3 No. 32
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.
2 No. 34
In the Matter of Town of
Orangetown, et al.,
Respondents, v. Orangetown Policemen's
Benevolent Association, et al.,
Appellants.
Case No. 32:
2006 NY Int. 32
March 28, 2006
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Peter M. Fishbein, for appellant. Sandra M. Nathan, for respondent New York State Public
Employment Relations Board. Edward F.X. Hart, for respondent City. New York State Conference of Mayors and Municipal
Officials; Sergeants Benevolent Association; Police Benevolent
Association of the New York State Troopers Inc. et al., amici curiæ. Case No. 34:Joseph P. Baumgartner, for appellants. Lance H. Klein, for respondents. New York State Conference of Mayors and Municipal
Officials, amicus curiæ. 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
NYCPBA v PERB
The Patrolmen's Benevolent Association of the City of
New York (NYCPBA) 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 AD2d 258, 259 [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.
Town of Orangetown v Orangetown PBA
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 2 516
[2d Dept 1989]) and Matter of Town of Greenburgh (Police Assn. of
the Town of >)(94 AD2d 771, 772 [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 NY2d 774, 778
[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 v Helsby, , 46 NY2d 1034 [1979], affg for reasons stated below 62 AD2d 12 [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 AD2d at 259; Rockland
County PBA, 149 AD2d at 517; Town of Greenburgh, 94 AD2d at 771-
772; Matter of City of Mount Vernon v Cuevas, 289 AD2d 674, 675-
676 [3d Dept 2001]). We decide today that these Appellate
Division holdings were correct. The Taylor Law (Civil Service Law article 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 New York Pub.
Empl. Relations Bd., , 95 NY2d 73, 79 [2000]; see also, e.g.,
Matter of Board of Educ. of City School Dist. of City of New York
v New York State Pub. Empl. Relations Bd., , 75 NY2d 660, 667-668
[1990]; Board of Educ. of Union Free School Dist. No. 3 v
Associated Teachers of Huntington, , 30 NY2d 122, 129 [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 NY2d at 778), or their right to
inspect teachers' personnel files ( Board of Educ., Great Neck
Union Free School District v Areman, , 41 NY2d 527 [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 NY2d 480, 483 [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 NY3d 660 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 Investigations to
interrogate city employees in a criminal investigation ( Matter of
City of New York v Uniformed Fire Officers Assn., , 95 NY2d 273
[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 than
express, prohibitions in the statute or decisional law'" or "in
some instances, by '[p]ublic policy . . . whether explicit or
implicit in statute or decisional law, or in neither'" (40 2
at 778, quoting Syracuse Teachers Assn. v Board of Educ.,
Syracuse City School Dist., , 35 NY2d 743, 744 [1974], and Matter
of Susquehanna Val. Cent. School Dist. [Susquehanna Val. Teachers
Assn., , 37 NY2d 614, 616-617 [1975]).
Is there a public policy strong enough to justify
excluding police discipline from collective bargaining? It might
be thought this question could be answered yes or no, but the
relevant statutes and case law are not so simple. In general,
the procedures for disciplining public employees, including
police officers, are governed by Civil Service Law §§ 75 and 76,
which provide for a hearing and an appeal. In Auburn, a case
involving police discipline, the Appellate Division rejected the
argument that these statutes should be interpreted to prohibit
collective bargaining agreements "that would supplement, modify
or replace" their provisions (62 2 at 15), and we adopted the
Appellate Division's opinion (46 2 at 1035). Thus, where
Civil Service Law §§ 75 and 76 apply, police discipline may be
the subject of collective bargaining. But Civil Service Law § 76 (4) says that sections 75
and 76 shall not "be construed to repeal or modify" pre-existing
laws, and among the laws thus grandfathered are several that, in
contrast to sections 75 and 76, provide expressly for the control
of police discipline by local officials in certain communities.
Such laws are applicable in the City of New York and in the Town
of Orangetown, and are at the center of these two cases. Section 434 (a) of the New York City Charter provides:
"The [police] commissioner shall have cognizance and control of
the government, administration, disposition and discipline of the
department, and of the police force of the department" (emphasis
added). New York City Administrative Code § 14-115 (a) provides
that, in cases of police misconduct: "The commissioner shall have
power, in his or her discretion . . . to punish the offending
party." Though these two provisions are now New York City
legislation, both were originally enacted as State statutes; the
Charter provision was adopted by the State Legislature in 1897
(Ash, Greater New York Charter § 271 [1897]), and the Code
provision in 1873 (L 1873, ch 335, §§ 41, 44). Thus, they
reflect the policy of the State that police discipline in New
York City is subject to the Commissioner's authority. The Legislature has provided similarly for the
discipline of town and village police forces, including those in
Rockland County, where Orangetown is located. Section 7 of the
Rockland County Police Act (L. 1936, Ch. 526), similar in its
wording to more general statutes, Town Law § 155 and Village Law § 8-804, provides in part:
"The town board shall have the power and
authority to adopt and make rules and
regulations for the examination, hearing,
investigation and determination of charges,
made or preferred against any member or
members of such police department. Except as
otherwise provided by law, no member or
members of such police department shall be
fined, reprimanded, removed or dismissed
until written charges shall have been
examined, heard and investigated in such
manner or by such procedure, practice,
examination and investigation as the board,
by rules and regulations from time to time,
may prescribe."
