In the Matter of City of Schenectady, Appellant,v.New York State Public Employment Relations Board et al., Respondents.

Brief

N.Y.September 6, 2017

APL-2016-00122 To Be Argued By: CHRISTOPHER P. LANGLOIS Time Requested 30 Mirrutes Albany County Clerk's Index No. 5253/13 Olnurt nf J\pp.eals 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. REPLY BRIEF FOR PETITIONER-APPELLANT December 7, 2016 GIRVIN & FERLAZZO, P.C. 20 Corporate Woods BoulevaTd Albany, New York 12211 Telephone: (518) 462-0300 Facsimile: (518) 462-503 7 Attorneys for Petitioner-Appellant City of Schenectady, New York i TABLE OF CONTENTS PAGE PRELIMINARY STATEMENT .................................................................................1 ARGUMENT ...............................................................................................................2 POINT I PERB’S DETERMINATION CANNOT BE RECONCILED WITH THIS COURT’S PRIOR DECISIONS IN PATROLMEN’S BENEVOLENT ASSN. AND TOWN OF WALLKILL, AND MUST BE ANNULLED .........................2 A. Respondent PERB......................................................................................4 B. Respondent PBA .......................................................................................10 1. Respondent PERB’s Decision May Not Be Affirmed on Alternative Grounds.................................................11 2. The Provisions of the SCCL Pertaining to Police Discipline Were Not Superseded by the City’s Adoption of an Alternative Form of Government Under the OCGL........................................13 3. Respondent PBA’s Remaining Arguments..................................20 CONCLUSION............................................................................................................22 ii TABLE OF AUTHORITIES Page CASES 121-129 Broadway Realty, Inc. v. City of Schenectady, 17 A.D.2d 1016, 233 N.Y.S.2d 963 (3d Dep’t 1962) ...................................16 Barry v. O’Connell, 303 N.Y. 46, 100 N.E.2d 127 (1951) ............................................................12 Collins v. City of Schenectady, 256 A.D. 389, 10 N.Y.S.2d 303 (3d Dep’t 1939) ........................................15 Duci v. Roberts, 65 A.D.2d 56, 410 N.Y.S.2d 908 (3d Dep’t 1978) ......................................15 Fullerton v. City of Schenectady, 285 A.D. 545, 138 N.Y.S.2d 916 (3d Dep’t 1955) ......................................16 In re South Ferry Street Project, 72 Misc.2d 134, 338 N.Y.S.2d 730(Sup. Ct. Schenectady Co. 1972) .........16 Johnson v. Etkin, 279 N.Y. 1, 17 N.E.2d 401 (1938) ...............................................................14 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) ....................................................2 Matter of Lippman v. Public Empl. Relations Bd., 296 A.D.2d 199, 746 N.Y.S.2d 77 (3d Dep’t 2002) ...................................12 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) ....................................................12 iii TABLE OF AUTHORITIES Page CASES (continued) Matter of Patrolmen’s Benevolent Association of the City of New York, Inc. v. New York State Public Employment Relations Board, 6 NY3d 563, 815 N.Y.S.2d 1 (2006)......................................................passim Matter of Scanlan v. Buffalo Public School System, 90 N.Y.2d 662, 665 N.Y.S.2d 51 (1997) ......................................................11 Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 570 N.Y.S.2d 474 (1991) ....................................................12 Matter of Town of Wallkill v. Civil Service Employees’ Association, Inc., 19 NY3d 1066, 955 N.Y.S.2d 821 (2012)..............................................passim Mohawk National Bank of Schenectady v. City of Schenectady, 31 A.D.2d 874, 297 N.Y.S.2d 445 (3d Dep’t 1969) ....................................16 Parkmed Associates v. New York State Tax Commission, 60 N.Y.2d. 935, 471 N.Y.S.2d 44 (1983)......................................................13 People v. City of Schenectady, 186 Misc. 385, 60 N.Y.S.2d 911 (Sup. Ct. Schenectady Co. 1946) .............16 People v. Goldberg, 8 A.D.2d 660, 185 N.Y.S.2d 54 (3d Dep’t 1959) .........................................16 People v. Schell, 203 Misc. 689, 118 N.Y.S.2d 481 (Co. Ct. Schenectady Co. 1952) ............16 Ross v. City of Schenectady, 21 N.Y.S.2d 