In the Matter of City of Schenectady, Appellant,v.New York State Public Employment Relations Board et al., Respondents.BriefN.Y.September 6, 2017To Be Argued By: CHRISTOPHER P. LANGLOIS Time Requested: 30 Minutes APL-2016-00122 Albany County Clerk’s Index No. 5253/13 Court of Appeals STATE OF NEW YORK CITY OF SCHENECTADY, NEW YORK, Petitioner-Appellant, —against— NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD and SCHENECTADY POLICE BENEVOLENT ASSOCIATION, Respondents-Respondents. BRIEF FOR PETITIONER-APPELLANT d GIRVIN & FERLAZZO, P.C. 20 Corporate Woods Boulevard Albany, New York 12211 Telephone: (518) 462-0300 Facsimile: (518) 462-5037 Attorneys for Petitioner-Appellant City of Schenectady, New York September 20, 2016 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................................iii JURISDICTIONAL STATEMENT ..................................................................................................1 PRELIMINARY STATEMENT .......................................................................................................2 QUESTION PRESENTED................................................................................................................3 STATEMENT OF FACTS AND PRIOR PROCCEDINGS.............................................................4 A. The Agreement...........................................................................................................4 B. The Improper Practice Charges .................................................................................6 C. Proceedings Before the ALJ ......................................................................................7 D. Proceedings Before Respondent PERB .....................................................................9 E. Proceedings Before the Supreme Court .....................................................................10 F. Proceedings Before the Appellate Division...............................................................10 ARGUMENT.....................................................................................................................................12 POINT I PERB’S CONCLUSION THAT THE SECOND CLASS CITIES LAW WAS SUPERSEDED BY THE 1967 ENACTMENT OF THE TAYLOR LAW IS CONTRARY TO ACCEPTED RULES OF STATUTORY CONSTRUCTION AND IS INCONSISTENT WITH PRIOR DECISIONOF THIS COURT ...........................12 A. The Standard of Review ............................................................................................12 B. Patrolmen’s Benevolent Assn. and Town of Wallkill ...............................................15 C. Second Class Cities Law Article 9 ............................................................................18 D. PERB’S Determination..............................................................................................19 ii E. PERB’S Determination is Contrary to the Rules of Statutory Construction .............22 F. PERB’S Determination is Contrary to Patrolmen’s Benevolent Assn. and Town of Wallkill.......................................................................................27 POINT II PERB’S DETERMINATION MAY NOT BE AFFIRMED ON ANY ALTERNATIVE GROUNDS..........................................................31 CONCLUSION..................................................................................................................................33 iii TABLE OF AUTHORITIES Page CASES Alweis v. Evans, 69 N.Y.2d 199, 513 N.Y.S.2d 95 (1987) ....................................................................23, 24 Ball v. State, 41 N.Y.2d 617, 394 N.Y.S.2d 597 (1977) ........................................................................23 Farrington v. Pinckney, 1 N.Y.2d 74, 150 N.Y.S.2d 585 (1956) ............................................................................22 Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL-CIO v. Helsby, 46 N.Y.2d 1034, 416 N.Y.S.2d 586 (1979) ......................................................................16 Matter of City of Watertown v. State of N. Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 711 N.Y.S.2d 99 (2000) ............................................................................15 Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 N.Y.2d 774, 390 N.Y.S.2d 53 (1976) ..........................................................................15 Matter of Kent v. Lefkowitz, 27 N.Y.3d 499, 35 N.Y.S.3d 278 (2016) ...........................................................................13 Matter of Lippman v. Public Empl. Relations Bd., 296 A.D.2d 199, 746 N.Y.S.2d 77 (3d Dep’t 2002) ........................................................14 Matter of National Resources Defense Council, Inc. v. New York City Dept. of Sanitation, 83 N.Y.2d 215, 608 N.Y.S.2d 957 (1994); .......................................................................24 Matter of National Fuel Gas Distrib. Corp. v. Public Serv. Comm. of the State of N.Y., 16 N.Y.3d 360, 922 N.Y.S.2d 224 (2011) ........................................................................14 Matter of New York City Tr. Auth. v. New York State Pub. Empl. Relations Bd., 8 N.Y.3d 226, 832 N.Y.S. 2d 132 (2007) .........................................................................13 Matter of Patrolmen’s Benevolent Association of the City of New York, Inc. v. New York State Public Employment Relations Board, 6 NY3d 563 (2006) .................................................................................................... passim iv TABLE OF AUTHORITIES Page CASES (continued) Matter of Rosen v. Public Empl. Relations Bd., 72 N.Y.2d 42, 530 N.Y.S.2d 534 (1988) ..........................................................................13 Matter of Scanlan v. Buffalo Public School System, 90 N.Y.2d 662, 665 N.Y.S.2d 51 (1997) ..........................................................................14 Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 85 N.Y.2d 480, 626 N.Y.S.2d 715 (1995) ........................................................................15 Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 570 N.Y.S.2d 474 (1991) ..................................................................13, 31 Matter of Town of Wallkill v. Civil Service Employees’ Association, Inc., 19 NY3d 1066 (2012) ................................................................................................ passim PERB DECISIONS New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, Local 2841 and City of Albany, 42 PERB 3005 (2009)..........................................................................................................8 Town of Wallkill Police Benevolent Association, Inc. and Town of Wallkill, 42 PERB 3017 (July 23, 2009) ..........................................................................................29 STATUTES Civil Service Law Article 5 .............................................................................................................5 Civil Service Law Article 14 (Taylor Law) (Public Employees’ Fair Employment Act ).............................................................. passim Civil Service Law § 75 .......................................................................................................... passim Civil Service Law § 76 .......................................................................................................... passim Civil Service Law § 204(2)......................................................................................................15, 26 Civil Service Law § 213 ................................................................................................................10 v TABLE OF AUTHORITIES Page STATUTES (continued) CPLR Article 78 ............................................................................................................................10 Optional City Government Law.....................................................................................................31 Second Class Cities Law........................................................................................................ passim Second Class Cities Article 9................................................................................................. passim Second Class Cities Law § 2 .........................................................................................................18 Second Class Cities Law §4................................................................................................... passim Second Class Cities Law § 131......................................................................................................18 Second Class Cities Law § 133..........................................................................................18, 26, 30 Second Class Cities Law § 137......................................................................................................18 Statutes §§ 368-370........................................................................................................................22 Statutes § 371.................................................................................................................................23 Statutes §§ 391-400..................................................................................................................22, 23 Town Law § 155 ..........................................................................................................17, 20, 28, 29 Taylor Law § 204.1 .......................................................................................................................21 Taylor Law § 209-a(1)(a) ............................................................................................................7, 8 Taylor Law § 209-a.1(d) .............................................................................................................2, 9 Taylor Law § 209-(a)(1)(d) .....................................................................................................7, 8. 9 Taylor Law § 209-a(1)(e) ............................................................................................................5, 7 Taylor Law § 209-a.2(b) .................................................................................................................7 Unconsolidated Law §891 .............................................................................................................31 1 JURISDICTIONAL STATEMENT The Court has jurisdiction to entertain the appeal and to review the questions raised pursuant to CPLR §§ 5501(b) and 5602(a)(1)(i) because the February 4, 2016 Memorandum and Order of the Appellate Division, Third Department, appealed from (R.1678-81) is an order which finally determines the action, is not appealable as of right, and raises questions of law. The Court granted Appellant leave to appeal by Order decided and entered on June 7, 2016. (R.1676-77). The question presented for review was duly raised and preserved by the Appellant in the proceedings below. (R.13-25). 2 PRELIMINARY STATEMENT Appellant City of Schenectady, New York (“City”) submits this Brief in support of its appeal from the Memorandum and Order of the Appellate Division, Third Department, decided and entered on February 4, 2016. (R.1678-81). The Third Department’s February 4, 2016 Memorandum and Order affirmed a Decision/Judgment issued by the Supreme Court, Albany County (McGrath, J.), entered on August 14, 2014 (R.7-10), which dismissed the City’s Article 78 proceeding seeking to annul a determination of Respondent New York State Public Employment Relations Board (“PERB”), dated August 23, 2013. In its August 23, 2013 determination (R.26-51), Respondent PERB concluded that the City violated Section 209-a.1(d) of the Public Employees’ Fair Employment Act (CSL Article 14, “the Taylor Law”) when it unilaterally issued a new disciplinary procedure for unit members of the Respondent Schenectady Police Benevolent Association (“PBA”). For the reasons set forth herein, the Third Department’s February 4, 2016 Memorandum and Order should be reversed and an Order and Judgment issued in the City’s favor granting the Article 78 relief requested and annulling the August 23, 2013 Decision and Order of Respondent PERB. 3 QUESTION PRESENTED Did the adoption of the Taylor Law (Civil Service Law Article 14) in 1967 effectively supersede those provisions of the Second Class Cities Law and similar pre-existing laws which specifically commit police discipline to the discretion of local officials, thereby rendering the subject of police discipline a mandatory subject of collective bargaining notwithstanding this Court’s prior decisions in Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v. New York State Pub. Empl. Relations Bd., 6 N.Y.3d 563, 815 N.Y.S.2d 1 (2006)(“Patrolmen's Benevolent Assn.”) and 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 N.Y.3d 1066, 955 N.Y.S.2d 821 (2012)(“Town of Wallkill”)? 