Schenectady is poised to lose its first legal battle in the war against police arbitrators, a city official said.
The city wrested control of police discipline from the arbitrators in June 2007, but the police union sued a year later. The first battle in what may be a very long — and expensive — war over the issue will begin Jan. 9 when both sides submit their legal briefs to the Public Employment Relations Board.
Once PERB makes a decision, the losing side will almost definitely appeal it to the state courts, so this is just the first step – but it’s one Schenectady will probably lose, Corporation Counsel L. John Van Norden said.
Essentially, Van Norden says, the deck is stacked against the city. The PERB judges who will rule on the issue were appointed by the state partly because they favor having arbitrators make the final decision on police discipline cases, rather than allowing a civilian authority like Public Safety Commissioner Wayne Bennett fire or punish officers.
“My general understanding is the recent appointments to PERB were more labor-oriented than management-oriented,” Van Norden said. “[The discipline issue] is always vetted during confirmation hearings.”
He plans to fight it out anyway.
“This is probably the most significant issue between the city and the PBA in many, many years,” he said.
In his attempt to win over the PERB board, he will bring to light the details from years of police misconduct. His goal is to prove that when arbitrators overturn the city’s attempts to fire officers, the officers not only continue their misdeeds but commit worse offenses as time goes on. Others also act recklessly because they do not believe the city will be able to discipline them, Van Norden said.
“I think our case is compelling,” he said, but added, “It’s quite possible that PERB will render a decision contrary to the city’s position.”
His two poster children for local discipline are officers Kenneth Hill and John Lewis, who were fired locally for uttering racial slurs but were reinstated by state arbitrators.
Hill went on to give a gun to a known drug dealer and went to state prison. Lewis is still on the force but has been arrested four times in seven months, most recently on allegations that he drove drunk and hit a parked car.
Before that, he allegedly threatened to kill his ex-wife. He has spent much of the year on suspension because of the arrests, all of which involve allegations of angry outbursts toward the woman he recently divorced.
Police union attorney Michael P. Ravalli said Wednesday that only twice have cases gone to arbitration in the past 20 years. In neither case was the firing upheld.
The two cases that went to arbitration were Hill and Lewis, Ravalli said. But the facts weren’t there to fire them then, as evidenced by the court rulings.
“For the city to take the position that they can’t discipline police officers is ridiculous,” Ravalli said.
An independent arbitrator, he said, is crucial to the process, ensuring the decision maker is not biased toward either side.
“The only thing the PBA is looking for is that at some point in the procedure you have an independent person who’s not employed by the city and not employed by the PBA to review discipline cases,” Ravalli said. The discipline procedure is something that’s in the contract and something that’s been agreed to for many years, he said.
Van Norden has done extensive research into the issue and says the record is muddled in just one place — when the city switched from having a city manager to an executive mayor in 1980. The mayor’s responsibilities did not specifically address police discipline — but the officer was supposed to take over all city manager duties, which had specifically included police discipline.
“What happens is, in 1935, the city went to a city manager system. They abolished the office of commissioner of public safety. They vested all of the duties and responsibilities in the city manager,” Van Norden said.
The city is believed to have never actually filled the commissioner position before abolishing it. The responsibility went to the city manager and from there should have gone to the executive mayor.
“The question is, was it conferred on the mayor in 1980? I think of course it was. It had to be. He had taken all the responsibilities of the city manager,” Van Norden said.
The disciplinary responsibility was never used by the executive mayor. Van Norden said that’s because mayors thought they had to use arbitration under the Taylor Law, which was passed in 1967 and was widely misunderstood. Most union contract negotiators throughout the state thought they had to negotiate police discipline, and generally both sides would only agree to arbitration.
But New York City didn’t want to do that, and after a long court battle, brought the issue to the state Court of Appeals in 2006. The court ruled that New York City’s police commissioner had been wrongly stripped of his disciplinary powers by the Taylor Law.
Other cities that had a provision for a commissioner — including Schenectady, which had reinstated its position in 1991 — 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. Schenectady clearly did not have a commissioner in office prior to the Taylor Law — but Van Norden is now arguing that the city did have a city manager and later a mayor who held the commissioner’s powers.