421 (Sup. Ct. Schenectady Co. 1940) ......................................15 Ross v. City of Schenectady, 259 A.D. 774, 18 N.Y.S.2d 403 (3d Dep’t 1940) ........................................15 iv TABLE OF AUTHORITIES Page CASES (continued) Semerad v. City of Schenectady, 27 A.D.2d 673, 276 N.Y.S.2d 357 (3d Dep’t 1967) ..............................20, 21 Stisser v. Roan, 26 A.D.2d 199, 272 N.Y.S.2d 160 (3d Dep’t 1966), aff’d 23 N.Y.2d 715, 296 N.Y.S.2d 363 (1968) .....................................20, 21 Union Paving Co. v. Board of Contract and Supply of City of Schenectady, 74 Misc. 646, 134 N.Y.S. 740 (Sup. Ct. Schenectady Co. 1911) ................14 STATUTES Civil Service Law § 22 ............................................................................................18 Civil Service Law § 75 ........................................................................................3, 18 Civil Service Law § 76 ........................................................................................3, 18 Civil Service Law § 76.4 ...........................................................................................4 Civil Service Law § 204(2)........................................................................................2 Civil Service Law § 209.4 ...................................................................................9, 10 Second Class Cities Law § 137..................................................................................5 Taylor Law § 204.1 ...................................................................................................4 Town Law § 155 ........................................................................................................9 1 PRELIMINARY STATEMENT Appellant City of Schenectady, New York (“City”) submits this Reply Brief in response to the Briefs submitted on behalf of Respondent New York State Public Employment Relations Board (“PERB”) and Respondent Schenectady Police Benevolent Association (“PBA”), respectively, and in further 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). 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. 2 ARGUMENT POINT I PERB’S DETERMINATION CANNOT BE RECONCILED WITH THIS COURT’S PRIOR DECISIONS IN PATROLMEN’S BENEVOLENT ASSN. AND TOWN OF WALLKILL, AND MUST BE ANNULLED Respondent PERB’s conclusion that the adoption of the Taylor Law in 1967 superseded those provisions of the Second Class Cities Law (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, simply cannot be fairly reconciled with 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”) and, as such, must be annulled and set aside. All parties appear to agree that while a public employer is generally obligated under the Taylor Law (Civil Service Law (CSL) § 204(2)) to engage in collective bargaining where the subject of police discipline is concerned (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 general rule is subject to 3 an important exception recognized by this Court in Patrolmen's Benevolent Assn. and Town of Wallkill – where the Legislature has, pursuant to a general or special law enacted prior to Civil Service Law (CSL) §§ 75 and 76, expressly committed police disciplinary authority to local officials, the subject of police discipline is a prohibited subject of bargaining, the general obligations of the Taylor Law notwithstanding. Patrolmen's Benevolent Assn., 6 N.Y.3d at 571-72; Town of Wallkill, 19 N.Y.3d 1069. This exception serves to preserve and give effect to what this Court has variously characterized as the “strong”, “powerful”, and “important” public policy and interest in promoting “the authority of public officials over the police.” Patrolmen's Benevolent Assn., 6 N.Y.3d at 575-76. All parties similarly appear to agree that the SCCL (L.1909, Ch. 55) – which predates CSL §§ 75 and 76 and expressly commits disciplinary authority over the police department in a city of the second class to a local official (SCCL §§ 131, 133, and 137) – is precisely the type of law which would ordinarily trigger the exception to collective bargaining recognized by this Court in Patrolmen's Benevolent Assn. and Town of Wallkill and thereby render police discipline a prohibited subject of 4 bargaining.1 Indeed, Respondent PERB expressly acknowledged that fact in its August 23, 2013 Decision.2 In light