The Court of Appeals has spoken, but the police union isn’t giving in yet.
The union representing Schenectady police is now submitting briefs to the Public Employment Relations Board to argue that Schenectady’s public safety commissioner doesn’t really have the right to discipline police officers.
Briefs are due by Jan. 18, and city officials are urging PERB to make a full decision as soon as possible next year. Until then, Public Safety Commissioner Wayne Bennett won’t take over police discipline.
It’s a disappointment to city officials. Corporation Counsel John Polster had hoped PERB would simply say the Court of Appeals case decided the matter. But police union attorney Michael Ravalli plans to fight until the end — and he argues that he still has a chance to win.
The argument is highly technical, regarding whether the city is governed in this issue by the Second Class Cities Law or the Optional City Government Law.
The first law grants the commissioner the authority to discipline his employees. The second law gives all discipline authority to the Civil Service — which now directs cities to negotiate their discipline with police unions.
The city opted into the second law in 1936, after being governed by the first law for decades.
Ravalli will argue that the city gave up its chance at commissioner discipline when it opted into the second law, all those years ago.
“Our argument is the Optional City Government Law controls,” Ravalli said.
The city is arguing that the Second Class Cities Law — and its commissioner-discipline — still applies. The Optional law never mentions police or the commissioner, just general Civil Service employees.
So the commissioner’s duties should continue as they were described in the Second Class Cities Law, Bennett said.
“That’s our argument,” he said. “The Optional City Government Law isn’t inconsistent with the Second Class Cities Law.”
Until a court decides which very old law goes into effect now, Ravalli said Bennett should start deciding discipline himself to avoid the cost and long delays in the current method.
Ravalli said the negotiated method has been wrongly blamed for causing the cost and delays. He blamed the city for those problems.
The current contract lets Bennett — or any other qualified person — run the disciplinary hearings. But officers can appeal to an arbitrator, and city officials believe they will do so in every case. So they have picked a well-respected arbitrator — Jeffrey Selchick — to hear each case, on the theory that an arbitrator is unlikely to overturn another arbitrator’s decision.
So far, that has worked. None of Selchick’s decisions have been overturned.
But the price was high. Officers have been paid to stay home from work for months — and in many cases, years — until their case was heard. Paying them and Selchick was pricey. The city spent $1.23 million to fire seven officers in 2010.
City officials said then that the price was worth it to get bad officers out and send a message to the rest of the force. They also argued that if they had instead let Bennett decide each case, the union would have appealed every termination and seven different arbitrators would have offered seven different opinions.
That would lead to “inconsistent” discipline, Bennett said.
But officers have questioned whether they would get a fair deal from the commissioner, who would likely have heard about the case before the hearing. Some officers have questioned whether he would be able to act as an impartial judge.
They also prefer appealing their case to an arbitrator, who has the freedom to judge the evidence and decide whether it’s convincing and whether the alleged misdeed was bad enough to warrant punishment.
Under the new system, officers would instead have to appeal to a judge, who would impose high standards. Among them: punishment is upheld unless it “shocks the conscience.” Determination of guilt is upheld unless it can be proven to be “arbitrary or capricious.” In other words, if there was a basis for finding the officer guilty, the judge must uphold the decision, even if the judge feels that he or she wouldn’t have been convinced by the evidence.
Ravalli says there’s a way to compromise. He proposed letting Bennett hear the disciplinary cases, but with appeals going to arbitrators. That would be allowed under the current police contract.
City officials have argued that it wouldn’t help, because officers would automatically appeal the commissioner’s decision.
But Ravalli said the police union is different now, less willing to appeal and much less willing to pay for attorneys to support officers who have mountains of evidence against them. Union officials have changed their bylaws so that the union no longer automatically supports every officer accused of misdeeds.
The big issue is the cost. According to the contract, the city and the PBA — the police union — split the cost of hiring an arbitrator for the appeal. That would reduce appeals, Ravalli said.
“The PBA would have to make a financial decision based upon the merits of the case,” he said. “I don’t think every case would go to an arbitrator.”
Bennett said he has no intention of starting his own disciplinary hearings until his authority is approved by a court.
“We have pressed this issue because we don’t believe any of this is a legitimate contract provision,” he said. “The very provision Ravalli is citing is illegal.”
The city will continue to hire Selchick to hear cases until the courts decide the issue. There’s only one officer currently in the pipeline for a disciplinary hearing. He has been on paid suspension for 19 months.
But Bennett said he doesn’t expect Selchick to hear that case. He said he expects to come to a “resolution” with the officer soon instead.
The union has until Jan. 18 to file its arguments with PERB, and Ravalli said he is ready to file. He said he was waiting for the Court of Appeals to issue its ruling before filing his briefs.
The court ruled that municipalities must go back to any municipal law that governs how to discipline officers, as long as that law predates the Taylor Law.
That 1967 law said police discipline should be negotiated with the unions.
City officials have long fought for permission to simply let the public safety commissioner discipline officers in-house. Corporation Counsel John Polster declared victory last week when the Court of Appeals ruled that old laws still count.