Court of Appeals to determine whether the Taylor Law trumps Second Class Cities Law with respect to negotiating police disciplinary procedures
Appeal of Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086
N.B. The Court of Appeals reversed the Appellate Division's ruling in 134 AD3d 1086. See City of Schenectady v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 07210, Court of Appeals, Decided on October 17, 2017.
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 Schenectady and the Schenectady Police Benevolent Association [PBA].
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," and ultimately the Appellate Division held that the Taylor Law trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures.*
Citing 46 PERB 3025, the Appellate Division said "PERB aptly noted in its decision" that §4 of the Second Class Cities Law states that a provision of this statute "such as article 9 containing its police disciplinary procedures shall apply only until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law" and that such language "reveals a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation."
Citing 46 PERB 3025, the Appellate Division said "PERB aptly noted in its decision" that §4 of the Second Class Cities Law states that a provision of this statute "such as article 9 containing its police disciplinary procedures shall apply only until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law" and that such language "reveals a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation."
Schenectady appealed the Appellate Division's ruling, which appeal was argued before the Court of Appeals on September 6, 2007.
In Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFLCIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 19 NY3d 1066, the Court of Appeals said 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, apparently rejecting characterizing such negotiations as a "non-mandatory subject of collective bargaining" within the meaning of the Taylor Law.**
It should be noted that the State's authority for supplementing, modifying or replacing Civil Service Law §75 disciplinary procedures pursuant agreements negotiated with an employee organization pursuant to the Taylor Law with respect to State officers and employees of the State as the employer is set out in §76.4 of the Civil Service Law.***
§76.4, however, is silent with respect to authorizing a political subdivision of the State as the employer to negotiate supplementation, modification or replacement of Civil Service Law §75 in the course of collective bargaining between the political subdivision of the State and an employee organization with respect to the political subdivision's employees in collective bargaining units pursuant to the Taylor Law.
Typically legislation addressing public officers and employees of the State of New York as the employer with respect to personnel matters such as health insurance does not automatically extend to officers and employees of a political subdivision of the State and a political subdivisions of the State is typically given the option of electing to extend such personnel matters to its officers and employees.
For example, §161.1 of the Civil Service Law authorizes the president of the New York State Civil Service Commission to establish a health benefit plan, commonly referred to as the New York State Health Insurance Program [NYSHIP], for state officers and employees, retirees and their dependents and the employees, retirees and their dependents of certain other entities such as the Statutory Contract Colleges at Cornell and Alfred Universities.
In contrast, §163.4 of the Civil Service Law permits "[a]ny public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state to elect to participate in NYSHIP." This is accomplished by the municipality's governing body adopting a resolution "and, in the case of any municipal corporation where a resolution of its governing body is required by law to be approved by any other body or officer, such resolution shall also be approved by such other body or officer."
How do you think the high court will decide Schenectady's appeal, and why? Will it follow its ruling in Town of Wallkill v Civil Serv. Empls. Assn., Inc., 19 NY3d 1066,**** in which it held 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" or will it sustain the ruling of the Appellate Division, holding that the PERB was correct in concluding that Taylor Law trumps the Second Class Cities Law when negotiating police disciplinary procedures are concerned?
* The decision, City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_00729.htm
In contrast, §163.4 of the Civil Service Law permits "[a]ny public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state to elect to participate in NYSHIP." This is accomplished by the municipality's governing body adopting a resolution "and, in the case of any municipal corporation where a resolution of its governing body is required by law to be approved by any other body or officer, such resolution shall also be approved by such other body or officer."
How do you think the high court will decide Schenectady's appeal, and why? Will it follow its ruling in Town of Wallkill v Civil Serv. Empls. Assn., Inc., 19 NY3d 1066,**** in which it held 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" or will it sustain the ruling of the Appellate Division, holding that the PERB was correct in concluding that Taylor Law trumps the Second Class Cities Law when negotiating police disciplinary procedures are concerned?
* The decision, City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_00729.htm
** NYPPL's summary of this ruling is posted on the Internet at:
*** §76.4 provides: 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. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred.
**** See, also, Patrolmen's Benevolent Assn. of City of N.Y., Inc. v PERB., in which the Court of Appeals held that "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." posted on the Internet at: