In the Matter of Town of Islip, Appellant,v.New York State Public Employment Relations Board, et al., Respondents.BriefN.Y.April 29, 2014APL-2013-00170 Appellate Division, Second Department Docket No. 2011-10043 Suffolk County Clerk’s Index No. 17410/11 Court of Appeals STATE OF NEW YORK In the Matter of the Application of TOWN OF ISLIP, Petitioner-Appellant, against THE NEW YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD, LOCAL 237, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, and UNITED PUBLIC SERVICE EMPLOYEES UNION, Respondents-Respondents. >> >> BRIEF FOR PETITIONER-APPELLANT TOWN OF ISLIP BOND SCHOENECK & KING PLLC Attorneys for Petitioner-Appellant Town of Islip 1399 Franklin Avenue, Suite 200 Garden City, New York 11530 516-267-6300 Of Counsel: Hilary L. Moreira, Esq. Christopher T. Kurtz, Esq. Date Completed: August 26, 2013 To Be Argued By: Ernest R. Stolzer, Esq. Time Requested: 30 Minutes i 102736.2 8/26/2013 TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 JURISDICTION OF THIS COURT .......................................................................... 3 QUESTION PRESENTED FOR REVIEW .............................................................. 3 STATEMENT OF FACTS AND PROCEDURAL HISTORY……………………3 ARGUMENT ............................................................................................................. 8 POINT I PERB DOES NOT POSSESS THE AUTHORITY TO COMPEL THE TOWN TO CONTINUE AN ILLEGAL PAST PRACTICE ................. 8 A. An Illegal Past Practice Cannot Create A Term And Condition Of Employment Or Be Enforced By PERB .............................................10 B. This Court Should Find That PERB Violated Public Policy When It Ordered The Town To Continue To Violate The Town Code ............14 1. This Court Should Not Sanction The Enforcement Of Unethical Conduct.....................................................................15 2. PERB’s Order Violates The Municipal Home Rule Law .........16 POINT II § 14-12 OF THE TOWN’S CODE OF ETHICS IS CONSISTENT WITH THE TAYLOR LAW .........................................................................18 A. PERB’s Reliance On The Appellate Division, Third Department’s Decision In Doyle v. City of Troy Is Incorrect……………………...18 B. The Adoption Of § 14-12 Of The Code Of Ethics In 1968 Precedes Any Collective Bargaining Obligation Allegedly Imposed By Civil Service Law § 209-a………………………………………………..21 POINT III THERE SHOULD BE NO REASONABLE EXPECTATION THAT AN ILLEGAL PAST PRACTICE WILL CONTINUE…………...24 ii 102736.2 8/26/2013 POINT IV THE TOWN CANNOT BE ESTOPPED FROM DISCHARGING ITS STATUTORY DUTIES AND ENFORCING THE TOWN CODE ....238 POINT V PERB’S ORDER IS UNREASONABLE AND SHOULD NOT BE ENFORCED……………………………………………………………….30 CONCLUSION ......................................................................................................306 iii 102736.2 8/26/2013 TABLE OF AUTHORITIES Cases Balbuena v. IDR Realty, LLC., 6 N.Y.3d 338 (2006) 12, 13 Barker v. Kallash, 63 N.Y.2d 19 (1984) 12 City of Mount Vernon v. Cuevas et al., 33 PERB 7015 (Sup. Ct. Albany County 2000), aff’d, 289 A.D.2d 674 (3d Dep’t 2001) 18 City of Rome v. Public Employment Relations Board, 283 A.D.2d 817 (3d Dep’t 2001) 32, 33 County of Chautauqua, 21 PERB 4588 (1988) 34 Decker v. Gooley, 212 A.D.2d 893 (3d Dep’t 1995) 34 Department of Interior, Bureau of Reclamation, 20 F.L.R.A. 587 (1985) 13 Department of the Navy, Philadelphia Naval Shipyard, 18 F.L.R.A. 902 (1985) 13 Doyle v. City of Troy, 51 A.D.2d 845 (3d Dep’t 1976) 9, 18, 19, 20 Fashion Institute of Technology, 41 PERB 3010 24 Germantown Central School District v. Public Employment Relations Board, 205 A.D.2d 961 (3d Dep’t 1994) 33 iv 102736.2 8/26/2013 Jackson Purchase Rural Electric Cooperative Association v. Local, Union 816, International Brotherhood of Electrical Workers, 646 F.2d 264 (6th Cir. 1981) 10, 11 Manhasset Union Free School District, 41 PERB 3005 (2008) 24 Manhasset Union Free School District v. Public Employment Relations Board, 61 A.D.3d 1231 (3d Dep’t 2009) 24, 31, 33 Matter of Patrolmen Benevolent Association of the City of New York v. Public Employment Relations Board et al., 6 N.Y.3d 563 (2006) 21 Matter of Rosenthal v. Harwood, 35 N.Y.2d 469 (1974) 15 Noghrey v. Town of Brookhaven, 214 A.D.2d 659 (2d Dep’t 1995) 16 Parkview Associates v. City of New York, 71 N.Y.2d 274 (1988) 29 Portsmouth Naval Shipyard Portsmouth, New Hampshire, 49 F.L.R.A. 1522 (1994) 13 State v. Barrett, 768 A.2d 929 (R.I. 2001) 25 State v. O’Brien, 774 A.2d 89 (R.I. 2001) 25 Town of Putnam Valley v. Ann Marie Sacramone, 16 A.D.3d 669 (2d Dep’t 2005) 29 Town of Southold v. Estate of Grace R. Edson, 78 A.D.3d 816 (2d Dep’t 2010) 29, 30 v 102736.2 8/26/2013 Town of Wallkill v. Civil Service Employees Association, Inc., et al., 19 N.Y.3d 1066 (2012) 21, 22, 23 United States Department of Justice v. Federal Labor Relations Authority, et al., 727 F.2d 481 (5th Cir. 1984) 11, 12 Village of Scotia v. Public Employment Relations Board, 241 A.D.2d 29 (3d Dep’t 1998) 31, 32 Village Taxi Corp. v. Beltre, 91 A.D.3d 92 (2d Dep’t 2011) 15 Statutes 22 N.Y.C.R.R. § 500.21 8 C.P.L.R. 5602(a)(1)(i) 8 Civil Service Law § 201(4) 19 Civil Service Law § 209-a 22 Civil Service Law § 209-a(4)(i) 23 Municipal Home Rule Law § 20 9, 16, 17 N.Y. Const. Art. VIII 34 Other Authorities Black’s Law Dictionary, (9th ed. 2009) 25 1 102736.2 8/26/2013 INTRODUCTION Most, if not all, municipalities in New York State have enacted Local Laws that govern the conduct of their elected officials, employees and members of the community. Essential to the instant appeal are the Town of Islip’s (the “Town”) Local Laws and in particular, the Town’s Code of Ethics (“Town Code” or “Code of Ethics”), which was created in order for the Town “to maintain the highest standards of integrity and public service.” (R. 312). 1 In 2007, a newly-elected Town Supervisor discovered that the Town was violating the Town’s Code of Ethics and its Administrative Procedure Manual by allowing employees to use Town-owned vehicles for personal or unauthorized uses. At a meeting held on April 29, 2008, the Town Board of the Town of Islip, in order to come into compliance with the Code of Ethics, and at the same time achieve a significant financial savings for the Town’s taxpayers, adopted a Resolution unilaterally discontinuing the Town’s practice of allowing certain employees, including both Blue and White Collar employees represented by a union, from using Town-owned vehicles in a manner that violated the Town Code. Specific to the instant appeal, the Resolution prohibited employees from using Town-owned-and-maintained vehicles to commute to and from work solely for the personal benefit of the employee. 1 Citations to the Record on Appeal are denoted by an R.___ followed by the appropriate page number. 