Supreme Court, Monroe County, May 7, 2020

Timothy R. Curtin (Patrick Beath of counsel) for City of Rochester and another, respondents.

Emery Celli Brinckerhoff & Abady LLP (Andrew G. Celli, Jr., Debra Greenberger and Scout Katovich of counsel) for Council of the City of Rochester, respondent.

Trevett Cristo P.C. (Daniel P. DeBolt of counsel) for petitioners.

Certainly, "[p]ublic confidence, vital to an effective police department, can be fostered by a well-run and well-publicized complaint review system."^[FN1]

On May 21, 2019, to "ensure public accountability and transparency over the powers exercised by sworn officers of the Rochester Police Department," the Rochester City Council passed Local Law No. 2 (2019) of City of Rochester (hereinafter, Local Law No. 2), which established the Police Accountability Board—"a civilian-controlled process to fairly investigate and make determinations respecting complaints of misconduct involving sworn officers of the Rochester Police Department."^[FN2] This decision addresses whether Local Law No. 2 complies with New York State law and the Rochester City Charter. [*2]This case presents four questions:

First: Does City Council's 1985 law submitting police discipline to New York State law preclude the implementation of police discipline by the Police Accountability Board?

Second: Can the City of Rochester enact a local law which transfers from the Chief of Police the discipline of police officers employed by the Rochester Police Department to an appointed, autonomous civilian Police Accountability Board,{**71 Misc 3d at 440} which is not^[FN3] "the officer or body having the power to remove the person charged . . . or . . . a deputy or other employee of such officer or body designated . . . for that purpose"?^[FN4] In other words, can only an officer's commander or designee conduct a disciplinary hearing?^[FN5]

Third: Does Local Law No. 2's transfer of police discipline to the Police Accountability Board, with the resulting divestiture of the Mayor's power over police discipline, violate Civil Service Law § 200 et seq. (known as the Taylor Law) and New York State Constitution, article I, § 17 which obligate the Mayor to collectively bargain with a recognized bargaining unit?

Fourth: What is the import of Local Law No. 2's severability clause?

On May 21, 2019, respondent-defendant Council of the City of Rochester (hereinafter, City Council) adopted Local Law No. 2 (2019) of City of Rochester to amend the Rochester City Charter. Local Law No. 2 established a Police Accountability Board (hereinafter, PAB or Board) vested with exclusive power to hear, determine, and assign discipline for alleged misconduct by officers employed by the Rochester Police Department (hereinafter, RPD). The respondent Mayor approved Local Law No. 2 on June 6, 2019, thereby divesting herself of control over an important aspect of local government. "The Police Accountability Board shall be the mechanism to investigate such complaints of police misconduct and to review and assess [RPD] patterns, practices, policies, and procedures,"^[FN6] and is established as a civilian-controlled Board with the power to investigate complaints of police misconduct and impose discipline on offending officers.{**71 Misc 3d at 441}

Section 2 of Local Law No. 2 scheduled a referendum for the November 5, 2019 general election and provided that Local Law No. 2 would take effect only after approval by the vote of a majority of qualified electors voting in that referendum. Petitioners commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking, inter alia, a declaration that Local Law No. 2 is invalid, as well as injunctive relief. Petitioners also moved by order to show cause for a preliminary injunction, which this court granted, barring Local Law No. 2 from being voted on in the November 5, 2019 general election.

The respondent Mayor moved to dismiss the petition under CPLR 3211 (7) for failure to state a cause of action and because the action was simultaneously too late and too early; that the petitioners' action was untimely; and that the action was not yet ripe (Sept. 20, 2019 mot by Patrick Beath, Esq.). The respondent City Council moved to dismiss on the grounds that the petition was untimely^[FN7] and on the alleged lack of legal merit to the petition.

On September 25, 2019, this court reserved decision on the substantive challenges to Local Law No. 2 until the issues could be fully briefed and argued.^[FN8] This court granted a preliminary injunction enjoining the Monroe County Board of Elections from permitting or counting votes on the referendum of Local Law No. 2. The Appellate Division of the Supreme Court in the Fourth Judicial Department^[FN9] vacated the preliminary injunction and the referendum was approved by the vote of approximately 75% of the voting [*3]residents of Rochester in the November 5, 2019 election.^[FN10] In its decision, the Fourth Depart{**71 Misc 3d at 442}ment noted "that the substantive merits of the Local Law are not before us . . . and that our determination does not bar a subsequent action in the event that the referendum is approved by the voters" (176 AD3d at 1647). Accordingly, this decision addresses the substantive merits of Local Law No. 2.

