In the Matter of City of Schenectady, Appellant,v.New York State Public Employment Relations Board et al., Respondents.BriefN.Y.September 6, 2017APL-20 16-00122 To Be Argued By: MICHAEL P. RAVALLI Time Requested: 30 Minutes Albany County Clerk's Index No. 5253/13 il>tnte of .Jaei:JJ /Pork €our! of §j}ptnl.d CITY OF SCHENECTADY, NEW YORK, Petitioner-Appellant, -against- NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD and SCHENECTADY POLICE BENEVOLENT ASSOCIATION, Responden~-Responden~. BRIEF FOR RESPONDENT-RESPONDENT SCHENECTADY POLICE BENEVOLENT ASSOCIATION (){Counsel, Michael P. Ravalli, Esq. Thomas F. Gleason, Esq. llichard C. Reilly, Esq. November 23, 2016 GLEASONt DUNN, WALSH & O'SHEA 40 Beaver Street Albany, New York 12207 (518) 432-7511 Attorneys for Respondent-Respondent Schenectady Police Benevolent Association TABLE OF CONTENTS Table of Authorities ................................................................................................. iii Prelimi_nary Statement. ............................................................................................... ! Questions Presented ............................................................... ... .......... ... .. .. ................ 1 Procedural Background .............................................................................................. 1 Statement ofFacts ................. ............ ..... .................................................................... 3 Argument ............................................... .................................................................... 4 POINT I THE APPELLANT HAS FAILED TO DEMONSTRATE THAT THE SECOND CLASS CITIES LAW CONTINUES TO APPLY TO POLICE DISCIPLINE IN THE CITY OF SCHENECTADY AND THUS AUTHORIZES THE CITY TO COUNTERMAND THE PARTIES' COLLECTIVE BARGAINING AGREEMENT AND APPLICABLE PROVISIONS OF THE CIVIL SERVICE LAW ................................................................................................................ 4 A. The Second Class Cities Law Does Not "Expressly Commit" Disciplinary Authority Over the City of Schenectady Police Department to Local Officials ............................................................... 5 History of the Second Class Cities Law .......................................... 7 The Optional City Goverrunent Law ............................................... 8 The Appellant's Adoption of the Plan C Optional Form of Government ............................................................. ...................... . 1 0 The Changes from the Second Class Cities Law to the Optional City Goverrunent Law as Relating to Police Discipline ........................................................ .... ... ........... ............. 12 B. This Court is Not Precluded from Considering the Inapplicability of the Second Class Cities Law to this Case .............. 19 POINT II APPELLANT HAS PREVIOUSLY LITIGATED POLICE DISCIPLINE CASES BASED ON THE APPLICABILITY OF THE CIVIL SERVICE LAW ............................................ ....... .............................. 22 POINT III EVEN IF THE SECOND CLASS CITIES LAW APPLIES, THERE IS NO PLAIN AND CLEAR NEW YORK STATE LEGISLATION CONTROLLING IN THE CITY OF SCHENECTADY THAT RENDERS POLICE DISCIPLINE A PROHIBITED SUBJECT OF BARGAINING ........ ............. ........... .............................................................. 26 Conclusion ................................................. ... ........................................................... 28 11 TABLE OF AUTHORITIES Cases B & F Bldg. Corp. v Liebig, 76 NY2d 689 (1990) ...... .............. .............................. 15 Cleveland v City of Watertown, 222 NY 159 (1917) .......... ............ ...................... 8, 9 Duci v Roberts, 65 AD2d 56 (3d Dept. 1978) ..................................................... 9, 10 Johnson v Etkin, 279 NY 1 (1938) .... .... .................................................................. 1 0 Jones v Binghamton, 256 AD 41 (3d Dept. 1939) ............. .. .............................. 16, 17 Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367 (2007) ................................................................................................................... 15 Matter of Arbitration Between Schenectady PBA and City of Schenectady, Index No. 2004-0219 (Sup. Ct., Schenectady Co. 2004) (Reilly, J.) ............. 22, 23 Matter of Auburn Police Locall95, Counci/82, Am. Fedn. of State, County & Mun. Empls. AFL-CIO v Helsby, 46 NY2d 1034 (1979) ............................. 6, 24 Matter of Cave v Yonkers, 23 7 AD2d 517 (2d Dept. 1997) .................................... 24 Matter of City of Albany v Helsby, 56 AD2d 976 (3d Dept. 1977) ......................... 24 Matter of City of Albany (Meehan), 100 AD2d 714 (3d Dept. 1984) .............. ....... 24 Matter of City of Schenectady v Schenectady PBA, Index No. 99-1869 (Sch. Sup. Ct. 1999) (Hon. Barry D. Kramer) ..................................................... 22 Matter of City of Syracuse v Public Empl. Relations Bd., 279 AD2d 98 (4th Dept. 2000) .... ........................ .. ...................... .................................. .............. 16 Matter of City of Watertown v State of NY Pub. Empl. Relations Bd., 95 NY2d 73 (2000) ........................................................................................ 15, 16 Matter of Connell v Public Service Commn., 152 Mise 242 (Sup. Ct., Albany Co. 1934) ........................................................................... ................................... 14 lll Matter of Correll v Bucci, 19 AD3d 919 (3d Dept. 2005) ...................................... 24 Matter of Demarco v City of Albany, 75 AD2d 674 (3d Dept. 1980) ... .................. 24 Matter of Grenfell (Lawyer), 269 AD 600 (3d Dept. 1945) affd294 NY 610 (1945) ........................................................................................... ................... 17, 18 Matter of Mqjewski v Broadalbin-Penn Cent. School Dist., 91 NY2d 577 (1998) ................................................................. ................................................... 14 Matter of Margolin v Newman, 130 AD2d 312 (3d Dept. 1987) ..................... .. ..... 21 Matter of McLean v Boyd, 140 Mise 218 (Sup. Ct., Broome Co. 1931) ................... 9 Matter oflvlountain v City ofSchenectady, 100 AD2d 718 (3d Dept. 1984) .... 22, 23 Matter of New York State Off. of Victim Servs. v Raucci (97 AD3d 235 (3d Dept. 2012) ............................................................................................... 14, 15 Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315 (1994) ........... .............. .................................................................... 16 Matter of Patrolmen's Benevolent Association of the City of New York, Inc., 35 PERB ~3034 (2002) ....................................................................................... .. 24 Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 (2006) ......................................... 5, 6, 24, 27 Matter of Reports of Apr. 30, 1979 Grand Jury of County of Montgomery, 108 AD2d 482 (3d Dept. 1985) .................................................................................. . 15 Matter of Scanlan v Buffalo Pub. School Sys. (90 NY2d 662, 665 NYS2d 51 (1997) ............................................................................................................... ..... 21 Matter of Schenectady PBA v. City of Schenectady, 22 PERB ,3018 (1989) ......... 24 Matter ofScherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs. (77 NY2d 753, 570 NYS2d 474 (1991) .............................. .................................................. 21 IV Matter of State of New York (Div. of Military & Naval Affairs) v New York State Pub. Empl. Relations Bd., 187 AD2d 78 (3d Dept. 1993) .......................... 21 Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-C/0, Town of Wallkill Police Dept. Unit, Orange CountyLocal836), 19 NY3d 1066 (2012) ............................................ 5, 6, 19,27 Matter ofZazycki v City of Albany, 94 AD2d 925 (3d Dept. 1983) ........................ 24 Patrolmen's Benevolent Association of City of New York v City of New York, 41 NY2d 208 (1976) ......... .............................................................................. 13, 14 Tuchten v Palazzola, 10 Misc3d 732 (Sup. Ct., Queens Co. 2005) ........................ 26 Walsh v City of Schenectady (Sup. Ct., Schenectady Co., Index No. 85-2031 ([1985]) ........ .......................................................... .. ..... ........................... .. ..... 25, 26 Statutes Civil Practice Law and Rules Article 78 .. ........... ............................................ 1, 2, 20 Civil Service Law§ 75 .................................................................................... passim Civil Service Law§ 75(2) ......... .. ........ ................................................... ........ .......... 22 Civil Service Law§ 75(3) ............. ... ..... ................................................................... 22 Civil Service Law§ 76 ............. ............................................................. }, 5, 6, 12, 19 Civil Service Law § 76(4) .................................... .. .. .................................................. 6 Civil Service Law§ 201(5) ................................................................... ..................... 3 Civil Service Law§ 201(6) .......... ..................... ......................................................... 3 Civil Service Law§ 209-a( l)(d) .. .. .. .......... .. .. ............................................................ 2 Civil Service Law § 213 ............................................................................................ 2 Optional City Government Law (L. 1914, ch. 444) ...................... .. .................... 8, 17 v Optional City Government Law § 8 ................... ................................................. 9, 10 Optional City Government Law § 23 ................................................................ 1 0, 11 Optional City Government Law§ 46 ................................ ........................ .. 12, 13, 20 Second Class Cities Law (L. 1906, ch. 473) ........... ....................... .... .... .. .. ..... ..... ...... 8 Second Class Cities Law § 4 .............................................................................. 1 0, 27 Second Class Cities Law § 131 ....................................................... .. ....................... 12 Second Class Cities Law§ 133 ................................................................................ 12 Second Class Cities Law § 13 5 ................................... ..... .................................. 12, 13 Second Class Cities Law§ 137 ......... ............................................................ .4, 12, 19 Second Class Cities Law§ 138 ...................... .......................................................... 19 Other Authorities Code ofthe City of Schenectady, updated 12-01-2008 ..................................... 10, 13 McKinney's Cons. Laws ofNY, Book 1, Statutes§ 221 ........................................ 27 McKinney's Cons. Laws ofNY, Book 1, Statutes§ 240 .................................. 13, 14 N.Y. Dept. of State, Local Government Handbook, 6th Ed. (2011) at 52 ...... ....... . 7, 8 vi PRELmflNARYSTATEMENT Respondent Schenectady Police Benevolent Association ("PBA") submits this Brief in opposition to the appeal by Appellant City of Schenectady ("City") from the Memorandum and Order of the Appellate Division, Third Department, decided and entered on February 4, 2016 (R.1678-1681). That Memorandum and Order affirmed the Decision/Judgment of the Supreme Court, County of Albany (McGrath, J., R.7-10), which dismissed the City's petition in a proceeding pursuant to CPLR Article 78, seeking to annul a determination of Respondent New York State Public Employment Relations Board ("PERB"). In its determination, PERB found that the City had not established a statutory basis to render inapplicable sections 75 and 76 of the Civil Service Law and the strong and sweeping policies of the State to support collective bargaining under the Taylor Law (R.26-50). QUESTIONS PRESENTED I . Did the Appellate Division Third Department correctly hold that the City failed to establish that provisions of the Civil Service Law, in particular the Taylor Law, permitting collective bargaining of police discipline were rendered inapplicable by a law specifically applicable to the City of Schenectady? The PBA respectfully submits that it did. PROCEDURAL BACKGROUND The underlying Article 78 proceeding arose out of the City's claim that it has a right to delete provisions of the collective bargaining agreement between the City and the PBA that address discipline, and implement a new disciplinary procedure 1 based upon the City's unilateral decision that discipline of police officers is a prohibited subject of bargaining in the City of Schenectady (R.255-265; R.266- 271). The dispute between the parties initially was considered by PERB. After a hearing on a stipulated record and facts, the PERB Administrative Law Judge ("ALJ") issued a determination that the City violated section 209-a(l)(d) of the Civil Service Law, when it issued the new disciplinary procedure for PBA bargaining unit members in direct contravention of the parties' collective bargaining agreement (R.184-205). The City filed exceptions to the ALJ' s Decision with the PERB Board (R.206). On August 23, 2013, PERB denied the City's exceptions to the determination of the ALJ, and affirmed the ALI's determination that the City violated the Civil Service Law. The City thereafter commenced the Article 78 proceeding below challenging the PERB determination, and seeking a judgment that it be annulled pursuant to Civil Service Law section 213 (R.11-125). By Decision/Judgment entered August 14, 2014, the Supreme Court confirmed PERB's determination and dismissed the City's petition (R.7-10). The City appealed the Judgment to the Appellate Division, Third Department (R.2-3). On February 4, 2016, the Appellate Division affirmed the 2 Judgment dismissing the City's petition (R.l678-1681). On June 7, 2016, this Court granted the City's motion for leave to appeal (R.l676-1677). STATEMENT OF FACTS The PBA is the duly certified representative for all Police Officers of all ranks employed by