2 102736.2 8/26/2013 On behalf of those unionized employees who were no longer permitted to violate the Code of Ethics, Local 237, International Brotherhood of Teamsters (“the Union”) filed an improper practice charge with the State of New York Public Employment Relations Board (“PERB”) alleging that the Town violated its duty to bargain under the Taylor Law (“Act” or “Taylor Law”) when it unilaterally enforced the Town Code. Specifically, the Union argued that the Town had created a past practice of allowing certain employees to drive Town-owned vehicles for purely personal use and thus, it had become a term and condition of employment that the Town was required to negotiate with the Union prior to its discontinuance. At issue in this appeal is whether PERB, or any other administrative agency, has the ability to order a public employer to knowingly violate a Local Law. That is, does PERB have the authority to enforce an illegal past practice and to order an employer to continue such practice? If this Court upholds the Appellate Division, Second Department’s decision, public employers will be left powerless to cure prior or current violations of their Local Laws, effectively repealing the provisions set forth in those Local Laws. As a matter of public policy, this Court should not allow past illegal activities to ripen into a binding term and condition of employment that a public employer cannot unilaterally discontinue and that PERB has the power to enforce. 3 102736.2 8/26/2013 JURISDICTION OF THIS COURT The Appellate Division, Second Department issued a final determination in this case on March 13, 2013. The Decision and Order of the Appellate Division, Second Department, together with Notice of Entry, was served on the Town, via regular mail, on April 2, 2013. The Petitioner-Appellant, the Town of Islip, thereafter filed a timely Notice of Motion to Appeal on May 7, 2013, which was subsequently granted by this Court on June 27, 2013. (R. 413). QUESTION PRESENTED FOR REVIEW Whether PERB, or any other administrative agency, has the authority to order a New York State public employer to willfully disregard and/or violate a Local Law. STATEMENT OF FACTS AND PROCEDURAL HISTORY Phil Nolan 2 took office as the Town Supervisor in or about January of 2007. After taking office, he became aware that the Town was violating the Town’s Code of Ethics and its Administrative Procedure Manual by allowing employees to use Town-owned vehicles for personal or unauthorized purposes. (See R. 381). The Islip Town Code, § 14-12, entitled “Use of Town-Owned Equipment or Property” prohibits the use of Town-owned vehicles for personal convenience. 2 Mr. Nolan is no longer the Town Supervisor for the Town. In January 2012, the new Town Supervisor, Tom Croci took office. 4 102736.2 8/26/2013 The Town Code provision has been in effect since 1968, and specifically provides as follows: No officer or employee shall request or permit the use of town-owned vehicles, equipment, material or property for personal convenience or profit, except when such services are available to the public generally or are provided as municipal policy for the use of such officer or employee in the conduct of official business. (R. 321). Consistent with Islip Town Code § 14-12, the Town has a longstanding Administrative Procedure Manual, which was last revised in pertinent part on September 15, 1990. (R. 11, 259). This policy, in relevant part, specifies guidelines for the use of Town vehicles. Under the heading “Assignment of Vehicles” the policy states that: [c]ertain Town employees by nature of their positions are required to be on call twenty-four hours a day, and those employees will be assigned the use of a Town car. Only those employees who have written authorization from the Supervisor will be granted this privilege. Under the heading “Town Vehicle Usage” the policy states: [p]ersonal or other unauthorized use of a Town vehicle is strictly forbidden, and any violation of this regulation will result in disciplinary action against the violator. (R. 11-12, 259). To bring the Town into compliance with the Town Code, which is reiterated and emphasized in the Town’s Administrative Procedural Manual, as well as in an attempt to achieve a significant financial savings for the Town’s taxpayers, in April 5 102736.2 8/26/2013 2008, the Town Board passed a Resolution implementing a Town Assigned Vehicles Policy. (R. 12, 270). The policy, as amplified by the Resolution, was to take effect on or about June 9, 2008. (R. 12). Since that date, approximately forty (40) employees, including unionized employees in the White Collar and Blue Collar Units, have been prohibited from using Town vehicles for the personal use of commutation to and from their homes. (R. 12, 333-334). The vehicles used for commuting were maintained and filled with fuel both paid for by the Town. (R. 72-73). The Town’s Director of Labor Relations and Personnel testified that the Town developed an outline for the management of the Town’s fleet of vehicles. (R. 118). As part of this policy, the Town intended to reduce the number of cars it owned and to reassign vehicles into a “pool” for use during the work day. (R. 13, 120-121). Thereafter, the Commissioner of the Town’s Department of Public Works, proceeded to notify departments of the vehicles that were being shifted from cars that could be utilized for commutation, to cars held in the Town’s pool. (R. 120-121). The guidelines for determining employees in which positions would be allowed to take home cars were such that elected officials, employees on call for the Town on an emergency basis “twenty four-seven”, and those employees whose 6 102736.2 8/26/2013 work required travel to multiple job sites with no fixed work location, would be allowed to take cars home. (R. 13, 121-122). The Town Board’s April 29, 2008 Resolution cited the Town Code and stated in relevant part: …in implementing such a policy the Town Board re- affirms the principle set out in §14-12 of the Town Code, and set forth in the Town Administrative Procedure Manual that “Personal or other unauthorized use of a Town vehicle is strictly prohibited.” (R. 14, 270). That same Resolution also describes the Town’s goal of providing “fiscal savings” to the taxpayers and increasing fuel efficiency. (R. 14, 270). The Town Assigned Vehicle Policy adopted by the Resolution relied specifically on § 14-12 of the Town Code. (R. 273). On or about July 23, 2008, the Union filed an amended improper practice charge (“the Charge”) against the Town at PERB on behalf of both the Blue Collar and White Collar employee bargaining units alleging that the Town violated Section 209-a.1(a) and (d) of the Civil Service Law when the Town Board adopted a “Town Assigned Vehicles” Resolution, and thereafter, revoked the use of vehicles from Unit employees not entitled to be assigned a vehicle pursuant to such Town Policy. (R. 23). On or about July 1, 2009, a hearing was held before a PERB Administrative Law Judge (“ALJ”). (See R. 39-179). On or about March 1, 2010, the ALJ issued 7 102736.2 8/26/2013 a decision holding that the Town violated § 209-a.1(d) of the Act because the Town instituted a unilateral change of what she found to be an 18-year past practice of assigning vehicles on a permanent basis to Unit employees. (R. 379). The ALJ directed the Town to “restore the Vehicle assignments for commutation between home and work to unit members who enjoyed the benefit,” despite the