Petitioners challenge both the legality of the PAB's role in police discipline and its effect on collective bargaining with the police union (hereinafter the Locust Club). The core issue is whether the Rochester City Council can enact legislation regarding police discipline that conflicts with New York State laws regulating the same subject.^[FN11]

A. Overview

Local governments most certainly have the power to adopt and "amend local laws not inconsistent with [the New York State Constitution] or any general law."^[FN12] This power for the City of Rochester, New York is vested in its City Council. The home rule provision of New York State Constitution, article IX, {**71 Misc 3d at 443}§ 2 (c) gives local governments broad police powers relating to the welfare of their citizens.^[FN13] Duly enacted local laws have the same presumption of constitutionality as state laws, and the party challenging a local law has a "heavy burden" to prove that the law is inconsistent [*4]with the New York State Constitution or any general law of New York State.^[FN14] The presumption of constitutionality must be rebutted beyond a reasonable doubt, and a court only should declare a law unconstitutional as a last resort.^[FN15] There must be a showing that a legislature has clearly usurped a prohibited power, in order to declare a statute unconstitutional.^[FN16] Generally, it is for the legislative branch of government, not the courts, "to determine the 'reasonableness, wisdom and propriety' of the regulations needed to protect the community."^[FN17]

B. Composition of the Police Accountability Board

i. Appointment of Board Members

Nine residents of the City of Rochester will comprise the PAB. One member will be appointed by the Mayor.^[FN18] The City Council will appoint four members.^[FN19] The remaining four seats are to be filled by the City Council from a pool of nominees selected by "The Alliance,"^[FN20] which is "a group of community organizations" listed on Appendix A to Local Law No. 2. Appendix A states that the list of "organizations" comprising "The Alliance" is "subject to change,"^[FN21] but there is no indication of how the organization list will change. What qualifies as a "community organization" is not defined anywhere in Local Law No. 2. Other than explicitly excluding members of the Rochester Police Department, there appears to be no rules regarding{**71 Misc 3d at 444} what other "community organizations" may join "The Alliance."^[FN22]

Aside from residence and association restrictions, there are no minimum qualification requirements for PAB members, nor are there any restrictions on who may serve as a PAB member. However, Rochester City Charter § 18-4 (E) and (F) (as added by Local Law No. 2 § 1) precludes RPD members or their family from being members of the PAB and places limitations on former law enforcement officers or their family members, as well as attorneys who have litigated police misconduct lawsuits.^[FN23] All members of the PAB must be approved "by a majority" of the City Council.^[FN24]

PAB members may serve indefinitely. Initially, PAB member terms are three years [*5]long,^[FN25] and a member may be reappointed for an additional term for a total of six years.^[FN26] At the conclusion of that six-year initial tenure, the same member must wait three years before serving again.^[FN27] Once a member is reappointed to a second tenure after waiting three years, Local Law No. 2 contains no term limit.^[FN28]

ii. Removal of Board Members

A member of the PAB cannot be removed unless the PAB itself makes that request. Local Law No. 2 provides for removal of a PAB member only upon a majority vote of the PAB asking the City Council to remove that member.^[FN29] Additionally, Local Law No. 2 provides that the PAB is to be "an autonomous office of the City [of Rochester] separate from the Rochester Police Department and other local, state, and federal law{**71 Misc 3d at 445} enforcement agencies."^[FN30] No elected official—including the Mayor—may remove a member of the PAB under any circumstances. The electorate of the City of Rochester cannot remove a member of the PAB. A PAB member can only be removed by a majority vote of both the PAB and a corresponding vote of the City Council.^[FN31]

C. Comparable Boards

This court conducted an in-depth analysis of multiple other civilian review boards from around New York and the United States (see Appendix, infra). Local Law No. 2 was not drafted based upon any other similar legislation anywhere in New York or the United States. There is no indication that the respondent Council considered any alternative legislation^[FN32] other than Local Law No. 2 as it currently exists before this court. This court has been unable to locate a comparable statute that removes discipline authority of the police department from the executive branch of government and transfers that power to an unelected civilian body that is not subject to any elected officials. It appears that the PAB is sui generis in the scope of its powers and its composition, particularly in relation to the powers of the Police Chief and police discipline.

It is axiomatic that a government may only exercise that power which it possesses. "[T]he lawmaking authority of a municipal corporation, which is a political subdivision of the State, can be exercised only to the extent it has been delegated by the State."^[FN33] When a local legislature attempts to exercise authority beyond its scope, the act "is ultra vires and void."^[FN34] Therefore, "[s]o long as local legislation is not inconsistent with the State Constitution or any general law, localities may adopt local laws . . . with respect to their . . . affairs or government."^[FN35]

{**71 Misc 3d at 446}Municipal Home Rule Law § 10 and article IX, § 2 of the New York State Constitution empower local governments to legislate regarding the discipline and removal of officers so long as their laws are "not inconsistent with the provisions of the constitution or not inconsistent with any general law."^[FN36] A "general law" is "[a] state statute which . . . applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages."^[FN37] The Civil Service Law, Unconsolidated Laws § 891, and the State Constitution are all "general laws" within the meaning of Municipal Home Rule Law § 10 and New York State Constitution, article IX, § 2. Portions of Local Law No. 2 conflict with state law by divesting the Rochester Police Chief of control over hearings and discipline of RPD officers.