of these concessions, the various arguments raised by Respondent PERB and Respondent PBA in an effort to reconcile Respondent PERB’s August 23, 2013 Decision and Order – and the Third Department’s subsequent affirmance thereof – with this Court’s prior decisions in Patrolmen's Benevolent Assn. and Town of Wallkill are unpersuasive and must be rejected. A. Respondent PERB In its August 23, 2013 Decision, Respondent PERB explicitly stated the basis for its holding that the City was obligated to engage in collective bargaining negotiations regarding police discipline, notwithstanding the SCCL and this Court’s decisions in Patrolmen's Benevolent Assn. and Town of Wallkill. Applying its own prior precedent, Respondent PERB concluded: “…that the enactment of the [Taylor Law] in 1967 and its subsequent amendments superseded the Second Class Cities Law by requiring discipline to be subject to collective negotiations and the impasse procedures under the [Taylor Law]. Fundamentally, the mandate of §204.1 of the [Taylor Law] requiring an employer to negotiate with an 1 While Respondent PBA questions whether the SCCL continues to apply to the City (PBA Br. at 4-19), it does not dispute that the SCCL would otherwise fall squarely within the exception to collective bargaining previously recognized by this Court. 2 On page 13 of its Decision, Respondent PERB stated “…we agree with the City that the Second Class Cities Law is a general law subject to Civ Serv Law §76.4….” (R.39). 5 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, footnotes omitted). In its Brief, however, Respondent PERB now offers a somewhat different rationale for its conclusion. Respondent PERB no longer claims that the enactment of the Taylor Law itself, per se, served to repeal the SCCL “by implication or otherwise.” (PERB Br. at 25). Rather, Respondent PERB now posits that the disciplinary procedures of the SCCL were effectively “superseded” when the City voluntarily entered into a series of collective bargaining agreements which provided for different police disciplinary procedures than those provided for in the SCCL. (PERB Br. at 25). Respondent PERB thus frames the issue as “…whether the City could lawfully enter into an enforceable collective bargaining agreement with the PBA concerning disciplinary procedures for City police officers that are different from those specified in Article 9, § 137 of the Second Class Cities Law.” (PERB Br. at 2). Having thus framed the issue, Respondent PERB asserts that the City was, in fact, authorized to do so since SCCL § 4 provided that its provisions would only continue to apply until “changed, repealed or superseded pursuant to law”, and the collective bargaining agreements reached between the City and the PBA were entered into “pursuant to law” – that is, pursuant to the subsequently adopted Taylor 6 Law. (PERB Br. at 24-25). The SCCL was therefore not “superseded” by legislative enactment but, rather, by contract. Respondent PERB’s argument, however, must be rejected for three reasons. First, nothing in SCCL § 4 provides that any of the provisions of the SCCL, including those pertaining to police discipline, may be “changed, repealed or superseded” by contract. Rather, SCCL § 4 expressly 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.” SCCL § 4 (emphasis added). In its August 23, 2013 Decision, Respondent PERB concluded that the phrase “pursuant to law” was intended to mean supersession by the subsequent adoption of state and/or local legislation: “The wording of that phrase demonstrates that ‘superseded’ was intended to mean something other than ‘changed’ or ‘repealed’ and it anticipated supersession by state or local laws. Simply stated, the text of Second Class Cities Law § 4 reveals a statutorily planned obsolescence for that law resulting from subsequent enactment of state or local legislation.” (R.41)(emphasis added). The Third Department, for its part, offered precisely the same interpretation in its own Decision, stating 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 provisions of the Second Class Cities 7 Law to be supplanted by later laws applicable to the same subject matter.” (R.1680)(emphasis added; citation omitted). According, nothing in SCCL § 4 – either by its express terms or as interpreted by both Respondent PERB and the Third Department – provides that its provisions may be changed, repealed or superseded by contract, as opposed to by duly adopted state or local legislation. Second, and more fundamentally, Respondent PERB’s argument that the City was “authorized” to enter into collective bargaining agreements modifying the police disciplinary procedures of the SCCL is directly contrary to this Court’s decisions in Patrolmen's Benevolent Assn. and Town of Wallkill. In Patrolmen's Benevolent Assn. and Town of Wallkill, this Court did not simply hold that police disciplinary procedures were not a “mandatory” subject of collective bargaining in the case of a law enacted prior to CSL §§ 75 and 76 which expressly commits police discipline to local officials – rather, the Court held that under such circumstances police discipline was an outright prohibited subject of bargaining. Patrolmen's Benevolent Assn., 6 N.Y.3d at 570, 571-72; Town of Wallkill, 19 N.Y.3d at 1169. Insofar as police discipline was deemed a prohibited subject of bargaining, this Court held in both cases that the subject municipalities were not bound by the alternative disciplinary procedures set forth in their previously negotiated collective bargaining agreements. Given that the City was not “authorized” in the first instance to enter into collective bargaining agreements addressing the subject of police discipline – a prohibited 8 subject of bargaining in light of the SCCL – none of the collective bargaining agreements were entered into “pursuant to law” (assuming, arguendo, that that phrase from SCCL § 4 even applies to contracts, as opposed to legislation) and did not serve to “change, repeal or supersede” the SCCL. Third, Respondent PERB’s argument again runs up against the same irreconcilable conflict with the outcomes in Patrolmen's Benevolent Assn. and Town of Wallkill. The pre-existing laws considered in each of those cases – the Rockland County Police Act (RCPA) in Patrolmen's Benevolent Assn. and Town Law § 155 in Town of Wallkill – each provided that the local police disciplinary procedures adopted pursuant to the authority conferred thereunder would apply “except as otherwise provided by law.” Patrolmen's Benevolent Assn., 6 N.Y.3d at 574; Town L. § 155. If a collective bargaining agreement entered into by the City under the auspices of the Taylor Law was sufficient to supersede the SCCL “pursuant to law”, as argued by Respondent PERB, then logically so too must the comparable collective bargaining agreements entered into by the Town of Orangetown and the Town of Wallkill, respectively, under the auspices of the Taylor Law have been sufficient to supersede the RCPA and Town Law § 155 as “provided by law.” In all cases, the subject “law” (the Taylor Law) and the subject “action” (entering into a collective 9 bargaining agreement) are precisely the same.3 Respondent PERB’s argument – like its August 23, 2013 Decision – is directly at odds with the outcome reached in Patrolmen's Benevolent Assn. and Town of Wallkill. Finally, Respondent PERB’s extended discussion (PERB Br. 11-16) of the legislative history of CSL § 209.4 – which generally requires that certain impasses in collective bargaining negotiations between a public employer and an employee organization be resolved through compulsory interest arbitration – has no bearing on the issues to be resolved on this appeal. First, the impasse resolution provisions of CSL § 209.4 presume, in the first instance, that the public employer is subject to a duty to negotiate. As this Court held in Patrolmen's Benevolent Assn. and Town of Wallkill, however, a public employer is under no duty to negotiate – and is actually prohibited from engaging in negotiations – with respect to the subject of police discipline where, as here, police discipline is the subject of a law, enacted prior to CSL §§ 75 and 76, which expressly commits police discipline to local officials. Without a duty to negotiate, there can be no impasse in negotiations; without an impasse in negotiations, the compulsory arbitration provisions of CSL § 209.4 3 Respondent PERB does offer a brief explanation of what it views as the nuanced difference between the phrase “pursuant to law” and the phrase “except as otherwise provided by law”, essentially arguing that the latter only applies in the case of a subsequent law which specifically “provides” alternative disciplinary procedures to those adopted under the authority of the RCPA or Town Law § 155. (PERB Br. at 24). Respondent PERB’s somewhat novel view, however, is wholly unsupported by the plain language of the statutes themselves, any legislative history, or any case law whatsoever. 