appointed by the judiciary and her replacement will be as well. These two appointees – the mayor’s pick to fill the vacant seat and the judiciary’s pick to replace Sherman – could flip the Board’s balance of power from 5-3 in favor of the lawsuit to 5-4 against it. 

That means the future of the Board’s lawsuit against DOC could depend on who the presiding justices of the First and Second Judicial Departments choose as their pick to fill Sherman’s seat. That appointment will be made by Dianne Renwick, who only took over the First Department in June, and Hector LaSalle, who is now back to running the Second Department after failing to get confirmed to the state’s highest court. There’s reason to think that the mayor will try to influence their selection.

Traditionally, the two presiding justices have been responsible for choosing the three Board members appointed by the judiciary, while the mayor just does the administrative paperwork, since judges are prohibited by state law from making political appointments. But when Adams first took office, he inserted himself in the appointment process and recommended specific candidates for the justices to nominate – including Jacqueline Pitts and Joseph Ramos, two former DOC correction officers and union members. Lucian Chalfen, a spokesperson for the New York State Unified Court System, confirmed that those two Board members were effectively chosen by the mayor. “These board members were suggested and recommended by the mayor’s office, as these appointments are made in joint nomination with the mayor,” he told City & State.

Rolando Acosta, Renwick’s predecessor as the presiding justice of the First Appellate Division, told City & State before he retired in February that the judiciary is well aware of the controversy surrounding the mayor’s potential  interference with the judiciary’s appointment process. He said he is confident that Renwick would “do the right thing.”

Renwick and the Board of Correction did not respond to requests for comment.