FOR IMMEDIATE RELEASE
Faison Contends the Police Commissioner Exceeded the Limits of Administrative Code § 14-115 and the Police Pension Fund Unlawfully Surrendered Its Independent Statutory Obligations to NYPD Personnel Orders
NEW YORK, N.Y. — September 26, 2026 — Eric Sanders, Esq., The Sanders Firm, P.C. announces that Deputy Chief Winston M. Faison has formally challenged efforts by the New York City Police Department and the New York City Police Pension Fund to continue processing his retirement after he unequivocally sought to withdraw his pending service-retirement application more than two months before its scheduled November 26, 2026 effective date.
On September 25, 2026, Faison reported to NYPD Headquarters for the express purpose of stopping the retirement process. Personnel Orders advised him, in substance, that the Department would not permit him to withdraw the application because a Negotiated Plea Agreement in Disciplinary Case No. C-035016 provides that he would not “withdraw or rescind” the service-retirement application he voluntarily filed on July 25, 2025.
Faison then sought to stop the retirement directly through the New York City Police Pension Fund. According to Faison, the Pension Fund likewise refused to stop the process unless the NYPD Personnel Orders Section first approved the withdrawal.
Faison’s position is that both actions are unlawful, but for different reasons.
NYPD must identify the statutory authority permitting the Police Commissioner to impose irrevocable retirement as a disciplinary penalty. The Police Pension Fund must separately identify the statutory authority permitting it to condition exercise of its own retirement-processing responsibilities upon the approval of Personnel Orders.
“The issue is not complicated merely because two City entities have decided to make it complicated,” said Eric Sanders, counsel for Faison and president of The Sanders Firm, P.C. “The Police Commissioner has the powers the law gives her. The Police Pension Fund has the powers and duties the law assigns to it. Neither gets to manufacture additional governmental authority through internal practice, administrative convenience, or a contract.”
The Police Commissioner’s Disciplinary Authority Is Broad—But It Is Statutory
The executed Negotiated Settlement is important because NYPD itself characterized the disputed retirement provision as part of Faison’s disciplinary “penalty.”
The agreement states that, if approved by the Police Commissioner, “the penalty against me will be as follows,” and then identifies forfeiture of sixty vacation days, Faison’s agreement not to withdraw or rescind his service-retirement application, disposition of his terminal and accrued leave balances, and dismissal with judgment suspended during dismissal probation.
The agreement further states that the settlement is “in lieu of other lawful sanctions that the Police Commissioner may have imposed after trial and upon a finding of guilt for the charged misconduct.” The executed document then reflects Commissioner approval beneath the statement, “I hereby approve the penalty recommended herein.”
That matters because New York City Administrative Code § 14-115 is the statutory source of the Police Commissioner’s disciplinary power. It authorizes reprimand, forfeiture and withholding of pay for a specified period, suspension without pay, and dismissal. It expressly limits punitive salary forfeiture or deduction to thirty days for any offense. The statute does not identify compulsory retirement, irrevocable retirement, or forfeiture of a member’s ability to withdraw a pending service-retirement application as a disciplinary sanction.
Faison’s position is therefore not that the Police Commissioner lacks broad disciplinary authority. New York law plainly gives the Commissioner substantial authority. The issue is whether that authority extends to a punishment the Legislature did not place within § 14-115 or otherwise authorize.
New York courts have repeatedly rejected the proposition that broad administrative discretion permits an official to enlarge the statute conferring that discretion.
In Matter of Murphy v. Murphy, 47 A.D.2d 516, 363 N.Y.S.2d 591 (1st Dep’t 1975), aff’d, 38 N.Y.2d 690, 382 N.Y.S.2d 33 (1976), the Commissioner possessed unquestioned authority to discipline the officer, but the First Department nevertheless reduced a ninety-day financial punishment because the governing statute limited the permissible forfeiture. The principle was not that the Commissioner lacked discretion. It was that discretion operated within a statutory boundary.
The Court of Appeals reached the same structural conclusion in Budd v. Valentine, 283 N.Y. 508, 29 N.E.2d 65 (1940), enforcing the statutory time limitation governing the Commissioner’s probationary disciplinary authority. The Commissioner could not continue exercising a legislatively granted disciplinary power beyond the period the Legislature authorized merely because the Department wished to do so.