10 simply do not apply. Second, and to the extent that Respondent PERB argues that the various amendments to CSL § 209.4 over the years to include and/or exclude police disciplinary procedures for State Troopers in the scope of compulsory arbitration requirements reflects the Legislature’s “understanding” that municipal police disciplinary procedures were subject to mandatory negotiation under the Taylor Law, it bears noting that each of the various amendments referenced by Respondent PERB (PERB Br. at 12-14) occurred prior to this Court’s 2006 decision in Patrolmen's Benevolent Assn. clarifying the circumstances in which police discipline would be considered a prohibited subject of collective bargaining. B. Respondent PBA For its part, Respondent PBA offers little by way of argument in support of the actual ground invoked by Respondent PERB in reaching its August 23, 2013 Decision – that is, Respondent PERB’s conclusion that “the enactment of the [Taylor Law] in 1967 and its subsequent amendments superseded the Second Class Cities Law by requiring discipline to be subject to collective negotiations and the impasse procedures under the [Taylor Law].” (R.40). Instead, Respondent PBA devotes almost the entirety of its Brief to addressing an issue which was expressly not decided by Respondent PERB and which was not offered as a basis for Respondent PERB’s Decision – that is, Respondent PBA’s 11 argument that the provisions of the SCCL relating to police discipline were previously “superseded” by the City’s 1934 adoption of an alternative form of government under the “Optional City Government Law” (OCGL). (PBA Br. at 4- 22). Thus, argues Respondent PBA, the question of whether the SCCL was “superseded” by the 1967 adoption of the Taylor Law (as held by Respondent PERB in its Decision) is immaterial, insofar as by that time the SCCL no longer continued to apply to the City in the first place. As such, Respondent PBA argues, there was no general or special law applicable to the City, predating CSL §§ 75 and 76 and expressly committing police disciplinary authority to local officials, which would render police discipline a prohibited subject of bargaining under the Taylor Law per Patrolmen's Benevolent Assn. and Town of Wallkill. The alternative ground advanced by Respondent PBA, however, was not a ground invoked by Respondent PERB in support of its August 23, 2013 Decision – and therefore may not be relied upon to affirm the determination under review – and in any event lacks legal merit. 1. Respondent PERB’s Decision May Not Be Affirmed on Alternative Grounds As set forth in the City’s primary Brief (City Br. at 12-14), it is well established that “judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination” (Matter of Scanlan 12 v. Buffalo Public School System, 90 N.Y.2d 662, 678, 665 N.Y.S.2d 51, 57 (1997)) and therefore that “[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); see also Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d 753, 758, 570 N.Y.S.2d 474, 478 (1991); 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). Respondent PBA offers no legal citation to support its argument (PBA Br. at 19-22) that this Court may affirm Respondent PERB’s Decision on an alternative ground – essentially, “…substituting what it considers to be a more adequate or proper basis” (Matter of Scherbyn v. Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 N.Y.2d at 758) – simply because that alternative ground was raised and “preserved” by Respondent PBA. The issue is not one of preservation, but rather one of judicial review: without an administrative decision setting forth the particular basis and rationale for the determination of the issue in question, there is simply nothing for the Court to review. Barry v. O’Connell, 303 N.Y. 46, 51-52, 100 N.E.2d 127, 130 (1951)[“It will not do for a court to be compelled to guess at the theory 13 underlying the agency’s action; nor can a court be expected to chisel that which must be precise from what the agency has left vague and indecisive.”]