the City, exclusive of the Chief and Assistant Chiefs. There is no dispute that the PBA is an employee organization as defined under section 201(5) of the Civil Service Law (R.235). There is also no dispute that the City is a public employer, as defined under section 201(6) of the Civil Service Law, and is the employer of all members of the PBA bargaining unit (R.235). From approximately 1969, the City has issued disciplinary charges and disciplinary determinations pursuant to Civil Service Law section 75 and the applicable provisions of the parties' collective bargaining agreements (R.238, ~~10-13; R.1367-1373). On or about June 4, 2007, the City issued a press release regarding the disciplinary action process within the Schenectady Police Department (R.239, ~15; R.262). The press release announced that "the disciplinary action process within the Police Department will undergo a significant change effective immediately" and that the change would eliminate any previously negotiated provision regarding disciplinary action, including arbitration of disciplinary actions (R.262). The press release also stated that the City Public Safety Commissioner would henceforth be 3 the trier of the facts and issue the final decision on innocence or guilt, and penalties levied in all police disciplinary proceedings (R. 262). On or about April 4, 2008, the City Public Safety Commissioner issued General Order No. 0-43 outlining the purported new process for the conduct of disciplinary proceedings in the Schenectady Police Department (R.239, ~16; R.263-265). The Order stated that disciplinary proceedings would be governed by Article 9, section 137 of the New York Second Class Cities Law, and not Civil Service Law section 75 and Article VIII of the parties' collective bargaining agreement (R. 266). The proceeding before PERB thereafter ensued. ARGUMENT POINT I THE APPELLANT HAS FAILED TO DEMONSTRATE THAT THE SECOND CLASS CITIES LAW CONTINUES TO APPLY TO POLICE DISCIPLINE IN THE CITY OF SCHENECTADY AND THUS AUTHORIZES THE CITY TO COUNTERMAND THE PARTIES' COLLECTIVE BARGAINING AGREEMENT AND APPLICABLE PROVISIONS OF THE CIVIL SERVICE LAW The Appellant's brief relies on two flawed arguments; first, that the Second Cities Law continues to govern police discipline notwithstanding legislation and its own Code to the contrary and Appellant's longstanding use of the procedures of the Civil Service Law for that purpose; and second, that this Court supposedly is powerless to consider the duly made and preserved arguments of the Respondent PBA demonstrating that the Appellant has failed to address that legislation and the 4 history of the City's own Code, which clearly show that the Second Class Cities Law is not applicable as the City contends. For purposes of clarity, Respondent PBA will address these arguments in the order Appellant presents them. A. The Second Class Cities Law does not "expressly commit" disciplinary authority over the City of Schenectady Police Department to local officials. In Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 19 NY3d 1066, 1069 [2012]) (hereinafter "Town of Wallkilf') this Court recognized "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'" (19 NY3d 1066, 1069, citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]) (hereinafter "Matter of Patrolmen's Benevolent Assn."). This Court also recognized in Town of Wallkill, as it had in Matter of Patrolmen's Benevolent Assn., that Civil Service Law sections 75 and 76 generally govern "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective 5 bargaining" (Town ofWallldll, supra at 573)1• In Town of Wallkill, this Court also quoted Civil Service Law section 76(4), which states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws (see Matter of Patrolmen's Benevolent Assn., 6 NY3d at 573 [emphasis added]). Thus, the Appellant's appeal depends on whether it can establish as a matter of law that there is a general, special or local preexisting law that applies to the City of Schenectady, that overcomes the generally applicable provisions of the Civil Service law that govern police discipline. For this purpose, the Appellant claims, but does not establish, that the Second Class Cities Law has this effect and is unaffected by subsequent legislation, most particularly the Optional City Government Law and the City's own Code. The Appellant also fails to explain away its long-standing acceptance and use of Civil Service Law procedures. The flaw in the City's argument, as demonstrated below, is that a consideration of the history of the Optional City Government Law and the City Code demonstrate that the Second Class Cities Law does not have the effect that 1 In Matter of Patrolmen's Benevolent Assn., this Court reaffirmed its holding in Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls. AFL-CIO v Helsby, 46 NY2d 1034 when it held: "Thus, where the Civil Service Law§§ 75 and 76 apply, police discipline may be the subject of collective bargaining." (Matter of Patrolmen 's Benevolent Assn., 6 NY3d at 573). 6 the City contends that it has over the applicability of Civil Service Law and negotiability under the Taylor Law. History ofthe Second Class Cities Law City charters were originally adopted by a special act of the Legislature when the city was created (N.Y. Dept. of State, Local Government Handbook, 6th Ed. [2011)] at 52). As the needs of a city changed, its charter could only be amended by a special act of the Legislature (Jd. ). The ability of the Legislature to intervene in the affairs of a particular city through a special law, coupled with the city's inability to change its own charter without approval of the Legislature, resulted in continuing tension between the State and the cities of New York (Jd. ). One of the major issues at the Constitutional Convention of 1894 was the ability of local governments to manage their own affairs without the approval, oversight and interference of the State (Jd. ). Ultimately, a compromise was reached through a constitutional amendment to Article 12, section 2, whereby cities were divided into three classes based upon population (I d.). Cities with a population over 250,000 were classified as First Class Cities; cities with a population between 50,000 and 250,000 were classified as Second Class Cities; and cities with a population under 50,000 were classified as Third Class Cities This enabled the Legislature to pass general laws applicable to classes of cities with similar characteristics, and reduce the power of the Legislature to 2 In 1907, a constitutional amendment amended the classification of cities so that all cities with a population over 175,000 were classified as First Class Cities. 