4 STATEMENT OF FACTS AND PRIOR PROCEEDINGS A. The Agreement The Appellant City is a public employer, as that term is defined in ' 201(6) of the Act. (R.235).1 The Respondent PBA is an employee organization as that term is defined in ' 201(5) of the Taylor Law, and is the duly certified representative for all police officers of all ranks employed by the City, exclusive of the Chiefs and Assistant Chiefs. (R.235). The City and the PBA are parties to a collective bargaining agreement (ACBA@) for the period of January 1, 1997 through December 1, 1999 (R.274); an Interest Arbitration Award (PERB Case No. IA200-011) for the period of January 1, 2000 through December 31, 2001 (R.314); a Memorandum of Agreement, dated March 24, 2003, covering the period of January 1, 2002 through December 31, 2005 (R.337); and an Interest Arbitration Award (PERB Case Nos. IA2007-014; M2007-067) for the period of January 1, 2006 through December 31, 2007 (R.363)(collectively referred to herein as Athe Agreement@). (R.236). At the time the underlying improper practice charges were filed, the City and the PBA had not reached an agreement on a collective bargaining agreement for the period subsequent to December 31, 2007 and, as a result, the terms of the expired 1 The parties submitted a statement of Stipulated Facts in the proceedings before the ALJ, which can be found at pages 235 through 243 of the Record. 5 Agreement remained in effect pursuant to ' 209-a(1)(e) of the Taylor Law. (R.236). Certain of those terms addressed the matter of discipline. Article VIII of the Agreement, titled ADisciplinary Action@, provided as follows: A. In the event that an investigation results in the institution of disciplinary action, the Association shall be free to participate at all stages of the proceedings if it so elects, and shall be provided with copies of the charges and specifications, recommendations, and decisions. B. In the event the Association concludes that an employee has been unjustly punished or dismissed by the Mayor, it may appeal such judgment to arbitration as provided below. The Arbitrator shall review the justness of the punishment imposed, upon the record made before the hearing officer. Either party shall be entitled to file briefs with the Arbitrator. C. No new testimony or evidence shall be received by the Arbitrator. If the Arbitrator decides that new evidence or testimony should be heard, he shall refer the case back to the Mayor. If the Arbitrator decides that the determination was erroneous or that the punishment imposed was unduly harsh or severe under all the circumstances, he may modify the finding and punishment accordingly. Nothing herein contained shall be deemed to limit the rights of the employee provided for in Article 5 of the Civil Service Law. (R.236-237; 283-284). The substantive provisions of Article VIII have remained essentially unchanged since the first collective bargaining agreement was negotiated between the City and the PBA in 1969. (R.237; 1236-1240; 1242-1244; 1247-1249; 1251- 1255; 1257-1261; 1264-1268; 1270-1272; 1273-1276). From in or about 1969 and 6 into 2007, the City issued disciplinary charges, and PBA bargaining unit members were disciplined, pursuant to Civil Service Law ' 75 and Article VIII of the Agreement. (R.238). B. The Improper Practice Charges On or about June 4, 2007, and following this Court’s decision in Patrolmen's Benevolent Assn., the City issued a press release regarding the disciplinary action process within the Police Department. (R.239; R.262). The press release announced that AYthe disciplinary action process within the police department will undergo a significant change effective immediately@ and that Athe adoption of this new process will eliminate any previously negotiated provision regarding disciplinary action including arbitration of disciplinary action levied by the department.@ (R.262). As described in the press release, under the Anew process@ the APublic Safety Commissioner will be the trier of the facts and will render the final decision regarding innocence or guilt and penalties to be levied in cases where warranted@, subject to judicial review. (R.262). On April 4, 2008, Public Safety Commissioner Wayne E. Bennett issued General Order No. 0-43 outlining the process for conducting disciplinary proceedings under the provisions of Article 9, Section 137 of the Second Class Cities Law (“SCCL”). (R.263). 7 In the most recent contract negotiations pre-dating the City’s press release, the PBA had submitted for consideration a proposal to modify Article VIII B Disciplinary Action. (R.239; 251). On October 3, 2007, the PBA filed an improper practice charge (Case No. U-27887) which, as amended, alleged that the City violated §§ 209-a(1)(a), (d), and (e) of the Taylor Law when it announced that it would no longer apply the disciplinary procedures set forth in the parties= expired collective bargaining agreement. (R.255). The City filed an Answer to the amended improper practice charge which, inter alia, denied any violation of the Taylor Law. (R.266). On November 14, 2007, the City filed an improper practice charge (Case No. U-27980) which alleged that the PBA violated ' 209-a.2(b) of the Taylor Law when it submitted for consideration at interest arbitration certain proposals constituting prohibited subjects of negotiation, including proposals relating to the discipline of police officers. (R.244). The PBA filed an Answer to the improper practice charge which, inter alia, denied any violation of the Taylor Law. (R.248). C. Proceedings Before the ALJ The two matters were consolidated for purposes of a hearing and decision upon Stipulated Facts and a Stipulated Record consisting of Joint Exhibits, PBA Exhibits, and City Exhibits. 8 By Decision dated July 22, 2011 (R.184-205), the ALJ rejected the City’s argument that the SCCL represented State legislation, enacted prior to CSL §§ 75 and 76, which expressly committed disciplinary authority over the police department to local officials, thereby rendering police discipline a prohibited subject of bargaining pursuant to this Court’s holding in Patrolmen's Benevolent Assn. The ALJ’s conclusion was based solely on his application of PERB’s holding in New York State Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO, Local 2841 and City of Albany, 42 PERB ¶ 3005 (2009)(“City of Albany”) that the SCCL was superseded by the adoption of the Taylor Law in 1967, as well as by subsequent amendments thereto, and that based on that holding “the City’s argument that the Second Class Cities Law makes the matter of police discipline a prohibited subject of negotiation must fail.” (R.201). In light of his determination, the ALJ did not reach or decide any of the alternative arguments raised by the PBA. (R.200-201). Based on his conclusion that the SCCL did not render police discipline a prohibited subject of negotiations, the ALJ found that the City violated § 209- a(1)(d) of the Taylor Law “when it announced that it would no longer apply the disciplinary procedures set forth in the