Rochester Police Locust Club, Inc. v. City of Rochester

• Decision Date: 07 May 2020
• Docket Number: E2019008543
• Parties: In the Matter of the Application of ROCHESTER POLICE LOCUST CLUB, INC., Michael Mazzeo, and Kevin Sizer, Petitioners, v. CITY OF ROCHESTER, Lovely A. Warren, as Mayor of the City of Rochester, Council of The City of Rochester, and the Monroe County Board of Elections, Respondents.
• Court: New York Supreme Court

71 Misc.3d 438

141 N.Y.S.3d 637

In the Matter of the Application of ROCHESTER POLICE LOCUST CLUB, INC., Michael Mazzeo, and Kevin Sizer, Petitioners,

v.CITY OF ROCHESTER, Lovely A. Warren, as Mayor of the City of Rochester, Council of The City of Rochester, and the Monroe County Board of Elections, Respondents.

E2019008543

Supreme Court, Monroe County, New York.

Decided on May 7, 2020

Trevett Cristo, P.C. (Daniel P. DeBolt, Esq., Rochester) for Petitioners;

Emery, Celli, Brinckerhoff, & Abady, LLP (Andrew G. Celli Jr., Esq., Debra Greenberger, Esq., New York, Scout Katovich, Esq.) for Respondent City Council;

Timothy R. Curtin, Esq. (Patrick Beath, Esq., of Counsel) for Respondents City of Rochester and Mayor Lovely A. Warren.

DECISION

John J. Ark, J.

Certainly, "public confidence, vital to an effective police department, can be fostered by a well-run and well-publicized complaint review system."¹

On May21, 2019, to "ensure public accountability and transparency over the powers exercised by sworn officers of the Rochester Police Department," the Rochester City Council passed Local Law No. 2 of 2019, which established the Police Accountability Board- "a civilian-controlled process to fairly investigate and make determinations respecting complaints of misconduct involving sworn officers of the Rochester Police Department".² This decision addresses whether Local Law No. 2 complies with New York State law and the Rochester City Charter.

This case presents four questions:

First: Does City Council's 1985 law submitting police discipline to New York State law preclude the implementation of police discipline by the Police Accountability Board?

Second: Can the City of Rochester enact a local law which transfers from the chief of police the discipline of police officers employed by the Rochester Police Department to an appointed, autonomous civilian Police Accountability Board, which is not³ "the officer or body having the power to remove [the person charged] ... or by a deputy or other employee of such officer or body designated... for that purpose?"⁴ In other words, can only an officer's commander or designee conduct a disciplinary hearing?⁵

Third: Does Local Law No. 2's transfer of police discipline to the Police Accountability Board, with the resulting divestiture of the Mayor's power over police discipline, violate Civil Service Law § 200 et seq. (known as the "Taylor Law") and New York State Constitution Art. I § 17 which obligate the Mayor to collectively bargain with a recognized bargaining unit?

Fourth: What is the import of Local Law No. 2's severability clause?

TABLE OF CONTENTS Page No.

I. Procedural History and Motion Contentions 3

A. Overview 5

B. Composition of the Police Accountability Board 6

i. Appointment of Board Members 6

ii. Removal of Board Members 7

C. Comparable boards 7

II. Validity of Local Law No.2 under New York State law 8

A. New York State law 9

i. Police Discipline in New York is presumptively subject to mandatory collective bargaining 13

ii. State laws regarding police discipline, including collective bargaining, are binding upon the City of Rochester 13

iii. Portions of Local Law No. 2 are unconstitutional and invalid 19

III. Validity of Local Law No. 2 under the City Charter 20

A. Mayor's Proposed Legislation 23

IV. Severability 24

V. Conclusion: City Council Action 25

I. Procedural History and Motion Contentions

On May 21, 2019, respondent-defendant Council of the City of Rochester (hereinafter, "City Council") adopted Local Law No. 2 of 2019 (hereinafter, "Local Law No. 2") to amend the Rochester City Charter. Local Law No. 2 established a Police Accountability Board (hereinafter, "PAB" or "Board") vested with exclusive power to hear, determine, and assign discipline for alleged misconduct by officers employed by the Rochester Police Department (hereinafter, "RPD"). The respondent Mayor approved Local Law No.2 on June 7, 2019, thereby divesting herself of control over an important aspect of local government. "The Police Accountability Board shall be the mechanism to investigate such complaints of police misconduct and to review and assess RPD patterns, practices, policies, and procedures,⁶ and establish a civilian-controlled Police Accountability Board with the power to investigate complaints of police misconduct and impose discipline on offending officers."