Under Local Law No. 2, the PAB has expansive powers that are unprecedented among civilian police review boards. The PAB will set a "disciplinary matrix," which will set "a range of disciplinary action options" which the Chief must impose for police misconduct.^[FN38] The Police Chief must provide "input" regarding the matrix, but he has no authority to set it, and the final determination belongs to the PAB.^[FN39] The Mayor has no role in setting the disciplinary matrix. The petitioners challenge this portion of Local Law No. 2.

The PAB is empowered "to conduct independent investigations . . . and . . . to discipline RPD Officer(s) if a complaint is sustained."^[FN40] The PAB may investigate any conduct involving a police officer, whether or not there is a civilian complaint or even any allegations of misconduct.^[FN41] The PAB will conduct disciplinary hearings against RPD officers,^[FN42] make "findings of fact" and "determination[s] as to whether there is substantial {**71 Misc 3d at 447}evidence of misconduct," and assign punishment to guilty officers.^[FN43] To remain employed with the RPD, all RPD officers—including the Police Chief—must fully cooperate with the PAB.^[FN44]

Most importantly for purposes of this lawsuit, the PAB possesses almost total power over how an RPD officer is to be disciplined. The Board shall make the "final decision of [*6]discipline,"^[FN45] and that "determination of discipline shall be binding on the Chief, who shall impose the discipline determined by the Board . . . within five . . . days of receipt of the Board's decision."^[FN46] Discipline options available to the PAB "include . . . but are not limited to counseling, reprimand, retraining, suspension, demotion, or dismissal."^[FN47] The only discretion Local Law No. 2 leaves to the Police Chief is the option "to impose additional discipline . . . above and beyond that recommended by the Board."^[FN48] Under Local Law No. 2, the Mayor has no role and no authority over officer discipline.

A. New York State Law

The Civil Service Law and Unconsolidated Laws § 891^[FN49] govern and establish comprehensive procedures for police discipline in New York State. Except for local discipline schemes that predate^[FN50] the Civil Service Law (discussed infra), the Civil Service Law's disciplinary procedures occupy the field and preclude other, contradictory local disciplinary regimes. Police officers "shall not be removed or otherwise subjected to any disciplinary penalty . . . except for incompetency or misconduct shown after a hearing upon stated charges pursuant" to Civil {**71 Misc 3d at 448}Service Law § 75.^[FN51] The Civil Service Law and Unconsolidated Laws § 891^[FN52] govern who may conduct disciplinary hearings.^[FN53] These statutes require that disciplinary "[h]earings upon charges [against police officers] . . . shall be held by the officer or body having the power to remove the person charged . . . or by a deputy or other employee of such officer or body designated . . . for that purpose."^[FN54] In [*7]other words, only an officer's commander or designee may conduct a disciplinary hearing.^[FN55]

The Civil Service Law and Unconsolidated Laws § 891 also control who may decide how an officer will be punished. If a designee holds the hearing, that designee "shall make a record of such hearing which shall, with his recommendations, be referred to" the commanding officer or body "for review and decision."^[FN56] Thus, final authority over how an officer will be sanctioned remains with the officer's commander—whether a specific person (e.g., police chief) or supervising governmental body (e.g., town board).^[FN57] Unconsolidated Laws § 891 mandates identical rules that are almost verbatim to those in the Civil Service Law, but is limited to police officer removal proceedings.

Local Law No. 2 established a disciplinary regime that conflicts with the Civil Service Law and section 891. Under Local Law No. 2, the PAB conducts disciplinary hearings, but it is{**71 Misc 3d at 449} not "the officer or body having the power to remove the person charged."^[FN58] Although the PAB shall make "the final decision of discipline,"^[FN59] the PAB has no inherent authority to punish or remove the officer. Once the PAB determines what punishment to impose, it is incumbent upon the Police Chief to impose that discipline.^[FN60] 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.

Under Local Law No. 2, the PAB, not the Police Chief, decides how an officer is to be punished. The PAB "shall have . . . the power to discipline RPD Officer(s)."^[FN61] The PAB has total control over the "disciplinary matrix," which sets mandatory punishments for offending police officers.^[FN62] Local Law No. 2 makes the PAB's discipline decision binding upon the Chief: once the PAB decides a case, "[t]he Chief will be required to impose discipline utilizing the disciplinary matrix based on the Board's findings and determination."^[FN63] "The Board's determination of discipline shall be binding on the Chief, who shall impose the discipline [*8]determined by the Board in accordance with the matrix within five days."^[FN64]

Therefore, Local Law No. 2 facially conflicts with Civil Service Law § 75 and Unconsolidated Laws § 891.