fact that as a consequence of the Order the Town is required to continue to violate its Code of Ethics. (R. 356). On or about April 15, 2010, the Town filed exceptions to the ALJ’s Decision. (R. 361). Thereafter, on or about May 4, 2010, the Union filed cross- exceptions to the ALJ’s determination that the Town did not engage in bad-faith bargaining. (R. 377). On or about May 27, 2011, PERB issued a decision denying both the Town’s exceptions and the Union’s cross-exceptions. (R. 379). On or about June 29, 2012, the Town filed a Verified Petition in the Supreme Court, County of Suffolk, for a judgment pursuant to CPLR Article 78 to annul the May 27, 2011 PERB decision and to dismiss the improper practice charge in its entirety because such decision was not supported by substantial evidence and/or was incorrect as a matter of law or fact. (R. 7-19). On or about August 23, 2011, the parties agreed to transfer this matter to the Appellate Division, Second Department, pursuant to CPLR § 7804(g). (R. 3-4). Thereafter, on or about October 5, 2011, an Order of Transfer to the Second 8 102736.2 8/26/2013 Department was issued by the Honorable Jeffrey Arlen Spinner. (R. 1-2). On March 13, 2013, the Appellate Division, Second Department, issued a Decision and Order confirming PERB’s decision holding that “[t]he PERB was not required to give more effect to the Town Ethics Code than the Town itself gave to it.” (R. 417). On or about May 7, 2013, the Town filed its Motion for Leave to Appeal pursuant to C.P.L.R. 5602(a)(1)(i) and 22 N.Y.C.R.R. § 500.21. On or about June 27, 2013, this Court granted the Town’s Motion for Leave to Appeal. The Town submits this Memorandum of Law in Support of its position that the Appellate Division, Second Department’s decision affirming PERB’s Order should be reversed, as PERB exceeded its authority when it ordered the Town to willfully violate the Town Code, and thus, PERB’s decision was arbitrary and capricious, contrary to the law and should be annulled and vacated. ARGUMENT POINT I PERB DOES NOT POSSESS THE AUTHORITY TO COMPEL THE TOWN TO CONTINUE AN ILLEGAL PAST PRACTICE In 1968, the Town of Islip adopted its Code of Ethics which included a provision that limited the use of Town-owned vehicles to official business, and prohibited the use of such vehicles for personal reasons. (R. 309, 321). The Town 9 102736.2 8/26/2013 adopted such law after a public hearing and a majority vote of the Town Board. See Municipal Home Rule Law § 20; (see R. 120). After an administrative hearing, PERB found that for eighteen (18) years the Town had created an enforceable past practice of assigning vehicles to union employees on a permanent basis to commute to and from work for purely personal use, in violation the New York State Public Employees Fair Employment Act (the “Taylor Law”). (See R. 381-382). PERB held that the Town could not discontinue the illegal practice without first negotiating with the Union, despite its acknowledgment that § 14-12 of the Town Code had been in effect since 1968. PERB held “[a] local law is invalid to the extent that it precludes collective negotiations that are mandated by the Act, …” relying upon the Appellate Division, Third Department case of Doyle v. City of Troy, 51 A.D.2d 845 (3d Dep’t 1976). (R. 382). The effect of PERB’s decision, which was confirmed by the Appellate Division, Second Department, is to make laws adopted by a Town, or any municipality in the State of New York, unenforceable by the lack of diligence and/or management of prior administrations in acting in accordance with the law, thereby forever negating the Local Law as applied to unionized employees. Should this Court uphold the decisions of PERB and the Appellate Division, Second Department, it will perpetuate illegal conduct and leave governments 10 102736.2 8/26/2013 powerless to enforce their own Ethics Codes and Local Laws without the consent and approval of the representative unions. As a matter of public policy, an illegal past practice should not be permitted to ripen into a binding term and condition of employment that cannot be corrected by a public employer. A. An Illegal Past Practice Cannot Create A Term And Condition Of Employment Or Be Enforced By PERB Ordering a municipality to violate a Local Law based on a finding by PERB that a term and condition of employment was allegedly created by an illegal past practice is an issue of first impression for this Court and for New York Courts generally. Therefore, it is necessary to look to other jurisdictions for guidance on this issue. In Jackson Purchase Rural Electric Cooperative Association v. Local, Union 816, International Brotherhood of Electrical Workers, 646 F.2d 264 (6th Cir. 1981), the Sixth Circuit Court of Appeals affirmed a lower court’s decision that overturned an arbitrator’s award ordering an employer to enforce an illegal past practice. In Jackson Purchase, the employer unilaterally terminated a sixteen (16) year past practice of deducting dues from union members’ paychecks and forwarding such monies directly to the Union without written authorization from an employee, as such practice was in violation of federal law. Id. at 265. Similar to the instant appeal, the union argued that despite the federal law, “the fact that the practice had continued for 16 years created an implied agreement 11 102736.2 8/26/2013 to check off union dues…which had become a part of the collective bargaining agreement and was therefore not subject to unilateral termination.” Id. at 266. The arbitrator agreed with the Union, and ordered the employer to continue to check off union dues even though such practice violated the law. Id. The District Court reversed the arbitrator’s award “holding that since the [dues] check off violated … [federal law] it could not be enforced.” Id. The Sixth Circuit affirmed the lower court’s decision and held that the arbitrator exceeded his authority when he determined that an illegal past practice, even one that had been continuously applied for approximately sixteen (16) years, became an enforceable term and condition of employment. Id. at 268. In coming to this decision, the Court reasoned that “there is a strong presumption that agreements in violation of a statute will not be sanctioned by the courts” and opined that “one who has himself participated in an illegal act cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction.” Id. (citations omitted). Similarly, the Fifth Circuit in United States Department of Justice v. Federal Labor Relations Authority et al., 727 F.2d 481 (5th Cir. 1984), overturned an administrative agency’s decision to uphold a past practice where the Court found that a government regulation prevented such past practice from being established. In Department of Justice, an ALJ held that the Department of Justice violated its 12 102736.2 8/26/2013 bargaining obligation when it unilaterally discontinued a past practice permitting police agents to use their own personal vehicles to travel to temporary assignments. Id. at 489. In reversing the ALJ’s determination, the Fifth Circuit analyzed the relevant governmental regulation (5 U.S.C. § 5733) relating to travel and determined that the Union could not have established a uniform or controlling “past practice” because such exclusive benefit contradicted the provisions in the regulation. See id. at 489-491. The principles in Jackson Purchase and United States Department of Justice are wholly consistent with New York contract law, which is equally applicable to the issue in this appeal. Indeed, “…no person shall be permitted to take advantage of his own wrongdoing by predicating a legal or equitable claim upon his fraudulent, immoral or illegal conduct.” Barker v. Kallash, 63 N.Y.2d 19, 29-30 (1984). Moreover, as held in Balbuena v. IDR Realty, LLC., 6 N.Y.3d 338, 364-365 (2006): The New York courts have long held that they will not award a plaintiff the benefit of an illegal bargain. We have referred to ‘the familiar rule that illegal contracts, or those contrary to public policy, are unenforceable and that the courts will not recognize rights arising from them.’ …Decisions like this …‘are based on the sound premise that courts show insufficient respect for themselves and 13 102736.2 8/26/2013 for the law when they help a party to benefit from illegal activity.’ Quoting Judge Brandeis, the Balbuena Court continued: The court’s aid is denied…when he who seeks it has violated the law in connection with the very transaction as to which he seeks legal redress… . It is denied in order to maintain respect for the law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination (Olmstead v. United States, 277 U.S. 438, 484 [1928](dissenting op.) Id. In addition to the courts, the Federal Labor Relations Authority 3 has held that an employer is entitled to unilaterally terminate a past practice that it believes violates a law or a government-wide regulation, without first negotiating such decision with the applicable union. Portsmouth Naval Shipyard Portsmouth, New Hampshire, 49 F.L.R.A. 1522 (1994) (holding an employer did not have to bargain its decision to unilaterally discontinue a past practice where such past practice violated the law); Department of the Navy, Philadelphia Naval Shipyard, 18 F.L.R.A. 902 (1985) (holding an employer did not have to negotiate with the union when it unilaterally discontinued a past practice that was in violation of a government-wide regulation); Department of Interior, Bureau of Reclamation, 20 3 The Federal Labor Relations Authority is an independent a federal administrative agency within the Executive Branch whose functions with respect to labor-management relations in the federal government are analogous to those of the Public Employment Relations Board and/or the National Labor Relations Board. 14 102736.2 8/26/2013 F.L.R.A. 587 (1985) (holding an employer had the right to unilaterally discontinue a nine (9) year past practice in order to bring the agency’s practices into conformity with a government-wide regulation). Similar to the courts and administrative agency above, this Court should find that a past practice that is illegal at its inception (because it violated a Local Law) cannot ripen into a binding term and condition of employment that a municipality is thereafter, required to enforce. Accordingly, this Court should reverse the Appellate Division, Second Department’s decision and hold that PERB, an administrative agency, exceeded its authority when it ordered the Town to willfully violate the Town Code. PERB’s decision was arbitrary and capricious, contrary to the law and should be annulled and vacated in its entirety. B. This Court Should Find That PERB Violated Public Policy When It Ordered The Town To Continue To Violate The Town Code As a matter of public policy, this Court should reverse the Appellate Division, Second Department’s decision and hold that PERB does not have the authority to order a public employer to continue to violate a Local Law. Any other decision would prevent the Town or any other municipality from bringing the conduct of its elected officials and employees into compliance. Members of the community demand that public employees act within ethical standards – this Court should not affirm and sanction a decision that prevents the Town from enforcing its Local Laws and requires the Town to perpetuate illegal and unethical conduct. 15 102736.2 8/26/2013 1. This Court Should Not Sanction The Enforcement Of Unethical Conduct As a matter of public policy, the Appellate Division, Second Department’s decision should be reversed as it ultimately requires the Town to violate a Local Law governing ethical standards for its employees. As this Court has previously opined “unethical conduct violates public policy and is invalid for that reason.” Matter of Rosenthal v. Harwood, 35 N.Y.2d 469, 474 (1974): While all that is unethical is not illegal, that which would command unethical conduct violates public policy and is invalid for that reason.… It is one thing for the law to leave to one the option of whether to behave morally or ethically; it is quite another for this court to close its eyes to the exertion of pressure by a public or quasi-public body, such as a political organization subject to and operating within the framework of the Election Law, to do an unethical act. Such inaction would be tantamount to the law’s lending its sanction to a practice in violation of public policy. Id. at 474; see also Village Taxi Corp. v. Beltre, 91 A.D.3d 92 (2d Dep’t 2011) (a contract that violates municipal regulations which exist for the protection of public health or morals may be illegal and unenforceable). PERB’s Order directed the Town to ignore the requirements of the Town Code and to continue to permit its employees to engage in unethical conduct in direct violation of its Code of Ethics. As a matter of public policy, this Court should not “close its eyes” and sanction an order of PERB that requires the Town to continue an illegal and unethical practice. 16 102736.2 8/26/2013 2. PERB’s Order Violates The Municipal Home Rule Law PERB’s decision requires the Town to violate New York State’s Municipal Home Rule Law relating to the proper way to amend or repeal a Local Law. That is, under the doctrine of legislative equivalency any “existing legislation may only be amended or repealed by the same means as was used to enact it.” Noghrey v. Town of Brookhaven, 214 A.D.2d 659, 660 (2d Dep’t 1995). In order to enact a local law, and therefore in order to amend or repeal a local law, the Town must comply with the rules and regulations set forth under the Municipal Home Rule Law. To that end, Municipal Home Rule Law § 20 – Procedures for Adoption of Local Laws by Legislative Body, states in relevant part: 1. No local law shall be passed except by at least the majority affirmative vote of the total voting power of the legislative body. On the final passage of a local law the question shall be taken by ayes and noes, and the names of the members present and their votes shall be entered in the record, journal or minutes of proceedings. * * * 4. A proposed local law may be introduced only by a member of the legislative body at a meeting of such body or as may be otherwise prescribed by the rules of procedure adopted by the