parties’ expired agreement and provided in § 75 of the Civil Service Law, and when it unilaterally issued General Order No. 0- 43 setting forth a new disciplinary procedure for unit members.” (R.203). The ALJ 9 did, however, summarily dismiss the PBA’s allegation that the City violated § 209- a(1)(a) of the Taylor Law, finding no record evidence “that the City intended to interfere with, restrain or coerce unit members in the exercise of their rights guaranteed in § 202 of the Act for the purpose of depriving them of such rights.” (R.197). Based on his conclusion that the SCCL did not render police discipline a prohibited subject of negotiations, the ALJ further dismissed the City’s charge in Case No. U-27980 which alleged that the PBA violated the Taylor Law by submitting to interest arbitration a proposal on a prohibited subject. (R.202). D. Proceedings Before Respondent PERB The City timely filed exceptions to the ALJ’s July 22, 2011 Decision with Respondent PERB. (R.206). No exceptions or cross-exceptions to the ALJ’s July 22, 2011 Decision were filed by the PBA. By Decision and Order dated August 23, 2013, Respondent PERB (i) denied the City’s exceptions and affirmed the Decision of the ALJ in Case No. U-27887, finding that the City violated Section 209-a(1)(d) of the Taylor Law, and (ii) affirmed the Decision of the ALJ in Case No. U-27980 dismissing the City’s improper practice charge. (R.49). Respondent PERB’s August 23, 2013 Decision and Order rested on a single conclusion – that, consistent with its prior holding in 10 City of Albany, the SCCL was superseded by the enactment of the Taylor Law in 1967 and its subsequent amendments and therefore no longer served to render police discipline a prohibited subject of bargaining notwithstanding this Court’s holdings in Patrolmen's Benevolent Assn. and Town of Wallkill. (R.39-40). E. Proceedings Before the Supreme Court The City timely filed this proceeding seeking review of Respondent PERB’s August 23, 2013 Decision and Order pursuant to CPLR Article 78 and CSL § 213 by Notice of Petition and Verified Petition filed on September 23, 2013. (R.11- 125). By Decision/Judgment entered August 14, 2014, the Supreme Court affirmed Respondent PERB’s August 23, 2013 determination and dismissed the City’s Petition, finding Respondent PERB’s conclusion that “the unilateral authority granted to the Commissioner of Public Safety under Article 9 of the Second Class Cities Law was superseded by the enactment of the Act in 1967” to be rational and reasonable. (R.7-10). F. Proceedings Before the Appellate Division The City timely appealed the July 9, 2014 Supreme Court decision to the Appellate Division, Third Department. (R.2-3). 11 By Memorandum and Order decided and entered on February 4, 2016, the Appellate Division, Third Department, affirmed the July 9, 2014 Decision/Judgment of the Supreme Court, indicating that “our own reading of the statutes at issue here leads us to agree with the Supreme Court that PERB’s construction of the Second Class Cities Law, as it related to the Taylor Law, is correct.” (R.1679). 12 ARGUMENT POINT I PERB’S CONCLUSION THAT THE SECOND CLASS CITIES LAW WAS SUPERSEDED BY THE 1967 ENACTMENT OF THE TAYLOR LAW IS CONTRARY TO ACCEPTED RULES OF STATUTORY CONSTRUCTION AND IS INCONSISTENT WITH PRIOR DECISIONS OF THIS COURT Respondent PERB’s conclusion that the adoption of the Taylor Law in 1967 superseded those provisions of the SCCL which specifically commit police discipline to the discretion of local officials, thereby rendering the subject of police discipline a mandatory subject of collective bargaining, is contrary to accepted rules of statutory construction; conflicts with the prior decisions of this Court in Patrolmen's Benevolent Assn. and Town of Wallkill; and undermines what this Court has previously characterized as the important public policy favoring the authority of public officials over the police. Accordingly, the February 4, 2016 Memorandum and Order of the Appellate Division, Third Department – which endorsed the conclusion reached by Respondent PERB – should be reversed. A. The Standard of Review This Court’s scope of review in an Article 78 proceeding challenging a determination of PERB is generally limited to determining whether PERB’s 13 decision “was affected by an error of law or was arbitrary and capricious or an abuse of discretion.” Matter of Kent v. Lefkowitz, 27 N.Y.3d 499, 505, 35 N.Y.S.3d 278, 281 (2016)(citations omitted). The judicial review of Respondent PERB’s determination in this case is further guided by two important principles. First, while as a general matter “PERB is accorded deference in matters falling within its area of expertise” (Id., citations omitted), such deference is not extended where – as here – “the question is one of pure statutory construction dependent only on accurate apprehension of legislative intent [with] little basis to rely on any special competence” of PERB. Matter of New York City Tr. Auth. v. New York State Pub. Empl. Relations Bd., 8 N.Y.3d 226, 231, 832 N.Y.S. 2d 132, 133 (2007), quoting Matter of Rosen v. Public Empl. Relations Bd., 72 N.Y.2d 42, 47-48, 530 N.Y.S.2d 534, 526 (1988). Respondent PERB’s conclusions regarding the proper statutory construction to be afforded SCCL § 4 – as well as the statutory consequences resulting from the subsequent enactment of the Taylor Law in 1967 – are therefore not entitled to any deference, but are rather subject to de novo review by this Court. Id. Second, judicial review of Respondent PERB’s determination is subject to “the settled rule that judicial review of an administrative determination is limited to the grounds invoked by the agency.” Matter of Scherbyn v. Wayne-Finger Lakes 14 Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 478 (1991). This Court has long recognized that in an Article 78 proceeding: “[a] reviewing court, in dealing with a determination * * * which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis.” Id. (citations omitted). Thus, “judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination.” Matter of Scanlan v. Buffalo Public School System, 90 N.Y.2d 662, 678, 665 N.Y.S.2d 51, 57 (1997). Stated alternatively, “[i]f the reasons an agency relies on do not reasonably support its determination, the administrative order must be overturned and it cannot be affirmed on an alternative ground that would have been adequate if cited by the agency.” Matter of National Fuel Gas Distrib. Corp. v. Public Serv. Comm. of the State of N.Y., 16 N.Y.3d 360, 368, 922 N.Y.S.2d 224, 229 (2011). This rule is fully applicable to judicial review of decisions by Respondent PERB. Matter of Lippman v. Public Empl. Relations Bd., 296 A.D.2d 199, 207, 746 N.Y.S.2d 77, 84 (3d Dep’t 2002)[declining to consider alternative argument offered in support of PERB determination of improper practice charge where argument “represent[ed] a different basis than that relied upon in PERB’s decision…”]. 