7 interfere in the affairs of a particular city through a special law. Under the new constitutional provision, any law that did not apply to all the cities in a class had to be submitted to the mayor of each affected city for approval {I d.). If the law was disapproved on the local level, it was returned to the Legislature for reconsideration (!d.). The Legislature enacted the Second Class Cities Law in 1906 (L. 1906, ch. 473). The Second Class Cities Law provided a uniform charter for all second class cities; a strong mayor form of government; and the consolidation of municipal functions in a few departments: public works; public safety; pu_blic instruction; and charities and corrections (I d.). The City of Schenectady is a city of the second class, and its original charter, and those adopted prior to the City opting to be governed under the structure of the Optional City Government Law in 1936, were in accordance with the second class cities uniform charter (R.386-533; R.534-681; R.682-878; R.879-995 and R.996- 1 091). The Optional City Government Law In 1914, the Legislature enacted the Optional City Government Law (L. 1914, ch. 444; R.685).3 The Optional City Government Law provided simplified forms of government for second and third class cities (R.685-70 1; Cleveland v City of Watertown, 222 NY 159 [1917]). The Optional City Government Law provided 3 The Optional City Goverrunent Law is contained in the Stipulated Record at R.l 092-1108. The general provisions of the Optional City Government Law applicable to each method of government (i.e., Plans A, B, C, D, E, F & G) are found at R.ll00-1105. Plan C is found at R.l106-1107. 8 cities with flexibility in determining their government structure by offering seven alternative government structures to choose from, labeled "A" through "G" (!d.; R.l095). When the Optional City Government Law was passed, only the Legislature could enact a charter (Cleveland, 222 NY at 159; Matter of McLean v Boyd, 140 Mise 218, 223 [Sup. Ct., Broome Co. 1931]). Under the Optional City Government Law, the Legislature presented a choice of charters to cities which were enacted by State Law (/d.). Thus, to the extent that a charter or code provision mirrors a provision of the Optional City Government Law (as is the case with Appellant's City Charter), it was enacted as a State statute and reflects the policy of the State. Upon a city adopting the Optional City Government Law, existing provisions of the city's charter and all special and general laws applicable to the city were superseded to the extent that they were inconsistent with the Optional City Government Law (Optional City Government Law § 8 at R.l 094; Duci v Roberts, 65 AD2d 56 [3d Dept. 1978]).4 4 Upon the adoption of a plan of government under the Optional City Government Law, the city was required to register such with the Secretary of State, who then had an obligation to publish. the names of those cities in the Session Laws (ld) The cities that adopted an Optional City Plan as recorded in the Session Laws are as follows: l. Aubw-n, November 5, 1918 5. Niagara Falls, November 3, 1914 2. Binghamton, July 6, 1931 6. Schenectady, November 6, 1934 3. Elmira, May 5, 1932 7. Watertown, November 2, 1915 4. Newburgh, May 1, 1915 8. Watervliet, June 10, 1919 9 The Appellant's Adoption o{the Plan C Optional Form of Government It is not disputed that the City is a city of the Second Class. It is also not disputed that on November 6, 1934, the City adopted the simplified form of government designated as Plan C of the Optional City Government Law (R.241, ~27; Johnson v Etkin, 279 NY 1, 4 [1938]; R.1092-1108)5. The effective date of the City's transition to governance under the Optional City Government Law was January 1, 1936 (R.241, ~27). Upon adopting the Optional City Government Law, the applicability of the Second Class Cities Law to the affairs of the City was dramatically altered, a point which the Appellant fails to acknowledge. The Optional City Government Law superseded the Second Class Cities Law and all inconsistent City Charter provisions (Code of the City of Schenectady, updated 12-01-2008, at R.l212-1213 at ~J, Optional City Government Law,§ 8 at R.1094 and§ 23 at R.l098; Duci, 65 AD2d at 58; Second Class Cities Law, § 4). The Optional City Government Law provides as follows: (R.l094) §8. Existing laws continued. Except insofar as any of its provisions shall be inconsistent with this act, the charter of the city, and all special or general laws applicable thereto, shall continue in full force and effect, until and unless superseded by the passing of ordinances regulating the matters therein provided for; but to the extent that any provisions thereof shall be inconsistent with this act, the same are hereby superseded. 5 The Optional City Government, in its entirety, is contained in the Record at R-1092-1108. The general provisions of the Optional City Government applicable to each method of government (i.e., Plans, A, B, C, D, E, F & G) are found at R. l 092-1 105. Plan Cis found at R.ll06-1 107. 10 (R.l098) §23. Effect of adoption of plan. If a majority of the total number of votes cast for and against its adoption, at a special or general city election upon the adoption of one of the plans of government provided for in this act, shall be in favor of its adoption, the provisions of this act, so far as applicable to the form of government under the plan adopted by the city, shall supersede the provisions of the charter and of the general and special laws relating thereto and inconsistent herewith, but not, however, until officers provided for under such plan have been duly elected and their terms of office shall have commenced. Thus, any prov1s10ns of the Second Class Cities Law regarding police discipline that were inconsistent with the provisiOns of the Optional City Government Law, were superseded in any city-including the City of Schenectady-that had adopted an optional form of government and charter under the Optional City Government Law.6 The Appellant relies exclusively on the Second Class City Law for its purported power to disregard the Civil Service Law on matters of police discipline. However, the fatal problem that the Appellant confronts is that the critical provision in the Second Class City Law that purportedly created an exception to the applicability of the Civil Service Law to police discipline, was removed from 6 The Optional City Government Law was repealed in 1939, but in doing so the Legislature made clear that cities such as the City of Schenectady that had adopted an Optional City Goverrunent Plan prior to January 1, 1940, continued to operate under the Optional City Government Law (R.ll12). Therefore, the Optional City Government Law continues to apply in the City of Schenectady. 