Matter of City of Schenectady v. New York State Public Employment Relations Board

=================================================================
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
-----------------------------------------------------------------
No. 93
In the Matter of City of
Schenectady,
Appellant,
v.
New York State Public Employment
Relations Board et al.,
Respondents.

Christopher Langlois, for appellant.
David P. Quinn, for respondent New York State Public
Employment Relations Board.
Michael P. Ravalli, for respondent Schenectady Police
Benevolent Association.

WILSON, J.:
The City of Schenectady brought this CPLR article 78
proceeding to review a determination of the New York State Public
Employment Relations Board (PERB). PERB determined that the City
committed an improper employer practice by enacting General Order
0-43, which adopted new police disciplinary procedures different

- 1 -
 - 2 - No. 93

from those contained in the parties' expired collective
bargaining agreement. Supreme Court confirmed the determination
and dismissed the City's petition, concluding that article 14 of
the Civil Service Law (hereinafter the Taylor Law) superseded the
provisions of the Second Class Cities Law regarding police
discipline. The Appellate Division affirmed (136 AD3d 1086 [3d
Dept 2016]). This case is controlled by our prior decisions in
Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v
New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]) and
Matter of Town of Wallkill v Civil Servs. Empls. Assn., Inc. (19
NY3d 1066 [2012]), which held that the statutory grants of local
control over police discipline in New York City and Wallkill --
substantively similar to the statutory provisions relevant here
-- rendered discipline a prohibited subject for collective
bargaining.
I.
Before 1894, the Constitution required specific state
legislation to charter a city or to amend a city's charter. As a
result of the Constitutional Convention of 1894, the Constitution
was amended to designate cities by population as cities of the
first, second and third classes. The legislature enacted general
laws applicable to each of the three classes, and the
Constitution prevented the legislature from changing those laws
unless the change affected all cities within a class.
In 1906, the Legislature enacted the Second Class

- 2 -
 - 3 - No. 93

Cities Law, which provided a standard charter for all cities of
the second class. The parties agree that Schenectady was, and
still is, a city of the second class. The Second Class Cities
Law contains detailed provisions governing the procedures for
police discipline. For example, "[t]he commissioner of public
safety shall have cognizance, jurisdiction, supervision and
control of the government, administration, disposition and
discipline of the police department" (Second Class Cities Law §
131). In addition, the commissioner:
"is authorized and empowered to make, adopt,
promulgate and enforce reasonable rules,
orders and regulations for the . . .
discipline . . . of [police] officers. . . ,
and for the hearing, examination,
investigation, trial and determination of
charges made or prepared against any officer
. . . and may, in his discretion, punish any
such officer or member found guilty thereof;
but no officer . . . shall be removed or
otherwise punished for any other cause, nor
until specific charges in writing have been
preferred against and served upon him, and he
shall have been found guilty thereof, after
reasonable notice and upon due trial before
said commissioner"
(id. § 133; see also id. §§ 135, 137).
The Taylor Law, which went into effect in 1967, states,
"[w]here an employee organization has been certified or
recognized . . . the appropriate public employer shall be, and
hereby is, required to negotiate collectively with such employee
organization in the determination of, and administration of
grievances arising under, the terms and conditions of employment
of the public employees" (Civil Service Law § 204 [2]). As we

- 3 -
 - 4 - No. 93

have recognized, the Taylor Law represents a "strong and sweeping
policy of the State to support collective bargaining" (see Cohoes
City Sch. Dist. v Cohoes Teachers Ass'n, 40 NY2d 774, 778
[1976]).
II.
Schenectady asks us to reverse the holding of the
Appellate Division that the relevant provisions of the Second
Class Cities Law were superseded by the enactment of the Taylor
Law, and thus collective bargaining applies to police discipline
in Schenectady. This is not the first time we have addressed the
effect of the Taylor Law on police disciplinary procedures. In
Matter of Patrolmen's Benevolent Assn., we determined that
although Civil Service Law §§ 75 and 76 generally govern police
disciplinary procedures, preexisting laws that expressly provide
for control of police discipline were "grandfathered" under Civil
Service Law 76 (4), which provides that nothing in sections 75
and 76 "shall be construed to repeal or modify any general,
special or local" laws or charters (6 NY3d at 573). We then
confronted "[the] tension between the strong and sweeping policy
of the State to support collective bargaining under the Taylor
Law . . . and a competing policy -- here, the policy favoring
strong disciplinary authority for those in charge of police
forces" (id. at 571). There, we held that the policy favoring
collective bargaining must give way, and police discipline was a
prohibited subject of bargaining (id. at 576). We harmonized

