In the Matter of City of Schenectady, Appellant,v.New York State Public Employment Relations Board et al., Respondents.BriefN.Y.September 6, 2017APL-2016-00122 Time Requested: 30 Minutes To Be Argued by David P. Quinn STATE OF NEW YORK- COURT OF APPEALS In the Matter of the Application of the CITY OF SCHENECTADY, NEW YORK, Petitioner-Appellant, - against - NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD and SCHENECTADY POLICE BENEVOLENT ASSOCIATION, Respondents-Respondents. Albany County Index No. 5253/13 BRIEF ON BEHALF OF RESPONDENT- RESPONDENT NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD Dated: November 22, 2016 DAVID P. QUINN Attorney for Respondent NYS Public Employment Relations Board Office and P.O. Address 2074 Empire State Plaza Agency Building 2, 20th Floor Albany, NY 12220-0074 Telephone: (518) 457-2678 Fax: (518) 457-2664 Table of Contents TABLE OF AUTHORITIES ......................................................... ........................ i-iv PRELIMINARY STATEtvfENT ............................................................................... ! QUESTIONS PRESENTED ........................................... ........................................... 4 STATEMENT OF THE CASE ....................................... .............. ............................ :4 Statutory Framework .............................................................................................. 4 Record Facts and Procedural History ..................................................................... 5 ARGUMENT POINT I DISCIPLINARY PROCEDURES FOR MUNICIPAL POLICE OFFICERS ARE MANDATORILY NEGOTIABLE UNDER THE STRONG AND SWEEPING PUBLIC POLICIES FA VORlNG SUCH NEGOTIATIONS UNDER THE TAYLORLAW ......................................................................................................... 9 · A. Disciplinary Procedures Are Mandatorily Negotiable, generally .................... 9 B. The Legislative History ofCiv. Serv. Law§ 209. 4 Reveals The Legislature's Plain and Clear, If Not Inescapably Implicit Intent That Disciplinary Procedures for Police Officers Are Mandatorily Negotiable ................................................. !! POINT II THE APPELLATE DIVISION CORRECTLY HELD THAT THE SECOND CLASS CITIES LAW DOES NOT OVERCOME THE STRONG AND SWEEPING PUBLIC POLICIES FAVORING COLLECTIVE NEGOTIATIONS UNDER THETA YLOR LAW CONCERNING DISCIPLINARY PROCEDURES FOR POLICE OFFICERS EMPLOYED BY CITIES OF THE SECOND CLASS .................................................................................................................................. 16 A. Introduction ..................................................................................................... 16 B. In contrast to other statutes governing police discipline, Second Class Cities Law§ 4 expressly authorizes the establishment of different disciplinary procedures from those specified in§ 137 pursuant to later laws ......................... 21 C. NYCPBA and Wallkill should not be construed to prohibit negotiations concerning police disciplinary procedures under the Second Class Cities Law .25 POINT III THE APPELLATE DIVISION PROPERLY AFFIRMED SUPREME COURT'S ORDER ENFORCING PERB'S REMEDIAL ORDER AS AUTHORIZED BY CIV. SERV. LAW§ 213 (a) (ii) .............................................................................. 28 CONCLUSION ............. ........ ..................................... ............................... ............... 30 TABLE OF AUTHORITIES Page(s) CASES Auburn Police Local195, Counci/82, AFSCME v Helsby, 62 AD2d 12 (3d Dept 1978), affd on opinion below 46 NY2d 1034 (1979) ........................................ ................ ....... .... ....... ...................... 10, 11, 17, 18 Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23 (1978) ................................................................... ...................... .... 10 Board ofEduc of City School Dist of City of New York v New York State Pub Empl Relations Bd, 75 NY2d 660,666 (1990) ..................................................................................... 5 Board of Educ Commack Union Free Sch Dist v Ambach, 70 NY2d 501 (1987) ........................................................................... ................ 11 Board of Educ of Union Free Sch Dist No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122 (1972) ........................................................................................... 10 Board of Educ of Yonkers City School Dist v Yonkers Fedn of Teachers, 40 NY2d 268 (1976) .............. ........................ ........... .......................................... 10 Branford House, Inc. v Michetti, 81 NY2d 681 (1993) ....... .................................................................................... 23 Charter Development Co v City of Buffalo, 6 NY3d 578 (2006) .............................. ............................................................... 23 Chenango Forks Cent Sch Dist v New York State Pub Empl Relations Bd, 21 NY3d255 (2013) .................................................................. .... ................. 5, 16 City of Albany (NYS Law En/Officers Union), 42 PERB ~ 3005 (2009) ......................... ............................................................... 7 City of Albany v Helsby, 29 NY2d 433, 439 (1972) ................................................................................... 28 City of Middletown Police Benevolent Association (City of Middletown), 42 PERB ~ 3022 (2009), vacated on other grounds sub nom. City of Middletown v City of Middletown PBA, 43 PERB ~ 7002 (Sup Ct Albany County 2010), affd 81 AD3d 1238 (3d Dept 2011) .................. .......................... 19 City of New York v New York State Pub Empl Relations Bd, 103 AD3d 145 [3d Dept 2012] ........................................................................... 29 City of Schenectady v New York State Pub Empl Relations Bd, 136 AD3d 1086 (2016) ......................................................................................... 1 City of Watertown v New York State Pub Empl Relations Bd, 95 NY2d 73, 78 (2000) ....................................................................................... 10 City of Yonkers v Y_onkers Fire Fighters, Local628, IAFF, AFL-CIO, 20 NY3d 651 (2013) ....................................................... ... ................................... 5 Kilduf v Rochester City School District, 24 NY3d 505 (2014) ........................................................................................... 11 Matter of Doyle v City ofTroy, 51 AD2d 845 (3d Dept 1976) ............................................................................. 18 New York City Trans Auth v Transport Workers Union of America, Local 100, AFL- C/0, . 99 NY2d 1 (2002) ........................................... ...................................................... 9 New York State Pub Empl Relations Bd v Bd. of Ed of City of Buffalo, 39 NY2d 86 (1976) ............................................................................................. 