legislative body. No such local law shall be passed until it shall have been in its final form and either (a) upon the desks or table of the members at least seven calendar days, exclusive of Sunday, prior to its final passage, or (b) mailed to each of them in postpaid properly addressed and securely closed envelopes or wrappers in a post box or post office of the United States post office department within the local 17 102736.2 8/26/2013 government at least ten calendar days, exclusive of Sunday, prior to its final passage, unless the elective or appointive chief executive officer, if there be one, or otherwise the chairman of the board of supervisors, in the case of a county, the mayor in the case of a city or village or the supervisor in the case of a town shall have certified as to the necessity for its immediate passage and such local law be passed by the affirmative vote of two-thirds of the total voting power of the legislative body. 5. In the case of a local government which does not have an elective chief executive officer as defined by subdivision four of section two of this chapter, no local law shall be passed by the legislative body until a public hearing thereon has been had before such body and in every other local government no such local law shall be approved by the elective chief executive officer until a public hearing thereon has been had before him. Such a public hearing held before the legislative body or before the chief executive officer, as the case may be, pursuant to this subdivision shall be on such public notice of at least three days as has been or hereafter may be prescribed by a local law on which a hearing shall have been held as prescribed by this section upon five days' notice or, in the event such a local law prescribing the length of notice is not adopted, upon five days' notice. Where the public hearing is before such officer, such notice shall be given by him within ten days after the local law shall have been presented to him and the hearing shall be held within twenty days after such presentation. Contrary to this detailed and specific legislative process, PERB’s Order ultimately acts to amend and/or repeal the provision of the Town’s Ethics Code relating to the use of Town-owned vehicles for personal use, without complying with any of the legislative procedures. 18 102736.2 8/26/2013 Indeed, New York Courts have previously held that a decision that infringes on legislative action renders a PERB decision “irrational, unreasonable and legally impermissible”: The Court finds that PERB’s decision which found that the City must negotiate with the Union over disciplinary procedures was irrational, unreasonable and legally impermissible because it would lead to the repeal or modification of the City’s Charter without appropriate legislative action…. City of Mount Vernon v. Cuevas et al., 33 PERB 7015 (Sup. Ct. Albany County 2000), aff’d, 289 A.D.2d 674 (3d Dep’t 2001). Accordingly, both the Appellate Division, Second Department’s and PERB’s Decisions and Orders violate the Municipal Home Rule Law, are legally impermissible, and should be reversed, vacated and annulled by this Court. POINT II § 14-12 OF THE TOWN’S CODE OF ETHICS IS CONSISTENT WITH THE TAYLOR LAW A. PERB’s Reliance On The Appellate Division, Third Department’s Decision In Doyle v. City of Troy Is Incorrect PERB mistakenly relied on the decision in Doyle v. City of Troy, 51 A.D.2d 845 (3d Dep’t 1976), to support its position that the Town is prohibited from enforcing its Ethics Code because “[a] local law is invalid to the extent that it precludes collective negotiations that are mandated by the Act.” (R. 382). The facts and analysis articulated in Doyle are inapplicable to the case at hand, as 19 102736.2 8/26/2013 apparently recognized by the Second Department, which made no reference to Doyle in its decision. (See R. 414-418). First, Doyle did not require enforcement of an illegal past practice or a violation of public policy. In addition, in contrast to the instant appeal, Doyle invalidated a local City charter that was invalid on its face because it circumvented collective negotiations of employee wages. The Taylor Law specifically identifies wages as a term and condition of employment, which is a mandatory subject of negotiations. (See Civil Service Law § 201(4)). In Doyle, the Third Department invalidated a local charter provision that was enacted by the City of Troy relating to the regulation of its employees’ wages. Id. Specifically, the charter provision required the minimum salaries of it firefighters to be equal to that of its City police officers. After negotiating a wage increase with its police officers, the firefighters attempted to enforce the local charter against the City alleging that the City was mandated to provide them (the firefighters) with the same wage increases that the police officers received without negotiating with the City. However, the local charter, on its face, was invalid as it was in direct violation of the Taylor Law’s requirement that mandatory terms and conditions of employment, such as wages, be negotiated. The Third Department held that “[s]ince the instant charter provision impairs the full range of negotiations 20 102736.2 8/26/2013 to which the City is entitled under the Taylor Law, it is inconsistent therewith and unauthorized and prohibited.” Id. Here, in contrast to Doyle, at the time the Town passed the Ethics Code in 1968 the use of Town-owned vehicles for personal reasons was not an existing past practice nor was it a mandatory term and condition of employment that required the Town to engage in collective negotiations with the Union as prescribed by the Taylor Law. The alleged “term and condition of employment” of allowing employees to use Town vehicles for purely personal use, i.e., commuting to and from home, was always in direct violation of the Town Code and, therefore, illegal from its inception. The underpinning of PERB’s decision that illegal acts can ripen into a binding practice that vitiates a Local Law is both illogical and not supported by the Doyle decision or any other case law. 4 In this appeal, PERB held that the use of Town-owned vehicles became a term and condition of employment only after a past practice was allegedly created, not that § 14-12 of the Code of Ethics was, on its face, invalid or impaired negotiations over a mandatory term and condition of employment (e.g., wages) in violation of the Taylor Law. The issue in this case is not whether § 14-12 of the Ethics Code is invalid because it precluded collective negotiations mandated by the 4 Allowing an illegal past practice to become a binding term and condition of employment will also allow executive officers of municipalities, at least with respect to unionized employees, the power to effectively repeal the laws passed by its local legislature (with which they disagree) by not enforcing or proactively violating its Local Laws for a period of time. 21 102736.2 8/26/2013 Taylor Law, but whether an illegal past practice can ripen into a valid term and condition of employment that PERB has the authority to enforce in violation of the Local