- 4 -
 - 5 - No. 93

that result with Matter of Auburn Police Local 195, Council 82,
Am. Fedn. of State, County & Mun. Empls., AFL-CIO v Helsby (62
AD2d 12 [3d Dept 1978], affd for reasons stated below 46 NY2d
1034 [1979]), by noting that the Taylor Law prevails where "no
legislation specifically commits police discipline to the
discretion of local officials" (6 NY3d at 571). However, "where
such legislation is in force, the policy favoring control over
the police prevails, and collective bargaining over disciplinary
matters is prohibited" (id. at 572). In Matter of Town of
Wallkill, we extended Matter of Patrolmen's Benevolent Assn. to a
local law regarding police discipline, where the local law was
adopted pursuant to authority granted by Town Law § 155, itself a
general law enacted prior to Civil Service Law §§ 75 and 76 (19
NY3d at 1069).
The specific commitments of police discipline in Matter
of Patrolmen's Benevolent Assn. and Matter of Town of Wallkill
resolve the question at issue here: "Is there a public policy
strong enough to justify excluding police discipline from
collective bargaining?" (6 NY3d at 573). In Matter of
Patrolmen's Benevolent Assn., we answered in the affirmative
where the New York City Charter and Administrative Code gave the
police commissioner "cognizance and control over the . . .
discipline of the department" and the authority "to punish [an]
offending party" (id. at 573-574). In Matter of Town of
Wallkill, we found Matter of Patrolmen's Benevolent Assn.

- 5 -
 - 6 - No. 93

dispositive where the Town Law committed to the Town "the power
and authority to adopt and make rules and regulations for the
examination, hearing, investigation and determination of charges,
made or preferred against any member of members of such police
department," and where Wallkill had enacted a local law vesting
disciplinary power with the Town Board (19 NY3d at 1066). In the
present case, the Second Class Cities Law, enacted prior to Civil
Service Law §§ 75 and 76, specifically commits police discipline
to the commissioner and details the relevant procedures, as
described above.1 The Taylor Law's general command regarding
collective bargaining is not sufficient to displace the more
specific authority granted by the Second Class Cities Law. Thus,
our decisions in Matter of Patrolmen's Benevolent Assn. and
Matter of Town of Wallkill control, and police discipline is a
prohibited subject of bargaining in Schenectady.
PERB attempts to distinguish the present case by noting
that section 4 of the Second Class Cities Law contains a
supersession clause, which states that a provision applies "until
such provision is superseded pursuant to the municipal home rule
law, was superseded pursuant to the former city home rule law or
is or was otherwise changed, repealed or superseded pursuant to
law." PERB reads the supersession clause as evidencing the

1
Subsequent changes to Schenectady's form of government
have eliminated the office of the commissioner and transferred
that office's powers and responsibilities to others, which is
irrelevant for the purpose of our decision in this case.

- 6 -
 - 7 - No. 93

legislature's "statutorily planned obsolescence" for the Second
Class Cities Law. The Appellate Division distinguished Matter of
Patrolmen's Benevolent Assn. and Matter of Town of Wallkill on
that same basis (City of Schenectady v New York State Pub. Empl.
Relations Bd., 136 AD3d 1086, 1089 [3rd Dept 2016]). However, we
reject the notion that the supersession clause demonstrates the
legislature's intent that the Second Class Cities Law was
expected to be ephemeral. The Second Class Cities Law's
supersession clause does nothing more than affirm that the Second
Class Cities Law was intended to remain in force unless it is
changed or repealed pursuant to law, and does not distinguish the
present case from Matter of Patrolmen's Benevolent Assn. and
Matter of Town of Wallkill.2 Indeed, article IX, § 3 (b) of the
New York State Constitution contains the identical language: "The
provisions of this article shall not affect any existing valid
provisions of acts of the legislature or of local legislation and

2
Certain of the laws at issue in those cases included
similar language. Section 7 of the Rockland County Police Act,
considered in Matter of Patrolmen's Benevolent Assn., authorized
town boards in Rockland County to hear and determine disciplinary
charges against members of the police department in accordance
with its own rules and regulations "[e]xcept as otherwise
provided by law." Similarly, Town Law § 155, considered by this
Court in Matter of Town of Wallkill, provided for the discipline
of town police officers in accordance with rules and regulations
prescribed by the town board, "[e]xcept as otherwise provided by
law." Although we did not address that language in either case,
the existence of such language did not alter the outcome. There
is no significant distinction between the phrase "except as
otherwise provided by law" and the phrase "changed, repealed[,]
or superseded pursuant to law" contained in Second Class Cities
Law § 4 that would justify a different result here.