28 New York State Pub Empl Relations Bd v County of Westchester, 280 AD2d 849 (3d Dept 2001) ........................................................................... 29. Patrolmen's Benevolent Assn of the City of New York, Inc. v New York State Pub Empl Relations Bd, 6 NY3d 563 (2006) ..................................................................................... . passim State of New York (Div of State Police) (Police Benevolent Assn of the New York State Troopers, Inc.), 38 PERB ~ 3007 (2005), confd sub nom. Police Benevolent Assn of NY State Troopers, Inc. v New York State Pub Empl Relations Bd, 39 PERB ~ 7013 (Supreme Court Albany County 2006) ................................................... 26 11 Tarrytown Patrolmen's Benevolent Association (Village of Tarrytown), 40 PERB ~ 3024 (2007) ............... : ...................................................................... 19 Town of Islip v New York State Pub Empl Relations Bd, 23 NY3d 482 (2014) ........................................................................... 5, 16, 18, 28 Town of Southampton v New York State Pub Empl Relations Bd, 2 NY 3d 513 (2004) ............................................................................................... 5 Town of Wallkill v Civil Serv Empls Assn, 19 NY3d 1066 (2012) .................................................................................. passim Town of Wallkill {Town of Wallkill Police Benevolent Assn, Inc.), 42 PERB ~ 3017 (2009), confd sub nom. Town ofWallkill v New York State Pub Empl Relations Bd, 43 PERB ~ 7005 (Albany County Supreme Court 2010) .......................................... ............................................. 19, 20, 21, 26 Triborough Bridge & Tunnel Auth (Dist Council37 & Local1396, AFSCME, AFL-C/0), 5 PERB ~ 3037 (1972) .......................................................................................... 5 STATUTES Civ. Serv. Law§ 75 .......................................................................................... passim Civ. Serv. Law §76 ...................................................................................... ! 0, 18, 19 Civ. Serv. Law§ 76.4 ........................................................................................ 18, 21 Civ. Serv. Law Article 14 .......................................................................................... ! Civ. Serv. Law§ 200 ................................................................... : ......................... 4, 9 Civ. Serv. Law§ 200 [c] ............................................................................................ 9 Civ. Serv. Law §205 .................................................................................................. ·4 Civ. Serv. Law§ 205.5 (d) ................................................................ ................ passim Civ. Serv. Law§ 209-a .............................................................................................. 4 Civ. Serv. Law§ 209-a.l (d) ....................................................................... 1, 5, 7, 15 · lll Civ. Serv. Law§ 209.4 ..................................................................................... passim Civ. Serv. Law§ 209.4 (e) ................................................................................ passim Civ. Serv. Law §213 (a) (ii) .............................................................................. passim Executive Law§ 215 (3) .................................................................................... 14, 25 Optional Cities Law ......................................................... ........................................ 27 McKinney's Statutes § 231 ... .......................................................... ......................... 23 Rockland County Police Act .............................................................................. 18, 24 Rockland County Police Act § 7 .............................................................................. 23 Second Class Cities Law§ 4 ............................................................................. passim Second Class Cities Law§ 137 ........................ .......................................... 2, 6, 15,21 Town Law§ 155 ........ ............................................................................ 20, 21, 23, 24 Unconsolidated Law § 891 ....................... ............................................................... 27 Unconsolidated Law § 5711-q (9) ........................................................................... 19 Village Law§ 4-804 ................................................................................................ 26 OTHER AUTHORITIES 4 NYCRR § 205.6 (a)(l) ................................... ....................................................... 12 CPLR Article 7 5 ....................................................................................... ............... 20 CPLR Article 78 ........................................................................................................ 1 General Order 0-43 .................................................................................................... 6 New York City Charter ..... ....................................................................................... 1 7 Police Department General Order 0-43 ..................................................................... 6 iv PRELIMINARY STATEMENT Respondent New York State Public Employment Relations Board ("PERB" or "Board") submits this brief in opposition to the appeal taken by the City of Schenectady ("City") from a November 17, 2015 Memorandum and Order of the Appellate Division, Third Department, in a CPLR Article 78 proceeding that the City commenced for review of an August 23, 2013 administrative decision and remedial order that PERB issued in an improper practice proceeding initiated by respondent Schenectady Police Benevolent Association ("PBA") pursuant to Civil Service Law ("Civ. Serv. Law") Article 14 - the "Taylor Law" (City of Schenectady v New York State Pub Empl Relations Bd, 136 AD3d 1086 [2016]). The Appellate Division affirmed a July 9, 2014 Decision/Judgment of Supreme Court, Albany County (McGrath, J.S.C.) that confirmed PERB's determination that the City violated Civ. Serv. Law § 209-a.l (d) by refusing to continue terms of the parties' expired collective bargaining agreement governing disciplinary procedures for City police officers and by unilaterally imposing new procedures. The Appellate Division also affirmed Supreme Court's Order enforcing PERB's remedial order against the City as authorized by Civ. Serv. Law §§ 205.5 (d) and 213 (a) (ii). At the heart of this matter is the effect that the Second Class Cities Law, a general law enacted in 1906 and amended in 1909, has on the bargaining 1 obligations imposed on public employers and employee organizations under the Taylor Law, a general law enacted in 1967 and amended numerous .times