Spitzer Frustrates Unions
Veto Negotiation On Discipline for Cops

By REUVEN BLAU

Governor Spitzer Aug. 1 vetoed a bill designed to reduce the Police Commissioner's power over disciplinary matters, which could have enabled city police unions to block the NYPD's move to administer Breathalyzer tests to all officers who fire their guns when it involves injury or death.

GOVERNOR SPITZER: Calls for compromise.

In April, the Governor vetoed a similar union-supported measure. He suggested last week that the police unions and municipal employers work together "to determine if there are alternative approaches that would be acceptable to both sides."

Hurts Cop Unions' Cause

The veto was a major blow to the city's five police unions, which have failed to convince the Governor to sign any significant pieces of law-enforcement-friendly legislation during his first year in office.

The police unions have vowed to continue challenging the NYPD's alcohol-testing plan announced in the wake of the fatal Sean Bell shooting last November. The legislation would in all likelihood have given them the power to force the department to negotiate the policy.

MICHAEL PALLADINO: Mystified by veto.

"I don't understand it," said Michael J. Palladino, president of the Detectives Endowment Association, after being notified of the veto by a reporter. "I think all the faults the Governor found were fixed."

The unions believed that the Governor initially vetoed the bill because it would have retroactively changed expired collective-bargaining agreements. His veto message said that Lazarus clause "could lead to the re-opening of numerous disciplinary cases that have already been decided, all of which would have to be re-litigated."

Two Remaining Concerns

Governor Spitzer, however, said there were two additional problems that weren't corrected in the latest bill. The legislation was designed to overturn a Court of Appeals ruling concerning police, but the bill instead broadly covered disciplinary procedures for all public employees, the veto message stated.

In addition, based on the measure, many cases of impasses over discipline would have been handled in binding arbitration, the Governor said. "And opponents believed this would significantly disrupt their ability to maintain effective management of their police forces," his rejection note said. "As I have noted previously, I believe the head of a police department is better suited than an arbitration panel to decide such matters."

TONY GARVEY: Fears 'chilling effect.'

The bill was opposed by the Superintendent of the State Police, Mayor Bloomberg, the Westchester County Executive, the Conference of Mayors and Municipal Officials, and the Association of Towns. They lobbied against the measure, arguing that it would allow for key disciplinary decisions to be made by those outside the chain of command of those who are responsible for public safety.

Uneven Treatment

The bill was introduced after the state's highest court ruled in March 2006 that the Patrolmen's Benevolent Association's demands pertaining to punishment procedures were prohibited subjects of contract negotiations. The unanimous Court of Appeals decision also concluded that state laws delegate disciplinary authority exclusively to government officials such as the Police Commissioner.

Backers of the measure - which included all state-employee labor organizations as well as the State AFL-CIO - noted that the present law treats the issue differently depending on jurisdiction. For officers in New York City, Westchester County and Rockland County, as well as the New York State Police, negotiating disciplinary issues has been prohibited. In the rest of the state, that topic is a mandatory subject of bargaining.

Ed Mullins, president of the Sergeants Benevolent Association, said he was "disappointed" Governor Spitzer didn't sign the bill. "He's leaving that dictatorship mode in place with the Police Commissioner," he said in an Aug. 3 phone interview. "It's leaving full discretion with management to not discuss an issue that's vitally important."

Mr. Mullins also questioned the Governor's stance on police union-backed issues. "What I'm failing to see is his support for law-enforcement," he remarked. "He has a Lieutenant Governor who has adamantly opposed law-enforcement for years. He's not giving you reason to support him; he's alienating friends."

Legal Options

The city's police unions are also examining their legal options against the planned alcohol test. They have had mixed results battling other departmental policy changes that they objected to over the past few years.

"Cops have rights, too," Mr. Palladino said. "The Constitution was built on innocence until proven guilty - cops are no different."

On June 18, Police Commissioner Raymond W. Kelly announced 19 recommendations of a special panel that he appointed to examine policies and procedures governing undercover officers after the Nov. 25, 2006 police shooting outside the Jamaica, Queens strip club Kalua, which killed Mr. Bell and wounded two of his friends.

The recommendations also include changing how undercover officers are selected, instructed, monitored, and retained.

The four police unions, however, are opposed to the Breathalyzer tests, arguing that the issue is a mandatory subject of collective bargaining and that it violates their members' Constitutional rights. "The mere fact that you just fired the weapon alone should not give rise to a breath test," Mr. Palladino contended. "When testing for cause, you have to reach a certain level of reasonable suspicion."

Despite the strong union opposition, the NYPD plans to implement the testing policy in September for all police officers, on duty or off duty, whose firearm discharge results in injury or death.

'Most-Supervised'

PBA President Patrick J. Lynch has argued that the alcohol tests would "cast a shadow" over all officers who fire their guns. "This should be done with negotiations," he said after the policy was announced. "We are the most-supervised profession in the world. Does the Police Commissioner not trust his chiefs and management people to know if their subordinates are drunk?"

Lieutenants Benevolent Association President Anthony Garvey predicted that the policy would have a "chilling effect" on officers.

The police unions also contend that the proposed Breathalyzer policy is not a disciplinary issue. The unions successfully used that argument in blocking the department from switching from urine drug tests to hair screenings.