In the Matter of City of Rochester v. Public Employment Relations Board, TP 04-01759.

• Decision Date: 04 February 2005
• Docket Number: TP 04-01759.
• Citation: 790 N.Y.S.2d 788,2005 NY Slip Op 00809,15 A.D.3d 922
• Parties: In the Matter of CITY OF ROCHESTER, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.
• Court: New York Supreme Court — Appellate Division

15 A.D.3d 922

790 N.Y.S.2d 788

2005 NY Slip Op 00809

In the Matter of CITY OF ROCHESTER, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.

TP 04-01759.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

February 4, 2005.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Harold L. Galloway, J.], entered August 3, 2004) to review a determination of respondent Public Employment Relations Board. The determination found that petitioner had violated Civil Service Law § 209-a (1) (a).

It is hereby ordered that the determination be and the same hereby is unanimously annulled on the law without costs and the petition is granted in accordance with the following Memorandum: In this transferred CPLR article 78 proceeding, petitioner, City of Rochester (City), seeks to annul a determination of respondent Public Employment Relations Board (PERB), made after a hearing, that the City committed an improper employer practice in violation of Civil Service Law § 209-a (1) (a) by denying the members of respondent Rochester Police Locust Club, Inc. (Union) access to Union representatives during criminal investigation interviews. We conclude that PERB abused its discretion in making that determination in light of New York State's strong public policy prohibiting any interference with criminal investigations.

The Union filed two improper employer practice charges against the City as the employer of two Union members, officers of the Rochester Police Department (RPD). The charges arose from two unrelated criminal investigations that were instituted after the officers discharged their weapons in the course of their duties. The Union alleged that the City improperly prohibited the officers from consulting with their Union representatives prior to being interviewed during the criminal investigations and prevented the Union representatives from being present during the interviews. The officers were permitted to consult with Union representatives prior to later interviews that RPD conducted as part of the employment disciplinary process. An administrative law judge (ALJ) consolidated the two cases, conducted a hearing, and issued a decision that ordered RPD not to question any police officers on any matter without permitting a Union representative to be present. PERB affirmed the ALJ's decision and the City commenced the instant proceeding.

We conclude that PERB abused its discretion in making its determination. In general, "[a]s the agency charged with implementing the fundamental policies of the Taylor Law [Civil Service Law article 14], [PERB] is presumed to have developed an expertise and judgment that...