In the Matter of Town of Islip, Appellant,v.New York State Public Employment Relations Board, et al., Respondents.BriefN.Y.Apr 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. >> >> REPLY 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: October 28, 2013 To Be Argued By: Ernest R. Stolzer, Esq. Time Requested: 30 Minutes i 105227.3 TABLE OF CONTENTS TABLE OF AUTHORITIES……………………………………………………….ii PRELIMINARY STATEMENT…………………………………………………...1 ARGUMENT……………………………………………………………………….2 POINT I: ILLEGAL ACTIVITY CANNOT RIPEN INTO AN ENFORCEABLE PAST PRACTICE……………………..2 POINT II: THE TOWN’S ATTEMPT TO END ILLEGAL ACTIVITY AND TO ENFORCE ITS CODE OF ETHICS SHOULD NOT BE SUBJECT TO COLLECTIVE BARGAINING……………………………….7 A. Respondents’ Argument That The Town Cannot Enforce Its Code Of Ethics Should Be Disregarded By This Court………………………………………………...11 POINT III: § 14-12 OF THE TOWN’S CODE OF ETHICS IS CONSISTENT WITH THE TAYLOR LAW………………..14 A. Civil Service Law § 209-a Exempts § 14-12 Of The Town’s Code Of Ethics From Mandatory Negotiations Under The Taylor Law…………………………16 POINT IV: PERB’S REMEDIAL ORDER IS UNREASONABLE AND SHOULD NOT BE ENFORCED BY THIS COURT……………………………..18 CONCLUSION…………………………………………………………………...20 ii 105227.3 TABLE OF AUTHORITIES Page CASES Board of Cooperative Education Services Sole Supervisory District, Onondaga and Madison Counties v. New York State Public Employment Reasons Board, 82 A.D.2d 691 (3d Dep’t 1981)……………………………………………11 Board of Education of City School District of City of New York v. New York State Public Employment Relations Board, 75 N.Y.2d 660 (1990)……………………………………………………...11 Bringham v. New York City Transit Authority, 99 N.Y.2d 355 (2003)……………………………………………………….6 Central Bank of Denver v. First Interstate Bank, 511 U.S. 164 (1954)………………………………………………………..18 Crowley v. O’Keefe, 74 N.Y.2d 780 (1989)……………………………………………………….6 Doyle v. City of Troy, 51 A.D.2d 845 (3d Dep’t 1976)………………………………………..14, 15 Fashion Institute of Technology, 41 PERB 3010 (2008)……………………………………………………….3 Manhasset Union Free School District, 41 PERB 3005 (2008)……………………………………………………….2 Manhasset Union Free School District v. New York State Public Employment Relations Board, 61 A.D.3d 1231 (3d Dep’t 2009)…………………………………………..19 Merrill v. Albany Medical Center Hospital, 71 N.Y.2d 990 (1988)……………………………………………………….6 Patrolmen Benevolent Association of the City of New York v. New York State Public Employment Relations Board, et al., 6 N.Y.3d 563 (2006)…………………………………………………….7, 10 iii 105227.3 People v. Roe, 74 N.Y.2d 20 (1989)………………………………………………………...5 Saratoga Springs School District, 11 PERB 3037 (1978)……………………………………………………...12 Saratoga Springs City School District v. New York State Public Employment Relations Board, 68 A.D.2d 202 (3d Dep’t 1979)……………………………………………12 Town of Wallkill v. Civil Service Employees Association, Inc. et al., 19 N.Y.3d 1066 (2012)……………………………………………...7, 10, 16 STATUTES Civil Service Law § 76(4)………………………………………………………...18 Civil Service Law § 209-a………………………………………………...11, 14, 18 Civil Service Law § 209-a(4)(i)…………………………………………...16, 17, 18 Civil Service Law § 209-a(4)(j)…………………………………………………...17 Laws of 1964, ch. 946 § 1 (Sept. 1, 1964)……………………………………….8, 9 General Municipal Law, Article 18………………………………………………...8 General Municipal Law, § 806……………………………………………………10 105227.3 PRELIMINARY STATEMENT In the wake of both the recent sixteen (16) day Federal Government shut down, and the New York State Legislature’s corruption scandal (that resulted in the Moreland Commission investigation), faith in government is arguably at an all time low. It is therefore fitting for this Court to be reviewing this case in which a local government was ordered by a State administrative agency, the Public Employment Relations Board (“PERB”), to continue to violate the Code of Ethics adopted in its local law. At issue in this appeal is the attempt of the Town of Islip (the “Town”) to enforce its Code of Ethics and to end the illegal activity of doling out Town-owned vehicles to certain employees for their personal use. This Court must decide whether PERB has the authority to compel a public employer to participate in the open and notorious violation of its own local law, upon its logic that the employer improperly allowed the law to be violated in the past. It is surely an unappealing prospect to argue that a new governmental administration must continue to tolerate illegal and unethical conduct because past administrations did nothing to stop it. It is equally as distasteful to argue that