Law. Consequently, PERB’s reliance on Doyle is misplaced as § 14-12 of the Town Code is valid and plainly consistent with the Taylor Law. B. The Adoption Of § 14-12 Of The Code Of Ethics In 1968 Precedes Any Collective Bargaining Obligation Allegedly Imposed By Civil Service Law § 209-a While New York courts generally favor collective bargaining under the Taylor Law, this Court has recently provided guidance on “subjects [that] are excluded from collective bargaining as a matter of policy, even where no statute explicitly says so.” Matter of Patrolmen Benevolent Association of the City of New York v. New York State Public Employment Relations Board et al., 6 N.Y.3d 563, 572 (2006); Town of Wallkill v. Civil Service Employees Association, Inc. et al., 19 N.Y.3d 1066 (2012). In Town of Wallkill, this Court considered whether the Town could unilaterally pass a local law that governed police disciplinary procedures where such local law was in conflict with the parties’ collective bargaining agreement and the disciplinary procedures set forth in Civil Service Law §§ 75 and 76. In reaffirming its decision in Matter of Patrolmen Benevolent Association, supra, this Court held that as a matter of public policy, the issue of police discipline was not subject to collective bargaining under the Taylor Law. Id. at 1069. Moreover, this 22 102736.2 8/26/2013 Court noted that that the Town “properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law § 155” because such Town Law was enacted prior to the disciplinary procedures set forth in Civil Service Law §§ 75 and 76. Id. Here, this Court should find that as a matter of public policy the unilateral termination of a practice deemed illegal prior to the passage of the relevant Taylor Law Provision (Civil Service Law § 209-a) is not subject to any collective bargaining obligation. Any other determination would reward those union employees who participate in illegal practices, and would require employers to bargain and provide such employees with an extra benefit(s) in exchange for their agreement to allow the Town to discontinue the illegal activities of its employees and to comply with the law. Certainly, if legal matters of police discipline have been judicially held to not require collective bargaining, then long-declared illegal actions should not be the subject(s) of bargaining either. Similar to Town Law § 155 in Town of Wallkill, supra, § 14-12 of the Town’s Code of Ethics was enacted (1) year prior (in 1968) to the time in which Civil Service Law § 209-a (the section which precludes improper employer practices and requires employers to negotiate unilateral changes of a past practice) was first adopted (in 1969). See Civil Service Law § 209-a (originally enacted as Laws of 1969, ch. 24, § 7). Following the same reasoning that this Court applied 23 102736.2 8/26/2013 in the Town of Wallkill, because the Town of Islip adopted § 14-12 prior to the enactment of Civil Service Law § 209-a, it had the authority to unilaterally enforce such Town Code provision without negotiating such enforcement with the Union. Finally, in Town of Wallkill, supra, this Court noted that the Town of Wallkill was also exempt from having to participate in its general obligation to bargain due to the fact that Civil Service Law § 76(4) provided that “[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local” preexisting laws. Town of Wallkill, 19 N.Y.3d at 1069. Similarly, here, the Legislature preserved the same protections against the Town’s general obligation to bargain when it enacted Civil Service Law § 209-a (4)(i), which states as follows: Nothing in this section shall be deemed to eliminate or diminish any right that may exist pursuant to any other law. (emphasis added). Because § 14-12 of the Town’s Code of Ethics was in existence prior to the enactment of Civil Service Law § 209-a, any “rights” that “exist” under “any other law” (i.e., the pre-existing Code provision) cannot be “eliminated” or “diminished.” Accordingly, PERB’s determination that § 14-12 was invalid because it precluded negotiations mandated by the Act was arbitrary 24 102736.2 8/26/2013 and capricious, incorrect as a matter of law, and must be annulled and vacated by this Court. POINT III THERE SHOULD BE NO REASONABLE EXPECTATION THAT AN ILLEGAL PAST PRACTICE WILL CONTINUE It is intrinsically unreasonable for unit members to expect that an illegal past practice will continue indefinitely, or that they must be given a legal benefit in bargaining in return for the cessation of illegal activity. PERB has determined that the applicable test for finding an enforceable past practice requires: a prima facie showing of a practice that was unequivocal and continued uninterrupted for a period of time sufficient under the circumstances to create a reasonable expectation among the affected unit employees that the practice would continue. The reasonable expectation of the continuation is something that can be presumed from its duration with consideration of the special circumstance under which the practice has existed. Fashion Institute of Technology, 41 PERB 3010, at 3066 (2008) (emphasis added); see also Manhasset Union Free School District, 41 PERB 3005 (2008), confirmed and mod, in part, Manhasset Union Free Sch. Dist. v. New York State Public Employment Relations Board, 61 A.D.3d 1231 (3d Dep’t 2009). While PERB has yet to define the scope of “reasonable expectations” in the context of “special circumstances” when determining whether an enforceable past practice exists, guidance from other authorities relating to “reasonableness” proves 25 102736.2 8/26/2013 instructive. The term “reasonable” enjoys a long history in the Anglo-American legal tradition. Black’s Law Dictionary defines “reasonable” as “1. Fair, proper, or moderate under the circumstances. 2. According to reason.” Black’s Law Dictionary, 1379 (9th ed. 2009). It has also been said that: In part the expression [of reasonableness] refers to ordinary ideas of natural law or natural justice, in part to logical thought, working upon the basis of the rules of law. Black’s Law Dictionary, at 1379 (quoting, John Salmond, Jurisprudence 183 n. (u) (Glanville L. Williams ed., 10th ed. 1947). In addition, the word “reasonable” helps to define such legal concepts as the reasonable person and reasonable doubt standards. See State v. Barrett, 768 A.2d 929, 938 (R.I. 2001) (reasonable person standard in negligence compares a defendant’s behavior with “the usual or proper societal behavior”); State v. O’Brien, 774 A.2d 89, 110 (R.I. 2001) (reasonable doubt is one that “would make a reasonable person hesitate to act in regard to some transaction of importance and seriousness”). Its use as an adjective is necessarily a fluid concept that must be applied to the facts of a particular case. Here, under the specific circumstances in this case, Town-owned vehicles were being used in a manner that violated the Town Code. As a matter of public policy, it is patently unreasonable 5 for unit members, who are represented by a 5 Unreasonable is defined as “Not guided by reason; irrational or capricious.” Black’s Law Dictionary, 1679 (9th ed. 2009). 