The procedures set forth in Unconsolidated Laws § 891 and Civil Service Law § 75 comply with long-standing public policy favoring strong commander control over police officers. In 1987, the Court of Appeals held that "[i]n matters of police discipline, we must accord great leeway to the Commissioner's determinations{**71 Misc 3d at 450} concerning appropriate punishment, because he, and not the courts, is accountable to the public for the integrity of the Department."^[FN65] One of the reasons it is important to maintain commander control of a police force is because "of the sensitive nature of the work of the police department and the importance of maintaining both discipline and morale."^[FN66] Because of these considerations, there is significant [*9]jurisprudence in New York expressing reluctance to uphold civilian review boards whose powers are not "purely investigative" in nature.^[FN67]

{**71 Misc 3d at 451}i. Police discipline in New York is presumptively subject to mandatory collective bargaining.

Article I, § 17 of the New York State Constitution states, "[e]mployees shall have the right to organize and to collectively bargain through representatives of their own choosing."^[FN68] Civil Service Law § 200 et seq. (known as the Taylor Law) requires public employers (like the City of Rochester) to collectively bargain with police officer unions (like the Locust Club): "Where an employee organization has been certified or recognized . . . the appropriate public employer shall be, and hereby is, required to negotiate collectively with such employee organization in the determination of, and administration of grievances arising under, the terms and conditions of employment of public employees" (Civil Service Law § 204 [2]). Additionally, Civil Service Law §§ 75 and 76 explicitly provide for collective bargaining.^[FN69] Therefore, collective bargaining is mandatory under the Civil Service Law and the State Constitution. Local Law No. 2 established hearing procedures and empowered the PAB to establish a [*10]disciplinary matrix over which the Mayor has no control. Local Law No. 2 is nonnegotiable and contains no provision preserving the Mayor's ability to collectively bargain. Indeed, the fact that it curtailed the Mayor's power necessitated the referendum.^[FN70] Since Local Law No. 2 precludes the Mayor from engaging in collective bargaining{**71 Misc 3d at 452} regarding officer discipline, Local Law No. 2 conflicts with the New York State Constitution and the Civil Service Law.

In light of this conflict, the court can only uphold Local Law No. 2 in toto if the City of Rochester is exempt from the state laws requiring collective bargaining.

ii. State laws regarding police discipline, including collective bargaining, are binding upon the City of Rochester.

The conflicts between state law and Local Law No. 2 regarding the conduct of disciplinary proceedings, the imposition of discipline, and collective bargaining beget the question of whether those conflicts are legally significant. Because the issue here is whether RPD police discipline is governed by state or local law, this court's discussion of the Civil Service Law (generally) and the Taylor portion of that Law (specifically) and Unconsolidated Laws § 891 will be merged. As demonstrated above, the presumptive general rule in New York is that the Civil Service Law^[FN71] and Unconsolidated Laws § 891^[FN72] govern police discipline. However, there is an exception to that general rule where "an existing" local law "committed the matter of police discipline to the local government."^[FN73]

{**71 Misc 3d at 453}The Second Department succinctly stated this exception: "When legislation exists that predates the enactment of Civil Service Law §§ 75 and 76, and such legislation commits police [*11]discipline to the discretion of local authorities, then, as a matter of public policy, discipline is a prohibited subject of collective bargaining."^[FN74] This "grandfathering" exception is based upon Civil Service Law § 76 (4), which states

"[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division."^[FN75]

"[A]lthough Civil Service Law §§ 75 and 76 generally govern police disciplinary procedures, preexisting laws . . . were 'grandfathered' under Civil Service Law § 76 (4)."^[FN76] Therefore, "the Taylor Law prevails where no legislation specifically commits police discipline to the discretion of local officials. However, where such legislation is in force, the policy favoring control over the police prevails, and collective bargaining over disciplinary matters is prohibited."^[FN77]

The respondent Council argues that the City of Rochester is exempt from state law because the State Legislature granted the City of Rochester authority over police discipline when it enacted the City Charter in 1907.^[FN78] Before addressing the merits of the argument, the Council's own words merit consideration. In 1985, the Council explicitly said that the Civil Service Law covered the topic of RPD officer discipline (discussed infra).^[FN79] Local Law No. 2 itself declares that portions of Civil Service Law §§ 75 and 76 still apply to disciplinary {**71 Misc 3d at 454}proceedings before the PAB.^[FN80] The respondent Council's argument for exemption claims that, since the State Legislature in 1907 granted Rochester authority over discipline of its own police force, that is the last word from the State on the matter, and therefore the City Council possessed authority to enact Local Law No. 2.

For that argument to prevail, a key premise must be true: that it is the "State's intent at the [*12]point of passage of the Taylor Law" in 1967 which controls.^[FN81] In other words, no intervening event between 1907 and 2019 (when Local Law No. 2 was enacted) could possibly divest the City of authority to regulate police discipline. Notably, the respondent Council did not reference authority supporting this premise, and this court has been unable to find any.

In fact, applying the legislative timeline to the respondent Council's argument leads to a different conclusion:

1907: State Legislature enacted the Charter of the City of Rochester expressly granting Rochester officials authority over police discipline.^[FN82]

1923: State Legislature passed the Municipal Home Rule Constitutional Amendment, permitting local governments to legislate freely regarding their affairs, so long as the "local laws [were] not inconsistent with the provisions of this constitution or with a general law."^[FN83]

1940: State Legislature enacted Unconsolidated Laws § 891, requiring that hearings to remove police officers be conducted before "the officer or body having the power to remove" the person charged unless a collective bargaining agreement provided otherwise.^[FN84]

{**71 Misc 3d at 455}1958: State Legislature enacted the disciplinary portions of the Civil Service Law (§§ 75 and 76),^[FN85] requiring inter alia that a disciplinary hearing against a police officer "shall be heard by the officer or body having the power to remove" the officer.^[FN86]

1964: State Legislature adopted the "home rule package."^[FN87] That legislation adopted article IX of the New York State Constitution and the Municipal Home Rule Law,^[FN88] both of which empowered local governments to enact or amend laws "not inconsistent with the provisions of the constitution or not inconsistent with any general law."^[FN89]

1967: State Legislature enacted the Taylor Law (Civil Service Law § 200 et seq.) requiring local public employers to engage in collective bargaining unless the municipality is "grandfathered" in.^[FN90][*13]

1985: Rochester City Council enacted legislation^[FN91] repealing the "Charges and trials of policemen" portion of the City Charter "for the reason that this subject matter is covered in the Civil Service Law."^[FN92]

2019: Rochester City Council enacted Local Law No. 2 purporting to establish a comprehensive system for disciplining RPD officers.

Until 1985, the City of Rochester unquestionably possessed unfettered, exclusive authority to regulate matters of police{**71 Misc 3d at 456} discipline.^[FN93] The State Legislature gave the City this power in 1907 through the City Charter, and the City's authority was "grandfathered" in by operation of Civil Service Law § 76 (4). However, in 1985, the City Council explicitly submitted RPD discipline matters to state law when it repealed the police discipline portion of the City Charter expressly "for the reason that this subject matter is covered in the Civil Service Law."^[FN94] That was a valid exercise of the power vested in it by the 1907 Charter, and the City opted to submit itself to the governance of state law. This ended the City's "grandfather" exemption. Thus, after 1985, state law governed RPD discipline.

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 respondent Council has not submitted—and the court has been unable to locate—any authority supporting the proposition that, once a local authority deliberately abdicated its "grandfathered" status, it can revive that status decades later. Whether the City Council could regain its "grandfathered" status by simply repealing the 1985 law and what legal effect—if any—such a repeal would have is a question that is not before the court.

In support of its argument that it was free to enact Local Law No. 2, the respondent City Council cited multiple sources that are actually to the contrary. For example, the respondent Council cited portions of article IX and Municipal Home Rule Law § 10 claiming that those sections compel this court to uphold Rochester's freedom to enact Local Law No. 2.^[FN95] However, the respondent disregards the first dispositive portion of those statutes which provide that localities may only enact "laws not inconsistent with the provisions of the constitution or not inconsistent with any general law."^[FN96] [*14]

Additionally, the Council cited Matter of Gizzo v Town of Mamaroneck (36 AD3d 162, 165 [2d Dept 2006]). Unlike the{**71 Misc 3d at 457} legislation at bar, Gizzo involved local legislation that was continuously in effect from 1936 until the Town Board adopted the new, contested local law in 1995. Applying all of the aforementioned concepts, the Second Department held that the municipality retained authority to legislate regarding police discipline.^[FN97] The reason the municipality in Gizzo could legislate was because the municipality was "grandfathered" in through its 1936, pre-Civil Service Law legislation which was still in effect. Therefore, the municipality never lost its "grandfathered" status because the local laws granting it authority were never repealed. This is patently different than the instant matter where the 1985 Rochester City Council explicitly repealed its local legislation in favor of state law.

The second case cited by respondent Council suffers similarly. According to the respondent Council, Matter of Town of Goshen v Town of Goshen Police Benevolent Assn. (142 AD3d 1092 [2d Dept 2016]) held that the "collective bargaining agreement [was] void because 'by enacting L.L. No. 1, the Town Board affirmed that the subject of police discipline resides with it and is a prohibited subject of collective bargaining between the appellant and the PBA.' "^[FN98] However, a key portion of that Court's decision: "L.L. No. 1 was enacted by the Town Board pursuant to the authority granted to it by Town Law § 155."^[FN99] Town Law § 155 was enacted in 1932 and is yet another statute that was "grandfathered" in and remains in place to this day. Thus, Goshen is also distinguished from the case at hand where Rochester surrendered its authority to state governance in 1985.

The respondent Council's third case is similarly distinguished. Carver v County of Nassau (135 AD3d 888 [2d Dept 2016]) dealt with local legislation from 2007 that was "grandfathered" in by existing legislation from 1925.

Finally, the respondent Council's fourth case is also inapposite. The respondent Council argues that Matter of Town of Harrison Police Benevolent Assn., Inc. v Town of Harrison Police Dept. (69 AD3d 639, 641-642 [2d Dept 2010]) supports its argument because the Second Department held, "[s]ince {**71 Misc 3d at 458}disciplinary matters are not a proper subject of collective bargaining as per the Westchester County Police Act, the Supreme Court erred in granting the petition."^[FN100] Again, the Council's argument overlooks the dispositive portion of the decision that contradicts the Council's argument:

"Civil Service Law § 76 (4) provides that sections 75 and 76 of the Civil Service Law shall not 'be construed to repeal or modify any general, special or local law' that 'provide expressly for the control of police discipline by local officials in certain communities.' Since the Westchester County Police Act (L 1936, ch 104) provides that 'proceedings to discipline police officers employed by the towns in Westchester County be conducted by the boards of police commissioners of the towns,' the Westchester County Police Act is a [*15]special law and, therefore, 'disciplinary procedures are not a [proper] subject of collective bargaining for members of town police departments in Westchester [County].' Here, the collective bargaining agreement entered into between the Town and the PBA provided that disciplinary matters would be conducted pursuant to Civil Service Law § 75. Since disciplinary matters are not a proper subject of collective bargaining as per the Westchester County Police Act, the Supreme Court erred in granting the petition to the extent of directing the Town Board to determine whether Heisler was entitled to representation pursuant to Civil Service Law § 75 (2)."^[FN101]

This court has been unable to locate any case where a locality did not have pre-Taylor/Civil Service Law legislation still in effect regarding police discipline, enacted local legislation contradicting state law, and were upheld as properly exercising their authority.^[FN102] Accordingly, this court finds that the Civil Service Law and Unconsolidated Laws § 891 have bound the {**71 Misc 3d at 459}City of Rochester since 1985, and the Council therefore acted ultra vires when it enacted portions of Local Law No. 2 that contradicted the Civil Service Law (including the Taylor Law) and Unconsolidated Laws § 891.

iii. Portions of Local Law No. 2 are unconstitutional and invalid.

The portions of Local Law No. 2 that contradict state law are therefore unconstitutional under article IX, § 10 of the New York State Constitution and invalid under Municipal Home Rule Law § 10.

The respondent Council argues that Local Law No. 2 does not violate the Charter of the City of Rochester because, "if approved, it would amend the City Charter."^[FN103] The only portion of Local Law No. 2 which addresses the Charter is the Preamble, which states: "Chapter 755 of the Laws of 1907, entitled 'An Act Constituting the Charter of the City of Rochester,' as amended, is hereby further amended by adding the following new Article XVIII Police Accountability Board."^[FN104] Local Law No. 2 did not explicitly amend or repeal any portions of the City Charter. Thus, if there is irreconcilable conflict between the Charter and Local Law No. 2, [*16]the only way to preserve Local Law No. 2 is to find repeal by implication. According to the Court of Appeals:

"Repeal or modification of legislation by implication is not favored in the law. Absent an express manifestation of intent by the Legislature—either in the statute or the legislative history—the courts should not presume that the Legislature has modified an earlier statutory grant of power to an agency. Generally, a statute is not deemed impliedly modified by a later enactment 'unless the two are in such conflict that both cannot be given effect. If by any fair construction, a reasonable field of operation{**71 Misc 3d at 460} can be found for [both] statutes, that construction should be adopted.' "^[FN105]

As a general rule of statutory interpretation, "[r]epeals of earlier statutes by implication are not favored and a statute is not deemed repealed by a later one unless the two are in such conflict that both cannot be given effect."^[FN106] It is an equally recognized canon of construction that

"if there be any repugnancy between an amended statute or law and the original, which cannot be so construed as to leave them both to stand and each have a legitimate office to perform, the original enactment must be deemed to have been repealed by the later expression of the legislative will."^[FN107]

Chief Judge Cardozo stated nearly one hundred years ago: "[W]hat is special or particular in the later of two statutes supersedes as an exception whatever in the earlier statute is unlimited or general."^[FN108]

It appears that the Council has implicitly repealed or amended preexisting provisions of the City Charter. Local Law No. 2 creates an autonomous body which, while not answering to the Mayor, holds powers conflicting with those of the Mayor. However, the City Charter mandates that the Mayor retain full, exclusive control over all aspects of city government, including the police department. Article III of the City Charter sets forth the duties and responsibilities of the Mayor. Charter § 3-1 states, "The Mayor shall be the head of the executive and administrative branch of City government."^[FN109]

Section 3-3 ("Powers and duties of the Mayor") lays out numerous relevant aspects of the Mayor's powers:{**71 Misc 3d at 461}

"The Mayor shall be responsible for the administration of all City affairs. The Mayor [*17]shall have the power and it shall be the Mayor's duty:

"A. To be the chief executive officer and administrative head of City government. . . .

"C. To see that all laws and ordinances are enforced.

"D. Subject to confirmation by the Council, to appoint the heads of all departments and the members of all boards as set forth in this Charter . . . .

"E. To exercise supervision and control over all administrative departments, the heads of which the Mayor appoints. . . .

"G. To appoint all subordinate officers and employees and to remove all such officers and employees and department heads and members of boards, except as otherwise provided in this Charter."^[FN110]

Local Law No. 2 strips the Mayor of the aforementioned powers as it relates to governing both the PAB and RPD. Under Local Law No. 2, the Mayor will not be the head of, nor will she have any control over, the PAB and its operations.^[FN111] Rather than PAB members being appointed and subject to removal by the Mayor, none of the PAB members can be removed unless a majority of the PAB itself asks^[FN112] for the member to be removed.^[FN113]

Section 18-4 (H) states that the Mayor may only appoint one member of the nine-person Board. The Council nominates four members, and the remaining four members are nominated by a nongovernmental, non-elected "Alliance." Similarly, the Mayor {**71 Misc 3d at 462}will no longer have control over discipline of RPD officers as discussed, supra.^[FN114]

Local Law No. 2 also conflicts with the City Charter by creating a body whose powers conflict with those of the Police Chief. Article VIIIA of the City Charter establishes the powers [*18]and responsibilities of the Chief of the Rochester Police Department. Section 8A-1 ("Chief of Police; powers and duties") provides, in relevant part:

"A. The Chief of Police shall be responsible for the operation of the Police Department. . . .

"C. The Chief of Police shall be responsible for the enforcement of penal laws and ordinances, the maintenance of order and the prevention of crime in the City of Rochester.

"D. The Chief of Police shall be the head of the Police Department and shall have control of its administration . . . . The Chief of Police shall be the appointing authority for members and employees of the Police Department.

"E. The Chief of Police has the power and it is the Chief's duty to see that all rules and regulations relating to the Police Department are enforced and carried out; to issue subpoenas, administer oaths and take affidavits with respect to all matters pertaining to the Police Department; and to perform such other duties as may be prescribed by law or ordinance."^[FN115]

The respondent Council has argued that Local Law No. 2 does not actually strip the Chief of discipline powers because the Chief may still impose discipline beyond that recommended by the PAB.^[FN116]

Local Law No. 2 diminishes both the Mayor's control of and the Chief of Police's authority over the police department. The{**71 Misc 3d at 463} Chief will not have control over the investigation or adjudication of police misconduct.^[FN117] The Chief will not have authority over the imposition of officer discipline.^[FN118] The Chief cannot overrule the PAB's determinations by imposing less discipline than decided by the PAB.^[FN119]

Given the breadth of changes Local Law No. 2 triggered in the City Charter, it would have been preferable for the City Council to explicitly state its intention to affect City government rather than having a court speculate on substantial inconsistencies between the two laws. Regardless, the court is mindful that the Mayor approved Local Law No. 2, even though it stripped her of control over two important aspects of managing a police department: [*19]adjudication of complaints of police misconduct and discipline of offending officers. The Mayor has also forgone governing the Police Accountability Board. Again, it is for the City Council to amend and/or repeal contradictory provisions in the Charter.

A. Mayor's Proposed Legislation

On December 12, 2019, this court requested additional submissions from the parties on numerous issues. For the first time, on January 10, 2020, the respondent Mayor indicated that Local Law No. 2 may violate state law.^[FN120] The Mayor also disclosed that, approximately one year ago, she submitted to City Council a proposed Local Law (hereinafter Introductory{**71 Misc 3d at 464} 19) that would have established a PAB. Introductory 19 limited the PAB's purview to complaints of excessive force,^[FN121] and it did not permit the PAB to conduct disciplinary hearings of police officers. Under Introductory 19, the PAB could "conduct a supplemental investigation" beyond those investigated internally by the RPD.^[FN122]

Introductory 19 left final authority over officer discipline to the Chief, a subordinate of the Mayor.^[FN123] Unlike Local Law No. 2's compulsory compliance with the PAB's disciplinary determinations, Introductory 19 simply required the Chief to notify the PAB of the Chief's rationale if the Chief rejected PAB's discipline recommendation.^[FN124]

Finally, Introductory 19 left the Mayor in control of the appointment and removal of PAB members.^[FN125]

Since January 2019, the respondent Council has held the Mayor's Introductory 19 in committee and refused to bring it to the floor for a vote.^[FN126]

Having found portions of Local Law No. 2 unlawful, does any part of Local Law No. 2 survive? In Matter of Hynes v Tomei (92 NY2d 613, 627 [1998]), the New York Court of Appeals [*20]addressed severability:

"The question remains whether the entire death penalty statute must be invalidated, as defendants urge, or whether the challenged provisions may be severed, leaving the statute otherwise operational.{**71 Misc 3d at 465} The answer depends on whether 'the legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether.' If removing particular provisions while leaving the remainder intact would result in a law the Legislature would not have intended, the entire statute must be stricken."^[FN127]

As did the death penalty statute in Hynes, Rochester City Charter § 18-14, as added by Local Law No. 2 § 1, contains a severability clause, to wit: "The invalidity of any provision or provisions of this chapter shall not affect the validity of the remaining provisions thereof, but such remaining provisions shall continue in full force and effect."

The respondent City Council has asked this court to sever the invalid portions of the statute, saving as much of the legislative framework as possible. Contrariwise, despite the fact that the Mayor: (a) approved the law with its severability clause included; (b) moved to dismiss this petition; and then (c) recently conceded the core merits of the petition, the respondent Mayor has asked this court not to sever.^[FN128]

This case presented four questions:

First question: Does City Council's 1985 law submitting police discipline to New York State law preclude the implementation of police discipline by the Police Accountability Board?

Answer: Since the Rochester City Council's explicit submission of police officer discipline to New York State law in 1985, certain portions of Local Law No. 2 conflict with New York State law and the Rochester City Charter.

Second question: Can the City of Rochester enact a local law which transfers from the Chief of Police the discipline of police officers employed by the Rochester Police Department to an appointed, autonomous civilian Police Accountability Board, which is not^[FN129] "the officer or body having the power to remove the person charged . . . or . . . a deputy or other employee of {**71 Misc 3d at 466}such officer or body designated . . . for that purpose"?^[FN130] In other words, can only an officer's commander or designee conduct a disciplinary hearing?^[FN131]

Answer: Under New York State law, disciplinary hearings or the imposition of discipline of Rochester Police Department officers are to be conducted by the Mayor and/or her appointee, the Police Chief, or one of their designees. Since the Police Accountability Board is neither a designee of either the Mayor or the Police Chief, nor a police commander, the Police Accountability Board cannot lawfully conduct disciplinary hearings or impose the discipline of RPD officers.

Third question: Does Local Law No. 2's transfer of police discipline to the Police Accountability Board, and resulting divestiture of the Mayor's power over police discipline, violate Civil Service Law § 200 et seq. (known as the Taylor Law)^[FN132] and New York State Constitution, article I, § 17 which obligate the Mayor to collectively bargain with a recognized bargaining unit?

Answer: In particular concerning discipline, Local Law No. 2 unlawfully inhibits the Mayor from engaging in collective bargaining with the Locust Club regarding the terms and conditions of RPD officer employment.

Fourth question: What is the import of Local Law No. 2's severability clause?

Answer: Although those unlawful sections of Local Law No. 2 relating to the discipline of RPD officers which conflict with New York State law are hereby severed and stricken, the remaining lawful parts of Local Law No. 2 pertaining to the Police Accountability Board continue in full force and effect. Since Local Law No. 2's conflict with the Rochester City{**71 Misc 3d at 467} Charter does not render either law wholly invalid, it is for the City Council^[FN133] to amend and/or repeal contradictory provisions in the Charter. Accordingly, Local Law No. 2 is referred back to the Rochester City Council to be reconciled and made compliant with New York State law and the Rochester City Charter. Based upon the foregoing, it is the decision of this court that the verified petition is granted in that Local Law No. 2 is unlawful and invalid only for the purpose of conducting hearings and disciplining officers of the City of Rochester Police Department and any relief requested by respondents to the contrary is denied.

Any requested relief not specifically addressed in this decision is denied.

The court appreciates counsels' responsiveness to the court's requests for additional information and briefing and for their patience in the delays caused by the COVID-19 pandemic.[*21]

"The Petitioners' legal challenges to Local Law No. 2 are multi-pronged and complex, as are the Respondents' rebuttals. It would be a disservice to the community for the Court to render its legal judgment on such important legislation without a thorough analysis of the legality of the Statute. . . .

"The opportunity which this case presents should not be squandered with only a cursory review of the Statute's legal implications" (2019 NY Slip Op 34108[U], *2-3).