11 the Optional City Government Law and the Code of the City of Schenectady, which continue to govern in the City of Schenectady. The Changes from the Second Class Cities Law to the Optional Citv Government Law as Relating to Police Discipline. The Second Class Cities Law provides as follows: The commissioner shall make all appointments, promotions and changes of status of the officers and members of the police and fire departments in accordance with the provisions of the civil service law of the state, except as otherwise provided herein. (Second Class Cities Law § 135 [emphasis added]). The "except as otherwise provided" language is important in interpreting the Second Class Cities Law, because sections 131, 13 3 and 13 7 of that Law do provide procedures for police discipline. Thus, were the Second Class Cities Law alone applicable to this case, as Appellant contends, it would arguably constitute a pre-existing law not superseded by the provisions of Civil Service Law section 75 and section 76 that govern procedures for police discipline. This cannot, however, be the proper interpretation of that law, because in passing the Optional City Government Law, the Legislature clearly required that the Civil Service Law apply to all removals and changes of status of civil service employees, without any exceptions. Section 46 of the Optional City Government Law provides as follows: 12 All appointments, promotions, removals and changes in status in the civil service of the city shall be made in accordance with the provisions of Civil Service Law. (Optional City Government Law§ 46 at R.ll03). The elimination in the Optional City Government Law (passed after the Second Class Cities Law) of the words "except as otherwise provided" is a critical point, and cannot as a matter of law be presumed unintentional (McKinney's Cons. Laws of NY, Book 1, Statutes § 240). The import of the deletion is clear-the Legislature eliminated the exception language to ensure that all changes in status of all civil service employees, including police officers, "shall be made in accordance with the provisions of the Civil Service Law." This change is also manifest because no provisions restricting police discipline comparable to those in the Second Class Cities Law were included in the Optional City Government Law (R.l 092-11 08). That the Legislature intended a change regarding police discipline is clear not merely from tracking the above legislative changes, but also from the fact that the City retains language in its Code that is identical to section 46 of the Optional City Government Law, and not to section 135 of the Second Class Cities Law (Code of the City of Schenectady, updated 12-01-2008 at R.1216, ~). This conclusion also is consistent with well settled principles of statutory construction. It is fundamental that in interpreting a statute, a court must attempt to effectuate the intent of the Legislature (Patrolmen's Benevolent Association of 13 City of New York v City of New York, 41 NY2d at 208 [1976]). The best evidence of legislative intent is the plain language of the statute (Matter of Majewski v Broadalbin-Penn Cent. School Dist., 91 NY2d 577, 583 [1998]). Further, where the statutory language is clear and unambiguous, the statute must be construed so as to give effect to the plain meaning of the words used (Patrolmen's Benevolent Association of City of New York at 41 NY2d at 208). Therefore, where, as here, the Optional City Government Law describes the situations in which the Civil Service Law applies to discipline, "an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded." (McKinney's Cons. Laws ofNY, Book 1, Statutes§ 240). It is clear that when the Legislature intended to create an exception to the application of the Civil Service Law to exclude discipline of police officers, it had no difficulty doing so, as it did in the Second Class Cities Law. However, in the Optional City Government Law, the Legislature did not provide for such an exception to the scope of coverage of the Civil Service Law to discipline of City employees, and it must be inferred that no such exception was intended. Rather, the Legislature used the word "all", in reference to those employees covered by the Civil Service Law. In interpreting the word "all" in a statute, one Court has recognized that "the word 'all', as an adjective of number, means the whole number of; everyone of." (Matter of Connell v Public Service Commn., 152 Mise 242, 243 [Sup. Ct., Albany Co. 1934]). Matter of New York State Off of Victim Servs. v Raucci (97 AD 3d 235, 239 [3d Dept. 2012]) establishes this point in an analogous context: 14 . . . the absence of any exception in the statute for public employee pension evinces the Legislature's intent to supersede the bar on Retirement and Social Security Law § 110. As a general principle of statutory construction '"[t]he failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended"' (citations omitted). (Matter of New York State Office of Victim Services v Raucci at 239). It is also a well settled principle of statutory construction that the Legislature is presumed to be aware of the law in existence at the time of an enactment (Matter of Amorosi v South Colonie Ind. Cent. School Dist., 9 NY3d 367, 373 [2007] quoting B & F Bldg. Corp. v Liebig, 76 NY2d 689, 693 [1990]). Therefore, the only logical conclusion is that in enacting the Optional City Government Law, the Legislature was fully aware of the exception for police officer discipline carved out in the Second Class Cities Law, and chose to use the word "all" to eliminate the exception, and that the change was intentional (see Matter of Amorosi at 373; see also Matter of Reports of Apr. 30, 1979 Grand Jury of County of Montgomery, 108 AD2d 482, 484 [3d Dept. 1985]). This Court has emphasized that only where a "statute clearly 'forecloses negotiation' of a particular subject, that subject may be deemed a prohibited subject of bargaining." (Matter of City of Watertown v State of NY. Pub. Empl. Relations Bd., 95 NY2d 73, 79 [2000]). This Court also described the criteria for holding collective bargaining to be barred by statute or policy as follows: "[P]reemption, in the Taylor Law context, means that collective bargaining of terms and conditions of employment is prohibited because a plain and clear bar in statute or policy involving '"an important constitutional or statutory duty or responsibility"' leaves an 15 agency with no discretion as to how an issue may be resolved. In the absence of such clear law or policy, a subject may be negotiated. (Matter of Newark Val. Cent. School Dist. v Public Empl. Relations Bd., 83 NY2d 315,322 [1994] [citation omitted]) The presumption that all terms and conditions of employment are subject to mandatory bargaining will hold absent clear evidence that the Legislature intended otherwise (City of Watertown, 95 NY2d at 79; Matter of City of Syracuse v Public Empl. Relations Bd., 279 AD2d 98, 102 [4th Dept. 2000] stating ["[a]bsent 'clear evidence' that the Legislature intended otherwise, the presumption is that all terms and conditions of employment are subject to mandatory bargaining"] The Appellate Division also has previously confirmed the controlling impact of the Optional City Government Law over the Second Class Cities Law in a case involving the City of Binghamton, another Second Class City. In Jones v Binghamton, 256 AD 41, 43 (3d Dept. 1939), a dispute arose over the transfer of powers from the Binghamton Commissioner of Public Safety to the City Manager, and the court held that the authority and duties of the City Manager were provided by the Optional City Government Law, and not the Second Class Cities Law: From these provisions of the statute it becomes apparent that the Legislature intended that the City should have no offices, no officers, nor employees other than the eight described above, except such as the council should find necessary; and, further, that the offices existing under other statutes and continued after the adoption of Plan C should remain only until such time as the council should supersede them by the creation of new offices and the assignment of the duties to be attached to them. Accordingly, when the plaintiffs held over as traditional or statutory officers under the Second Class Cities Law, after