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What you need to know for 10/21/2017

Schenectady to appeal decision denying authority to fire police officers

Schenectady to appeal decision denying authority to fire police officers

The question of how to discipline Schenectady’s police is heading back to court.

The question of how to discipline Schenectady’s police is heading back to court.

The issue: whether Schenectady is different from other cities that have already gotten permission to fire police officers.

To city officials, the matter is clear: They need, and deserve, a fast and inexpensive way to discipline officers.

“It has been well-reported that we’ve carried individuals on the payroll for years before we’ve had a decision [on discipline],” said Police Chief Brian Kilcullen. “So it affects our ability to adequately staff the shifts. And, obviously, it’s expensive.”

One recent example: The city spent $1.23 million to fire seven officers in 2010.

But police officers have questioned whether they would get a fair deal from the commissioner, who would likely have heard about the case before the hearing.

Police union President Ed Ritz did not return a call, but in the past, some officers have questioned whether the commissioner would be a truly impartial judge.

They also prefer appealing their case to an arbitrator. If the commissioner gets to discipline the officers, their only chance of appeal would be before a judge, who would impose high standards, upholding punishment unless it “shocks the conscience” or upholding a determination of guilt 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 they wouldn’t have been convinced by the evidence.

An arbitrator, in hearing an appeal, is allowed to judge the evidence and decide whether it’s convincing and whether the alleged misdeed was bad enough to warrant punishment.

The police union won the first round last month. The city appealed this week, taking the next step toward a showdown that might wind up in the Court of Appeals.

Of course, it’s already been there once. In fact, that court has ruled on this issue twice, although the first time involved only New York City.

Mayor Gary McCarthy said there’s still a long way to go.

“This is a long, ongoing process,” he said. “This is just the next step.”

For many years, police unions throughout the state successfully negotiated to take disciplinary powers away from their managers. Instead, contracts called for municipalities to hire arbitrators, who were supposed to be independent.

But both sides — police and municipality — had to agree on which arbitrator would be hired in each case. That led to suggestions arbitrators had financial reasons to be lukewarm with their decisions, not veering too far toward one side or the other, because then they’d never be chosen for another job.

Then the Court of Appeals ruled New York City never should have negotiated police discipline. The city commissioner’s authority to discipline officers was restored immediately.

Other cities asked if the decision applied to them, too. In 2012, the Court of Appeals clarified the first decision, ruling many municipalities had the right to fire their police officers, rather than going through arbitrators.

But the Schenectady police union didn’t give in. Officers turned to the Public Employment Relations Board to argue the Court of Appeals decision does not apply to Schenectady. The argument was highly technical and revolved around whether the city is governed in this issue by the state’s Second Class Cities Law or the Optional City Government Law.

The first law says the commissioner can discipline his employees. The second law gives all discipline authority to civil service officials — which now directs cities to negotiate their discipline with police unions. In most cases, including Schenectady, that meant agreeing to arbitrators.

The city opted into the second law in 1936, after being governed by the first law for decades.

City officials believe the Court of Appeals will have to rule on the technical issue. In the meantime, they will continue to hire arbitrators to mete out discipline.

McCarthy said he’s more concerned with police conduct than with winning the court case.

“The goal [is], we don’t have to discipline employees if people do their jobs,” he said.

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