15 B. Patrolmen's Benevolent Assn. and Town of Wallkill This case arises in the context of this Court’s prior decisions in Patrolmen's Benevolent Assn. and Town of Wallkill regarding the scope of a public employer’s obligation under the Taylor Law to engage in collective bargaining where the subject of police discipline is concerned. The Taylor Law generally requires public employers to bargain in good faith concerning all terms and conditions of employment. CSL § 204(2); Matter of City of Watertown v. State of N. Y. Pub. Empl. Relations Bd., 95 N.Y.2d 73, 78, 711 N.Y.S.2d 99, 101 (2000); Matter of Schenectady Police Benevolent Assn. v. New York State Pub. Empl. Relations Bd., 85 N.Y.2d 480, 485, 626 N.Y.S.2d 715, 717 (1995). While the public policy in favor of collective bargaining is “strong and sweeping”, the presumption in favor of bargaining may be overcome, and the scope of collective bargaining limited, by “plain and clear, rather than express, prohibitions in the statute or decisional law” or “in some instances by public policy, whether derived from, and whether explicit or implicit in statute or decisional law, or in neither.” Matter of Cohoes City School Dist. v. Cohoes Teachers Assn., 40 N.Y.2d 774, 778, 390 N.Y.S.2d 53, 55-56 (1976). In Patrolmen's Benevolent Assn., this Court was asked to decide whether the Taylor Law imposed upon the City of New York and the Town of Orangetown an obligation to engage in collective bargaining on the subject of police discipline, 16 where such discipline was exercised pursuant to authority conferred by the New York City Charter and Administrative Code and the Rockland County Police Act (RCPA). The Court held that it did not. In reaching its conclusion, the Court noted that “[i]n general, the procedures for disciplining public employees, including police officers, are governed by Civil Service Law §§ 75 and 76…” and reaffirmed its prior holding in Matter of Auburn Police Local 195, Council 82, Am. Fedn. of State, County & Mun. Empls., AFL- CIO v. Helsby, 46 N.Y.2d 1034, 416 N.Y.S.2d 586 (1979), that “where Civil Service Law §§ 75 and 76 apply, police discipline may be the subject of collective bargaining” under the Taylor Law. Patrolmen's Benevolent Assn., 6 N.Y.3d at 573. The Court went on to note, however, that Civil Service Law §§ 75 and 76 do not always apply, since “…Civil Service Law § 76(4) says that sections 75 and 76 shall not ‘be construed to repeal or modify’ preexisting laws…” Id. The Court observed that “[a]mong the laws thus grandfathered are several that, in contrast to sections 75 and 76, provide expressly for the control of police discipline by local officials in certain communities.” Id. The New York City Charter and Administrative Code and the RCPA, the Court concluded, were such “grandfathered” laws – each having been adopted by the State Legislature prior to Civil Service Law §§ 75 and 76 and each committing police discipline to the authority of local officials. Id. at 573-574. 17 The question before the Court, therefore, was whether legislation of this kind – which expresses a “policy favoring strong disciplinary authority for those in charge of police forces” (Id. at 571) – is sufficient to overcome the presumption in favor of collective bargaining where police discipline is concerned. Observing that “[w]hile the Taylor Law policy favoring collective bargaining is a strong one, so is the policy favoring the authority of public officials over the police”, the Court framed the issue as “…whether these enactments express a policy so important that the policy favoring collective bargaining should give way…” Id. at 575-576. The Court concluded that they do. Therefore, the Court held, “…police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.” Id. at 570. Six years later, in Town of Wallkill, 19 N.Y.3d 1066 (2012), this Court applied its holding in Patrolmen's Benevolent Assn. to conclude that the Taylor Law did not impose an obligation to engage in collective bargaining with respect to police disciplinary procedures adopted by local law pursuant to Town Law § 155 – a general law enacted by the State Legislature prior to Civil Service Law §§ 75 and 76 and which, like the “grandfathered” laws at issue in Patrolmen's Benevolent Assn., expressly commits disciplinary authority over a police department to local officials. 18 C. Second Class Cities Law Article 9 Like the New York City Charter and Administrative Code, the RCPA, and Town Law provisions at issue in Patrolmen's Benevolent Assn. and Town of Wallkill, the law at issue in this case – the SCCL – was enacted by the State Legislature in 1909 prior to the enactment of Civil Service Law §§ 75 and 76, and expressly commits disciplinary authority over the police department to a local official. Except to the extent that its provisions have been “changed, repealed or superseded pursuant to law”, the SCCL applies to a city which was a “city of the second class” as of December 31, 1923. SCCL § 4. The City of Schenectady is a “city of the second class” as defined in Section 2 of the SCCL.2 Article 9 of the SCCL, which was originally enacted by the Legislature in 1909 and therefore predates CSL §§ 75 and 76 (L.1909, Ch. 55), expressly commits disciplinary authority over the police department in a city of the second class to a local official – the Commissioner of Public Safety. SCCL §§ 131, 133, and 137. The SCCL Article 9 – being a law enacted prior to CSL §§ 75 and 76 and which expressly commits police discipline to local officials – is therefore precisely that type of pre-existing law which, in accordance with this Court’s holdings in 2 Independent of the question of whether the provisions of the SCCL continue to apply to the City, no dispute is raised that the City of Schenectady is, in fact, a “city of the second class” as defined in SCCL §§ 2 and 4, and neither PERB, the Supreme Court, nor the Appellate Division made any finding to the contrary. 