A divided state Court of Appeals has rejected Rochester City Council’s argument that the city’s Police Accountability Board should have the power to discipline Rochester Police Department officers.
In a 4-3 decision handed down Monday, a majority on the state’s highest court affirmed two lower-court rulings that went against City Council and sided with the Rochester Police Locust Club, the RPD patrol officers’ union.
Monday’s decision comes four years after City Council adopted, the mayor signed, and voters approved via referendum the local law that created the PAB. Last November, the Court of Appeal agreed to hear the case.
“The Rochester City Council still believes that accountability of all public servants—including our police department—is of the utmost importance,” said Council President Miguel Meléndez Jr. “This case was taken to the highest court in the state, and this Council has now exhausted every effort to define the disciplinary powers of the Police Accountability Board. Now that we have been given the final determination, we must move forward with this very important work.
“In 2019, voters demonstrated their commitment to accountability, and by a 3-to-1 margin, Rochesterians voted in favor of the Police Accountability Board and sought to invest disciplinary powers within it,” he added. “The former Council knew then, as we know now, that establishing such a board would be challenged by those who wish to maintain the status quo. This Council remains committed to accountability in our city, not just for our police department, but all agencies within city government.”
The Locust Club filed suit soon after the law’s 2019 adoption. The RPD union first secured an order from state Supreme Court Justice John Ark invalidating the provision of the local law that gave the PAB authority to discipline RPD officers. The state’s mid-level court, the Appellate Division Fourth Department, also held in favor of the union.
In the Court of Appeals’ majority opinion, Judge John Egan Jr. wrote that it “may, or may not, be the popular will in this state to transfer the power over police discipline away from officials in charge of police forces—and some would argue that such a transfer of power is good public policy—but even those who favor that policy must admit that the Legislature has not acted to implement it.”
Egan held that a local law the city of Rochester adopted in 1987 “surrendered the grant of police disciplinary power embodied in the 1907 City Charter,” and replaced it with collective bargaining. Thus, “the attempt in (the law passed) 2019 to give exclusive disciplinary power to the PAB without the Locust Club’s agreement necessarily fails.
“Local Law No. 2 of 2019,” he continued, “was instead a new effort to reassert local control over police discipline and vest the PAB with that power, but such an effort clashes with the statewide disciplinary provisions set forth in (the state’s civil service law).”
In a sharply worded dissent, Chief Judge Rowan Wilson wrote that “the majority has lost the forest for the trees.” He maintained that “whether a subject must be collectively bargained under the Taylor Law”—a reference to the 1967 Public Employees Fair Employment Act, which spells out terms for the state’s treatment of civil service workers—”depends on state public policy, not the presence of a conflicting statute.”
“The majority’s conclusion to the contrary rests on the proposition that bargaining can be prohibited under the Taylor Law only if bargaining would conflict with a statute ‘in force.’ That is not so,” he wrote. “Whether the subject is teacher tenure, police hiring, or questioning of firefighters regarding criminal activity, our test for a prohibited subject has long been whether there is a public policy—not necessarily a statute—prohibiting bargaining.”
State policy, he added, clearly “is for most municipalities to maintain discretionary control over police discipline rather than submitting such discipline to collective bargaining.”
While City Council cannot appeal Monday’s decision, Wilson noted that the state Legislature has the power to enact a remedy.
Wrote the chief judge: “The Legislature monitors our holdings on state bargaining policy and is equipped to modify or clarify them as needed. … If Rochester’s desire to establish an independent disciplinary commission is in fact consistent with state policy, the Legislature may easily correct our error. Otherwise, someone will have to explain to the people of Rochester why they cannot vote to rein in police misconduct while both New York City and the Town of Wallkill may.”