Preview
At a Special Term of this Court held in and for the
County of Chautauqua at Mayville, New York on
the 18th day of March, 2019
PRESENT: Hon. JAMES H. DILLON
Supreme Court Justice
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CHAUTAUQUA
In the Matter of the Application of the
CITY OF JAMESTOWN,
Petitioner,
ORDER AND JUDGMENT
v.
KENDALL CLUB POLICE
BENEVOLENT ASSOCIATION, INC., Index No.: EK1-2019-000047
Respondent,
For a Judgment Pursuant to Article 75 of the
Civil Practice Law and Rules.
Upon reading and the filing
of the Notice of Petition, Petition to Vacate Interest Arbitration
Award, and Memorandum of Law, all dated January 11, 2019, filed by Petitioner City of
Tamestown; and upon reading and filing the Verified Answer with Affirmative Defenses and
3bjections in Point of Law to Petition to Vacate Interest Arbitration Award dated February 7,
2019; the Notice of Cross-Motion dated February 7, 2019; the Verified Cross-Motion to Confirm
Arbitration Award dated February 7, 2019; the Affidavit of Jason Donato, President of the Kendall
Club Police Benevolent Association, Inc. sworn to February 7, 2019; the Affidavit of Charles S.
JeAngelo, Esq. sworn to February 8, 2019; and the Memorandum of Law dated February 7, 2019,
ill filed by Respondent Kendall Club Police Benevolent Association, Inc.; and upon reading and
iling the Notice of Motion for Leave to File a Brief Amicus Curiae, Affirmation in Support of
FESSENDENLAUMER &DEANGELO, PLLC
81 Forest Avenue • P.O. Box 590 • