SUPREME COURT OF
APPELLATE
DIVISION
THIRD DEPARTMENT
In the Matter of
Patrolmen’s Benevolent
Association
of the
City of New York, Inc.,
Appellant,
v
Public Employment Relations
Board et al.,
Respondents.
No. 96120
13 A.D.3d 879
786 N.Y.S.2d 269
2004 N.Y. App. Div. Lexis 15282
176 LRRM (BNA) 2828
MEMORANDUM AND
ORDER
Carpinello, J.
Appeal from a judgment of the Supreme Court
(Sheridan, J.). entered
In this CPLR article 78 proceeding,
petitioner argues that respondent Public Employment Relations Board
(hereinafter PERB) incorrectly determined that five particular provisions in an
expired collective bargaining agreement between itself and respondent City of
New York concern prohibited subjects of bargaining such that they could not be
submitted to an interest arbitration panel appointed to impose a successor
agreement under Civil Service Law § 209 (4). Petitioner further contends that
PERB incorrectly found that its proposal to increase the amount of money
payable to pension beneficiaries under a Variable Supplement Fund was a nonmandatory subject of bargaining such that it too would
not be submitted to the interest arbitration panel. In a thoughtful and
well-reasoned decision, Supreme Court dismissed the petition. We now affirm.
We turn first to the five proposals emanating from the expired
collective bargaining agreement. These provisions concern (1) expungement of records following certain disciplinary
matters, (2) disciplinary procedures, i.e., the timing of charges and trials,
as well as reimbursement of pay under certain conditions, (3) guidelines for
interrogation of members, (4) the time period within which a police officer who
witnesses an incident has to confer with counsel before being questioned by the
department and (5) the continuation of a program whereby disciplinary matters
may, at the discretion of the New York City Police Commissioner, be referred
outside the department for resolution. These topics were found by PERB to be
prohibited subjects of bargaining, that is, “forbidden, by statute or
otherwise, from being embodied in a collective bargaining agreement” (Matter
of Incorporated Vil. of Lynbrook v New York State Pub. Empl. Relations [*881] Bd.,
48 N.Y.2d 398, 402, 399 N.E.2d 55, 423 N.Y.S.2d 466 n 1 [1979]; accord Matter of
Board of Educ. of City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., 75 N.Y.2d 660, 666, 554 N.E.2d 1247, 555 N.Y.S.2d
659 [1990]). Here,
the New York City Charter and New York City Administrative Code commit the
issue of police officer discipline to the authority of the Commissioner.
Specifically, City Charter § 434 (a)
provides that “the Commissioner shall have cognizance and control of the
government, administration, disposition and discipline of the department, and
of the police force of the department.” The Administrative Code additionally
provides that the Commissioner, or a deputy thereto, has the [**271] authority
to “examine, hear and investigate” all written charges against a member “in
such manner or procedure, practice, examination and investigation as such
Commissioner may, by the rules and regulations, from time to time prescribe”
(Administrative Code of City of NY §
14-115 [b]). Under the
Administrative Code, the Commissioner also has the sole discretionary authority
over the appropriate punishment to be meted out against a member who, among
other transgressions, neglects his or her duty, violates a rule or commits a
breach of discipline (see Administrative Code of City of NY § 14-115
[a]).
Contrary to petitioner’s contentions, these provisions plainly vest the
Commissioner with full and broad authority over the discipline of police
officers such that the topics sought to be submitted to the interest
arbitration panel were prohibited subjects of negotiation (see Matter of
City of New York v MacDonald, 201 A.D.2d 258, 259, 607 N.Y.S.2d 24 [1994], lv denied 83 N.Y.2d
759, 615 N.Y.S.2d 876, 639 N.E.2d 417 [1994]; see generally Matter of Montella
v Bratton, 93 N.Y.2d 424, 430, 713 N.E.2d 406, 691 N.Y.S.2d 372 [1999]; Matter of Lynch v Giuliani,
301 A.D.2d 351, 357, 755 N.Y.S.2d 6 [2003]). Petitioner would have this Court
interpret the City Charter and Administrative Code as merely giving the
Commissioner the right to make the final decision in police disciplinary
matters without concomitantly giving the Commissioner authority over any matter
that is “ancillary” or “tangentially” related to that decision or discipline
generally. Said
differently, petitioner claims that matters ancillary to discipline, such as
those addressed in the five proposals stemming from the expired collective
bargaining agreement, are not plainly or explicitly delegated to the
Commissioner by operation of either the City Charter or Administrative Code
and, therefore, such issues are mandatory, or at the very least permissive,
subjects of bargaining. We cannot agree.
As was determined in Matter of City of New York v MacDonald
(supra), a reading of the City Charter and Administrative Code [*882] “discloses
a legislative intent and public policy to leave the disciplining of police
officers . . . to the discretion of the Police Commissioner, subject, of
course, to review by the courts pursuant to CPLR article 78” (id. at 259). In short, the City Charter and
Administrative Code evince a “plain and clear” (Syracuse Teachers Assn. v Board
of Educ., Syracuse City School Dist., 35 N.Y.2d 743, 744, 361 N.Y.S.2d 912, 320
N.E.2d 646 [1974]) legislative intent to vest the Commissioner with broad
authority over police officer discipline and, thus, remove the area of police
discipline from collective bargaining. This being the case, PERB
correctly ruled that the five topics at issue may not be submitted to the
interest arbitration panel (see Matter
of City of Mount Vernon v Cuevas, 289 A.D.2d 674, 733 N.Y.S.2d 793 [2001], lv denied 97 N.Y.2d
613, 742 N.Y.S.2d 606, 769 N.E.2d 353 [2002];
Matter of City of New York v MacDonald, supra; Matter of Rockland County Patrolmen’s
Benevolent Assn., 149 A.D.2d 516, 539 N.Y.S.2d 993 [1989]; Matter of Town of Greenburg
[Police Assn. of Town of Greenburg], 94 A.D.2d 771,
462 N.Y.S.2d 718 [1983], lv denied 60 N.Y.2d 551 [1983]; see generally Matter of Montella
v Bratton, supra; Matter of Lynch v Giuliani, supra).
Finally, PERB’s
finding that petitioner’s proposal concerning the Variable Supplement Fund was
a nonmandatory subject of bargaining was also proper
as this fund is legislatively established and petitioner’s proposal
impermissibly sought to increase the benefits provided thereunder
(see Matter [**272] of Board of Educ. of
City School Dist. of City of N.Y. v New York State Pub. Empl. Relations Bd., supra
at 667; see generally Matter of Rochester Fire Fighters Local 1071, IAFF
[AFL-CIO], 12 PERB P 3047, 3087 [1979]). To the extent
not discussed, petitioner’s remaining contentions have been reviewed and
rejected as unpersuasive.
ORDERED that the judgment
is affirmed, without costs.