New York v. Patrolmen's Benevolent Ass'n

56 A.D.2d 70, 865 N.Y.S.2d 206

This text of 56 A.D.2d 70 (New York v. Patrolmen's Benevolent Ass'n) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New York v. Patrolmen's Benevolent Ass'n, 56 A.D.2d 70, 865 N.Y.S.2d 206 (N.Y. Ct. App. 2008).

Opinion

OPINION OF THE COURT

Tom, J.

Petitioners contend that a change in the method of random drug testing utilized by the New York City Police Department (NYPD) for the screening of police officers—from urinalysis to hair analysis—is exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner, as conferred by New York City Charter § 434 and Administrative Code of the City of New York § 14-115. Under the plain language of the Administrative Code provision, the Commissioner’s investigatory authority arises only after written charges have been preferred and reasonable notice of the alleged infraction has been given. Thus, we conclude that no persuasive policy reason has been advanced to require the New York City Office of Collective Bargaining to depart from its prior decisions, which have consistently found that routine drug screening procedures are a mandatory subject of collective bargaining.

On August 1, 2005, NYPD abandoned the use of urinalysis as its preferred method of random drug screening of its members and substituted a type of hair follicle testing known as radioimmunoassay of hair (RIAH). The absence of any consultation with the unions representing NYPD members prior to the adoption of RIAH analysis resulted in the filing of an improper practice petition with the New York City Office of Collective [72]*72Bargaining (OCB) by the Detectives Endowment Association on behalf of itself, the Patrolmen’s Benevolent Association and the Sergeants’ Benevolent Association (the unions).1 The petition alleged that by unilaterally changing the drug testing method, NYPD violated New York City Collective Bargaining Law (Administrative Code) § 12-306 (a) (4).

NYPD’s answer to the improper practice petition is not included in the record. However, the answer submitted by the Mayor’s Office of Labor Relations to OCB asserted that RIAH testing had been authorized by Patrol Guide Procedure (PGP) No. 205-30, effective January 1, 2000, which made the technique available in connection with the medical examination of probationary police officers who have completed the period of probation, the investigation of officers who are suspected of illegal drug use on the basis of reliable information, and the voluntary screening of officers subject to unsubstantiated allegations of illegal drug use who request permission to be tested.

The dispute was submitted to OCB’s Board of Collective Bargaining for adjudication. In the course of the proceedings, the Board requested that the parties address the implications of the Court of Appeals’ decision in Matter of Patrolmen’s Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006], affg 13 AD3d 879 [2004]), decided while hearings were ongoing. NYPD took the position that “[t]esting procedures . . . and disciplinary consequences are inextricably intertwined, at least in this situation, with the Police Commissioner’s disciplinary authority pursuant to City Charter § 434 and Administrative Code § 14-114 [sic].”

OCB granted the unions’ petition. It found that NYPD violated New York City Collective Bargaining Law (Administrative Code) § 12-306 (a) (4) “by unilaterally changing drug testing procedures, a mandatory subject of bargaining” (see http:// search.citylaw.org/isysquery/3c9f597b-7bll-4505-ab269a57963e39b6/2/doc, cached at http://www.nycourts.gov/ reporter/webdocs/center_for_nyc_law_cityadmin.htm). Relying on Matter of Nassau County Police Benevolent Assn. (County of Nassau) (27 PERB ¶ 3054 [1994]) and its own prior decisions, OCB noted that these rulings “recognized a distinction between the decision to test [which is not subject to collective bargaining] and the procedures used to implement that decision [which [73]*73are subject to collective bargaining].” (Id.) OCB found that “even if NYPD’s procedures for hair testing are the same as applied to a subset of employees already subject to such testing, the expansion of the categories of employees to whom the procedures now are applied constitutes a unilateral change in drug screening procedures.” (Id.) The decision concluded, “The procedural matters raised by the Unions . . . are not implicit parts of the disciplinary process . . . [T]he procedures for drug testing are utilized before any basis for discipline is determined by the Commissioner to exist.” (Id.)

The instant CPLR article 78 proceeding to annul the OCB determination as arbitrary and capricious (CPLR 7803 [3]) was commenced by the City of New York, NYPD, the New York City Mayor’s Office of Labor Relations and their respective commissioners. Relying on Patrolmen’s Benevolent Assn. (6 NY3d at 574), petitioners first argued that public policy vests disciplinary authority over the New York City police force in the Commissioner, and that investigatory procedures employed by the Commissioner, such as interviewing police officers, are not subject to collective bargaining. Because the drug testing procedures at issue are intended “to uncover and deter illegal drug use by members of the NYPD,” petitioners concluded, RIAH testing is investigatory in nature, and because it is “ ‘ancillary’ or ‘tangentially’ related to” discipline, it is “prohibited from being included in . . . collective bargaining” (quoting Patrolmen’s Benevolent Assn., 13 AD3d at 881).

As their second ground for annulment, petitioners advanced the same argument made by the Mayor’s Office of Labor Relations in the proceedings before OCB—that NYPD’s use of hair analysis, as provided in PGP No. 205-30, preceded its adoption as the Department’s designated drug screening method in August 2005. They noted that RIAH analysis had been conducted on probationary police officers subject to medical examination at the end of the probationary period and on those “as to whom NYPD had a reasonable suspicion for testing” or who voluntarily submitted to testing.

Supreme Court granted the petition, annulling the agency determination and denying a cross motion by OCB that sought to dismiss the proceeding. The court held that it was “arbitrary and capricious for [OCB] to rule that the choice of testing methodology and the implementation of procedures for administering that test were not sufficiently connected to the Police Commissioner’s disciplinary authority to exempt those issues [74]*74from collective bargaining” (NYLJ, Jan. 4, 2008, at 28, col 1). The court concluded that agency precedents holding the method of drug screening to be an appropriate subject of collective bargaining had been superseded by the Court of Appeals’ decision in Patrolmen’s Benevolent Assn. (6 NY3d 563 [2006]), reasoning that the Court had endorsed “the principle articulated by the Appellate Division below that even matters which previously may have been considered to be ‘ancillary’ or only ‘tangentially’ related to the disciplinary function are in reality essential to the effective administration of discipline” (id., quoting 13 AD3d at 881). Supreme Court opined that “requiring that drug screening methodologies and practices be submitted to collective bargaining seriously limits the Commissioner’s ability to effectively enforce discipline within the New York City Police Department,” stating:

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Bluebook (online)
56 A.D.2d 70, 865 N.Y.S.2d 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-york-v-patrolmens-benevolent-assn-nyappdiv-2008.