since then. PERB acknowledges that the resolution of this question involves pure statutory interpretation and the assessment of Legislative intent about which the Court owes PERB no deference. The issue is whether the City could lawfully enter into an enforceable collective bargaining agreement with the PBA concerning 4isciplinary procedures for City police officers that are different from those specified in Article 9, § 137 of the Second Class Cities Law. Although the contractual procedures were first negotiated in 1969 and remained unchanged in all material respects for nearly four decades, in June 2007, the City announced that the contractual procedures were unlawfully negotiated and are, thus, unenforceable under this Court's decision in Patrolmen's Benevolent Assn of the City of New York, Inc. v New York State Pub Empl Relations Bd, 6 NY3d 563 (2006) (hereinafter "NYCPBA") because the contractual procedures differed from those specified in Second Class Cities Law § 137. Thereafter, in November 2007 and April2008, the City abandoned the parties' contractual procedures and unilaterally imposed new procedures. Although§ 137 of the Second Class Cities Law commits certain aspects of police discipline to the discretion of the City's Public Safety Commissioner, the Appellate Division relied on Second Class Cities Law Art. 2, § 4, which states that 2 the provisions contained therein 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" [emphasis added]. Applying appropriate principles of statutory construction, the Appellate Division concluded that § 4 of the Second Class Cities Law expressly authorized the City to enter into a collective bargaining agreement concerning police disciplinary procedures pursuant to collective bargaining mandated by the Taylor Law. PERB respectfully submits that this Court should affirm the decision of the Appellate Division. Indeed, as discussed in Point I, infra, PERB respectfully submits that the Appellate Division's conclusion is supported by the unambiguous statement of the State's public policies underlying the Taylor Law, and the Legislature' s declaration that such public policies are best effectuated by encouraging the parties to collective bargaining relationships to agree upon procedures for resolving disputes, including, as this Court has held, disciplinary · disputes. The decision is also supported by the legislative history ofCiv. Serv. Law§ 209.4 which reveals the Legislature's specific understanding that disciplinary procedures for police officers are mandatorily negotiable. 3 QUESTIONS PRESENTED 1. Are disciplinary procedures for municipal police officers mandatorily negotiable under the strong and sweeping public policies favoring such negotiations under the Taylor Law? PERB respectfully submits that they are. 2. Did the Appellate Division correctly hold that the Second Class Cities Law does not overcome the strong and sweeping public policies favoring colJective negotiations under the Taylor Law concerning disciplinary procedures for police officers employed by cities ofthe second class? PERB respectfully submits that it did. 3. Did the Appellate Division properly affirm Supreme Court's order enforcing PERB's remedial order as authorized by Civ. Serv. Law§ 213 (a) (ii)? PERB respectfully submits that it did. STATEMENT OF THE CASE Statutory Framework PERB is an executive agency of the State ofNew York, established to administer the Taylor Law. See, Civ. Serv. Law§§ 200, 205. Under Civ. Serv. ~aw § 205.5 (d), PERB has exclusive, nondelegable jurisdiction to develop procedures to prevent unlawful conduct defined in Civ. Serv. Law§ 209-a, called 4 improper practices, and to issue remedial orders that are enforceable pursuant to Civ. Serv. Law§ 213 (a) (ii). Under Civ. Serv. Law § 209-a.1 (d), it is an improper practice for a public employer to unilaterally alter mandatorily negotiable terms and conditions of employment affecting represented employees. 1 See, Town of Islip v New ,York State Pub Empl Relations Bd, 23 NY3d 482 (2014); Chenango Forks Cent Sch Dist v New York State Pub Empl Relations Bd, 21 NY3d 255 (2013). A public employer also violates Civ. Serv. Law§ 209-a.l (d) by failing to continue the mandatorily negotiable terms in an expired collective bargaining agreement until a new agreement is negotiated. See, e.g., City of Yonkers v Yonkers Fire Fighters, Loca/628, IAFF, AFL-C/0, 20 NY3d 651 (2013); Town of Southampton v New York State Pub Empl Relations Bd, 2 NY3d 513 (2004); Triborough Bridge & Tunnel Auth, (Dist Counci/37 & Loca/1396, AFSCME, AFL-CIO) , 5 PERB ~ 3037 (1972). Record Facts and Procedural History As stipulated by the City and the PBA (Record on Appeal ["R."] 235-243), the facts upon which PERB relied are not in dispute, and they are detailed in 1"Mandatory" subjects are those over which employers and employee organizations have an obligation to bargain in good faith. "Permissive" or "non-mandatory" subjects are those that either side may, but is not obligated to bargain, and "prohibited" subjects are those forbidden by statute or otherwise from being embodied in a collective bargaining agreement because they are unenforceable as a matter of law or public policy. See, Board of Educ of City School Dist of City of New York v New York State Pub Empl Relations Bd, 75 NY2d 660,666 (1990). 5 PERB's decision and accurately reiterated by the Appellate Division. For the sake of brevity, they are reiterated here only insofar as they are necessary and material. The City is a city of the second class. The City and the PBA are parties to a collective bargaining agreement that expired on December 31, 2007. Stipulation, ("Stip.") ~ 3, R. 236. The expired agreement provides a negotiated disciplinary procedure (Stip. ~ 5, R. 236) that has not changed in any material way since it was first negotiated in 1969 (Stip. ~ 7, R. 23 7). By press release dated June 4, 2007, the City announced the implementation of significant changes in its police disciplinary procedures. Stip. ~ 15, R. 239. The changes included replacing the negotiated disciplinary procedures for PBA unit employees and designating the Public Safety Commissioner as the trier of fact with the authority to issue final disciplinary determinations on behalf of the City, subject to judicial review. On November 30, 2007, the City issued its first notice of discipline against a PBA unit member premised upon Second Class Cities Law, § 137. Stip. ~ 17, R. 239. On April4, 2008, the City imposed Police Department General Order 0-43, which stated that all disciplinary proceedings against sworn police officers would be subject to Second Class Cities Law,§ 137. Stip. ~ 16, R. 239. In addition, General Order 0-43 outlined new procedures for the investigation and determination of alleged acts of misconduct and incompetence by police 6 personnel. It is undisputed that the City imposed the new police disciplinary procedures without negotiations with the PBA. Stip. ~ 18, R. 239. The PBA filed an improper practice charge with PERB (R. 244), alleging, as