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February 05, 2016

Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures

Appellate Division holds Civil Service Law Article 14 trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures
City of Schenectady v New York State Pub. Empl. Relations Bd., 2016 NY Slip Op 00729, Appellate Division, Third Department

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law,* announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectadyand the Schenectady Police Benevolent Association [PBA]. Schenectady advised PBA that was replacing the contract disciplinary procedure, under which an employee upon whom disciplinary charges had been served had the right of appeal to an arbitrator, and, instead, unilaterally adopted disciplinary procedures that substituted the Public Safety Commissioner for the arbitrator as the ultimate administrative disciplinary decision maker.

PBA filed an improper practice charge with Public Employment Relations Board [PERB] alleging that Schenectady violated Civil Service Law §209-a(1)(d) of the Public Employees' Fair Employment Act [Article 14 of the Civil Service Law], the so-called “Taylor Law.

Following a hearing, an Administrative Law Judge agree with PBA, finding that, under the Taylor Law, police disciplinary procedures must be the product of collective bargaining, and that the Taylor Law superseded the provisions of the Second Class Cities Law upon which Schenectady had relied in unilaterally adopting that statute's police disciplinary procedures. PERB affirmed the Administrative Law Judge's ruling, holding that that Schenectady's police disciplinary procedures were a mandatory subject of collective bargaining.**

Schenectady appealed PERB’s determination. Supreme Court upheld PERB's ruling and dismissed Schlenectday's petition.

Schenectady challenged the Supreme Courts ruling, arguing that Supreme Court erred by agreeing with PERB that the enactment of the Taylor Law superseded §133 of Article 9 of the Second Class Cities Law. The Appellate Division, noting that while this is a question of pure statutory construction and it is not dependent upon any special competence of PERB, said that “its own reading of the statutes at issue here led it to agree with Supreme Court that PERB's construction of the Second Class Cities Law, as it relates to the Taylor Law, was correct.

Indicating that the Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining, the Appellate Division commented that “courts have long recognized the 'strong and sweeping policy of the State to support collective bargaining under the Taylor Law.’" Citing Matter of City of New York v Patrolmen's Benevolent Assn. of the City of N.Y., Inc., 14 NY3d 46, the Appellate Division held that "the presumption is that all terms and conditions of employment are subject to mandatory bargaining."***

That said, the court commented that because of the "competing policy ... favoring strong disciplinary authority for those in charge of police forces[, w]here legislation specifically commits police discipline to the discretion of local officials," the policy favoring collective bargaining will give way to the legislatively established disciplinary procedures, citing Police Benevolent Asso. of NY State Troopers, Inc., v Division of NY State Police, 11 NY3d 96.

It was undisputed that Second Class Cities Law §133, which was enacted prior to the Taylor Law, expressly commits police discipline to the discretion of Schenectady's Public Safety Commissioner. However, said the court, the “Second Class Cities Law [Article 2] §4 states that a provision of this statute — such as Article 9 [§133] containing its police disciplinary procedures — shall apply only ‘until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law.’"

The Appellate Division noted that PERB’s decision said that such language reveals "a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation." Put differently, the court explained that it viewed “the clear and unambiguous language of Second Class Cities Law §4” as providing “the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter.”

The Appellate Division concluded that Second Class Cities Law §133 does not require "that the policy favoring collective bargaining should give way" [to it] “nor did the court view the holdings in Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563and Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836) (19 NY3d 1066 to require reversal of Supreme Court's judgment.

In each of those cases, explained the court, the Court of Appeals confined its analysis to the specific language of the statutes at issue, none of which included a broad supersession provision such as the one confronting us in Second Class Cities Law §4. In view of the “clear distinction”, the Appellate Division said it could not conclude that either of these cases controls the outcome of this appeal.

* Article 9, § 133. Rules, orders and regulations, provides, in pertinent part, “The commissioner of public safety … is authorized and empowered to make, adopt, promulgate and enforce reasonable rules, orders and regulations for the government, discipline, administration and disposition of the officers and members of the police and fire departments, and for the hearing, examination, investigation, trial and determination of charges made or prepared against any officer or member of said departments for neglect of official duty or incompetency or incapacity to perform his official duties or some delinquency seriously affecting his general character or fitness for the office, and may, in his discretion, punish any such officer or member found guilty thereof by reprimand, forfeiting and withholding pay for a specified time, supension [sic] during a fixed period or dismissal from office; but no officer or member of said departments shall be removed or otherwise punished for any other cause, nor until specific charges in writing have been preferred against and served upon him, and he shall have been found guilty thereof, after reasonable notice and upon due trial before said commissioner in the form and manner prescribed by law and the rules and regulations of the department.

** See 46 PERB 3025.

*** It does not appear that the Appellate Division’s considered Civil Service Law §76.4, which provides, in pertinent part, that “Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter.” It could be argued that this language indicates a legislative intent that negotiating disciplinary procedures to “supplement, modify or replace” §§75 or 76 of the Civil Service Law be permissive rather than mandatory [or prohibited] subjects of collective bargaining within the meaning of the Taylor Law [Article 14 of the Civil Service Law].

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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