Likewise, Dubins v. City of New York, 177 Misc. 675, 31 N.Y.S.2d 390 (Sup. Ct. N.Y. County 1941), rejected the proposition that the Commissioner’s general position as head of the Department independently supplied authority to impose an economic withholding not authorized by the governing statute. The office of Police Commissioner identifies who exercises delegated power. It does not make the Commissioner the source of that power.
That principle remains a basic rule of New York administrative law. In Vink v. New York State Division of Housing & Community Renewal, 285 A.D.2d 203, 210, 729 N.Y.S.2d 697 (1st Dep’t 2001), the First Department held that an agency cannot “engraft additional requirements or assume additional powers not contained in the enabling legislation.”
The Court of Appeals has articulated the same rule in broader terms: an administrative agency possesses the powers expressly conferred by the legislative body and those required by necessary implication, but it cannot act beyond the authority contemplated by its enabling legislation. Greater New York Taxi Ass’n v. New York City Taxi & Limousine Commission, 25 N.Y.3d 600, 608–09, 15 N.Y.S.3d 725 (2015).
“That is the question NYPD has to answer,” Sanders said. “Where is the statute that says the Police Commissioner may take a pending service-retirement application and, as punishment, make it irrevocable? Section 14-115 does not say that. If the Department believes another statute does, identify it.”
The Police Pension Fund Has Its Own Statutory Problem
The Police Pension Fund’s conduct presents a separate ultra vires issue.
New York City Administrative Code § 13-216 provides that the Police Pension Fund “shall be administered by a board of trustees” subject to law. The statute goes further and expressly states that “[t]he pension fund shall be considered an entity separate from the city of New York police department,” even while requiring the Fund and NYPD to work closely together.
That distinction is critical.
Cooperation with NYPD is not the same thing as legal subordination to the NYPD Personnel Orders Section. Nothing in § 13-216 identified the Personnel Orders Section as the statutory decisionmaker governing withdrawal of pension applications.
The New York Court of Appeals addressed the statutory independence and limits of the Police Pension Fund in Caruso v. New York City Police Department Pension Funds, 72 N.Y.2d 568, 575, 535 N.Y.S.2d 349 (1988). The Court held that the authority of the Pension Fund’s Board and its individual trustees is determined by the statutory structure establishing the Fund. It described the statutes governing the Fund as the functional “terms of the trust” that both confer and limit the trustees’ powers and emphasized that the Fund must be administered by the Board “subject to the provisions of law.”
Caruso is particularly significant because the Court rejected an effort by Pension Fund trustees to claim authority by necessity where the governing statutes did not confer it. The Court treated the unauthorized conduct as ultra vires. The principle applies in both directions: the Pension Fund cannot exercise power the statutes do not give it, and it cannot avoid a statutory responsibility merely by shifting the decision to another City component.
The Fund’s own published procedures make the present refusal even more difficult to explain. Its FY2025 Annual Comprehensive Financial Report states under “Application Withdrawal” that a member being processed for vested or service retirement “may withdraw the retirement application while it is still pending” by appearing at the Pension Fund at least one business day before the scheduled retirement date. The published procedure does not state that Personnel Orders approval is required. It does not identify NYPD consent as a condition. And it does not state that an internal disciplinary agreement converts a pending application into an irrevocable one.
Faison appeared more than two months before November 26, 2026.
The Pension Fund nevertheless allegedly told him that it would not stop the retirement without approval from the Personnel Orders Section.
That creates an obvious statutory question: where does that additional condition come from?
In Matter of Richter v. Kelly, Sup. Ct., N.Y. County, Apr. 6, 2011, the court addressed the statutory responsibilities of the Police Pension Fund Board and rejected an attempt to avoid independent Board action. The court stated that it is the Board’s duty to determine how police pensions are administered and that the Board acts through resolutions; where it simply defers the matter rather than performing its statutory function, it fails to fulfill that responsibility.
Faison contends that the same basic principle applies here. If the Pension Fund has a statutory or duly adopted regulatory basis for conditioning withdrawal upon Personnel Orders approval, it should identify it. If no such authority exists, then Personnel Orders cannot become the Pension Fund’s de facto veto authority simply because the Fund has chosen administratively to defer to NYPD.