. The fact that this Court may not affirm Respondent PERB’s Decision on any alternative grounds not actually invoked by the agency does not necessarily mean that these issues will escape administrative determination and, potentially, subsequent judicial review. This Court may, in its discretion, reverse Respondent PERB’s August 23, 2013 Decision and remit the matter for further proceedings as may be appropriate. See Parkmed Associates v. New York State Tax Commission, 60 N.Y.2d. 935, 471 N.Y.S.2d 44 (1983). 2. The Provisions of the SCCL Pertaining to Police Discipline Were Not Superseded by the City’s Adoption of an Alternative Form of Government Under the OCGL In any event, Respondent PBA’s argument that those provisions of the SCCL pertaining to police discipline were superseded by the City’s 1934 adoption of an alternative form of government pursuant to the OCGL lacks legal merit and must be rejected. As of 1909, the Charter of the City of Schenectady consisted of two distinct, but complementary, pieces of State legislation: (1) the Second Class Cities Law, which was codified as Chapter 53 of the Consolidated Laws by Chapter 55 of the 14 Laws of 1909 (R.682)4 and (2) the “supplemental charter” enacted by the State Legislature with respect to the City of Schenectady by Chapter 756 of the Laws of 1907 (R.779). See Union Paving Co. v. Board of Contract and Supply of City of Schenectady, 74 Misc. 646, 134 N.Y.S. 740 (Sup. Ct. Schenectady Co. 1911). The SCCL, as originally enacted in 1906 and as later codified in 1909, contained substantially the same provisions as exist today regarding the discipline of police officers, expressly vesting such authority in a local public official – the Commissioner of Public Safety, as the head of the Department of Public Safety. (R.722-726; SCCL §§§ 131, 133, 137). In 1914, the Legislature enacted the OCGL, an act which authorized a city of the second or third class to adopt one of seven (7) “simplified” forms of government. (R.1092-1108). On November 6, 1934, and pursuant to the OCGL, the City adopted the simplified form of government designated as “Plan C”, which consisted of a mayor, six councilmen, and an appointed city manager in whom all “administrative and executive powers of the city” were vested. (R.1106-1107; Johnson v. Etkin, 279 N.Y. 1, 17 N.E.2d 401 (1938)). 4 The precursor of the 1909 Second Class Cities Law was originally enacted by the Legislature in 1906 as “the Uniform Charter of Cities of the Second Class” (L.1906, Ch. 473)(R.534). In enacting the Consolidated Laws in 1909, the Legislature codified the existing 1906 law without substantial change. In re Schenectady Sewer Assessment, 134 Misc. 810, 236 N.Y.S.2d 455 (Sup. Ct. Schenectady Co. 1929). 15 The 1909 SCCL and the 1907 Supplemental Charter nevertheless remained applicable in determining the rights and obligations of the City notwithstanding the City’s 1934 adoption of one of the simplified forms of government available under the OCGL. Rather than replacing these preexisting laws, Section 8 of the OCGL expressly provided that “the charter of the city, and all special or general laws applicable thereto, shall continue in full force and effect”, and would only be deemed superseded “to the extent that any provisions thereof shall be inconsistent with this act.” (R.1094); Duci v. Roberts, 65 A.D.2d 56, 410 N.Y.S.2d 908 (3d Dep’t 1978) [finding that SCCL § 40, insofar as it was inconsistent with the provisions of the OCGL, was superseded thereby]. This express preservation is consistent with the fact that the OCGL focused upon the form and structure by which a city exercised its corporate powers, rather than upon those powers themselves. As provided in OCGL § 5, “the existing corporate powers of a city shall not be construed to have been abridged or impaired by the provisions of this act, but the same shall be exercised as herein provided.” (R.1093). Accordingly, even after the City’s 1934 adoption of “Plan C” under the OCGL, Courts continued to look to the SCCL to determine the powers and obligations of the City. Collins v. City of Schenectady, 256 A.D. 389, 10 N.Y.S.2d 303 (3d Dep’t 1939); Ross v. City of Schenectady, 259 A.D. 774, 18 N.Y.S.2d 403 (3d Dep’t 1940); Ross v. City of Schenectady, 21 N.Y.S.2d 421 (Sup. Ct. 16 Schenectady Co. 1940); People v. City