amended (R. 255), that the City's unilateral imposition of the new disciplinary procedures violated Civ. Serv. Law§ 209-a.1 (d). After the City filed an answer to the charge (R. 266), a PERB Administrative Law Judge ("ALJ") sustained the PBA's charge and ordered certain remedial measures. R. 184. The City filed exceptions to the ALJ's decision and the PBA filed a response. R. 206, 213. By final decision under review here, the Board affirmed the ALJ. R. 140. The Board held that the subject of the City's conduct- disciplinary procedures for represented police officers - is mandatorily negotiable under the Taylor Law and that the Second Class Cities Law did not remove the subject from the scope of mandatory negotiations. There being no dispute that the City unilaterally imposed the new disciplinary procedures, the Board held that the City violated Civ. Serv. Law § 209-a.l (d), and it directed certain remedial measures as authorized by Civ. Serv. Law§ 205.5 (d). Accord, City of Albany (NYS Law En/Officers Union), 42 PERB ~ 3005 (2009). The City then brought the instant Article 78 proceeding in Albany County Supreme Court. R. 13. Supreme Court held that PERB's negotiability determination was not arbitrary and capricious, and it ordered enforcement ofPERB's remedial order. R. 7. 7 The Appellate Division affirmed. R. 1678. Observing that the Second Class Cities Law expressly "commits police discipline to the discretion of [the City's] Public Safety Commissioner" (R. 1680), the Appellate Division relied on Second Class Cities Law§ 4, which states that the procedures contained therein 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" [emphasis added]. Applying appropriate principles of statutory construction, the Appellate Division concluded that § 4 of the Second Class Cities Law manifests "clear and unambiguous language" and "the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter." R. 1680. Similarly, the Appellate Division held that that language reveals "a statutorily p]anned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation." R. 1680. Accordingly, the Appellate Division concluded that the Second Class Cities Law does not override the duty to negotiate concerning police disciplinary procedures under the Taylor Law, a later law by which enforceable alternative disciplinary procedures may be established "pursuant to" collective negotiations under the Taylor Law. This Court granted the City's motion for leave to appeal. R. 1676. 8 ARGUMENT POINT I DISCIPLINARY PROCEDURES FOR MUNICIPAL POLICE OFFICERS ARE MANDATORILY NEGOTIABLE UNDER THE STRONG AND SWEEPING PUBLIC POLICIES FAVORING SUCH NEGOTIATIONS UNDER THE TAYLOR LAW A. Disciplinary Procedures Are Mandatorily Negotiable, generally The Taylor Law provides an unambiguous statement of public policy in Civ. Serv. Law§ 200: The legislature ofthe state ofNew York declares that it is the public policy of the state and the purpose of this act to promote harmonious and cooperative relationships between government and its employees and to protect the public by assuring, at all times, the orderly and uninterrupted operations and functions of government. With equal clarity, the Legislature expressly declared that those public policies are "best effectuated" by, among other means, "encouraging such public employers and such employee organizations to agree upon procedures for resolving disputes" (Civ. Serv. Law§ 200 [c]). Accordingly, this Court has held that collective negotiations concerning procedures to resolve labor disputes, including disciplinary disputes, effectuate the policies of the Taylor Law and are, thus, mandatorily negotiable and enforceable. See New York City Trans Auth v Transport Workers Union of 9 America, Local 100, AFL- CIO, 99 NY2d 1 (2002); Binghamton Civ. Serv. Forum v City of Binghamton, 44 NY2d 23 (1978); Board ofEduc of Yonkers City School Dist v Yonkers Fedn ofTeachers, 40 NY2d 268 (1976); Board ofEduc of Union Free Sch Dist No. 3 of Town of Huntington v Associated Teachers of Huntington, 30 NY2d 122 ( 1972). Indeed, this Court has observed that the public policies favoring collective negotiations concerning dispute resolution procedures are "strong and sweeping." See, e.g., City of Watertown v New York State Pub Empl Relations Bd, 95 NY2d 73, 78 (2000). In Auburn Police Local195, Counci/82, AFSCME v Helsby, 62 AD2d 12 (3d Dept 1978), affd on opinion below 46 NY2d 1034 (1979) (hereinafter "Auburn"), this Court affirmed the Appellate Division's determination that disciplinary procedures for public employees- there, police officers - are mandatorily negotiable under the Taylor Law. As affirmed by this Court, the Appellate Division rejected the employer's argument that it should not be compelled to negotiate concerning the union's desire for a procedure that differed from the statutory disciplinary procedures specified in Civ. Serv. Law§ 75, a general law enacted in 1958. The Court reasoned that the public policies favoring collective negotiations concerning disciplinary procedures are not overcome by the public policies giving rise to the statutory procedures granted to public employees by Civ. Serv. Law§§ 75 and 76. Therefore, the Court concluded that the union's 10 bargaining proposal seeking to negotiate for a different procedure than that specified in Civ. Serv. Law§ 75 was mandatorily negotiable. Notably, the holding in Auburn was that the duty to negotiate concerning disciplinary procedures includes alternatives to the disciplinary procedures specified in Civ. Serv. Law§ 75; not that such negotiations are exclusive to alternatives to the Civ. Serv. Law procedures. Indeed, this Court has held that alternatives to dispute resolution procedures contained in other general laws are mandatorily negotiable. See, e.g., ·Kildufv Rochester City School District, 24 NY3d 505 (2014) (alternatives to the disciplinary procedures in Education Law 3020-a); Board ofEduc, Commack Union Free Sch Dist v Ambach, 70 NY2d 501 (1987) (alternatives to dispute resolution procedures in Education Law § 31 0). Auburn is entirely consistent with the legislative history of the compulsory interest arbitration provisions in Civ. Serv. Law§ 209.4, the impasse procedures uniquely designed to resolve bargaining impasses for police and firefighters. B. The Legislative History of Civ. Serv. Law§ 209.4 Reveals The Legislature's Plain and Clear, If Not Inescapably Implicit Intent That Disciplinary Procedures for Police Offic.ers Are Mandatorily Negotiable Unlike the impasse procedures for most public employees, under Civ. Serv. Law § 209.4, negotiations impasses concerning certain firefighters and police employed by any "police force or police department of any county, city, town, village or ... police district" proceed to compulsory interest arbitration, where a 11 panel of three - one chosen by the union, one by the employer and one selected by the two from a list of qualified, disinterested persons maintained by PERB - conducts a hearing and issues an award based on specific statutory