- 7 -
 - 8 - No. 93

such provisions shall continue in force until repealed, amended,
modified or superseded in accordance with the provisions of this
constitution."
The Second Class Cities Law has not been expressly
repealed or superseded by the legislature nor was it implicitly
repealed by the enactment of the Taylor Law in 1967. "The repeal
of a statute by implication is not favored by law, for when the
legislature intends to repeal an act it usually says so
expressly" (Matter of Tiffany, 179 NY 455, 457 [1904]; see Alweis
v Evans, 69 NY2d 199, 204 [1987]). "Generally, a statute is
deemed impliedly repealed by another statute only if the two are
in such conflict that it is impossible to give some effect to
both. If a reasonable field of operation can be found for each
statute, that construction should be adopted" (Alweis, 69 NY2d at
204). The Second Class Cities Law and the Taylor Law are not
irreconcilable. Article 9 of the Second Class Cities Law governs
disciplinary procedures for police officers in cities of the
second class, whereas the Taylor Law generally requires public
employers to negotiate but does not specifically require police
disciplinary procedures to be a mandatory subject of collective
bargaining. There is no express statutory conflict between the
two laws; the only conflict is in the policies that they
represent, and this Court has already resolved that policy
conflict in favor of local control over police discipline (see
Matter of Patrolmen's Benevolent Assn., 6 NY3d at 573; Matter of

- 8 -
 - 9 - No. 93

Town of Wallkill, 19 NY3d at 1069).
III.
Respondents' additional arguments are also
unpersuasive. The Schenectady Patrolmen's Benevolent Association
argues that Schenectady's own course of dealing proves that the
Civil Service Law -- rather than the Second Class Cities Law --
applies to police discipline, and that because of Schenectady's
position in previous proceedings, Schenectady should be
judicially estopped from arguing that the Civil Service Law does
not apply. However, the proceedings and "course of dealing"
referenced all took place prior to 2006, when we decided Matter
of Patrolmen's Benevolent Assn. As Schenectady notes, "[d]uring
that period of time, the City and the PBA . . . were operating
under the belief -- albeit, a mistaken belief -- that the City
could lawfully negotiate" and enter into agreements that modified
the Second Class Cities Law by incorporating provisions of the
Civil Service Law. In fact, it was shortly after our decision in
Matter of Patrolmen's Benevolent Assn. that Schenectady changed
course and issued a press release on June 4, 2007, announcing
that the "disciplinary action process within the police
department [would] undergo a significant change effective
immediately."
PERB argues that an amendment to the Civil Service Law
regarding state troopers supports its interpretation. In 2001,
the legislature amended Civil Service Law § 209 (4) (e) to delete

- 9 -
 - 10 - No. 93

the exclusion for collective bargaining of disciplinary
procedures regarding state troopers. The supporting memorandum
states: "Local police officers and Firefighters currently are
afforded full binding arbitration (i.e. compensatory and
non-compensatory issues are subject to binding arbitration). The
legislation would simply grant State Police Officers equal
treatment with respect to their local counterparts" (L. 2001, c
587, Memorandum in Support of Bill No. A. 8589). The 2001
amendment does not alter our conclusion, because it has no
bearing on what the legislative intent was in 1906 (when the
legislature passed the Second Class Cities Law) or 1967 (when the
legislature adopted the Taylor Law). Moreover, the statement
that state troopers would be given "equal treatment to their
local counterparts" provides no guidance here, because it is
quite clear, from the different results in Matter of Patrolmen's
Benevolent Assn., Matter of Town of Wallkill, and Matter of
Auburn Police, that some local counterparts have the right to
bargain about police discipline, and some do not. Respondents'
remaining arguments are not properly before us (see Matter of
Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d
753, 758 [1991]).
Accordingly, the order of the Appellate Division should
be reversed, with costs, the petition granted and the
determination of respondent New York State Public Employment
Relations Board annulled.

- 10 -
 - 11 - No. 93

* * * * * * * * * * * * * * * * *
Order reversed, with costs, petition granted and determination of
respondent New York State Public Employment Relations Board
annulled. Opinion by Judge Wilson. Chief Judge DiFiore and
Judges Rivera, Stein, Fahey, Garcia and Feinman concur.

Decided October 17, 2017

- 11 -