“The Pension Fund is not the Personnel Orders Section with a different letterhead,” Sanders said. “The Administrative Code expressly calls it a separate entity. The Court of Appeals says its authority is defined and limited by the statutes governing the Fund. Its own published materials say a pending service-retirement application may be withdrawn. If the Fund now says Personnel Orders has to approve that withdrawal, then show us the law.”
Ultra Vires Review Comes Before Administrative Deference
Faison’s challenge also implicates the order in which courts review administrative action.
New York law distinguishes between whether an agency exercised a valid power rationally and whether the agency possessed that power at all. CPLR 7803 expressly authorizes review of whether a governmental body “proceeded, is proceeding or is about to proceed without or in excess of jurisdiction.”
The principle is important here because neither NYPD nor the Pension Fund can answer the challenge merely by arguing that its decision was reasonable. As New York courts have explained, before evaluating the reasonableness of agency action, a court must first determine whether the agency had authority to act in the first instance. See City of New York v. Wing, 94 N.Y.2d 466, 475 (2000), as quoted and applied in later Article 78 decisions.
The question is therefore antecedent to ordinary Pell deference.
For the Police Commissioner: what statute authorizes irrevocable retirement as a disciplinary penalty?
For the Police Pension Fund: what statute, regulation, rule, or Board resolution authorizes it to refuse an otherwise timely withdrawal unless the Personnel Orders Section approves it?
Those are questions of legal authority, not administrative preference.
The Agreement Is Separately Challenged Under Federal Law
Faison also maintains that the underlying Negotiated Settlement is defective under the Older Workers Benefit Protection Act, 29 U.S.C. § 626(f).
The agreement contains a sweeping release of claims against the City and NYPD. Faison contends that the document fails to satisfy the mandatory requirements applicable to a waiver of rights under the Age Discrimination in Employment Act, including specific reference to ADEA rights, the required consideration period, and the mandatory seven-day revocation period.
In Oubre v. Entergy Operations, Inc., 522 U.S. 422, 426–28 (1998), the Supreme Court held that the OWBPA imposes mandatory statutory prerequisites upon an ADEA waiver.
Faison’s position is that NYPD cannot ignore alleged federal defects in an integrated disciplinary settlement while selectively enforcing the provision compelling him to leave City service.
September 28 Deadline Before Court Intervention
Faison has demanded written confirmation no later than 5:00 p.m. on Monday, September 28, 2026, that NYPD has ceased processing his November 26 retirement, that the Police Pension Fund has accepted and processed his withdrawal, and that neither entity will take further action to effectuate the retirement.
If either entity maintains a contrary position, Faison has demanded that it identify by the same deadline the legal authority supporting that position.
Absent such confirmation, Faison intends to seek immediate judicial relief, including declaratory and injunctive relief and relief pursuant to CPLR article 78 challenging the actions of NYPD and the Police Pension Fund as contrary to law and in excess of statutory authority.
“This is ultimately about a basic principle of government,” Sanders said. “The Police Commissioner cannot enlarge § 14-115 because an internal agreement would make a new punishment convenient. The Police Pension Fund cannot surrender its statutory responsibilities because Personnel Orders wants control of the outcome. Government agencies get their authority from law. If the law gives them this power, identify it. If it does not, stop.”
About The Sanders Firm, P.C.
The Sanders Firm, P.C. is a New York-based law firm focused on civil rights, immigration, employment discrimination, police misconduct, and other high-stakes matters. Its founder and president, Eric Sanders, Esq., is a retired NYPD officer who brings a rare inside perspective to the intersection of government power, public institutions, enforcement discretion, and constitutional accountability.
For more than twenty years, Sanders has counseled thousands of clients and handled complex matters involving police use of force, sexual harassment, retaliation, systemic discrimination, immigration consequences, and related civil-rights violations. He is widely recognized as a leading New York civil-rights attorney and a prominent voice on evidence-based policing, institutional accountability, equal justice, and rights-based immigration advocacy.
Media Contact
Eric Sanders, Esq.
The Sanders Firm, P.C.
30 Wall Street, 8th Floor
New York, New York 10005
(212) 652-2782
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Read the Demand Letter
Read the Negotiated Settlement Agreement
