Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining
Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146, Court of Appeals
Although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.
Essentially the new disciplinary procedure did not provide for arbitration but instead provided that a disciplinary hearing would be conducted by “a Town Board member or a designee of the Town Board” rather than submitted to arbitration. The Board member or the designee was to issue a decision “with recommended findings of fact and a suggested disciplinary penalty.” The Town Board would then review the hearing officer's findings and recommendation, render a final determination of the charges and if the police officer was found guilty of one or more of the disciplinary charges and specifications, impose a penalty "consistent with the provisions of the New York State Town Law."* Any appeal from such determination was subject to review pursuant to a CPLR Article 78** proceeding in Supreme Court.
Following its enacting Local Law No. 2, the Town initiated disciplinary action against two police officers and the PBA filed demands for arbitration on behalf of the police officers. The Town’s Article 75 application for a permanent stay of arbitration was denied by Supreme Court, which granted the PBA’s cross-petition to compel arbitration.
Citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed the lower court’s ruling (see 84 AD3d 968 [2d Dept 2011]).
The Court of Appeals sustained the Appellate Division’s ruling, explaining that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."
Although Civil Service Law §§75 and 76 generally provide for "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective bargaining," the Court of Appeals noted that Civil Service Law §76(4) also states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws.”***
In this instance the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155." Accordingly, the Court held that “police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and the PBA.”****
* Town Law §155,. In the words of the Court of Appeals, Town Law §155 is “a general law enacted prior to Civil Service Law §§75 and 76, commits to the Town the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."
** Town Law §155 sets out a 30-day statute of limitations for filing such a petition.
*** Civil Service Law §76(4) continues the provision set out in §22.3 of the Civil Service of 1909, as amended, to this end.
**** Significantly, the Court ruled that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, rather than holding that such negotiation is a "non-mandatory" subject of collective bargaining within the meaning of the Taylor Law [Civil Service Law Article 14].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07146.htm