of Schenectady, 186 Misc. 385, 60 N.Y.S.2d 911 (Sup. Ct. Schenectady Co. 1946); People v. Schell, 203 Misc. 689, 118 N.Y.S.2d 481 (Co. Ct. Schenectady Co. 1952); Fullerton v. City of Schenectady, 285 A.D. 545, 138 N.Y.S.2d 916 (3d Dep’t 1955); People v. Goldberg, 8 A.D.2d 660, 185 N.Y.S.2d 54 (3d Dep’t 1959); 121-129 Broadway Realty, Inc. v. City of Schenectady, 17 A.D.2d 1016, 233 N.Y.S.2d 963 (3d Dep’t 1962); Mohawk National Bank of Schenectady v. City of Schenectady, 31 A.D.2d 874, 297 N.Y.S.2d 445 (3d Dep’t 1969); In re South Ferry Street Project, 72 Misc.2d 134, 338 N.Y.S.2d 730 (Sup. Ct. Schenectady Co. 1972). Nothing in the OCGL is “inconsistent” with the continued application of SCCL Article 9 to police discipline in cities of the second class, and as a result SCCL Article 9 continued “in full force and effect” notwithstanding the City’s 1934 adoption of “Plan C” under the OCGL. While the OCGL did not expressly provide for a “Department of Public Safety” or for a “Commissioner of Public Safety”, and by Sections 90 and 92 vested in the City Manager the general power of “appointment” and “removal” of city officers and employees (R.1107), the OCGL nevertheless provided for the transfer of those powers previously exercised by officers or employees under the former structure of the SCCL. Pursuant to OCGL § 37 (R.1101), the city council was specifically authorized “to confer by ordinance upon any officer or employee of the city any powers, or to impose upon any such 17 officer or employee any duties, theretofore conferred or imposed upon any officer or employee by provision of law, and such powers or duties shall thereupon devolve upon or be discharged by such officer or employee upon whom the same shall have been so conferred or imposed…” Consistent with this authority, the City Council adopted an ordinance on January 4, 1936, by which “all of the jurisdiction, powers and duties now or heretofore vested in the Commissioner of Public Safety by virtue of and under any statute, local law, ordinance, resolution, rule or regulation” were “imposed and conferred upon the City Manager.” (R.1111). The provisions of SCCL Article 9 vesting authority over police discipline in a local public official therefore continued to apply following the City=s adoption of “Plan C” under the OCGL, with that authority vested in the City Manager in place of the former Commissioner of Public Safety. The continued application of SCCL Article 9 to police discipline was also not inconsistent with that section of the OCGL which provided that “[a]ll appointments, promotions, removals and changes in status in the civil service of the city shall be made in accordance with the provisions of the civil service law” (OCGL § 46; R.1103) insofar as SCCL Article 9 afforded police officers of cities of the second class with greater protection against removal than that otherwise available under the existing Civil Service Law. 18 When the Civil Service Law was codified into the Consolidated Laws by the State Legislature in 1909 (L.1909, Ch. 15)5, CSL § 22 only protected honorably discharged veterans and volunteer firemen from removal “except for incompetency or misconduct shown after a hearing upon due notice upon stated charges…” The remaining provisions of CSL § 22, which applied only in the counties comprising New York City, afforded a “person holding a position in the classified state civil service” an opportunity “of making an explanation” prior to being removed, but little else. (L.1909, Ch. 15, § 22). Civil Service Law § 22 remained substantially unchanged from its original 1909 version as of 1914, the year the Legislature enacted the OCGL. In 1924, the Legislature amended CSL § 22 to extend to all persons “holding a position in the competitive class of the civil service of the state, or any civil division or city thereof” the right to not be removed “except for reasons stated in writing”, with prior notice of the proposed removal and the reasons therefore and an opportunity “for answering the same in writing.” (L.1924, Ch. 612). The protections against removal “except for incompetency or misconduct” upon a hearing on stated charges, however, remained limited to honorably discharged veterans and volunteer firemen. (L.1924, Ch. 612). Civil Service Law § 22, as amended in 1924, remained 5 The 1909 Civil Service Law, together with all amendments to CSL § 22 through the enactment of CSL §§ 75 and 76 in 1958, are included at pages 52 to 125 of the Record. 