| Hanley v Curreri |
| 2007 NY Slip Op 51645(U) [16 Misc 3d 1130(A)] |
| Decided on March 17, 2007 |
| Supreme Court, Albany County |
| Devine, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
James F. Hanley, as Commissioner of the New York City Mayor's Office of Labor Relations, and the City of New York, Petitioners,
against Richard A. Curreri, Director of Conciliation for the New York State Public Employment Relations Board and the Patrolmen's Benevolent Association of the City of New York, Inc., Respondents. |
Petitioners, Commissioner Hanley and the City of New York (the City) bring this article 78 proceeding seeking to compel respondent Currerri to immediately designate the public arbitration panel and refer the interest arbitration between the City and the Patrolmen's Benevolent Association of New York City (PBA) to such panel. Respondent Curreri filed an Answer and proposed Intervenor PBA filed a motion seeking to intervene in the proceeding and attached a proposed Answer. PBA's motion to intervene was not opposed at oral arguments on February 23, 2007 and is therefore granted.
On or about July 7, 2006, the City of New York (City) filed with the Public Employment Relations Board (PERB) a Declaration of Impasse in its negotiations with the Patrolmen's Benevolent Association of the City of New York (PBA). The declaration initiates the PERB conciliation process outlined in 4 NYCRR Part 205. On August 2, 2006, PERB appointed a mediator and subsequent sessions with the mediator were unfruitful. On or about October 24, 2006, the City filed a Petition for Interest Arbitration as required by the statute and the PBA filed its response on November 22, 2006.
Each party was to designate their member to the three person arbitration panel and attempt to agree on the third, public member, of the panel.[FN1] On November 30, 2006 the PBA selected their member and on December 4, 2006 the City selected their member yet the PBA and the City were unable to agree on the public member of the three person panel. On December 12, 2006 PERB's Director of Conciliation (respondent) submitted to the City and the PBA identical lists of nine arbitrators (the Director's list) for the purpose of selecting the public member. The City and the PBA agreed to a date of December 27, 2006 at 3:00pm for a meeting to proceed with the Director's list.
A telephone conference call was held on December 27, 2006 and, via a letter on the same date, the PBA raised numerous objections and asked for a decision in writing on those objections. The meeting between PBA and the City did not occur on December 27, 2006.
On or about December 22, 2006 one of the two remaining members of the PERB resigned (leaving only one member of the PERB) and effective at the close of business on December 27, 2006 the Board's Chairman resigned (leaving no members).
On December 28, 2006 the City, (at which time there were no members of the PERB) wrote a letter to respondent, alleging that the PBA failed to participate and therefore asking that all names on the list be deemed acceptable to the PBA. Various correspondence followed and ultimately the City commenced this Article 78 action.
The PERB rules, written pursuant to Civil Service Law Article 14 state:"the term board shall mean the New York State Public Employment Relations Board, or any two members thereof."[FN2] (emphasis supplied) [*2]
"If the parties are unable to agree upon the public member within 10 days, either party may request the board to submit a list of qualified persons for selection of the public member. Within seven days after receipt of such request, the board shall submit to each party an identical list of nine arbitrators from its panel of arbitrators. A resume of each arbitrator on such list shall be enclosed for the parties' review. The parties shall be required to meet and make their selection in the following manner. Each party shall alternately strike from the list one of the names with the order of striking determined by lot until the remaining one person shall be designated as the public member. If either party so desires, a representative of the board will be present during the name-striking process. The name-striking process must be completed within five days of receipt of the list from the board. The board must be immediately notified of the person selected as the public member. Upon the failure of one party to participate in the selection process, all names on the list shall be deemed acceptable to it."[FN3]
The Civil Service law states that "the board shall refer the dispute to a public arbitration
panel ..."[FN4]
Based on the above rules and statute, this Court holds and determines that the action sought by petitioner to be compelled, is specifically a function of the PERB.[FN5] The PERB is therefore a necessary party or someone who ought to be joined so complete relief can be awarded.[FN6]
In addition, assuming the PERB was a named party, this Court notes that the PERB has the power to:
"...appoint an executive director and such other persons, including but not limited to attorneys, mediators, members of fact-finding boards and representatives of employee organizations and public employers to serve as technical advisers to such fact-finding boards, as it may from time to time deem necessary for the performance of its functions, prescribe their duties, fix their compensation and provide for reimbursement of their expenses within the amounts made available therefor by appropriation ..."[FN7]
The term "director of conciliation ..., shall mean the agent of the board so designated."[FN8]
As of December 22, 2006, when one of the remaining two members resigned, there was [*3]not a duly constituted PERB. As the PERB rules state, respondent Curreri is an agent of the board and his powers are derived from the board's delegation. On December 28, 2006, when the City made its demand for action, there was no PERB and the record contains no evidence of any new confirmed appointments. Petitioner claims that although there is no quorum (and in fact, no board at all), administrative bodies can delegate to staff members, relying on Matter of Grant v. New York State Continuing Legal Education Board.[FN9] In that case, the Court points out that "respondent retains sufficient control over the process to ensure that the power delegated is properly exercised ..."[FN10] In contrast, here there is no board and therefore no one to retain sufficient control over the tasks delegated.
This Court is faced with an issue brought on by the election of a new Governor and the transition into a new administration. The vacancies on the PERB did not leave the staff or agents of the PERB with any supervision, or the authority to act on the PERB's behalf.Therefore, this Court holds and determines that it cannot compel PERB to act, as it is not a named party, and it cannot compel PERB's agent, respondent Curreri, to perform an act when a duly constituted board does not exist.
The Court holds that respondent PBA's motion to intervene was and hereby is granted and respondents' request to dismiss Commissioner Hanley and the City's petition is also hereby granted.
Those arguments not specifically addressed herein are found to be without merit.
This Memorandum shall constitute both the Decision and Order of the Court. This Original DECISION/ORDER is being sent to respondent's attorney. The signing of this DECISION/ORDER shall not constitute entry or filing under CPLR § 2220. Counsel for the respondent is not relieved from the applicable provisions of that section with respect to filing, entry and notice of entry.
SO ORDERED
ENTER
DATE: March 17, 2007
______________________________
Eugene P. Devine, J.S.C.