criteria that.is final and binding on the parties for a period not to exceed two years. Until 1995, New York state troopers were not entitled to the compulsory interest arbitration procedures available to municipal police officers under Civ. Serv. Law§ 209.4. In 1995, the Legislature enacted Civ. Serv. Law§ 209.4 (e), extending interest arbitration to state troopers. However, the Legislature expressly excluded non-compensatory, albe"it mandatorily negotiable, terms and conditions of employment from the subjects that troopers could submit for consideration by the interest arbitration panel, including "disciplinary procedures and actions." See L. 1995, c 432 § 3.2 Because non-mandatory and prohibited subjects are not arbitrable (see 4 NYCRR § 205.6 [a] [1]; NYCPBA), there would have been no need for the Legislature to specifically exclude disciplinary procedures and actions from the subjects that state troopers could submit to interest arbitration if it did not understand and intend them to be mandatorily negotiable for troopers as they are for all municipal police. 2 As enacted in 1995, Civ. Serv. Law§ 209.4 (e) states, in relevant part: "[T]he provisions of this section shall only apply to the terms of collective bargaining agreements directly relating to compensation, including, but not limited to, salary, stipends, location pay, insurance, medical and hospitalization benefits; and shall not apply to non- compensatory issues, including, but not limited to ... disciplinary procedures and actions." [Emphasis added.] 12 Indeed, the supporting memorandum for the new bill by then Assembly Majority Leader Michael Bragman demonstrates that the amendment was not intended to impair the negotiability of disciplinary procedures for members of the State Police: "Sections 1 and 2 of this bill amend sections 209(2) and ( 4) of the civil service law, the State's binding arbitration law, to include members of the State Police. Section 3 of this bill limits binding arbitration to compensation issues (including such items as salary, overtime, vacation pay, etc.). Other issues will be subject to existing collective bargaining procedures." New York State Bill Drafting Commission, Legislative Retrieval System, c 432, Memorandum in Support of Bill No. A07370A (1995). Majority Leader Bragman's reference to "other issues" that are "subject to existing collective bargaining procedures" refers to disciplinary procedures and other non- compensatory issues that, although specifically excluded from resolution at compulsory interest arbitration, remain negotiable under the Taylor Law and subject to the impasse resolution procedures applicable to non-police units. In 2001, the Legislature amended Civ. Serv. Law§ 209.4 (e) by deleting the exclusion of disciplinary procedures and other non-compensatory subjects that state troopers could submit to compulsory interest arbitration. See, L. 2001, c 587. Here, again, the supporting memorandum reveals the Legislature's intent: "Local police officers and Firefighters currently are afforded full binding arbitration (that is compensatory and non-compensatory issues are subject to binding arbitration). The legislation would simply grant all 13 State Police officers equal treatment with respect to their local counterparts." [See, 2001 McKinney's Session Laws ofN.Y., Vol. 2, L. 2001, c 587, Memorandum in Support of Bill No. A. 8589.] The "equal treatment with respect to their local counterparts" referenced in the memorandum shows that by restoring disciplinary procedures and other non- compensatory terms and conditions of employment to the scope of subjects that state troopers could submit to interest arbitration, the Legislature understood and intended that disciplinary procedures and actions are proper subjects for interest arbitration and, thus, mandatorily negotiable for troopers, as they are for bargaining units of police officers employed by any "police force or police department of any county, city, town, village or. .. police district." Civ. Serv. Law§ 209.4 (e) was amended again in 2002, reinstating the exclusion of non-compensatory issues from the subjects that state troopers can submit to compulsory interest arbitration, specifically including "issues relating to disciplinary procedures and investigations." See, L. 2002, c 232. Again, if "issues relating to disciplinary procedures and investigations" were not mandatorily negotiable, there would have been no need for the Legislature to expressly exclude those issues from the subjects that troopers could submit to interest arbitration. Thus, although Executive Law§ 215 (3) commits the establishment of disciplinary rules and regulations for troopers to the superintendent of the Division of State Police, given the lengths to which the Legislature went in considering 14 whether and to what extent disciplinary procedures for state troopers should be allowed to proceed to interest arbitration under Civ. Serv. Law § 209.4 (e), it is clear that the Legislature understood and intended that, but for the exclusions, they would be proper subjects for consideration by the interest arbitration panel; that is, that such procedures are mandatorily negotiable for troopers, as they are for police officers employed by any "police force or police department of any county, city, town, village or ... police district." As relevant in this matter, it is undisputed that the City and the PBA have a negotiated disciplinary procedure. The procedure has been in place since 1969, and it was most recently contained in the parties' expired collective bargaining agreement. It is also undisputed that in June and November 2007, the City unilaterally imposed a new disciplinary procedure that states that all disciplinary proceedings against police officers would be governed by Second Class Cities Law, §137, and in April 2008, it imposed new procedures for the investigation and determination of alleged acts of misconduct and incompetence by police personnel - all mandatorily negotiable under the Taylor Law. Therefore, PERB held that the City violated Civ. Serv. Law§ 209-a.l (d) by refusing to adhere to the disciplinary procedures in the parties' expired agreement and by unilaterally imposing new procedures. 