26 102736.2 8/26/2013 professional and sophisticated bargaining agent, to reasonably believe that an illegal practice would continue indefinitely or that they must be given a legal benefit in bargaining in return for the cessation of such illegal activity. The Appellate Division, Second Department wrongfully held that unit members had a reasonable expectation that the illegal past practice of using Town-owned vehicles for personal use would continue. The Court stated: [I]t cannot be said as a matter of law that it is unreasonable for employees to rely on the administering authority’s interpretation and implementation of its policy and Ethics Code….The assignment of Town vehicles to the affected employees for permanent use was unequivocal and continued uninterrupted for a period of time which, under the circumstances, created a reasonable expectation among the affected unit employees that the practice would continue. (R. 417). If this Court upholds the Decisions of PERB and the Appellate Division, Second Department, it will sanction an outcome that equates illegal conduct with reasonableness. As a matter of public policy, illegal conduct can never be, and should never be accepted as reasonable. To better illustrate the potential implications of such a conclusion by this Court, we offer the following hypothetical: For twenty (20) years a Town supervisor had a practice of allowing unionized clerical employees that worked in his/her office to submit time sheets that falsely represented that they were present on days in which they were actually out sick. Every payroll period the Town Supervisor signed-off on every employees’ timesheet, including those timesheets that falsely 27 102736.2 8/26/2013 represented that they were present when they were out sick. The Town Supervisor openly and knowingly sanctioned this undisputedly illegal activity. After twenty (20) years of this uninterrupted practice, a new Town Supervisor is voted into office. When the new Town Supervisor receives the timesheets submitted by his/her clerical employees, he/she refuses to sign- off on those timesheets that falsely represent that employees are present on days in which they were not, because he/she will not sanction illegal activity. The Union approaches the Town Supervisor and informs him/her that it will file an improper practice charge with PERB, unless the Town bargains with the Union to provide the clerical employees with an extra benefit in exchange for allowing the Town Supervisor to stop such illegal practice and comply with the law. In this hypothetical, the Union’s desire to bargain would be unreasonable. But, PERB would, as it did in this case, order the Town Supervisor to continue the illegal practice. Such conduct should not be sanction by this Court. It would be an irrational result, and courts have long-held that such results are to be avoided at law. Accordingly, this Court should find that reliance on an illegal past practice is wholly unreasonable. Any other decision would be contrary to law and public policy. 28 102736.2 8/26/2013 POINT IV THE TOWN CANNOT BE ESTOPPED FROM DISCHARGING ITS STATUTORY DUTIES AND ENFORCING THE TOWN CODE The effect of PERB’s decision, which was confirmed by the Appellate Division, Second Department, is to make the laws adopted by a Town, or any municipality in the State of New York, unenforceable by the mismanagement and/or lack of diligence of prior administrations in enforcing its Local Laws, thereby forever negating the Local Law. The Appellate Division, Second Department concluded that even though the use of Town-owned vehicles for personal convenience was in violation of the Town’s Ethics Code, a past practice was created that the Town could not unilaterally discontinue. The Appellate Division, Second Department attempted to justify its determination to affirm PERB’s decision by stating: The Town government was responsible for administering the Ethics Code and for managing its vehicle fleet. Yet, as substantial evidence in the record establishes, the Town frequently and openly ignored that Code and its policy for managing its vehicle fleet, only to contend later that the Code allowed it to act unilaterally in taking the vehicles away from the employees who had been permanently provided with them. The PERB was not required to give more effect to the Town Ethics Code than the Town itself gave to it. (R. 417). 29 102736.2 8/26/2013 The Appellate Division, Second Department’s analysis misses the point. To accept that reasoning, a municipality could never unilaterally correct and come into compliance with a Local Law if it had violated it in the past. That is, according to the Appellate Division, Second Department, once a law has been violated a public employer is estopped from thereafter unilaterally rectifying such conduct and, it becomes necessary for the municipality to continue to violate the law without bargaining to cease such illegal activity. However, it is well settled that “estoppel may not be invoked against a municipal agency to prevent it from discharging a statutory duty” even where a “harsh” result may occur from the enforcement of such Local Law. Parkview Associates v. City of New York, 71 N.Y.2d 274, 282 (1988); Town of Putnam Valley v. Ann Marie Sacramone, 16 A.D.3d 669 (2d Dep’t 2005). In Town of Southold v. Estate of Grace R. Edson, 78 A.D.3d 816, 817 (2d Dep’t 2010), the Town sought to enjoin the defendant from selling products on her premises in violation of the Town Code. The defendant argued that because the Town had acquiesced to the improper use of her premises during a period of several years, that the Town should thereafter be estopped from enforcing the Town Code. Id. The Appellate Division, Second Department found the defendant’s argument to be “unavailing” and held that the Town could not be 30 102736.2 8/26/2013 estopped from discharging its statutory duties and that it may seek “corrective action” to comply with the Town Code, even where the results may be harsh. Id. Similarly, here, the Town should not be estopped from enforcing the provision of its Town Code that prohibits employees from using Town-owned vehicles for personal convenience. The Appellate Division, Second Department specifically stated “[t]he Town government was responsible for administering the Ethics Code and for managing its vehicle fleet”, yet when the Town Board tried to “properly administer” the Ethics Code, the Town was not permitted to do so by both PERB and the Appellate Division, Second Department. (R. 384, 417). Because the Town cannot be estopped from discharging its statutory duties and enforcing its Local Laws, this Court should reverse the Appellate Division, Second Department’s decision and find that PERB exceeded its authority when it ordered the Town to continue to willfully violate the Town Code. POINT V PERB’S ORDER IS UNREASONABLE AND SHOULD NOT BE ENFORCED Assuming, arguendo, that this Court finds that the Town violated the Act when it unilaterally discontinued the illegal past practice of allowing employees to use Town-owned vehicles for personal use, this Court should still annul and vacate PERB’s Order as it is “unreasonable” as