Plan C became effective, it was only until the council passed the ordinance creating the offices of comptroller and treasurer of the city 16 of Binghamton and until duties were assigned by the city manager. Under the ordinance these became new offices with new duties, whether traditional or not, creatures of the city, and the Second Class Cities Law thereupon ceased to have force in that regard in Binghamton. And from that time on the plaintiffs held their respective offices under the ordinance, and not otherwise (Jones, 256 AD at 43 [emphasis added]). It is significant that when the Office of the Public Safety Commissioner was abolished in the City of Schenectady, the City expressly transferred all powers and authority of the Public Safety Commissioner to the City Manager in accordance with the Optional City Government Law (R.ll09-1112). Similarly, in the 1978 Local Law that established the Mayor as the head of Schenectady government (R.l113-17), the power to remove civil service employees was expressly made consistent with the Optional City Government Law and the Civil Service Law (R.lll6, §§ 90 and 92), and not the Second Class Cities Law.7 In fact, the City Council confirmed that "[a]ll provisions of L. 1914, Ch. 444 [Optional City Government Law] or any other law, charter provision, local law or ordinance not inconsistent herewith shall continue to be in full force and effect." (R.1116). Appellant's argument that the Second Class Cities Law is in all respect controlling also fails to address Matter of Grenfell (Lawyer) (269 AD 600 [3d Dept. 1945], affd 294 NY 610 [1945]), a case that established the limited application of the Second Class Cities Law in the City of Schenectady. Grenfell arose out of a challenge to a proposed amendment to the Schenectady City Charter. The proposed amendment sought to supersede the form of city government under 7The City Council also recognized the provisions of the Optional City Government Law that continued to be a part of the Charter of the City of Schenectady (R.1115, § 1 ). 17 Plan C of the Optional City Government Law, and substitute therefor the government previously in effect under the Second Class Cities Law. The title of the proposed local law was: A Local Law repealing the simplified form of government known as Plan C, adopted by the City of Schenectady on the sixth day of November, Nineteen Hundred Thirty-four and providing for a return to the form of city government defined and prescribed in the Second Class Cities Law, and for the election of officers of the said city pursuant to said Second Class Cities Law. (Grenfell, 264 AD at 604). Objections were filed to the petition and litigation ensued. The Appellate Division held in a decision later affirmed by this Court, that the proposal was contrary to law: The proposal here purports to supersede the form of city government under Plan C of the former Optional City Government Law and to substitute therefor the government previously in effect under the Second Class Cities Law. Since the home rule amendments to the Constitution adopted November 6, 1923, the Second Class Cities Law has been more or less obsolete, and its provisions continued and saved only for certain purposes. (N.Y. Const. art. 9, § 13; Ponsrok v. City of Yonkers, 254 N.Y. 91, 171 N.E. 917.) We agree with the contention of proponent that despite this there is no constitutional or legislative prohibition against the adoption of any or all of the provisions of the Second Class Cities Law as a city charter, but if such provisions are to be adopted under section 19-a of the City Home Rule Law they must be designated specifically in the proposed local law, and otherwise in accordance with the statute. Mere blanket references to the Second Class Cities Law are not sufficient. * * * The fact that the city of Schenectady was governed under Second Class Cities Law prior to 1934 in no way alters this proposition. (!d. at pp. 603-604 [emphasis supplied]). 18 The foregoing confirms that the Second Class City Law does not for the City of Schenectady "expressly commit" police discipline to local authorities, but rather as a result of the Optional Cities Government Law and the Appellants' City Code, the "strong and sweeping policy of the State to support collective bargaining" remains applicable in Schenectady, as the Appellant itself has repeatedly tacitly acknowledged (see Town of Wallkill, 19 NY3d 1066, 1069; see Point II, infra). B. This Court is not Precluded (rom Considering the l napplicahilitv of the Second Class Cities Law to this Case. Appellant does not argue, as it cannot, that Respondent PBA failed to raise before PERB and the Courts below, the arguments in Point I(A) above that Second Class cities law does not apply to preclude collective bargaining of police discipline in the City of Schenectady. The ALJ Decision specifically discussed such arguments and, because the ALJ Decision rejected Appellant's argument that the Second Class Cities Law controlled over the Taylor Law, the ALJ held that it was unnecessary to address Respondent PBA' s additional arguments based on the history of the Optional City Government Law. Similarly, PERB's determination in Respondent PBA's favor expressly acknowledged these arguments and noted that "[a] final determination concerning whether Civ Serv Law [sections] 75 and 76 is applicable to the entire PBA unit will have to await judicial clarification of the relationship between the Second Class Cities law [sections] 137 and 138 and the Optional City Government Law 19 [section] 46, and judicial harmonization of appellate precedent concerning the statutory disciplinary procedures applicable to the City police force." Nevertheless, Appellant makes the untenable argument that a necessary party to an Article 78 proceeding such as Respondent PBA, who was not aggrieved by a determination in its favor after a contested hearing on a stipulated record and facts, somehow forfeits the right to advance in court, all the legal grounds argued-and is limited to the ground on which relief was granted. Were this interpretation correct-and it is not-Respondent PBA would effectively be deprived of due process. That is because as the prevailing party, Respondent PBA had no basis to commence an Article 78 proceeding challenging the administrative agency's failure to grant relief on one of the grounds proffered by Respondent PBA; rather than another. Yet, the Appellant contends that as one of the Respondents in Appellant's Article 78 proceeding, Respondent PBA is now precluded from raising all of the arguments Respondent PBA made in the mandatory, quasi-judicial, adjudicatory hearing below. None of the cases cited by Appellant support this extreme result. Appellant cites to several decisions for the unremarkable proposition that in a proceeding in the nature of mandamus to review-where the court does not have the benefit of a full record-a court evaluates the agency's action based on the grounds initially invoked by the agency. A court will not consider arguments belatedly invoked by an agency after the fact. In both Matter of Scherbyn v 20 Wayne-Finger Lakes Bd. of Coop. Educ. Servs. (77 NY2d 753, 570 NYS2d 474 [ 1991]) and Matter of Scanlan v Buffalo Pub. School Sys. (90 NY2d 662, 665 NYS2d 