15 PERB respectfully submits that the Appellate Division properly confirmed PERB's determination (see, e.g., Town of/slip v New York State Pub Empl Relations Bd, 23 NY3d 482 [2014]; Chenango Forks Cent Sch Dist v New York State Pub Empl Relations Bd, 21 NY3d 255 [2013]), unless the Court finds, as the City argues, that the Second Class Cities Law, enacted in 1906 and amended in 1909, defeats the City's bargaining obligations under the Taylor Law and makes the parties' negotiated procedures unenforceable. A. Introduction POINT II THE APPELLATE DIVISION CORRECTLY HELD THAT THE SECOND CLASS CITIES LAW DOES NOT OVERCOME THE STRONG AND SWEEPING PUBLIC POLICIES FAVORING COLLECTIVE NEGOTIATIONS UNDER THE TAYLOR LAW CONCERNING DISCIPLINARY PROCEDURES FOR POLICE OFFICERS EMPLOYED BY CITIES OF THE SECOND CLASS Notwithstanding the negotiability of police disciplinary procedures pursuant to the strong and sweeping public policies favoring such negotiations under the Taylor Law and the legislative history ofCiv. Serv. Law§ 209.4, as discussed in Point I, supra, the City argues that the Second Class Cities Law forecloses collective bargaining concerning disciplinary procedures for City 16 police officers. Indeed, the City argues that the Second Class Cities Law, enacted in 1 906 and amended in 1909, makes the parties' contractual procedures, in effect since 1969, unenforceable under NYCPBA and this Court's recent decisfon in Matter ofTown of Wallkill v Civil Serv Empls Assn, 19 NY3d 1066 (2012) (hereinafter "Wallkilf'). However, as discussed below, unlike the statutory schemes at issue in those cases, the Second Class Cities Law contains express language that authorizes the establishment of police disciplinary procedures pursuant to collective bargaining under the subsequently enacted Taylor Law. In NYCPBA, this Court considered the negotiability of disciplinary procedures for New York City police officers, and whether to stay the disciplinary arbitration of a Town of Orangetown police officer under a collectively negotiated disciplinary procedure. In contrast to Auburn, where this Co~rt found that police disciplinary procedures are mandatorily negotiable, including alternatives to the procedures specified in Civ. Serv. Law§ 75, the Court concluded in NYCPBA that the disciplinary procedures for the at-issue police officers are "prohibited" subjects; that is, they are foreclosed from negotiations under the Taylor Law, and any such negotiated procedures are unenforceable. In reaching that conclusion, the Court emphasized that the at-issue officers' disciplinary procedures were established by special laws pursuant to which the State Legislature adopted the police disciplinary procedures in the New York City Charter and Administrative 17 Code in the late 19th century and enacted the Rockland County Police Act in the early 20th, which survived the procedures in Civ. Serv. Law§§ 75, a general law enacted in 1958, because of the grandfathering provision in Civ. Serv. Law§ 76.4. The ·court reasoned that the Legislature's special enactments applicable to disciplinary procedures for police officers employed by the City of New York and municipalities in Rockland County reflected a legislative public policy favoring strong control over police discipline in those communities that trumped the public policies favoring collective negotiations concerning alternatives to the local procedures under the Taylor Law. Indeed, absent the Legislature's imprimatur, arguably, the local laws would not have foreclosed the duty to negotiate concerning disciplinary procedures under the Taylor Law. See, e.g., Matter of Doyle v City of Troy, 51 AD2d 845 (3d Dept 1976). While a local law that is continuously applied may define the parameters of a negotiable past practice, it does not override the duty to negotiate concerning the subject under the State's Taylor Law. See Town of Islip v New York State Pub Empl Relations Bd, 23 NY3d 482 (20 14 ). Nevertheless, in NYCPBA the Court observed that "where Civ. Serv. Law §§ 75 and 76 apply, as in Auburn, police discipline may be the subject of collective bargaining." NYCPBA at 573. In that regard, the Court emphasized: "In general, the procedures for disciplining public employees, including police 18 officers, are governed by Civil Service Law§§ 75 and 76." !d. Thus, PERB construed NYCPBA to reflect the Court's intent that the holding was the exception to the general rule that disciplinary pr~cedures for municipal police officers are mandatorily negotiable under the Taylor Law. See, e.g., Tarrytown Patrolmen's Benevolent Association (Village ofTarrytown), 40 PERB -,r 3024 (~007) (Unconsolidated Law§ 5711-q (9), a special law applicable to villages in Westchester County, prohibits negotiations concerning disciplinary procedures for police officers employed by such villages); City of Middletown Police Benevolent Association (City of Middletown), 42 PERB ~ 3022 (2009), vacated on other grounds sub nom. City of Middletown v City of Middle~own PBA, 43 PERB -,r 7002 (Sup Ct Albany County 2010), affd 81 AD3d 1238 (3d Dept 2011) (Legislature's pre-1958 adoption of the City's charter rendered disciplinary procedures for police officers prohibited subjects). Accordingly, in Town of Wallkill {Town of Wallkill Police Benevolent Assn, Inc.), 42 PERB ~ 3017 (2009), confd sub nom. Town of Wallkill v New York State Pub Empl Relations Bd, 43 PERB -,r 7005 (Albany County Supreme Court 2010) (hereinafter, "P ERB-Wallkill"), an improper practice proceeding before PERB, PERB held that Town Law§§ 155, a general law enacted in the mid-twentieth century did not foreclose negotiations under the Taylor Law, a later enacted general law. Although the Town Law commits the establishment of disciplinary 19 procedures to local officials, PERB held that, unlike the public policies reflected in the special laws at issue in NYCPBA, the public policies favoring negotiations under the Taylor Law permitted negotiations concerning disciplinary procedures for town police officers. There, PERB analyzed the legislative history ofCiv. Serv. Law§ 209.4 as it relates to the general duty to negotiate concerning police disciplinary procedures under the Taylor Law (see Point I supra). PERB concluded that the Legislative history ofCiv. Serv. Law§ 209.4 supported its conclusion that Town Law § 155 does not override the duty to negotiate concerning police disciplinary procedures under the Taylor Law. Meanwhile, unbeknownst to PERB during the administrative process in PERB-Wallldll, the parties were engaged in a CPLR Article 75 proceeding concerning the arbitrability of a disciplinary dispute under their contractual disciplinary procedure. That proceeding, in which PERB was not a party, led to this Court's decision in Wallkill, on which the City relies here. There, this Court applied the prohibition in NYCPBA to police officers employed by towns that are subject to Town Law§ 155, stating: We agree that [NYCPBA] is dispositive. There, we confronted the tension between the strong and sweeping policy of the State to support collective bargaining under the Taylor Law and the policy favoring strong disciplinary authority for those in charge of police forces. We held that police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary 20 authority over a police department to local officials. Wallkill, at 1067 [internal quotations and citations to NYCPBA omitted]. Therefore, the Court held that the contractual disciplinary procedures for the Town of Wallkill's police officers were unenforceable (and, thus, not negotiable under the Taylor Law), effectively annulling PERB-Wallkill. Although PERB filed an amicus brief in Wallkill emphasizing the legislative history ofCiv. Serv. Law§ 209.4, the Cou.rt did not address the argument. Nevertheless, the City attached a copy ofPERB's amicus brief in Wallkill to its brief to the Appellate Division in the instant matter, arguing that the amicus arguments lacked merit because this Court had supposedly considered and rejected them in Wallkill. B. In contrast to other statutes governing police discipline, Second Class Cities Law § 4 expressly authorizes the establishment of different disciplinary procedures from those specified in§ 137 pursuant to later laws As relevant here, the Second Class Cities Law is a general law enacted in 1906 and amended in 1909, well before Civ. Serv. Law § 7 5. Therefore, like Town Law§ 155, the Second Class Cities Law continues to be applicable to police officers employed by cities ofthe second class because of the grandfathering provision in Civ. Serv. Law§ 76.4. Moreover, like the Town Law, the Second Class Cities Law commits certain aspects of police discipline to the discretion of local officials. 