SUPREME COURT OF THE STATE OF NEW YORK HON. JENNIFER G. SCHECTE~EW YORK COUNTY J.S.C.
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Index Number : 400103/2014 CITY OF NEW YORK vs NYC BOARD OF COLLECTIVE
Sequence Number: 001 ARTICLE 78
PART S1
INDEX NO.-----MOTION DATE 'f. -;>. ;>--- \ ~-MOTION SEQ. NO. D\
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Dated: HON. JEN 1. CHECK ONE: ..................................................................... ~CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED .¢_DENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER
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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT:
HON. JEl\ ' N;~:r-:: ':.'. SCHECTER J.S.C. Justice
Index Number : 400103/2014 CITY OF NEW YORK vs. NYC BOARD OF COLLECTIVE SEQUENCE NUMBER : 002
PART S'l
INDEX NO.-----MOTION DATE-- -MOTION SEQ. NO. Od:
DISMISS The following papers, numbered 1 to _3, were read on this motion to/f,_,..or.."~__~~·~~'--=-.>_)~__ _______ Notice of Motion/Order to Show Cause- Affidavits- Exhibits 1N o(s) .. __.. :...\_ _ _ Answering Affidavits- Exhibits----------------- I No(s). --=a._~--Replying Affidavits--------------------- 1N o(s). __" 3=----Upon the foregoing papers, it is ordered that this motion~ Je<-l ~ o_ '"""
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SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY
PRESENT:
HON. JENNIFER G. SCHECTER J.S.C.
Index Number: 400103/2014 CITY OF NEW YORK
VS NYC BOARD OF COLLECTIVE Sequence Number : 003
Justice
PART .5~
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MOTION DATE- --MOTION SEQ. NO. _[._.)..2.,.__ _
DISMISS The following papers, numbered 1 to 3-, were read on this motion to/for ---T-Ol3o1U~:~ro_.\._..~~\.~.):::.J!I---------
Notice of Motion/Order to Show Cause- Affidavits- Exhibits Answering Affidavits- Exhibits----------------- Replying Affidavits------------------ --- Upon the foregoing papers, it is ordered that this motion is de_ t-\..&._ ~
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1. CHECK ONE: ..................................................................... pi CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: M"GRANTED 0 DENIED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE ORDER
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J.S.C. 0 NON-FINAL DISPOSITION O GRANTED IN PART O oTHER 0 SUBMIT ORDER
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ----------------------------------------x In the Matter of the Application of
THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and WILLIAM BRATTON, as Commissioner of the Police Department of the City of New York, Petitioners,
DECISION AND JUDGMENT Index No. 400103/14
-against-BOARD OF COLLECTIVE BARGAINING OF THE CITY OF NEW YORK, and PATROLMEN'S BENEVOLENT ASSOCIATION OF THE CITY OF NEW YORK 1 INC.,
Respondents, For a Judgment and Order Pursuant to Article 78 of the New York Civil Practice Law and Rules. ----------------------------------------x
JENNIFER G. SCHECTER~ J.: Motion sequence numbers 01, 02 and 03 are consolidated for disposition. Petitioners the City of New York, the Police Department of the City of New York (NYPD) and William Bratton as Commissioner of the NYPD commenced this article 78 proceeding, seeking to vacate and annul the determination of the Board of Collective Bargaining of the City of New York (BCB) . The BCB and Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) move to dismiss the petitions. Their motions are granted.