needed reform must come at taxpayer expense, and that an end to illegal behavior must be negotiated in exchange for some form of enhanced contractual benefit for the employees who enjoyed the illegal benefit. Indeed, these arguments are so 2 105227.3 repugnant to law and public policy that they are not advanced by PERB and the United Public Service Employees Union (the “Union”) (collectively the “Respondents”). The Town’s principal argument stands unopposed. If this Court upholds the decisions of PERB and the Appellate Division, Second Department, it will be sanctioning illegal conduct that is taking place in local government. Such a decision will further undermine the public’s faith in government and prevent the Town from fulfilling its ethical and legal obligations to its taxpayers and community. The Town submits this Reply Memorandum of Law in further 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 ILLEGAL ACTIVITY CANNOT RIPEN INTO AN ENFORCEABLE PAST PRACTICE As set forth more fully in the Town’s initial brief, in Manhasset Union Free School District, 41 PERB 3005 (2008), PERB identified the applicable test for identifying an enforceable past practice. The foundation of such test centers around the principle of “reasonableness.” Namely, is it reasonable, under the 3 105227.3 specific facts and circumstances, for employees to expect that a practice will continue? Fashion Institute of Technology, 41 PERB 3010 (2008). Due to its fairly recent genesis, PERB has yet to define the scope of “reasonable expectations” in the context of “special circumstances” when determining whether an enforceable past practice exists. Despite such lack of guidance, however, this Court should hold that it is fundamentally unreasonable for unit members to expect that illegal activity will continue indefinitely in the future. Quite the contrary, unit members must reasonably expect that illegal conduct will eventually come to an end. Despite the fact that the Town extensively argued this point in its initial brief, it went undisputed by both PERB and the Union. In fact, to better illustrate the “unreasonableness” of PERB’s determination - that the Town must collectively bargain for the Union’s permission to stop illegal activity that violates its Code of Ethics - in the Town’s initial brief, it offered a hypothetical scenario for this Court to consider.1 Such hypothetical highlighted the potential ramifications of affirming 1 They hypothetical set forth at p. 26-27 in our initial brief is as follows: 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 employee’s timesheet, including those timesheets that falsely 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 4 105227.3 the decisions of PERB and the Appellate Division, Second Department. The hypothetical was simply ignored by the Respondents. Neither PERB nor the Union even addressed this issue raised by the Town or offered this Court any guidance as to how such scenario differs from the one at issue here. They simply said nothing. Their silence is telling. PERB's own argument in this case cannot pass its very own “reasonableness” test. Instead of addressing the primary issue in dispute — whether illegal activity can ripen into a binding term and condition of employment – the Respondents, for the first time, and contrary to the Union’s position at the administrative hearing, attempted to argue that the use of Town-owned vehicles to commute-to-and-from work did not violate the Town’s Code of Ethics. (See PERB Brief p. 19) (“contrary to the Town’s arguments, the practice was not inconsistent with the local law, much less illegal or unethical as a matter of law”); (Union Brief p. 13) (“the past practice of granting town vehicles to represented town employees is not inconsistent with the Town Law, as the Town suggests”).2 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. 2 Reference to the Record on Appeal is denoted by R.__ followed by the page number. Reference to the opposition brief submitted by PERB is denoted by PERB Brief p.__ followed by the page number. Reference to the opposition brief submitted by the Union is denoted by Union Brief p.__ followed by the page number. 5 105227.3 Such argument is directly contrary to the Record in this case. First, PERB already found that the “vehicles were afforded to approximately 45 unit employees for limited personal use”, (R. 380)(emphasis added), while the Appellate Division, Second Department also determined that the Town’s Code of Ethics had been violated by the conduct at issue here.3 (R.416-17). These factual findings are not subject to review, as this Court does not “find facts”. Its “sole authority is to review legal questions.” People v. Roe, 74 N.Y.2d 20, 28 (1989). Moreover, at the PERB hearing, counsel for the Union4 specifically acknowledged that unit members used Town-owned vehicles to commute-to-and- from work for personal convenience and that such issue was not before the Administrative Law Judge: There is no question in this proceeding that vehicles were used for personal business, and that is not an issue. (R. 56) (emphasis added). The Respondents cannot now, in a last-ditch attempt to combat the Town’s argument that doling out Town-owned vehicles for personal use was illegal and 3 PERB goes so far as to argue that the Appellate Division “held” that “it cannot be said that the Town’s practice, as a matter of law, violated its 1968 Code of Ethics and Financial Disclosure Law.” This is a misrepresentation of the decision. The Appellate Division said no such thing. To the contrary, the Appellate Division acknowledged that the vehicles were assigned to “non- qualifying employees,” and that within this context, the Town’s actions “had frequently and openly ignored” the Code. (R. 417). 4 At the time the PERB hearing took place, the Blue and White collar unit members were represented by Local 237, International Brotherhood of Teamsters. However, Local 237 no longer represents such employees. At this time, both the Blue and White collar employees are exclusively represented by the United Public Service Employees Union. 6 105227.3 violated the Code of Ethics, raise an argument that it already specifically conceded below at the hearing. Finally, it is well-settled law that this Court lacks jurisdiction to review unpreserved issues. Because the Respondents never raised this issue at any point during the PERB hearing or during any of the appeal proceedings below, they are prohibited from doing so at this late juncture. As stated by this Court in Bringham v. New York City Transit Authority, 99 N.Y.2d 355, 359 (2003): This Court with rare exception does not review questions raised for the first time on appeal. Unlike the Appellate Division, we lack jurisdiction to review unpreserved issues in the interest of justice. A new issue –even a pure law issue—may be reached by appeal only if it could not have been avoided by factual showings or legal countersteps had it been raised below.... * * * Had the defendants’ new argument been presented below, the plaintiff would have had the opportunity to make a factual showing or legal argument that might have undermined defendants’ position. Additionally, this Court in its evaluation of the Schlessinger rule would have benefited from the wisdom of the trial court and Appellate Division, courts which have seen many cases like this one in the 97 years since Schlessinger. See also, Matter of Crowley v. O’Keefe, 74 N.Y.2d 780 (1989) (dismissing appeal as unreviewable where objection pertaining to a claimed error of law was not preserved during the administrative appeal); Merill v. Albany Medical Center Hospital, 71 N.Y.2d 990 (1988) (“[w]hile the Appellate Division has jurisdiction to address unpreserved issues in the interest of justice, the Court of Appeals may 7 105227.3 not address such issues in the absence of objection in the trial court.”). To make this argument at this point in the proceedings can only be viewed as an implicit acknowledgment that the determination of PERB was incorrect. 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, or its preservation, can never, and should never be accepted as reasonable by this Court. POINT II THE TOWN’S ATTEMPT TO END ILLEGAL ACTIVITY AND TO ENFORCE ITS CODE OF ETHICS SHOULD NOT BE SUBJECT TO COLLECTIVE BARGAINING As set forth more fully in the Town’s initial brief, while New York courts generally favor collective bargaining under the Taylor Law, this Court 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). The Respondents argue that the Town’s reliance on Matter of Patrolmen, supra, and Town of Wallkill, supra, is misplaced because, unlike the present matter, such cases reflected a State public policy with regard to police discipline 8 105227.3 that was strong enough to overcome the public policy favoring collective bargaining under the Taylor Law. (PERB Brief p. 15). Despite the Respondents’ attempt to trivialize the Town’s Code of Ethics, there is also a strong State public policy favoring the enactment and enforcement of codes of ethics by local governments. This public policy is sufficiently compelling to overcome the public policy favoring collective bargaining. In 1964, four (4) years prior to the enactment by the Town of its Code of Ethics, New York State enacted Article 18 of the General Municipal Law to govern the conduct of local governments and to prevent any unethical conduct or potential “conflicts of interest” that may arise. In enacting such Article, the Legislature specifically stated that the adoption of a code of ethics by each municipality that clearly delineates appropriate conduct for its governmental officers and employees is “a matter of State concern.” The Legislative history proves to be instructive: As government becomes increasingly complex, as our democratic processes draw citizens from every walk of life there is increasing need for known standards of ethical conduct as a guide for public officers. These standards must rest primarily on personal integrity and on community vigilance: law cannot in itself create moral fiber, nor can law quicken the civic conscience. In support of these basic standards, it is the purpose of this chapter to define areas of conflicts of interest in municipal transactions, leaving to each community the expression of its own code of ethics. 9 105227.3 The need for the statute does not spring from widespread malfeasance on the part of municipal officers; rather, the Legislature recognizes their integrity as a group, their culpability in only a few instances. But lest the few brand the many, the discernment of the offending case must be made certain, its elimination sure. Existing law is too complex, too inconsistent, too overgrown with exceptions, for such clarity for understanding to be possible. Basic concepts must be retained, but something more than recodification is needed. There is another and equally important objective: a formula of conduct which is not only clear but reasonable, one which will permit governmental employees to share the normal benefits of the democratic society and economy they serve. If government is to attract and hold competent administrators, public service must not require a complete divesting of all proprietary interests. Real conflict must be rooted out, without condemning the inconsequential. The chapter [L. 1964, c. 946], then has a trinity of purposes: to protect the public from municipal contracts influenced by avaricious officers, to protect innocent public officers from unwarranted assaults on their integrity and to encourage each community to adopt an appropriate code of ethics to supplement this chapter. The Legislature declares that such purposes is a matter of State concern and adopts the following chapter accordingly, with the intention that it shall be the generic law in relation to conflicts of interest in municipal transactions, not to be superseded by local law of any municipality subject to its provisions. Laws of 1964, ch. 946, § 1 (Sept. 1, 1964) (emphasis added). Such policy is as important now as it was in 1964, if not more so. Following the enactment of Article 18 of the General Municipal Law in 1964, the Town adopted its own Code of Ethics in 1968, which included § 14-12 – 10 105227.3 the provision that clearly states that employees shall not be permitted to use Town- owned vehicles for “personal convenience.” (See R. 320). Thereafter, in 2006, the New York State Legislature reaffirmed the strong State public policy for the enactment and enforcement of municipal codes of ethics when it amended Article 18 of the General Municipal Law to include § 806 “Code of Ethics.” With the enactment of § 806, all local governments are now required by law to have a Code of Ethics that governs the conduct of its elected officials and employees. Clearly, the State holds ethical conduct by local government officials and employees in extremely high regard, as the inclusion of § 806 transformed Article 18 from strongly urging local municipalities to adopt a Code of Ethics to requiring them to do so. The highest court in the State should not place its judicial imprimatur on the known, continued violation of a local law and unethical conduct. In Matter of Patrolmen and Town of Wallkill, this Court determined that matters of police discipline were so important that they should not be subject to the collective bargaining obligations set forth in the Taylor Law. Town of Wallkill, 19 N.Y.3d at 1069 (2012). The Town submits that its Code of Ethics is as important, if not more important, than police discipline and, thus, should also not be subject to collective negotiations. 11 105227.3 As a matter of public policy, the unilateral termination of a practice deemed illegal by a local law adopted prior to the passage of the relevant Taylor Law provision (Civil Service Law § 209-a in 1969) should not be subject to any collective bargaining obligation. Any other determination would allow those union employees who benefited from the illegal practice to continue to do so, thereby exacerbating the harm to the public, as well as further undermining the public’s trust in government. Union employees should simply not be permitted to continue to reap a financial benefit from the Town’s taxpayers based upon an illegal practice. A. Respondents’ Argument That The Town Cannot Enforce Its Code Of Ethics Should Be Disregarded By This Court PERB asserts that because the Town does not rely on a State Law it “cannot rely on its own local ordinance, which it never implemented as a bar to the establishment of the instant practice.” (PERB Brief p. 14). Not only does the case law cited by the PERB not support its assertion,5 but the enactment of the Town’s 5 PERB relied upon Board of Cooperative Education Services Sole Supervisory District, Onondaga and Madison Counties v. New York State Public Employment Relations Board, 82 A.D.2d 691 (3d Dep’t 1981,) for the proposition that a “never-implemented local regulation…did not trump the employer’s bargaining obligation…” (PERB Brief p. 14). However, even upon a cursory read of such decision, it is clear that there was no “local regulation” involved in this case. It was a mere Board policy that was passed by BOCES. PERB also cited Board of Education of City School District of City of New York v. New York State Public Employment Relations Board, 75 N.Y.2d 660 (1990), for the proposition that an employer cannot avoid its bargaining obligations under the Taylor Law by relying on a “pre- existing, but never implemented State law granting it the ‘power and duty’ to impose certain financial disclosure requirements on represented employees.” (PERB Brief p. 14). However, 12 105227.3 Ethics Code is supported by the General Municipal Law, wherein the State Legislature expressly stated that the enactment and implementation of codes of ethics by local governments is an important State objective and a matter of State concern. That the Town enforced its own Code of Ethics, adopted in accordance with State Law, rather than enforcing a State Law itself, does not change the fact that the practice of using Town-owned vehicles for personal use was in violation of law and illegal activity. The Town submits that this Court should not sanction the perpetuation of such illegal conduct by affirming the decisions and orders of PERB and the Appellate Division, Second Department. The Respondents repeated assertion that § 14-12 of the Town’s Code of Ethics was a “never-implemented” local ordinance is not only of no discernible legal significance, it is also factually incorrect. To the contrary, § 14-12 of the Town’s Code of Ethics was enacted in 1968. The record evidence at the PERB such assertion is not related to the facts of the case. In that case, this Court actually held that the District had no obligation to bargain over the unilateral implementation of certain specific financial reporting requirements that were adopted in accordance with the mandated requirements of § 2590-g (13) of the Education Law. This Court only found that the District was required to negotiate over the unilateral implementation of a Board policy pursuant to § 2590-g (14) because such provision gave the District “discretion” to act, rather than mandating the District to do so. Respondents cited Saratoga Springs School District, 11 PERB 3037 (1978), confirmed sub nom Saratoga Springs City School District v. New York State Public Employment Relations Board, 68 A.D.2d 202 (3d Dep’t 1979), in purported support of the proposition that a “local ordinance cannot defeat the full range of collective bargaining obligations….” (PERB Brief p. 13). However, that case has nothing to do with a “local ordinance.” In Saratoga Springs, the District abolished a number of positions and subcontracted such work to a private company. Such is clearly inapplicable to the present matter. 13 105227.3 hearing was that unit members did not begin to receive Town-owned vehicles to commute-to-and-from work until approximately 1992 --“fifteen (15) years prior to 2007.” (R. 415). Thus, from 1968 through approximately 1992, for a period of approximately twenty-four (24) years, § 14-12 of the Town’s Code of Ethics was, at the very least complied with, or was implemented and enforced by the Town. There was no practice of doling out Town-owned vehicles to certain unit employees for their personal use during such period of time. Section 14-12 of the Town’s Code of Ethics is explicit and clear – Town employees are prohibited from using Town-owned vehicles for their personal use. Despite the Respondents’ attempts to justify PERB’s order, the fact of the matter remains that PERB’s order directed the Town to ignore the requirements of the Town’s Code of Ethics and to continue to permit its employees to engage in unethical conduct. This Court should find that there is such a strong public policy favoring the enforcement of the Town’s Code of Ethics and the cessation of illegal activities, that the Town is not required to engage in collective negotiations with the Union in order to end such illegal and unethical practices. 14 105227.3 POINT III § 14-12 OF THE TOWN’S CODE OF ETHICS IS CONSISTENT WITH THE TAYLOR LAW The Respondents primarily rely on a lower court decision in Matter of Doyle v. City of Troy, 51 A.D.2d 845 (3d Dep’t 1976)6 for two propositions: (1) that a local ordinance cannot defeat the full range of collective bargaining obligations imposed by the Taylor Law; and (2) if a local law did defeat the full range of collective bargaining, then it would be unauthorized and prohibited. (PERB Brief p. 13); (Union Brief p. 17). The Town does not dispute that a municipality cannot pass a local law to affirmatively avoid its bargaining obligations pursuant to the Taylor Law. Nor does it contest the Respondents’ proposition that any local law passed specifically to frustrate the objectives of the Taylor Law would be invalid. However, that is simply not what happened here. First, the adoption of § 14-12 of the Town’s Code of Ethics was adopted in 1968, which pre-dates the applicable section of the Taylor Law at issue in this case (§ 209-a), and pre-dates any existing practice of doling out Town-owned vehicles to certain unit members to commute-to-and-from work. Thus, at the time § 14-12 was adopted, the Town could not have violated the Taylor Law because § 209-a of 6 PERB attempts to summarize the facts of Doyle at page 15 of their Brief. However, the facts, as described by PERB, are incorrect. See pg. 19-20 of the Town’s initial brief. 15 105227.3 the Taylor Law did not exist, nor was there an established past practice of providing Town-owned vehicles to unit members for their personal use. Secondly, the local ordinance that was invalidated in Doyle infringed on the negotiation of wages, which is defined in the statute as a mandatory subject of negotiations without regard to the actions of the parties.7 Unlike the local ordinance in Doyle, however, § 14-12 does not relate to a mandatory term and condition of employment specifically defined by statute. PERB found that the use of Town-owned vehicles became a mandatory subject of negotiations only because a past practice was allegedly created by the actions of the Town, 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 a specific provision of the Taylor Law. (See R. 380-381). The Respondents continuously and incorrectly argue that § 14-12 of the Town’s Code of Ethics is invalid. They try to equate the invalid provision found in Doyle, with § 14-12 of the Town’s Code of Ethics. Unfortunately, that is akin to putting the proverbial “square page in a round hole,” it simply does not fit. Despite the Respondents’ insistence, there is nothing unlawful about § 14-12. Unlike the local law passed in Doyle, even under PERB’s theory, a provision similar to § 14- 12 could still be lawfully adopted by a local municipality today, so long as there is 7 In its Brief, the Union sets forth a hypothetical that is nearly identical to the facts of Doyle. Namely, a municipality passes a local law that dictates the average salary of its employees. 16 105227.3 not an existing past practice of providing vehicles to unit members in place at the time such provision is adopted. In the case of the Town, § 14-12 was adopted during a time that no such practice existed. Finally, the Respondents also argued in their briefs that by its own terms, the Town’s Code of Ethics does not defeat the imposition of a bargaining obligation upon the Town under the Taylor Law. (PERB Brief p. 16-17). However, as discussed in detail above, the Taylor Law does not prevent local governments from adopting a Code of Ethics nor was the Taylor Law violated when the Town adopted §14-12. A. Civil Service Law § 209-a Exempts § 14-12 Of The Town’s Code Of Ethics From Mandatory Negotiations Under The Taylor Law In the its initial brief, the Town noted that in the Town of Wallkill, supra, this Court held that the Town of Wallkill was 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: 17 105227.3 Nothing in this section shall be deemed to eliminate or diminish any right that may exist pursuant to any other law. (emphasis added). PERB submits that because Civil Service Law § 209-a(4)(i) was enacted as part of the Taylor Law’s injunctive relief provision in 1995, that such provision is inapplicable. However, an analysis of the statutory language of Civil Service Law § 209-a shows that it was the Legislature’s intention to apply paragraph (i) of subdivision (4) to the entire section of 209-a. Civil Service Law § 209-a (4)(i) 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). In the provision immediately following Civil Service Law § 209-a(4)(i), Civil Service Law § 209-a (4)(j) states as follows: Pursuant to paragraph (d) of subdivision five of section two hundred five of this article, the board shall make such rules and regulations as may be appropriate to effectuate the purposes and provisions of this subdivision. (emphasis added). As is clearly shown above, in § 209-a (4)(i) the Legislature specifically used the term “section”, while the Legislature differentiated between the terms “paragraph,” “subdivision,” “section” and “article” in § 209-a(4)(j). Such 18 105227.3 delineation is telling. If the Legislature intended to limit § 209-a(4)(i) to injunctive relief only, it clearly knew how to do so, and would have drafted § 209-a(4)(i) to read “[n]othing in this subdivision” rather than “[n]othing in this section.” By expressly using the term “section” in 209-a(4)(i), the Legislature necessarily applied such provision to all of Civil Service Law § 209-a. See Central Bank of Denver v. First Interstate Bank, 511 U.S. 164, 176-77 (1954) (“Congress knew how to impose aiding and abetting liability when it chose to do so,” it did not use the words “aid” and “abet” in the statute, and hence did not impose aiding and abetting liability). 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 and capricious, incorrect as a matter of law, and must be annulled and vacated by this Court. POINT IV PERB’S REMEDIAL ORDER IS UNREASONABLE AND SHOULD NOT BE ENFORCED BY THIS COURT Even if this Court finds that the Town violated the Act when it unilaterally discontinued the illegal past practice of allowing employees to use Town-owned 19 105227.3 vehicles for personal use, this Court should still annul and vacate PERB’s order as it is “unreasonable” as a matter of law, including under PERB’s own precedent. As set forth more fully in the Town’s initial brief, Courts have the right to review a PERB order for “reasonableness.” 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’s Code of Ethics. 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 financial reimbursement payments, is violative of public policy, wholly unreasonable and therefore unenforceable. The Town’s argument that PERB’s order was inherently unreasonable went wholly undisputed by the Respondents. The Union did not even address the issue, while PERB merely regurgitated the black letter law – that PERB is authorized to issue a remedial order in an improper practice proceeding. (PERB Brief p. 21). The Town does not dispute the fact that PERB is authorized to issue a remedial order in an improper practice proceeding, however, “[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). 20 105227.3 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. In addition, as a matter of public policy, this Court should not uphold a remedial order that requires the Town to make financial reimbursement payments to employees who were illegally using Town-owned vehicles in violation of § 14-12 of the Town’s Code of Ethics. This would allow such unit members to unlawfully reap the benefits of the proverbial “fruit of the poisonous tree.” 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, both its decision and its remedy was arbitrary and capricious, contrary to the law and should be annulled and vacated by this Court. 21 105227.3 Dated: October 28, 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: firstname.lastname@example.org Of Counsel: Hilary L. Moreira, Esq., Christopher T. Kurtz, Esq.