19 Patrolmen's Benevolent Assn. and Town of Wallkill, would ordinarily render police discipline a prohibited subject of collective bargaining notwithstanding anything to the contrary under the Taylor Law. Neither PERB nor the Appellate Division concluded otherwise. D. PERB’s Determination In its August 23, 2013 determination, PERB concluded – and the Third Department ultimately agreed – that the SCCL did not operate to render police discipline a prohibited subject of collective bargaining, notwithstanding this Court’s prior decisions in Patrolmen's Benevolent Assn. and Town of Wallkill, because the SCCL had been effectively superseded by subsequently enacted State legislation, thereby eliminating any competing State policy which would have otherwise required that the policy favoring collective bargaining under the Taylor Law give way. (R.34-41). What subsequently enacted State legislation resulted in the SCCL being “superseded” such that the policy in favor of collective bargaining under the Taylor Law should be given effect? According to PERB and the Third Department, the adoption of the Taylor Law itself in 1967. (R.39-41; 1678-1681). In other words, PERB concluded that the enactment of the Taylor Law – which this Court has twice held does not apply to impose a bargaining obligation where State 20 legislation, pre-dating CSL §§ 75 and 76, commits disciplinary authority over a police department to local officials – effectively superseded the very pre-existing State legislation (the SCCL) which would otherwise render the Taylor Law inapplicable in the first place. PERB’s conclusion, of course, presents a bit of a conundrum: if the SCCL was superseded by the enactment of the Taylor Law, then why wouldn’t the New York City Charter and Administrative Code and the RCPA (considered by this Court in Patrolmen's Benevolent Assn.) and Town Law § 155 (considered by this Court in Town of Wallkill) also have been similarly superseded? The answer, according to PERB, lies in the statutory language found in SCCL § 4, which provides in pertinent part that “[a] provision of this chapter 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.” Characterizing such language as “a broad supersession provision” not found in the pre-existing laws considered in Patrolmen's Benevolent Assn. and Town of Wallkill (R.40), PERB opined that “[t]he wording of that phrase demonstrates that ‘superseded’ was intended to mean something other than ‘changed’ or ‘repealed’” and “anticipated supersession by state and local laws.” (R.41). In PERB’s view, “[s]imply stated, the text of Second Class Cities Law § 4 reveals a statutorily 21 planned obsolescence for that law resulting from the enactment of state or local legislation” (R.41), such that “the enactment of the [Taylor Law] in 1967 and its subsequent amendments superseded the Second Class Cities Law by requiring police discipline to be subject to collective negotiations and the impasse procedures under the [Taylor Law].” (R.40)(bracketed material added). Adoption of the Taylor Law resulted in the supersession of the SCCL in accordance with SCCL § 4 because, according to PERB’s reasoning, “[f]undamentally, the mandate of §204.1 of the [Taylor Law] requiring an employer to negotiate with an employee organization over terms and conditions of employment is inconsistent with the power and unilateral authority granted the Commissioner of Public Safety under the Second Class Cities Law.” (R.40). In its February 4, 2016 Memorandum and Order, the Third Department endorsed PERB’s statutory analysis, indicating that “…our own reading of the statutes at issue here leads us to agree… that PERB’s construction of the Second Class Cities Law, as it relates to the Taylor Law, is correct.” (R.1679). The Third Department concurred with PERB’s view that the language of SCCL § 4 reflected “‘a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation’” or, “[p]ut differently, [that] the clear and unambiguous language of Second Class Cities Law § 4 provides the best evidence that the Legislature intended to allow any or all of the 22 provisions of the Second Class Cities Law to be supplanted by later laws applicable to the same subject matter.” (R.1680). E. PERB’S Determination is Contrary to the Rules of Statutory Construction The conclusion reached by both Respondent PERB and the Third Department – that that the SCCL was “superseded” by the enactment of the Taylor Law in 1967, thereby rendering police discipline a mandatory subject of bargaining notwithstanding this Court’s decisions in Patrolmen's Benevolent Assn. and Town of Wallkill – placed undue emphasis on the language in SCCL § 4 and, as a result, failed to properly apply those long accepted rules of statutory construction which strictly limit the circumstances in which the enactment of statute will be deemed to effect a repeal by implication of an earlier statute. No law enacted by the State Legislature is cast in stone, guaranteed to continue in perpetuity as originally adopted. Rather, all State laws owe their continuing existence to the continuing will of the State Legislature – any previously enacted law may, at any time, be “changed” (i.e., amended), repealed, or “superseded” (i.e., repealed by implication) based on a subsequent act of the State Legislature. See Farrington v. Pinckney, 1 N.Y.2d 74, 82, 150 N.Y.S.2d 585, 594 (1956)[every Legislature may modify or abolish its predecessor’s acts]; McKinney’s Statutes §§ 2, 368-371, 391-400. 23 Accordingly, any existing statute may be amended, i.e., “changed”, by the Legislature at any time. Statutes §§ 368-370. Likewise, any existing statute may be repealed by the Legislature in one of two ways. The existing statute may be the subject of an express repeal in which the prior act is specifically identified and announced as repealed. Statutes § 371. Alternatively, and under very limited circumstances, the existing statute may be deemed to have been repealed by implication through the Legislature’s enactment of a subsequent but conflicting statute. Statutes §§ 391-400. A statute which has been “repealed by implication” has, in effect, been “superseded” by a subsequent statute. Statutes § 391 [“It is only when there is an irreconcilable conflict between the acts or when the subsequent act is clearly intended to supersede the former statute, that a repeal by implication arises”]; Alweis v. Evans, 69 N.Y.2d 199, 205, 513 N.Y.S.2d 95, 97-98 (1987)[Legislature’s subsequent amendment of a purportedly superseded law would strongly indicate that there was no intent to repeal it by implication]; Ball v. State, 41 N.Y.2d 617, 622-623, 394 N.Y.S.2d 597, 601 (1977)[budget bill did not operate as a repeal by implication superseding statutory provisions creating the Bingo Control Commission]. Viewed in that context, the language in SCCL § 4 relied upon by PERB and the Third Department is mere surplusage, stating no more than a legal truism – that the provisions of the SCCL shall apply until “changed, repealed or superseded 24 pursuant to law” -- which would remain equally true even in the absence of such language. Neither PERB nor the Third