51 [ 1997]), for example, cited by Appellant, this Court of Appeals made clear that an agency determination could not be sustained based upon a new ground raised by the agency "for the first time in [its] answers to the petition" (Matter of Scherbyn at 756; Matter of Scanlan at 678). Such belated arguments are simply not at issue in this matter, however. It is not disputed that Respondent PBA made and preserved its arguments concerning the Optional City Government Law in the contested proceeding below; and that both the ALJ and PERB acknowledged the Respondent PBA's arguments on this issue (R.201, fn. 90; R.41-44) Proceedings before PERB involving improper practice charges-which are "clearly of an adjudicatory or quasi-judicial nature"-are subject to judicial review in the nature of certiorari (Matter of Margolin v Newman, 130 AD2d 312 [3d Dept. 1987]; Matter of State of New York [Div. of Military & Naval Affairs] v New York State Pub. Empl. Relations Bd., 187 AD2d 78 [3d Dept. 1993]). None of the cases relied upon by Appellant stand for proposition that having raised arguments concerning which statutes govern police discipline in the City of Schenectady in the contested, adjudicatory proceedings below; and having put in evidence regarding Appellant's adoption of the Optional City Government Law-in place of the Second Class Cities Law-into the full 21 record; Respondent PBA cannot have this issue considered by a court reviewing whether the agency determination below was supported by substantial evidence. POINT II APPELLANT HAS PREVIOUSLY LITIGATED POLICE DISCIPLINE CASES BASED ON THE APPLICABILITY OF THE CIVIL SERVICE LAW As Appellant is aware, the Courts have consistently sustained, expressly and implicitly, the application of Civil Service Law section 75 to police discipline in the City of Schenectady (Matter of Mountain v City of Schenectady, 1 00 AD2d 718 [3d Dept. 1984]); Matter of City of Schenectady v Schenectady PBA, Index No. 99- 1869 [Sch. Sup. Ct. 1999] [Hon. Barry D. Kramer] at R.1535-1537; Matter of Arbitration Between Schenectady PBA and City of Schenectady, Index No. 2004- 0219 [Sup. Ct., Schenectady Co. 2004] [Reilly, J.] at R.l606-1609). In Matter of Mountain, supra, a Schenectady Police Officer was terminated by the then-Mayor of Schenectady who, after an administrative hearing pursuant to Civil Service Law section 75, accepted the recommendation of the Hearing Officer (Mountain, 100 AD2d at 718). The Appellate Division, Third Department, affirmed the holding of the Supreme Court directing Officer Mountain's reinstatement (I d.). In so holding, the Court confirmed that the administrative hearing was held pursuant to subdivision 2 of section 75 of the Civil Service Law (ld.). The Court also relied upon Civil Service Law section 75(3) when it reversed that portion of the Supreme Court decision which awarded Officer Mountain full 22 back pay (Jd. at 720). By so holding, the Appellate Division, Third Department, implicitly confirmed that Civil Service Law section 75 applies to police discipline in the City of Schenectady (I d.). In Matter of Schenectady PBA, (Index No. 2004-0219), supra, a Schenectady police officer was disciplined pursuant to the parties' collective bargaining agreement, and in arbitration, the Arbitrator sustained the majority of the disciplinary charges but modified the penalty imposed by the Mayor (R.l607). The City refused to abide by the Arbitrator's decision, and the PBA commenced an Article 75 proceeding to confirm the Arbitrator's Award (R.1607). The Court applied well settled law in making its detennination: When the parties agree to submit a dispute to arbitration pursuant to a collective bargaining agreement, judicial interference with the outcome is strongly disfavored and courts may only vacate the rare arbitration award that "is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power." (R.1607 [citations omitted] [emphasis supplied]). The standard applied by the Court clearly took into consideration whether the disciplinary procedure violated public policy, implicitly held that it did not and confirmed the Arbitration Award (R.1609). Since the decision was issued in 2004, the City and the Court were well aware that each Appellate Division in New York State had, by that time, held that in jurisdictions with a preexisting law that committed disciplinary authority over a police department to local officials, police discipline was a prohibited subject of bargaining. Nevertheless, the Court confirmed the Arbitration Award (I d.). 23 PERB has also consistently held that police discipline in the City of Schenectady is a mandatory subject of bargaining. When Matter of Patrolmen's Benevolent Assn. was before PERB, the Board held that police discipline in the City of New York was a prohibited subject of bargaining (Matter of Patrolmen 's Benevolent Association of the City of New York, Inc., 35 PERB ~3034 [2002]). However, in so holding, the Board, consistent with the subsequent decision of the Court of Appeals, effectively reaffirmed Matter of Auburn, and limited the scope of its decision to jurisdictions for which the Legislature had specifically granted total control over police discipline to local officials.8 (Jd.). The Courts have similarly confirmed that police discipline is subject to collective bargaining in other Second Class Cities (Matter of City of Albany v Helsby, 56 AD2d 976, 977 [3d Dept. 1977]; Matter of Demarco v City of Albany, 75 AD2d 674, 675 [3d Dept. 1980]; Matter ofZazycki v City of Albany, 94 AD2d 925, 926-27 [3d Dept. 1983]; Matter of City of Albany [Meehan], 100 AD2d 714 [3d Dept. 1984]; Matter of Cave v Yonkers, 237 AD2d 517, 518 [2d Dept. 1997]; Matter of Correll v Bucci, 19 AD3d 919, 920 [3d Dept. 2005]). 8 In this regard, the Board specifically referred to police discipline in the City of Schenectady when it stated as follows: That, in cases in which this is no local or special law related to discipline of police officers, demands related to disciplinary procedures, bills of rights [fu. citing to City of Schenectady, 22 PERB ~3018 (1989)], procedures for witnesses to incidents or alternatives to disciplinary procedures, have been found to be mandatory, does not, as the PBA argues, propel a contrary conclusion (id. at p. 3097 and fn. 24 at p. 3099). (35 PERB ~ 3034 at 3097 and footnote 24 at 3099). 24 Finally, and most significantly, the City also has by its course of dealing acknowledged the applicability of section 75 of the Civil Service Law to police discipline in the City of Schenectady. The City has a long history of consistently preferring charges; designating Hearing Officers; conducting discipline hearings; and terminating Schenectady Police Officers pursuant to section 75 of the Civil Service Law (R.238, ,, 10, 11, 12 and 13; R.l278-1279; R.l367; R.1460; R.l284; R.l285; R.1371; R.l372; R.l464; R.1373; R.l491). The Appellant's position on this appeal also conflicts with the position it took in previous court proceedings, in which Appellant expressly relied on section 75 of the Civil Service Law to defeat a Police Officer's motion for preliminary injunction enjoining a disciplinary hearing from going forward (R.1278-1366). In Walsh v City of Schenectady (Sup. Ct., Schenectady Co., Index No. 85-2031 [1985]), the Appellant successfully argued that section 75 applied to discipline in the City of Schenectady, precluding such an injunction.9 The Court, relying upon the arguments advanced by the City, held: Defendants are not only authorized to proceed with a disciplinary proceeding by express provisions of Article [sic] 75, but they are duty-bound to proceed ... * * * * 9 The City successfully argued that Civil Service Law section 75 was the appropriate procedure to discipline the Officer (R.1299, ~6; R.l300, ~~8, 9; R.l301 , ~10; R.1302, ~15) and that: Any disciplinary penalty for incompetence or misconduct may be considered only after a hearing upon stated charges pursuant to Article [sic] 75 of the Civil Service Law. (R. 1308). 