a matter of law. 31 102736.2 8/26/2013 It is well-settled that “[w]hile a remedy fashioned by PERB for an improper practice ‘should be upheld if reasonable’…[i]t is for the courts to examine the reasonable application of PERB’s remedies.” Manhasset Union Free School District v. New York State Public Employment Relations Board, 61 A.D.3d 1231, 1234-1235 (3d Dep’t 2009)(citations omitted). Here, PERB's remedy requires the Town to continue an illegal practice in violation of its Code of Ethics, which, on its face is irrational, violative of public policy and “unreasonable” as a matter of law. PERB ordered the Town to: 1. Forthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008; 2. Forthwith make whole unit employees for the extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignment(s), if any, together with interest at the maximum legal rate; and 3. Sign and post notice in the form attached at all physical and electronic locations customarily used to post notices to unit employees. (R. 384-385). Courts have refused to enforce PERB remedial orders that require an employer to violate the law, as such orders are unreasonable. In Village of Scotia v. PERB, 241 A.D.2d 29, 33 (3d Dep't 1998), the Appellate Division, Third Department refused to enforce a PERB decision that required the Village to violate the law in order to fully perform and comply with PERB’s remedial order. The court held: 32 102736.2 8/26/2013 Article V (§ 6) of the State Constitution provides in pertinent part that “[a]ppointments and promotions in the civil service of the state and all of the civil divisions thereof * * * shall be made according to merit and fitness”. It is now well established that an appointment of an individual from a constitutionally valid expired list violates this constitutional mandate … Since we cannot by judicial fiat convert a temporary appointment into a permanent one in the face of the applicable constitutional mandate …PERB is likewise precluded from doing so. Accordingly, we shall annul that portion of its remedial order restoring Macfarlane to the sergeant's position with back pay and remit this matter to PERB for further consideration of this aspect of its order. Id. at 29. (citations omitted)(emphasis added). In City of Rome v. PERB, 283 A.D.2d 817 (3d Dep't 2001), PERB found that the City violated the Act when it eliminated the position of acting purchasing agent and transferred the corresponding work to non-unit employees without bargaining with the applicable union. PERB ordered the City to restore the position of acting purchasing agent and to reinstate the harmed employee with full back pay. In finding that PERB’s remedial order was unreasonable, the Appellate Division, Third Department held that while the City may have violated its obligation to bargain under the Act, the remedy ordered by PERB violated the Civil Service Law (which precludes an employee from serving in an “acting” capacity for more than three months) and the New York State Constitution (which requires that civil service appointments be made from an unexpired eligibility list). Id. at 820. The court opined that “PERB’s effort at justifying its remedial order…fails to recognize 33 102736.2 8/26/2013 that [its order] was violative of N.Y. Constitution, article V, § 6” and therefore could not be enforced. Id. See also Germantown Cent. Sch. Dist. v. PERB, 205 A.D.2d 961, 963 (3d Dep't 1994) (annulling a PERB order and opining that such remedial order was “absurd[]” where PERB required the District to act in a manner that was precluded by the Education Law). Here, PERB’s remedial order requires the Town to continue to violate the law by allowing employees to use Town-owned vehicles in a manner that is in direct conflict with the Town Code. This Court should find that PERB’s current Order, and/or any order that PERB may fashion that requires the Town to continue an illegal practice or continue in a de facto manner through reimbursement, is violative of public policy, wholly unreasonable and therefore unenforceable. In addition, even where no illegal conduct or violations of law would occur by complying with a PERB order, courts have refused to enforce PERB remedial orders that are deemed to be unreasonable. To that end, because the Town no longer owns a vast majority of the vehicles previously used by its employees to commute to and from work, it cannot simply restore “the vehicle assignments for commutation” as was order by PERB. (See R. 292-294, 384-385). Accordingly, this Court should find that PERB’s remedy is unreasonable, beyond PERB's legal authority and cannot be enforced. Manhasset Union Free School District v. New York State Public Employment Relations Board, 61 A.D.3d 1231, 1234-1235 (3d 34 102736.2 8/26/2013 Dep’t 2009) (holding that PERB’s order requiring the District to restore its transportation department where the District had sold its buses and leased its garage was unreasonable); County of Chautauqua, 21 PERB 4588 (1988) (County nursing home could not restore laundry operations because equipment had been sold and installation of new boiler could preclude resumption of entire laundry operation); see also Decker v. Gooley, 212 A.D.2d 893, 895(3d Dep't 1995) (reinstatement of Association members to former bus driver and mechanic positions was not possible since positions were abolished). If the Town is required to purchase or lease at least forty (40) new vehicles it will cause great expense, disrupt vital public services and create deleterious and burdensome increases in property tax payments for the taxpayers of the Town. During these current economic times, the Town cannot be saddled with the obligation to spend its limited Town funds to perpetuate illegal conduct. Such could also implicate the strict prohibitions set forth in Article VIII of the New York State Constitution. Moreover, it is also unreasonable for PERB to order the Town to provide payment to employees for “extra expenses incurred as a result of the unilateral withdrawal of the vehicle assignment(s), if any, together with interest at the maximum legal rate.” (R. 384-385). As a matter of public policy, this Court should not uphold a remedial order that requires the Town to make financial payments to employees who were illegally using Town-owned vehicles in 35 102736.2 8/26/2013 violation of § 14-12 of the Town’s Code of Ethics. This would be the judicially- mandated epitome of the idiom “throwing good money after bad.” 36 102736.2 8/26/2013 CONCLUSION For the foregoing reasons this Court should reverse the Second Department’s decision and hold that PERB, an administrative agency, exceeded its authority when it ordered the Town to willfully violate the Town Code, and thus, its decision was arbitrary and capricious, contrary to the law and should be annulled and vacated by this Court. Dated: August 26, 2013 BOND, SCHOENECK & KING, PLLC By: _______________________________ Ernest R. Stolzer Attorneys for the Petitioner-Appellant, Town of Islip 1399 Franklin Avenue, Suite 200 Garden City, New York 11530 T: 646.253.2326 F: 646.253.2301 E: estolzer@bsk.com Of Counsel: Hilary L. Moreira, Esq., Christopher T. Kurtz, Esq.