Thus, the Legislature has committed police discipline in
Orangetown to the "power and authority" of the Orangetown Town
Board. Appellate Division cases -- one of which we have
referred to favorably -- have consistently held that legislation
of this kind overcomes the presumption in favor of collective
bargaining where police discipline is concerned. Thus, in 1983
the Appellate Division, Second Department held that police
discipline in the Town of Greenburgh was not subject to
collective bargaining; it distinguished Auburn on the ground that
discipline in Greenburgh was committed to the authority of the
Town Board or Board of Police Commissioners by the Westchester
County Police Act ( Town of Greenburgh, 94 AD2d at 771-772). In
1989, the same court reached a similar conclusion under the
Rockland County Police Act, one of the laws at issue here
( Rockland County PBA, 149 AD2d at 517). In 1994, the Appellate
Division, First Department held that the other laws at issue here
-- section 434 of the New York City Charter and section 14-115 of
the New York City Administrative Code -- excluded police
discipline in New York City from collective bargaining. The
court held that the legislation "discloses a legislative intent
and public policy to leave the disciplining of police officers .
. . to the discretion of the Police Commissioner" ( MacDonald, 201
AD2d at 259). We quoted these words with approval in Montella v
Bratton (93 2 424, 430 [1999]) where we held, in a case not
involving collective bargaining, that police discipline in New
York City is not subject to the procedures prescribed in Civil Service Law §§ 75 and 76. Finally, in 2001, the Appellate
Division, Third Department, endorsed the decisions of the First
and Second Departments in Town of Greenburgh, Rockland County PBA
and MacDonald, holding that the Charter of the City of Mount
Vernon, like the legislation involved in the other Appellate
Division cases, removed police disciplinary procedures from the
scope of collective bargaining ( Mount Vernon, 289 AD2d at 675-
676). The NYCPBA and the Orangetown PBA argue that this line
of Appellate Division cases is wrong. In this they are supported
by PERB, which, although it is bound by and has followed the
Appellate Division decisions, now urges us to reject them. This
is not a case, however, in which we defer to PERB's judgment.
The primary issue here is not the application of the Taylor Law
to particular facts, an area in which PERB is entitled to
deference ( Poughkeepsie Firefighters Assn. v New York State Pub.
Empl. Relations Bd., __ NY2d __ [2006][decided today]; Matter of
West Irondequoit Teachers Assn. v Helsby, , 35 NY2d 46, 50-51
[1974]), but the relative weight to be given to competing
policies, including those reflected in the New York City Charter,
the New York City Administrative Code, and the Rockland County
Police Act -- legislation not within PERB's area of expertise
( see Schenectady PBA, 85 NY2d at 485). We think the Appellate
Division decisions evaluated these policies correctly.
While the Taylor Law policy favoring collective
bargaining is a strong one, so is the policy favoring the
authority of public officials over the police. As long ago as
1888, we emphasized the quasi-military nature of a police force,
and said that "a question pertaining solely to the general
government and discipline of the force . . . must, from the
nature of things, rest wholly in the discretion of the
commissioners" ( People ex rel. Masterson v French, 110 NY 494,
499 [1888]). This sweeping statement must be qualified today; as
Auburn demonstrates, the need for authority over police officers
will sometimes yield to the claims of collective bargaining. But
the public interest in preserving official authority over the
police remains powerful. It was the basis for our holding, only
last June, that the statutory right of a Police Commissioner to
select "an officer to fill a position important to the safety of
the community" may not be surrendered in a collective bargaining
agreement ( Buffalo PBA, 4 NY3d at 664). The same policy has
determined the result of other cases, including Matter of
Silverman v McGuire, , 51 NY2d 228, 231-232 [1980], where we
rejected a resolution of a police disciplinary proceeding
negotiated by a subordinate official, in light of "the sensitive
nature of the work of the police department and the importance of
maintaining both discipline and morale."
The New York City Charter and Administrative Code, and
the Rockland County Police Act, state the policy favoring
management authority over police disciplinary matters in clear
terms. In New York City, the police commissioner "shall have
cognizance and control of the . . . discipline of the department"
(NYC Charter § 434 [a]) and "shall have power, in his or her
discretion . . . to punish [an] offending party" (NYC
Administrative Code § 14-115 [a]). In Rockland County, the Town
Board "shall have the power and authority to adopt and make rules
and regulations for the examination, hearing, investigation and
determination of charges, made or preferred against any member or
members of such police department" (Rockland County Police Act §
7). These legislative commands are to be obeyed even where the
result is to limit the scope of collective bargaining. The issue
is not, as the unions argue, whether these enactments were
intended by their authors to create an exception to the Taylor
Law; obviously they were not, since they were passed decades
before the Taylor Law existed. The issue is whether these
enactments express a policy so important that the policy favoring
collective bargaining should give way, and we conclude that they
do. Accordingly, in New York City PBA v PERB, the order of
the Appellate Division should be affirmed, with costs. In Town
of Orangetown v Orangetown PBA, the proceeding should be
converted to a declaratory judgment action, and the order of the
Appellate Division modified to declare that article 15 of the
collective bargaining agreement is invalid, and the order should
otherwise be affirmed, with costs to the Town of Orangetown and
the Town Board of the Town of Orangetown.