19 substantially unchanged as of 1934, the year the City adopted “Plan C” under the OCGL.6 Article 9 of the SCCL was therefore not inconsistent with CSL § 22, either at the time the Legislature enacted the OCGL in 1914 or at the time the City adopted “Plan C” in 1934, insofar as it provided police officers of cities of the second class with greater protections against removal than they otherwise would have enjoyed under the Civil Service Law. Indeed, it was not until 1941 that the Legislature amended CSL § 22 to extend the protection against removal “except for incompetency or misconduct” to all officers or employees holding a position in the competitive class of the civil service. (L.1941, Ch. 853). Notably, when it did so the Legislature specifically included essentially the same “grandfathering” provisions found in the current CSL §§ 75 and 76, providing that “[n]othing herein contained shall be construed to repeal or modify any general or special law relating to the removal or suspension of officers or employees in the competitive class of the civil service.” (L.1941, Ch. 853, § 1 (CSL § 22(3)). Article 9 of the SCCL therefore continued to apply to police discipline in the City notwithstanding the City’s adoption of “Plan C” under the OCGL in 1934, with 6 In 1930, the Legislature amended CSL § 22 to provide that the hearing afforded honorably discharged veterans and volunteer firemen was to be held by “the officer or body having the power to remove the person charged with incompetency or misconduct”, or by a deputy or other employee so designated. (L.1930, Ch. 214). 20 the power and authority over police discipline exercised by the City Manager. In re Caputo, 3 A.D.2d 484, 162 N.Y.S.2d 6656 (3d Dep’t 1957); Stisser v. Roan, 26 A.D.2d 199, 272 N.Y.S.2d 160 (3d Dep’t 1966), aff’d 23 N.Y.2d 715, 296 N.Y.S.2d 363 (1968); Semerad v. City of Schenectady, 27 A.D.2d 673, 276 N.Y.S.2d 357 (3d Dep’t 1967). The City’s 1934 adoption of an alternative form of government under the OCGL only superseded those provisions of the SCCL which were “inconsistent” with the OCGL. (R.1094). Since nothing in the OCGL was “inconsistent” with the continued application of SCCL Article 9 to police discipline in cities of the second class, SCCL Article 9 continued (and remains) “in full force and effect” in the City. 3. Respondent PBA’s Remaining Arguments Respondent PBA attempts to buttress its argument that the Civil Service Law, and not the SCCL, controls police discipline in the City by (1) citing to a handful of judicial decisions in which the court referenced CSL § 75 in connection with cases involving the discipline of a City police officer, and (2) the fact that the City has purportedly “by its course of dealing” acknowledged the applicability of CSL § 75 to police discipline. (PBA Br. at 22-26). Significantly, however, all of the cases and all of the prior City disciplinary proceedings cited by Respondent PBA took place after 1969 – the year the first 21 collective bargaining agreement was entered into between the City and the PBA (R.1236) –and before 2006 – when this Court issued its decision in Patrolmen's Benevolent Assn.7 During that period of time, the City and the PBA, and by extension, the courts, were operating under the belief – albeit, a mistaken belief – that the City could lawfully negotiate and enter into an enforceable collective bargaining agreements that modified the disciplinary procedures set forth in the SCCL, including incorporation of some or all of CSL § 75. Such course of conduct, however, is legally insufficient to convert what is otherwise a prohibited subject of bargaining, as held by this Court in Patrolmen's Benevolent Assn. and Town of Wallkill, into a permissible subject of bargaining. 7 Notably, immediately prior to 1969 the Courts continued to apply the SCCL in matters involving the City and police discipline. Stisser v. Roan, 26 A.D.2d 199, 272 N.Y.S.2d 160 (3d Dep’t 1966), aff’d 23 N.Y.2d 715, 296 N.Y.S.2d 363 (1968); Semerad v. City of Schenectady, 27 A.D.2d 673, 276 N.Y.S.2d 357 (3d Dep’t 1967). 22 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: December 6, 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