25 The plaintiff is subject to the sanctions of Article [sic] 7 5 as long as he remains an employee of the City. (R. 1317). The Officer sought review of the denial of the injunction in the Appellate Division (R.1327), and in successfully opposing this application, the Appellant quoted the portion of the decision below that had relied on section 75 of the Civil Service Law (R.1335-1337, ~~5-7). Therefore, Appellant's argument that the Civil Service Law does not apply to police discipline in the City of Schenectady is directly contrary to its long- standing positions in court, and in the collective bargaining process. Having repeatedly advanced arguments based on the applicability of the Civil Service Law to police discipline, and having prevailed on such arguments, the Appellant should be judicially estopped from arguing that the Civil Service Law does not apply (Tuchten v Palazzola, 10 Misc3d 732 [Sup. Ct., Queens Co. 2005]). POINT ill EVEN IF THE SECOND CLASS CITIES LAW APPLIES, THERE IS NO PLAIN AND CLEAR NEW YORK STATE LEGISLATION CONTROLLING IN THE CITY OF SCHENECTADY THAT RENDERS POLICE DISCIPLINE A PROHIBITED SUBJECT OF BARGAINING Assuming, arguendo, that the Second Class Cities Law applies in the City, it does not stand apart from the Optional City Government Law and the Civil Service Law. Rather, the Second Class Cities Law, the Optional City Government Law, and the Civil Service Law complement each other. They must be read together since these statutes are in para materia, since all the statutes relate to the discipline 26 of civil service employees, including police officers (McKinney's Cons. Laws of N.Y., Book 1, Statutes § 221). When these statutes are read together, they do not evince a plain and clear legislative intent to overcome the strong and sweeping public policy of New York in favor of collective bargaining. The Second Class Cities Law does not prohibit any delegation of its empowerments and expressly states that the Second Class Cities Law shall apply "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." (Second Class Cities Law § 4). As the Court below and PERB recognized, the broad suppression language of Second Class Cities Law section 4 reveals a statutory planned obsolescence for that law by subsequent state or local legislation. This broad suppression language is in direct contrast with the statutes relied upon by this Court and Matter of Patrolmen's Benevolent Assn. and Town of Wallkill. At the very least, section 4 of the Second Class Cities Law requires that the Second Class Cities Law be read in harmony with other laws, such as the Taylor Law and the Optional City Government Law. The progression and development of the law within the City regarding the discipline of police officers, (see Point II, supra at 6-14), the enactment of the Taylor Law in 1967 and the body of legislation that applies within the City can hardly be viewed as a plain and clear directive from the Legislature that police discipline is a prohibited subject of bargaining in the City of Schenectady. Rather, the more appropriate interpretation is that to the extent that the Second Class Cities Law applies to police discipline in the City of 27 Schenectady, its procedures may be supplanted by alternative discipline procedures negotiated by the parties pursuant to the Taylor Law. CONCLUSION Based on the foregoing, Respondent Schenectady Police Benevolent Association respectfully requests that the City's appeal be denied, that the February 4, 2016 Memorandum and Order of the Appellate Division, Third Department be affirmed in all respects and that an Order and Judgment be entered herein confirming the August 23, 2013 Decision and Order of Respondent New York State Public Employment Relations Board and the Orders set forth therein, with such other and further relief as deemed just and proper, including an award of costs and disbursements. Dated: November 22, 2016 Albany, New York Respectfully submitted, GLEASON, DUNN, WALSH & O'SHEA Byf~.J:dtd~ Michael P. Ravalli, Esq. Attorneys for Respondent-Respondent Schenectady Police Benevolent Association Office & P.O. Address 40 Beaver Street Albany, New York 12207 Tel. (518) 432-7511 28 CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 500.1(±) of the Court's Rules ofPractice, the Respondent- Respondent Schenectady Police Benevolent Association is an unincorporated association that has no parent corporation, subsidiaries or affiliates. PRINTING SPECIFICATIONS STATEMENT This brief was prepared with Microsoft Word 2010 using Times New Roman 14 pt. for the body and Times New Roman 12 pt. for footnotes. According to the aforementioned processing system, the entire brief, including portions that may be excluded in a word count pursuant to N.Y.C.R.R. §500.11(m) contains 6,747 words. STATE OF NEW YORK COURT OF APPEALS CITY OF SCHENECTADY, NEW YORK, Petitioner-Appellant, -against- NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD and SCHENECTADY POLICE BENEVOLENT ASSOCIATION, Respondents-Respondents. STATE OF NEW YORK ) COUNTY OF ALBANY ) AFFIDAVIT OF SERVICE Albany County Index No. 5253/13 Court of Appeals No. APL-2016-00122 Adrienne Dvorozniak, being duly sworn, deposes and says that she is over the age of 18 and not a party to the within action; that on the 23rd day of November, 20 16, she served three (3) copies of the Brief of Respondent-Respondent Schenectady Police Benevolent Association on the following at the following place in the following manner: Christopher P. Langlois, Esq. Girvin & Ferlazzo, P.C. 20 Corporate Woods Boulevard Albany, NY 12211 David P. Quinn, Esq. Counsel & Director of Litigation NYS Public Employment Relations Board Albany, NY 12220-007 4 by depositing a true and correct copy of same, properly enclosed in a post-paid wrapper, in the Official Depository maintained and exclusively controlled by the United States Postal Service at 45 Hudson Avenue, Albany, New York, directed to said attorneys, respectively, at the addresses respectively mentioned above, those being the last known addresses in the state designated for that purpose upon the last papers served in this action or the place where the above then resided or kept offices, according to the best information which can be conveniently obtained. Sworn to before me this 23rd day of November, 2016 Notary Public- Sta e of New York CHARLOITE A. SEVAZLIAN NOTARY PUBLIC · STATE OF NEW YORK Registration No. OJ SE6 I 87260 Qualifit:d in Rensselaer County ?~ My Commission Expires May 19, 20 ~ Adrienne Dvorozniak 2