21 However, unlike the Town Law, Second Class Cities Law§ 4 expressly authorizes the establishment of disciplinary procedures "pursuant to" subsequent laws. It states that the provisions contained therein 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" [emphasis added]. Applying appropriate principles of statutory construction, th~ Appellate Division concluded that§ 4 of the Second Class Cities Law manifests "clear and unambiguous language" and "the best evidence that the Legislature intended to allow any or all of the provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter." R. 1680. Because the Taylor Law is such a "later law," and mandates collective negotiations concerning represented employees' terms and conditions of employment, including disciplinary procedures, the Appellate Division concluded that the Second Class Cities Law authorized the establishment of disciplinary procedures "pursuant to" collective negotiations mandated by the Taylor Law. Contrary to the City's argument, § 4 of the Second Class Cities Law should not be read as "mere surplusage." See City's brief at p. 23 . Although any law may be changed, repealed or superseded by subsequent laws without the express admonition in § 4 of the Second Class Cities Law, the Appellate Division 22 correctly observed that § 4 of the Second Class Cities Law expressly reveals "a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation." R. 1680. In so holding, the Appellate Division adhered to one of the fundamental principles of statutory construction: "In the construction of a statute, meaning and effect should be given to all its language, if possible, and words are not to be rejected as superfluous when it is practicable to give to each a distinct and separate meaning." McKinney's Statutes§ 231; Branford House, Inc. v Michetti, 81 NY2d 681 (1993). Where, as here, statutory language is unambiguous, it alone is determinative, and the construction of the statute must give effect to the plain meaning of the words used. See, e.g., Charter Development Co v City of Buffalo, 6 NY3d 578 (2006). Therefore, contrary to the City's arguments, the Appellate Division abided by the appropriate principles of statutory construction. The City further argues that the Court's analysis in Wallkill should define the parties' rights under the Second Class Cities Law. It argues that the Appellate Division erred in ascribing significance to the "supersession" language in§ 4 of the Second Class Cities Law. In support, the City emphasizes that Town Law§ 155 at issue in Wallkill and§ 7 of the Rockland County Police Act at issue in NYCPBA contain similar language. For example, Town Law§ 155 provides: Except as otherwise provided by law, a member of [a town] police department shall continue in office unless 23 suspended or dismissed in the manner hereinafter provided. [Emphasis added.] The City likens that language to the "otherwise changed, repealed or superseded pursuant to law" language in§ 4 of the Second Class Cities Law. It contends that the language in the Second Class Cities Law should yield the same effect as NYCPBA and Wallkill; that is, none. PERB respectfully submits that the City's argument misses the mark. Neither NYCPBA nor Wallkill addresses the effect of the "except as otherwise provided by law" language in the Rockland County Police Act or the Town Law. Although, in addition to the legislative history ofCiv. Serv. Law§ 209.4, PERB's amicus brief in Wallkill argued that that language in Town Law§ 155 permitted collective bargaining under the Taylor Law, the Court did not address the argument. In any event, unlike Civ. Serv. Law § 75, the Taylor Law does not ''provide" disciplinary procedures. It merely imposes a bargaining obligation by which alternative procedures may be negotiated. Thus, in contrast to Town Law § 155 and the Rockland County Police Act, the exception in§ 4 of the Second Class Cities Law does not turn on the existence of disciplinary procedures "otherwise provided by law." Rather,§ 4 of the Second Class Cities Law states that the disciplinary procedures specified therein may be "changed, repealed or superseded pursuant to law" [emphasis added]. Thus, under the plain and clear provision in § 4 of the Second Class Cities Law, alternatives to the disciplinary 24 procedures specified therein can be superseded by collective negotiations "pursuant to" the Taylor Law, a superseding statutory method of determining appropriate disciplinary procedures. Finally, contrary to the City's remaining argument, there is no claim that the Taylor Law repealed the Second Class Cities Law- by implication or otherwise. See City's brief at p. 22-23. The Second Class Cities Law remains in full force and effect except and only insofar as the City and the PBA agree to different provisions "pursuant to" collective bargaining mandated by the subsequently enacted Taylor Law. Therefore, the Second Class Cities Law and the Taylor Law may be harmonized. C. NYCPBA and Wallkin should not be construed to prohibit negotiations concerning police disciplinary procedures under the Second Class Cities Law Neither NYCPBA nor Wallkill declares a carte blanche ban on collective negotiations about police disciplinary procedures. PERB respectfully submits that such a ban would be entirely inconsistent with the Taylor Law and, in particular, the legislative history of Civ. Serv. Law § 209.4 discussed in Point I, supra. For example, in a paradoxical twist on the legislative history of Civ. Serv. Law§ 209.4 (e), Executive Law§ 215 (3), which commits discipline of state troopers to the superintendent of the Division of State Police, would arguably bar negotiations concerning disciplinary procedures for state troopers under Wallkill. Indeed, PERB once held that Executive Law§ 215 (3) rendered disciplinary procedures for 25 troopers a prohibited subject of negotiations. See State of New York (Div of State Police) (Police Benevolent Assn of the New York State Troopers, Inc.), 38 PERB ~ 3007 (2005), confd sub nom. Police Benevolent Assn of NY State Troopers, Inc. v New York State Pub Empl Relations Bd, 39 PERB ~ 7013 (Supreme Court Albany