The state of New York has a longstanding tradition of allowing civilian boards to review complaints against police officers and impose discipline for instances of misconduct.

But are municipalities that have previously bargained with police unions to establish disciplinary processes barred from changing course to adopt systems designed to be more accountable to the public?

That's the question that New York's highest court is set to hear this month.

On Oct. 18, the New York State Court of Appeals will hear oral arguments in Rochester Police Locust Club Inc. v. City of Rochester and Council of the City of Rochester.

The case comes before the judges after the Fourth Department of the Appellate Division affirmed a lower court's 2020 ruling that Rochester lacked the authority to establish a police accountability board to review and adjudicate complaints against Rochester police officers and to impose discipline as appropriate.

At issue is whether a local law that was passed in 2019 establishing the board complied with New York state law and the Rochester City Charter.

On Sept. 1, Harris Beach PLLC attorney Brian D. Ginsberg filed a friend of the court brief on behalf of the Albany Community Police Review Board, a similar review body, asking that the Fourth Department's opinion be reversed.

Ginsberg, who is co-chair of Harris Beach's national appellate practice group, told Law360 that the case is a great opportunity to tackle not only technical and doctrinal issues about the interaction of state and local laws, but also issues about how best to handle matters when police are accused of failing to live up to their obligations to serve and protect the community.

"They are hot button issues right now in the world and in the state of New York in particular," Ginsberg said. "And this was a very, very opportune time to address them."

The Facts

The case stems from a 2020 declaratory judgment action filed by Rochester's police union and a local officer challenging a city law creating a police accountability board.

Under Local Law No. 2, which was adopted by the Rochester City Council in May 2019 and approved by voters in a referendum, the new nine-member board was vested with exclusive authority to conduct disciplinary hearings for police officers accused of misconduct and to decide whether the accused officer is guilty.

The complainant, but not the accused officer, is granted a right to appeal certain rulings by board panels to the full board.

If the board convicts an officer of misconduct, it imposes punishment. The police chief must follow through with the board's disciplinary recommendation, but also has the power to impose additional punishment above that imposed by the board.

There is no dispute that the disciplinary process created by Local Law No. 2 was never subjected to collective bargaining with Rochester's police union.

As such, the union argued that the law violated the Public Employees' Fair Employment Act, also known as the Taylor Law, a labor relations statute covering most public employees in New York State.

The complaint also alleged that by empowering the board to hear and adjudicate disciplinary charges against police officers, the law violated state statutory provisions designed to provide basic disciplinary protections to certain classes of public employees where there is no contractual disciplinary provision.

A trial judge agreed with the union, and referred the matter back to the Rochester City Council "to be reconciled and made compliant with New York State law and the Rochester City Charter."

While the city appealed, the Fourth Department went on to uphold the trial court in June 2021, finding the law "invalid insofar as it takes police discipline outside the realm of collective bargaining."

Now, the City Council is asking the Court of Appeals to reverse the Fourth Department's decision.

The Arguments

The police union argues that Local Law No. 2 established a disciplinary regime that conflicts with state law providing exclusive procedures for the removal of police officers "serving in the competitive class of civil service in any city, county, town or village of the state."

In its complaint, the union said that although Rochester's law allowed the board to make "the final decision of discipline," it actually had no inherent authority to punish or remove an officer.

"If the PAB was 'the body having the power to remove the person charged,' there would be no need for the police chief to implement its decision," the union said in the suit.

The union is also arguing that the New York Constitution and the Taylor Law expressly provide for collective bargaining.

The City Council counters that Rochester is exempt from state law because the New York Legislature granted the city authority over police discipline when it enacted the city's charter in 1907.

However, the police union noted that the City Council went on to repeal the police discipline portion of the city charter in 1985 "for the reason that this subject matter is covered in the Civil Service Law."

Once the city opted to submit itself to state law, it gave up its "grandfather" exemption, the union said.

"The City Council now asks this court to ignore the 1985 action and to allow the council to reverse course and reclaim what it explicitly surrendered to state law over 34 years ago," the union said in the initial complaint.

Ginsberg told Law360 that individual complaints against officers can be resolved by civilian review boards, internal police department review, review by other local elected officials, or review by arbitration.

When collective bargaining occurs between municipalities and police unions, that bargaining process produces a contract that includes an agreement on how disciplinary actions will be handled.

"It's that mechanism that is then used to resolve individual cases," Ginsberg said.

According to Ginsberg, the process that overwhelmingly ends up being adopted through collective bargaining is review by arbitration.

In its amicus brief, the police accountability board in Albany pushed the Court of Appeals to reverse the decision and hold that all municipalities always have the choice to entrust police discipline to citizen boards, even if the municipality might have previously agreed on a disciplinary system through the collective bargaining process.

Ginsberg called the Fourth Department's decision "dangerous," because if the Court of Appeals affirms it, it would be the law statewide.

Police unions have substantial leverage in disciplinary arbitration proceedings, including being able to exert significant authority over arbitrator selection. The arbitrator who ultimately is selected may not be a member of the community at issue. In addition, arbitrators frequently reach "compromise" decisions that lead to community distrust, Albany's board said in its brief.

In addition, the brief pointed to research by Stephen Rushin, a Loyola University Chicago School of Law professor who specializes in law enforcement disciplinary issues, showing that when police departments determine that an officer has committed misbehavior sufficient to warrant termination, arbitrators will often reduce the penalty to a suspension on appeal. In addition, sometimes officers who may be unfit or dangerous are "forced back onto a police force where they are prone to commit future acts of wrongdoing," the board said, citing Rushin.

"If a municipality ever submits the issue of police discipline to collective bargaining, even almost 40 years ago, as Rochester did, then it will be forever barred from pursuing another more democratic solution," Ginsberg said. "In essence, the municipality would be 'locked in' to collective bargaining — and the problematic disciplinary structures that collective bargaining has been shown to produce. And we do not think that is a correct statement of the law."

Representatives for the Rochester police union and the City Council declined to comment when contacted by Law360.

The Rochester police union is represented by Daniel P. DeBolt of Trevett Cristo PC.

The Rochester City Council is represented by Andrew G. Celli Jr. and Debra L. Greenberger of Emery Celli Brinckerhoff Abady Ward & Maazel LLP.

Proposed amicus curiae Albany Community Police Review Board is represented by Brian D. Ginsberg and Svetlana K. Ivy of Harris Beach PLLC.

The case is Rochester Police Locust Club Inc. v. City of Rochester, Council of the City of Rochester and Monroe County Board of Elections, case number APL-2021-00184, in the Court of Appeals of the State of New York.

--Editing by Alyssa Miller.