Patrolmen's Benevolent Ass'n v. Perb

• Decision Date: 28 March 2006
• Citation: 848 N.E.2d 448,6 N.Y.3d 563
• Parties: In the Matter of PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., Appellant, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents. In the Matter of Town of Orangetown et al., Respondents, v. Orangetown Policemen's Benevolent Association et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 448

848 N.E.2d 448

6 N.Y.3d 563

In the Matter of PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK, INC., Appellant, v. NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD et al., Respondents.

In the Matter of Town of Orangetown et al., Respondents, v. Orangetown Policemen's Benevolent Association et al., Appellants.

Court of Appeals of New York.

March 28, 2006.

Kaye Scholer LLP, New York City (Peter M. Fishbein, Jay W. Waks, John D. Geelan and Christine A. Neagle of counsel), Gleason, Dunn, Walsh & O'Shea, Albany (Ronald G. Dunn of counsel), and Office of the Patrolmen's Benevolent Association of City of New York, Inc. General Counsel, New York City (Michael T. Murray of counsel), for appellant in the first above-entitled proceeding.

Sandra M. Nathan, Albany, and William L. Busler for New York State Public Employment Relations Board, respondent in the first above-entitled proceeding.

Michael A. Cardozo, Corporation Counsel, New York City (Edward F.X. Hart, Leonard Koerner and Spencer Fisher of counsel), for City of New York, respondent in the first above-entitled proceeding.

Donna M.C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the first above-entitled proceeding.

Patterson, Belknap, Webb & Tyler, LLP, New York City (Anthony P. Coles and Walter M. Luers of counsel), for Sergeants Benevolent Association of the City of New York, amicus curiae in the first above-entitled proceeding.

Certilman Balin Adler & Hyman, LLP, East Meadow (Wayne J. Schaefer and Michael C. Axelrod of counsel), for Police Benevolent Association of the New York State Troopers, Inc. and another, amici curiae in the first above-entitled proceeding.

Bunyan & Baumgartner, LLP, Blauvelt (Joseph P. Baumgartner and Richard P. Bunyan of counsel), for appellants in the second above-entitled proceeding.

Keane & Beane, P.C., White Plains (Lance H. Klein and Edward J. Phillips of counsel), for respondents in the second above-entitled proceeding.

Donna M.C. Giliberto, Albany, for New York State Conference of Mayors and Municipal Officials, amicus curiae in the second above-entitled proceeding.

OPINION OF THE COURT

R.S. SMITH, J.

We hold 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.

Facts and Procedural History

Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd.

The Patrolmen's Benevolent Association of the City of New York (N.Y.CPBA) seeks to annul a decision by the Public Employment Relations Board (PERB) that the City need not bargain with the NYCPBA over five subjects, even though those subjects had been dealt with in an expired collective bargaining agreement. The expired agreement had provided: (1) that police officers being questioned in a departmental investigation would have up to four hours to confer with counsel; (2) that certain guidelines for interrogation of police officers would remain unchanged; (3) that a "joint subcommittee" would "develop procedures" to assure the timely resolution of disciplinary charges; (4) that a pilot program would be established to refer disciplinary matters to an agency outside the police department; and (5) that employees charged but not found guilty could petition to have the records of disciplinary proceedings expunged. PERB found that all these provisions concerned "prohibited subjects of bargaining."

Supreme Court upheld PERB's decision on the ground that the New York City Charter and Administrative Code, as interpreted in Matter of City of New York v. MacDonald, 201 A.D.2d 258, 259, 607 N.Y.S.2d 24 [1st Dept.1994], required that the discipline of New York City police officers be left to the discretion of the Police Commissioner. The Appellate Division affirmed, as do we.

Matter of Town of Orangetown v Orangetown Policemen's Benevolent Assn.

The Town of Orangetown and its Town Board brought this proceeding against the Orangetown Policemen's Benevolent Association (Orangetown PBA) and a police officer, seeking to stay arbitration of a dispute between the Town and the officer over a disciplinary issue. The Orangetown PBA and the officer had sought arbitration pursuant to article 15 of the collective bargaining agreement between the Town and the union, which prescribed detailed procedures, culminating in an arbitration, for any "dispute concerning the discipline or discharge" of an Orangetown police officer. Supreme Court granted the application to stay arbitration. Relying on Matter of Rockland County Patrolmen's Benevolent Assn. v. Town of Clarkstown, 149 A.D.2d 516, 539 N.Y.S.2d 993 [2d Dept.1989] and Matter of Town of Greenburgh (Police Assn. of Town of Greenburgh), 94 A.D.2d 771, 772, 462 N.Y.S.2d 718 [2d Dept.1983], Supreme Court held that article 15 is invalid under the Rockland County Police Act, because that act commits police discipline to the discretion of local authorities. The Appellate Division affirmed.