City of New York v Board of Collective Bargaining of the City of New York
Index No. 400103/14 Page 2
Background The procedures for police officers' performance evaluations are contained in the NYPD Patrol Guide. Patrol Guide Procedure No. (PG) 205-58 ("Evaluations--General Members of Service") sets forth the requirements for appealing an evaluation. It does not include any deadline for an officer to appeal an evaluation. In July 2012, the NYPD issued Interim Order 41 (IO 41), which, effective immediately, suspended PG 205-58 (Petition [Pet], Ex F). IO 41, for the first time, imposed a specific time limit for an officer to appeal an evaluation: 30 days from the ratee' s interview/hearing with the commanding officer or next higher command. On December 10, 2012, the PBA filed an improper practice petition, alleging that issuance of IO 41 constituted an improper practice that violated the New York City Collective Bargaining Law (NYCCBL) . The NYPD opposed the petition, urging that it had authority to adopt the new procedures as an exercise of managerial rights pursuant to NYCCBL § 12-307(b) and that the new procedures were non-mandatory subjects of bargaining. It also argued that any changes were de minimis, explaining that prior: "to the issuance of IO 41, the amount of time an officer had to appeal his or her evaluation was
City of New York v Board of Collective Bargaining of the City of New York
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until the next evaluation was issued. Moreover, this allotted time to file was subject to the discretion of individual [commanding officers], creating great disparity and inequity between various precincts. Under the interim order, the
deadline is written out but the procedure itself remains identical. Simply stating that there are thirty days for an officer to appeal, rather than some number determined by a [commanding officer] is a de minimis change, and the change made is not as material, substantial, or significant as to represent a change in the performance evaluation process" (Pet, Ex H at ! 80}.
The BCB agreed with the PBA, "finding that the institution of the appeal deadline was a procedural change that altered employee participation by shortening the time officers had to prepare and submit their appeals and, thus, was not within the NYPD's managerial rights nor a de minimis change" (Pet, Ex A at 8). The BCB concluded that the appeal deadline "is a procedure as it concerns the appeal process itself and not the standards or criteria applied" (id. at 9-10). It explained that "we have consistently held that the procedures for implementing performance evaluations are mandatory subjects of bargaining" (id. at 10). It also emphasized: " That police officers still possess the right to appeal their performance evaluations, albeit subject to a deadline, does not render the change de minimis" (id. at 11). The BCB ordered NYPD to rescind IO 41's 30-day appeal deadline and to "cease and desist from implementing that provision
City of New York v Board of Collective Bargaining of the City of New York
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until such time as it bargains over such provision in accordance with its obligationsn (id. at 13). Petitioners commenced this article 78 proceeding seeking to annul BCB's determination, urging that it is arbitrary and capricious and without sound basis. They contend that implementation of IO 41 was consistent with the NYPD's express statutory management rights and does not impose any additional responsibility on officers who have to follow the exact same steps as before.· BCB and PBA each move to dismiss the petition. They maintain that BCB's determination is rational and based on precedent.
Analysis BCB' s determination cannot be annulled "unless 'arbitrary and capricious or an abuse of discretion'" (Matter of Levitt v Board of Collective Bargaining, 79 NY2d 120, 128 [1992] citation omitted]; Mahinda v Board of Collective Bargaining, 91 AD3d 564, 565 [1st Dept 2012]). Its conclusion that IO 41's imposition of a deadline for appeal effected a procedural change related to the performance evaluation process is
·At oral argument, petitioners withdrew arguments based on the City Charter as they were not raised before the BCB.
City of New York v Board of Collective Bargaining of che Ci cy of Ne~v York
Index No . 4001 03 / 14 !?age 5
rational as it is undisputed that PG 205- 58 did not contain any cutoff for an appea l . IO 41 for the first time sec an official and uniform t i me bar for appeals whereas in the past a police officer " could theoret i cally wait months or even years from che dace of che evaluation to file an appeal" (Memorandum o f Law in Support o f PeLition at 12) . In its d e terminacion , moreove r , BCB rejected petitioners ' argument that " IO 41 merely clar ifies a pre-existing protocol " (see Memorandum in Opposition to Respondents ' Mot i ons [Opp Mem] at 12) . BCB rationally distinguished its COBA decision (69 OCB 26 [BCB 2002]), in which it had found that a revision in a directive clarifying t hat the wri tten term " timel y appeal" meant five d a ys was not mandatorily bargainable (Pet, Ex 1 at 10) . Accord ingly , it is ORDERED and ADJUDGED tha t the motions to dismiss are granted, the pecicion J.s DENIED and the proceeding is dismissed . This con sti tutes the Decision and Judgment of the Court .
Dated : June 15, 2015
HON .