Public Safety Commissioner Wayne Bennett’s aggressive effort to handle discipline of police himself is again in jeopardy.
This time, the Schenectady police union is taking the city to court — and the union has legal precedent on its side.
An administrative law judge with the Public Employment Relations Board has ruled that Albany cannot use an old charter, which dates back to 1903, to defend its recent decision to give its police chief disciplinary powers.
The PERB ruling comes as a major blow to Schenectady because the city has been citing the same charter — the Second Class Cities Law — as its main defense in its decision to give Bennett the authority to discipline its police. Previously, arbitrators made the final decision in all discipline cases.
But Bennett says he won’t return to arbitration unless the highest court in the state orders him to give up his authority. Until that happens, he said, he will continue to handle discipline of officers himself.
“Our position is that is the correct way to handle the discipline, not only in this police department but all police departments,” Bennett said.
For now, no court has told Schenectady to hand discipline back to the arbitrators. The PERB judge’s decision affected only Albany.
But Schenectady PBA is taking the same issue to court now, and Corporation Counsel L. John Van Norden is gearing up for what he believes will be years of court cases and appeals.
Although the court battle is just beginning, Schenectady’s war over police discipline began in 2006 when the state Court of Appeals ruled that New York City’s police commissioner had been wrongly stripped of his disciplinary powers by the Taylor Law. The state’s union-friendly law had forced the city to negotiate on how discipline would be handled, rather than leaving it in the commissioner’s hands.
Many municipalities, including Schenectady, also reacted to the Taylor Law by negotiating away their disciplinary authority and giving it to arbitrators.
So when the Court of Appeals ruled that police commissioners should keep their authority, cities that had a provision for a commissioner claimed that they too could toss out any contractual agreements about arbitrators deciding discipline. The trouble is that the Court of Appeals ruling implied that civilians had to have been in charge before the Taylor Law. In Schenectady, the commissioner position existed before the act, but it wasn’t filled until 1991, more than two decades after the Taylor Law was passed.
Schenectady and other cities claimed that the Court of Appeals case applied to them even if the position hadn’t been filled, because the position existed in the Second Class Cities Law — the original charter for early cities like Albany and Schenectady.
Now an administrative law judge has clearly said that argument is invalid.
In the ruling, Judge Susan S. Comenzo said the Second Class Cities Law does not specifically give police discipline to local civilians. The law, she said, is too broad — it was designed to provide a framework for most city functions. The Court of Appeals decision only applies to cities that have a more specific law addressing police, she said.
VAN NORDEN DEFENSE
Despite that decision, Van Norden said he isn’t worried about losing the city’s case.
The Second Class Cities Law and the city’s newer, secondary charter clearly address the issue of disciplining police officers while remaining silent on discipline for most other employees.
“We think that’s a very important distinction,” Van Norden said. “Police are not just employees, they’re officers. Take the Jeff Curtis case. Automatic forfeiture of office, because he’s an officer.”
Curtis, a city detective, automatically lost his job after he pleaded guilty to felony drug charges. He stole cocaine from the police evidence locker and used it.
“The distinction is, the employee does not automatically lose their jobs. The officer does,” Van Norden said. “That’s what we’re going to argue, hard, when we get to PERB.”
Even if the city wins at the first stage — a PERB administrative law judge — Van Norden expects the PBA to appeal. If the city loses, Van Norden promised to appeal.
“This is not going to go away,” he said. “This is a very big issue. It’s unlikely one side or the other will lose at any step and just go away.”
Whichever side loses could appeal to four higher judicial levels. The highest is the Court of Appeals, that’s where Van Norden thinks this case will go.
Until then, Bennett said, he will keep disciplining the officers himself. He said immediate discipline will still be effective, even if a court later overturns all of his decisions.
“If it happened, it did in fact have effectiveness,” he said.
He also isn’t disturbed by the PERB ruling, saying it’s just a good example of why he’s opposed to arbitration. A PERB judge supported New York City in the case that ended at the Court of Appeals; now a different PERB judge has taken the opposite tack.
“Do you see a lack of consistency here?” Bennett said. “Do you think that’s a concern? You should. Now do you see my problem with arbitration?”
Schenectady PBA President Robert Hamilton did not return a call seeking comment.