The specific issue that gave rise to this case is now moot, because the Town and the officer have settled their differences, but the Town and the Orangetown PBA continue to disagree about article 15's validity, and both sides have asked us to decide that question. We therefore convert the proceeding to a declaratory judgment action and declare that, as the courts below held, article 15 is invalid.

Discussion

We confront, not for the first time, a tension between the "strong and sweeping policy of the State to support collective bargaining under the Taylor Law" (Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 N.Y.2d 774, 778, 390 N.Y.S.2d 53, 358 N.E.2d 878 [1976]) and a competing policy — here, the policy favoring strong disciplinary authority for those in charge of police forces. We have held that the policy of the Taylor Law prevails, and collective bargaining is required, where no legislation specifically commits police discipline to the discretion of local officials (Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v. Helsby, 46 N.Y.2d 1034, 416 N.Y.S.2d 586, 389 N.E.2d 1106 [1979], affg. for reasons stated below 62 A.D.2d 12, 404 N.Y.S.2d 396 [3d Dept. 1978]). Since Auburn was decided, however, the First, Second and Third departments of the Appellate Division have held that, where such legislation is in force, the policy favoring control over the police prevails, and collective bargaining over disciplinary matters is prohibited (MacDonald, 201 A.D.2d at 259, 607 N.Y.S.2d 24; Rockland County Patrolmen's Benevolent Assn., 149 A.D.2d at 517, 539 N.Y.S.2d 993; Town of Greenburgh, 94 A.D.2d at 771-772, 462 N.Y.S.2d 718; Matter of City of Mount Vernon v. Cuevas, 289 A.D.2d 674, 675-676, 733 N.Y.S.2d 793 [3d Dept.2001]). We decide today that these Appellate Division holdings were correct.

The Taylor Law (Civil Service Law art. 14) requires collective bargaining over all "terms and conditions of employment":

"Where an employee organization has been certified or recognized . . . the appropriate public employer shall be, and hereby is, required to negotiate collectively with such employee organization in the determination of, and administration of grievances arising under, the terms and conditions of employment of the public employees" (Civil Service Law § 204[2]).

We have often stressed the importance of this policy, and have made clear that "the presumption . . . that all terms and conditions of employment are subject to mandatory bargaining" cannot easily be overcome (Matter of City of Watertown v. State of N.Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 79, 711 N.Y.S.2d 99, 733 N.E.2d 171 [2000]; see also, e.g., Matter of Board of Educ. of City School Dist. of City of N.Y. v. New York State Pub. Empl. Relations Bd., 75 N.Y.2d 660, 667-668, 555 N.Y.S.2d 659, 554 N.E.2d 1247 [1990]; Board of Educ. of Union Free School Dist. No. 3 of Town of Huntington v. Associated Teachers of Huntington, 30 N.Y.2d 122, 129, 331 N.Y.S.2d 17, 282 N.E.2d 109 [1972]).

On the other hand, we have held that some subjects are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so. Thus, we have held that local boards of education may not surrender, in collective bargaining agreements, their ultimate responsibility for deciding on teacher tenure (Cohoes, 40 N.Y.2d at 778, 390 N.Y.S.2d 53, 358 N.E.2d 878), or their right to inspect teachers' personnel files (Board of Educ., Great Neck Union Free School Dist. v. Areman, 41 N.Y.2d 527, 394 N.Y.S.2d 143, 362 N.E.2d 943 [1977]). We have held that a police department may not be required to bargain over the imposition of certain requirements on officers receiving benefits following injuries in the line of duty (Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 85 N.Y.2d 480, 483, 626 N.Y.S.2d 715, 650 N.E.2d 373 [1995]), and that a city may not surrender, in collective bargaining, its statutory right to choose among police officers seeking promotion (Matter of Buffalo Police Benevolent Assn. [City of Buffalo], 4 N.Y.3d 660, 797 N.Y.S.2d 410, 830 N.E.2d 308 [2005]). And we have held that public policy bars enforcement of a provision in a collective bargaining agreement that would limit the power of the New York City Department of Investigation to interrogate city employees in a criminal investigation (Matter of City of New York v. Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 N.Y.2d 273, 716 N.Y.S.2d 353, 739 N.E.2d 719 [2000]).

In none of these cases did a statute exclude a subject from collective bargaining in so many words. In each case, however, we found a public policy strong enough to warrant such an exclusion. As we explained in Cohoes, the scope of collective bargaining may be limited by "`plain and clear, rather...