(dissenting).The issue on this appeal is not whether a public employee’s personal use of a take-home vehicle is an *495economic benefit (majority op at 491-492), but, rather, whether a public employer must collectively bargain its way out of a previous policy that is plainly in violation of a duly-enacted local law. Chapter 14 of the Town Code of the Town of Islip entitled “Code of Ethics and Financial Disclosure Law” was adopted in December of 1968 and, apparently, as amended from time to time by the elected Town Board, has functioned without incident ever since. Section 14-12 of that law provides in its entirety 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'’'’ (emphasis added).
Contrary to the majority’s contention (majority op at 493-494), the question whether a public employer may unilaterally discontinue a past practice concerning a term and condition of employment that a local law had declared illegal is squarely presented for our review.
In remarkably brief testimony from four witnesses, all employees of the Town, it is conceded that town employees were permitted to use municipal vehicles for personal use, namely, to drive town-owned vehicles to and from home. As such, the personal use of town-owned vehicles was plainly contrary to section 14-12. PERB erroneously concluded, however, that by allowing employees to drive vehicles home in violation of section 14-12, the Town could not unilaterally end that practice without violating the Taylor Law. Essentially, PERB’s decision trumps a local law and requires the Town to bargain its way out of an illegal activity. This is contrary to law.
Illegal past conduct does not, and should not, evolve into binding terms and conditions of employment. Were it so, sloppy bookkeeping, lax supervision and perhaps, in some cases, rife favoritism could form the basis of a policy by which PERB could overrule a duly-enacted local law.
There was nothing in the previous collective bargaining agreements or in the laws and regulations of the Town that would allow public employees to take advantage of taxpayers by obtaining municipally-provided transportation at discount rates. By the same token, it cannot be argued that this would, by custom, *496tradition, or negligence, be the subject of collective bargaining. It’s clear. The conduct engaged in by the Town and its employees was against the law and PERB’s determination could not make it legal. Therefore, that determination should be annulled and vacated.
Chief Judge Lippman and Judges Graffeo, Rivera and AbdusSalaam concur with Judge Read; Judge Pigott dissents in an opinion in which Judge Smith concurs.Order modified, without costs, by remitting to the Appellate Division, Second Department, with directions to remand to the New York State Public Employment Relations Board for further proceedings in accordance with the opinion herein and, as so modified, affirmed.