Department offered any legislative history or prior judicial precedent to support their conclusion that – in adopting the language of SCCL § 4 over a century ago – the State Legislature intended anything other than to simply and expressly acknowledge that the provisions of the SCCL (like the provisions of all other enacted statutes) would continue unless subsequently amended, expressly repealed, or repealed by implication. Insofar as the Taylor Law neither amended nor expressly repealed any provision of the SCCL, the legal question of whether the 1967 adoption of the Taylor Law “superseded” some or all of the SCCL must therefore be determined by reference to the rules of statutory construction applicable to the doctrine of repeal by implication. As this Court has repeatedly recognized, the repeal or modification of legislation by implication is not favored in the law, and the doctrine of repeal by implication will only be resorted to in the clearest of cases. Matter of National Resources Defense Council, Inc. v. New York City Dept. of Sanitation, 83 N.Y.2d 215, 222-223, 608 N.Y.S.2d 957, 960 (1994); Matter of Consolidated Edison Co. v Department of Envtl. Conservation, 71 N.Y.2d 186, 195, 524 N.Y.S.2d 409,414 (1988); Alweis v. Evans, 69 N.Y.2d at 204-205, 513 N.Y.S.2d at 97; Ball v State of New York, 41 N.Y.2d at 622, 394 N.Y.S.2d at 601. 25 As explained by the Court in Alweis: Obviously, the judiciary should not lightly infer that the Legislature has repealed one of its own enactments when it has failed to do so expressly; the Legislature is hardly reticent to repeal statutes when it means to do so. Generally, a statute is deemed impliedly repealed by another statute only if the two are in such conflict that it is impossible to give some effect to both. If a reasonable field of operation can be found for each statute, that construction should be adopted. Alweis, 69 N.Y.2d at 204, 513 N.Y.S.2d at 97. Applying these principles to the case at hand, the conclusion reached by PERB and the Third Department that the SCCL law was “superseded” and effectively repealed by implication upon the subsequent adoption of the Taylor Law in 1967 cannot be sustained. The provisions of SCCL Article 9 and the Taylor Law are not Ain such conflict that it is impossible to give effect to both.@ Id. Indeed, the two statutes occupy distinct Afields of operation@ and address entirely distinct subject matters. SCCL Article 9 addresses the discipline of police officers in cities of the second class, and does not specifically address, directly or indirectly, the public employer=s obligations (if any) to collectively bargaining with employee organizations regarding discipline or any other subject. The Taylor Law, by contrast, does not address the manner in which police officers or other employees are to be disciplined, but instead imposes a general obligation on public employers to bargain in good faith concerning terms and conditions of employment. Since 26 neither statute addresses the subject matter of the other, SCCL Article 9 and the Act are not in conflict. Essentially, the “conflict” relied upon by PERB is not between the express provisions of the SCCL and the Act, but rather between the public policies reflected in those statutes. The SCCL reflects a public policy “favoring the authority of public officials over the police” by authorizing a local official – the Commissioner of Public Safety – to unilaterally “make, adopt, promulgate and enforce reasonable rules, orders and regulations” relating to police discipline (SCCL § 133), which is at odds with the public policy reflected in Taylor Law “favoring collective bargaining” as to the terms and conditions of employment (CSL § 204(2)), including generally with respect to disciplinary procedures. That precise public policy conflict, however, was identified – and resolved – by this Court in Patrolmen's Benevolent Assn., with the Court concluding that those preexisting laws predating CSL §§ 75 and 76 and which expressly provide for the control of police discipline by local officials – like the SCCL – “express a policy so important that the policy favoring collective bargaining should give way.” Patrolmen's Benevolent Assn. at 576. As a result of this Court’s holding in Patrolmen's Benevolent Assn., there is no conflict between the SCCL and the Taylor Law – either between their express provisions or as a matter of policy – 27 because the Taylor Law simply does not apply and police discipline is and remains a prohibited subject of collective bargaining. Respondent PERB’s conclusion that the SCCL was superseded by the enactment of the Taylor Law and/or its subsequent amendments was therefore contrary to law and lacking in a rational basis, and should have been annulled by the Third Department. F. PERB’S Determination is Contrary to Patrolmen's Benevolent Assn. and Town of Wallkill The conclusion reached by PERB and the Third Department that the SCCL was superseded by the enactment of the Taylor Law – thus rendering police discipline a mandatory subject of collective bargaining – is contrary to, and cannot be reasonably reconciled with, this Court’s prior holdings in Patrolmen's Benevolent Assn. and Town of Wallkill. Both PERB and the Third Department attempted to distinguish Patrolmen's Benevolent Assn. and Town of Wallkill by emphasizing that their decision was premised on the provisions of SCCL § 4, and that none of the pre-existing statutes considered by this Court in Patrolmen's Benevolent Assn. and Town of Wallkill included a “broad supersession provision” comparable to that contained in SCCL § 4. (R.40,1681). Fundamentally, however, the conclusion reached by PERB and the 28 Third Department in this case cannot be reconciled with this Court’s prior decisions. First, and as more fully set forth at Point I(E), supra, the “broad supersession provision” of SCCL §4 relied upon by PERB and the Third Department is simply not legally meaningful, stating no more than that the provisions of the SCCL – like the provisions of any duly enacted statute – shall apply until “changed, repealed or superseded pursuant to law.” That self-evident proposition would remain equally true even in the absence of such language in SCCL § 4, and in that regard the SCCL stands on equal footing with the pre-existing statutes considered by this Court in Patrolmen's Benevolent Assn. and Town of Wallkill – that is, the New York City Charter and Administrative Code, the RCPA, and Town Law § 155. All represent laws previously enacted by the State Legislature, prior to the adoption of Civil Service Law §§ 75 and 76, which are forever subject to being “changed, repealed or superseded pursuant to law” based