County 2006). There, the Board supported the prohibition by noting that disciplinary procedures are excluded from the subjects that troopers can submit to interest arbitration, without considering the legislative history of Civ. Serv. Law § 209.4 as discussed in Point I, supra. However, in PERB-Wallkill, the Board observed that the legislative history ofCiv. Serv. Law§ 209.4 shows that but for the express exclusion of disciplinary procedures from interest arbitration for troopers, the Legislature intended that they would be proper subjects for consideration by the arbitration panel - meaning that they are mandatorily negotiable. PERB recognizes that its analysis in PERB-Wallkill undermines its prior holding regarding the state troopers and that the Court owes PERB no deference regarding its statutory construction. Indeed, in contrast to the strong and sweeping policies favoring negotiations concerning disciplinary disputes and limited applicability of the prohibition under NYCPBA, Wallkill tends to support a diminishing community of police officers who are entitled to negotiations concerning police disciplinary procedures. See e.g., Village Law § 4-804 (although enacted in its current form after Civ. Serv. Law§ 75, it commits police 26 discipline to specific officials); Unconsolidated Law§ 891 (enacted before Civ. Serv. Law§ 75 and applicable to police departments in villages, towns, cities and counties, it commits certain aspects of police discipline to specific officials). As PERB observed in the decision under review, the interplay among other laws governing police disciplinary procedures, including the Optional Cities Law, and between those laws and the Taylor Law, are issues of pure statutory construction which the judiciary must ultimately resolve. However, PERB respectfully submits that it is difficult to reconcile a prohibition on the negotiability of police disciplinary procedures stemming from laws that are up to a century old and the legislative history of the Taylor Law as amended as recently as the turn of the twenty-first century. Nevertheless, PERB respectfully submits the NYCPBA and Wallkill should not be extended to bar negotiations under the Second Class Cities Law, which expressly permits the establishment of different disciplinary procedures pursuant to later laws, such as the Taylor Law. Therefore, for the reasons stated herein and in PERB's decision and order under review, the Appellate Division correctly concluded that the Second Class Cities Law does not ~efeat the City's bargaining obligations under the Taylor Law or make the parties' negotiated procedure unenforceable. 27 POINT lli THE APPELLATE DIVISION PROPERLY AFFIRMED SUPREME COURT'S ORDER ENFORCING PERB'S REMEDIAL ORDER AS AUTHORIZED BY CIV. SERV. LAW § 213 (a) (ii) If the Court finds that disciplinary procedures are mandatorily negotiable for City police officers, it should affirm the Appellate Division's affirmance of Supreme Court's order enforcing PERB's remedial order. Civ. Serv. Law§ 205.5 (d) authorizes PERB to issue an order in an improper practice proceeding directing an offending party to cease an~ desist from engaging in such improper practice and to take such affirmative action as will effectuate the policies of the Taylor Law, including an order directing the restoration of the status quo ante. PERB's remedial orders are enforceable by the courts under Civ. Serv. Law§ 213 (a) (ii), and, as affirmed by the Appellate Division, Supreme Court granted PERB 's counterclaim for such an order here. Because "(t]he remedies for improper employer practices are peculiarly matters within [PERB's] administrative competence" (City of Albany v Helsby, 29 NY2d 433,439 [1972]), courts have generally deferred to PERB's determinations as to what actions should be taken by an offending party to effectuate the policies of the Taylor Law (see, e.g., Town of Islip v New York State Pub Empl Relations Bd, 23 NY3d 482 [2014]; New York State Pub Empl Relations Bd v Bd. of Ed of 28 City of Buffalo, 39 NY2d 86 [ 1976]; City of New York v New York State Pub Empl Relations Bd, 103 AD3d 145 [3d Dept 2012]; New York State Pub Empl Relations Bd v County of Westchester, 280 AD2d 849 [3d Dept 2001]). Here, PERB ordered the City to: Rescind any disciplinary action initiated against PBA unit members on or after November 30, 2007, to the extent that such disciplinary action was not in conformity with Article VIII of the parties' agreement and Civil Service Law §75, and [to] make such PBA unit members whole including reinstatement with back wages and benefits with interest at the maximum legal rate; Remove any documents from the personnel files of PBA unit employees relating to and resulting from discipline initiated and imposed under procedures not in conformity with Article VIII of the parties' agreement and Civil Service Law § 7 5; In effect, that aspect of the remedial order simply requires the City to restore the disciplinary procedures that it has been using for nearly 40 years and to make whole those employees affected by the new unilaterally imposed procedures. PERB also directed the City to sign and post a PERB-issued notice reflecting the remedial order at various locations used to post notices to unit employees. Assuming that the Court agrees with the Appellate Division's negotiability determination, PERB respectfully submits that its remedial order is well within its exclusive, nondelegable authority to fashion a remedy for an improper practice that 29 effectuates the policies of the Taylor Law under Civ. Serv. Law§ 205.5 (d), and, as affirmed by the Appellate Division, Supreme Court properly ordered its enforcement pursuant to Civ. Serv. Law§ 213 (a) (ii). CONCLUSION The Court should affirm, in all respects, the November 17, 2015 Memorandum and Order of the Appellate Division, Third Department. November 22, 20 16 Respectfully submitted, DAVIDP.QUINN Attorney for Respondent NYS Public Employment Relations Board Office and P. 0. Address PO Box 2074, ESP Agency Building 2, 20th Floor Albany, New York 12220-0074 (518) 457-2678 (518) 457-2664 (fax) I hereby certify that the word count for this brief is 6,652 words. 30 STATE OF NEW YORK) ) COUNTY OF ALBANY ) APL-2016-00122 (ES) Douglas Lodge, being duly sworn, deposes and says that deponent is over the age of 18 years and an employee of the New York State Public Employment Relations Board. That on November 22,2016, deponent served three copies of the within Brief, APL-2016-00122, by first class mail upon: GIRVIN & FERAZZO, P.C. Attn: Christopher Langlois, Esq. 20 Corporate Woods Boulevard Albany, NY 1221 1-2396 GLEASON DUNN WALSH & O 'SHEA, ESQS. Attn: Michael P. Ravalli, Esq. 40 Beaver Street Albany, NY 12207-1511 at the address( es) designated by depositing three true copies thereof enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custody of the United States Post Office Department within the State ofNew Yor-~--~-~-+~-""""'~::::....._-=;...r.b-~~k~v ___ _ Douglajlodge 7 Sworn to before me this 22"d day ofNovember, 2016