Section 2 of Local Law No. 2 scheduled a referendum for the November 4, 2019 general election and provided that Local Law No. 2 would take effect only after approval by the vote of a majority of qualified electors voting in that referendum. Petitioners commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, a declaration that Local Law No.2 is invalid, as well as injunctive relief. Petitioners also moved by order to show cause for a preliminary injunction, which this court granted, barring Local Law No. 2 from being voted on in the November 4, 2019 general election.

The respondent Mayor moved to dismiss the petition under CPLR 3211(7) for failure to state a cause of action and because the action was simultaneously too late and too early; that the petitioners' action was untimely; and that the action was not yet ripe (September 20, 2019 motion by Patrick Beath, Esq.). The respondent City Council moved to dismiss on the grounds that the petition was untimely⁷ and on the alleged lack of legal merit to the petition.

On September 25, 2019, this court reserved decision on the substantive challenges to Local Law No. 2 until the issues could be fully briefed and argued.⁸ This court granted a preliminary injunction enjoining the Monroe County Board of Elections from permitting or counting votes on the referendum of Local Law No. 2. The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department⁹ vacated the preliminary injunction and the referendum was approved by the vote of approximately seventy- five percent of the voting residents of Rochester in the November 4, 2019 election.¹⁰ In its decision, the Fourth Department noted "that the substantive merits of the Local Law are not before us... and that our determination does not bar a subsequent action in the event that the referendum is approved by the voters..." Accordingly, this decision addresses the substantive merits of Local Law No. 2.

Petitioners challenge both the legality of the PAB's role in police discipline and its affect on collective bargaining with the police union (hereinafter "the Locust Club"). The core issue is whether the Rochester City Council can enact legislation regarding police discipline that conflicts with New York State laws regulating the same subject.¹¹

A. Overview

Local governments most certainly have the power to and "amend local laws which are not inconsistent with [the New York State Constitution] or any general law."¹² This power for the City of Rochester, New York is vested in its City Council. The home rule provision of NY Const art. IX, § 2, cl. (c) gives local governments broad police powers relating to the welfare of their citizens.¹³ Duly enacted local laws have the same presumption of constitutionality as state laws, and the party challenging a local law has a "heavy burden" to prove that the law is inconsistent with the New York State Constitution or any general law of New York State.¹⁴ The presumption of constitutionality must be rebutted beyond a reasonable doubt, and a court only should declare a law unconstitutional as a last resort.¹⁵ There must be a showing that a legislature has clearly usurped a prohibited power, in order to declare a statute unconstitutional.¹⁶ Generally, it is for the legislative branch of government, not the courts, "to determine ‘the reasonableness, wisdom and propriety’ of the regulations needed to protect the community."¹⁷

B. Composition of the Police Accountability Board

i. Appointment of Board Members

Nine residents of the City of Rochester will comprise the PAB. One member will be appointed by the Mayor.¹⁸ The City Council will appoint four members.¹⁹ The remaining four seats are to be filled by the City Council from a pool of nominees selected by "The Alliance,"²⁰ which is "a group of community organizations" listed on Appendix A to Local Law No. 2. Appendix A states that the list of "organizations" comprising "The Alliance" is "subject to change,"²¹ but there is no indication of how the organization list will change. What qualifies as a "community organization" is not defined anywhere in Local Law No. 2. Other than explicitly excluding members of the Rochester Police Department, there appear to be no rules regarding what other "community organizations" may join "The Alliance."²²

Aside from residence and association restrictions, there are no minimum qualification requirements for PAB members, nor are there any restrictions on who may serve as a PAB member. However, Local Law No. 2 § 18-4(E) and (F) precludes RPD members or their family from being members of the PAB and places limitations on former law enforcement officers or their family members, as well as attorneys who have litigated police misconduct lawsuits.²³ All members of the PAB must be approved "by a majority" of the City Council.²⁴

PAB members may serve indefinitely. Initially, PAB member terms are three years long,²⁵ and a member may be reappointed for an additional term for a total of six years.²⁶ At the conclusion of that six-year initial tenure, the same member must wait three years before serving again.²⁷ Once a member is re-appointed to a second tenure after waiting three years, Local Law No. 2 contains no term limit.²⁸

ii. Removal of Board Members

A member of the PAB cannot be removed unless the PAB itself makes that request. Local Law No. 2 provides for removal of a PAB member only upon a majority vote of the PAB asking the City Council to remove that member.²⁹ Additionally, Local Law No. 2 provides that the PAB is to be "an autonomous office of the City of Rochester separate from the ...