nassaucops-120x150-9523551In a significant policy change that would undermine the managerial authority of elected officials and police commissioners in many New York localities, a bill rushed to passage by both houses of the state Legislature last week would allow unions representing police and other civil service employees to insist on collective bargaining of disciplinary procedures.

The bill represents the latest in a series of attempts by police unions to nullify a unanimous 2006 state Court of Appeals decision affirming the New York City police commissioner’s ultimate power over disciplinary matters in his department. In that case, the city Patrolmen’s Benevolent Association (PBA) had challenged Commissioner Raymond Kelly’s repeal of contract provisions including the rule requiring NYPD superiors to wait at least 48 hours before questioning police officers accused of misconduct.

Proponents argue that disciplinary procedures should be a mandatory subject for negotiation under the Taylor Law, originally enacted in 1967, which governs public sector collective bargaining. But the state Court of Appeals, in an opinion by Judge Robert Smith, said the Taylor Law could be superseded by older laws designed to make police discipline a matter of local control. In a key passage, Smith wrote:

While the Taylor Law policy favoring collective bargaining is a strong one, so is the policy favoring the authority of public officials over the police. As long ago as 1888, we emphasized the quasi-military nature of a police force, and said that “a question pertaining solely to the general government and discipline of the force . . . must, from the nature of things, rest wholly in the discretion of the commissioners.”

While “the need for authority over police officers will sometimes yield to the claims of collective bargaining,” Smith added, “the public interest in preserving official authority over the police remains powerful.”

However, the broad public interest took a back seat to special interests in the police discipline bill passed by the Legislature last week. It was a classic under-the-radar, end-of-session special — an election-year favor to a powerful interest group, obviously brokered on the leadership level in both houses.

Introduced on June 10  by Sen. Martin Golden, R-Brooklyn, the Senate version of the measure (which also had an Assembly “same as,” introduced by Peter Abbate on May 27) was moved in two quick steps from committee to the Senate floor on June 18, when it passed by a 57-2 margin. It was taken up and passed in the Assembly the following day, 132-2.* 

The New York Conference of Mayors and the Association of Towns both filed memos opposing the bill, but Mayor Bill de Blasio’s lobbying office in Albany never sent legislators its own memo on the measure.

In addition to its immediate impact on New York City, where it would restore PBA contract provisions including the 48-hour rule, the bill would also overturn county charter provisions in Nassau, Rockland and Westchester counties, and in many municipalities with laws or charter provisions designed to ensure that police discipline remains a managerial prerogative. Under a subsequent Court of Appeals ruling stemming from the city PBA case, virtually all towns and villages currently have the right to pass local laws superseding collectively bargained police disciplinary provisions.

Localities with such laws typically mandate an internal hearing process giving the final say on punishment and penalties to an elected board or council, or to appointed police commissioners who are answerable directly to elected officials.  Unions, by contrast, prefer to have disciplinary charges referred to autonomous “impartial” labor arbitrators – similar to the system that, as mandated by state law, makes teacher discipline a costly and time-consuming hit-or-miss proposition for school districts.

The bill sponsors’ memo – which sounds as if it was written by the unions backing the measure – says the decision in the New York City PBA case left police officers “subject to autocratic local control of the discipline of their members.”

In addition to nullifying local laws and charter provisions allowing local officials to control police discipline without collective bargaining, the sponsors’  memo noted the bill would “restore those collective bargaining provisions that were previously declared invalid on grounds of public policy by prior judicial or administrative decisions.”

The legislative declaration section of the bill says the intent is to ensure that police and “all other class public employees in the state of New York are entitled to collectively bargain with respect to all matters pertaining to discipline and, in the absence of a negotiated procedure, to at least the minimum due process protections provided by sections 75 and 76 of the civil service law,” which sets up a disciplinary hearing procedure.”

Thanks to the separate state law allowing for binding arbitration of police and fire union contract disputes, those disciplinary provisions will be virtually impossible to change. Police officers disciplined prior to the bill’s effective date would remain subject to the rules in effect at the time charges wee first lodged against the officers.

This bill is only the latest in at least four attempts by police unions — and their good friends in both parties and both houses of the Legislature — to roll back the Court of Appeals’ police discipline ruling since it was handed down in March 2006. 

The first came in a bill passed just a few weeks after the Court decision, which was rejected by Gov. George Pataki. From Pataki’s veto message:

I have consistently taken the position that decisions relating to the discipline of law enforcement officers should be made by publicly accountable officials. Thus, for example, I have repeatedly disapproved bills that would have subjected disciplinary decisions of the Superintendent of the Division of State Police to the scrutiny of an outside arbitrator … This principle is equally applicable to the police officers who serve in our cities, towns and villages. Therefore, disciplinary matters for municipal police officers should continue to rest with publicly accountable police commissioners and local governing bodies.

Hoping for better luck under Pataki’s successor, the police unions persuaded legislators to pass a similar bill in slightly different forms on two occasions in 2007, only to see it vetoed twice by Gov. Eliot Spitzer. They tried and failed again the following year, when yet another version of the bill was vetoed by Gov. David Paterson. Compared to Pataki, however, Spitzer and Paterson were both somewhat more ambivalent in their veto messages, finding fault with the broad scope of earlier versions of the bill rather than with the principle of overriding local control of police discipline.

Versions of the same  measure were introduced and died in committee in 2009-10 and 2011-12 sessions.

Gov. Andrew Cuomo will now have his own chance to weigh in. Once the Senate decides when to send the bill to the governor, he will have 10 days to sign or veto it.

Here’s a way the governor can be, to use one of his favorite words, truly “transformative”: in addition to vetoing what amounts to a clear usurpation of local control, how about sending the Legislature the message that, from this point forward,  you won’t sign any bill dealing with an important statewide public policy issue that is whisked to passage on virtually no notice with no deliberation or public hearing?

* The honor roll of dissenters is a short one. In the Senate, the only members to buck the tide in favor of the bill were Liz Krueger (D-WFP, Manhattan) and James Seward  (R-C-I, Milford). In the Assembly, the “no” votes were cast by Michael Fitzpatrick, (R-C-I, St. James) and David Buchwald (D-WFP-I White Plains).

About the Author

E.J. McMahon

Edmund J. McMahon is Empire Center's founder and a senior fellow.

Read more by E.J. McMahon

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