on the subsequent actions of the State Legislature. If, as PERB and the Third Department concluded, those provisions of Article 9 of the SCCL which expressly commit police discipline to local officials were “superseded” by the adoption of the Taylor Law in 1967, then so too must the similar provisions of the New York City Charter and Administrative Code, the RCPA, and Town Law § 155 likewise have been superseded by the adoption of the 29 Taylor Law. That conclusion, while logically following from the decisions reached by PERB and the Third Department, is directly at odds with this Court’s holdings in Patrolmen's Benevolent Assn. and Town of Wallkill, both of which gave effect to the “legislative commands” reflected in these laws even though “the result is to limit the scope of collective bargaining.” Patrolmen's Benevolent Assn. at 454. Second, and although not acknowledged by either PERB or the Third Department, certain of the pre-existing statutes considered by this Court in Patrolmen's Benevolent Assn. and Town of Wallkill did contain language which – while not identical to the language found in SCCL § 4 – similarly provided that their provisions might be invalidated or modified by subsequent legislative enactments. Section 7 of the RCPA, considered by this Court in Patrolmen's Benevolent Assn., authorized town boards in Rockland County to hear and determine disciplinary charges against members of the police department in accordance with its own rules and regulations“[e]xcept as otherwise provided by law”. Patrolmen's Benevolent Assn. at 574 (emphasis added). Similarly, Town Law § 155, considered by this Court in Town of Wallkill, provides for the discipline of town police officers in accordance with rules and regulations prescribed by the town board“[e]xcept as otherwise provided by law”. Town L. § 155 (emphasis added). 30 Whatever nuanced distinction there may be, if any, between the phrase “superseded pursuant to law” (as used in SCCL § 4) and the phrase “except as otherwise provided by law” (as used in the RCPA and Town Law § 155)3 cannot justify the alternative outcomes. Under the reasoning adopted by PERB and the Third Department, the referenced “law” implicated by both qualifying phrases would be the same – that is, the Taylor Law. If, as held by PERB and the Third Department, the adoption of the Taylor Law effectively qualified the broad power of the Commissioner of Public Safety under SCCL § 133 to unilaterally “make, adopt and enforce such reasonable rules, orders and regulations” relating to police discipline by imposing an obligation to first engage in collective bargaining and negotiation, then so too must the adoption of the Taylor Law have similarly qualified the disciplinary authority granted to local officials under the RCPA and the Town Law – “except as otherwise provided by law” -- by imposing a comparable bargaining obligation. That conclusion, however, is directly at odds with the outcome reached in Patrolmen's Benevolent Assn. and Town of Wallkill. The decision reached by the Third Department simply cannot be reconciled with this Court’s decisions in Patrolmen's Benevolent Assn. and Town of Wallkill. Based on this prior precedent, the Court should reverse the February 4, 2016 3 Notably, PERB has previously concluded that the phrase “except as otherwise provided by law”, as used in Town Law § 155, “expresses a clear legislative intent and public policy permitting police disciplinary authority to be subject to subsequent modification like the Second Class Cities Law…” Town of Wallkill Police Benevolent Association, Inc. and Town of Wallkill, 42 PERB ¶ 3017 (2009). 31 Memorandum and Order of the Appellate Division and, in so doing, reaffirm what this Court has previously characterized as the important public policy favoring strong disciplinary authority for those in charge of police forces, as reflected in the SCCL and similar statutes. POINT II PERB’S DETERMINATION MAY NOT BE AFFIRMED ON ANY ALTERNATIVE GROUNDS As set forth more fully at Point I(A), supra, Respondent PERB’s determination must be judged solely on the specific ground relied upon in reaching its decision – that is, PERB’s conclusion that the SCCL was superseded by the adoption of the Taylor Law – and may not be sustained on any alternative grounds which did not form the basis of its decision. Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d at 758. In the administrative proceedings, Respondent PBA offered a number of alternative arguments as to why, in its view, the SCCL was no longer applicable in the City of Schenectady, including (1) that the SCCL was superseded by the City’s 1934 adoption of a form of government under the Optional City Government Law, (2) that the SCCL was superseded by the enactment of Unconsolidated Law § 891 in 1940; and/or (3) that the SCCL was superseded by certain local legislative measures taken by the City over the years. 32 While these alternative issues were variously discussed in Respondent PERB’s August 23, 2013 Decision, Respondent PERB declined to make any determination regarding these issues and did not rely on these issues as grounds for its decision.4 Accordingly, should this Court reject – as irrational or otherwise contrary to law – the conclusion reached by PERB and the Third Department that the SCCL was superseded by the adoption of the Taylor Law, the February 4, 2016 Memorandum and Order of the Appellate Division must be reversed as a matter of course without consideration of any alternative grounds. 4 In its Brief to the Third Department, PERB confirmed that “…although PERB noted the PBA’s alternative arguments concerning the negotiability of the City’s disciplinary procedures, it decided the merits of none…They did not form the basis of its final decision and order.” (Brief on Behalf of Respondent-Respondent PERB at pg. 17). 33 CONCLUSION Based on the foregoing, Appellant City of Schenectady, New York respectfully requests that its appeal be granted, that the February 4, 2016 Memorandum and Order of the Appellate Division, Third Department be reversed; and that an Order and Judgment be entered herein annulling and setting aside the August 23, 2013 Decision and Order of Respondent PERB and the Orders set forth therein, together with such other and further relief as deemed just and proper, including an award of costs and disbursements. Dated: September 21, 2016 Respectfully submitted, GIRVIN & FERLAZZO, P.C. Attorneys for Appellant By:____________________________ Christopher P. Langlois, Esq. Office and P.O. Address 20 Corporate Woods Boulevard Albany, New York 12211 (T) 518-462-0300 (F) 518-62-5037 (E) cpl@girvinlaw.com /s/ Christopher P. Langlois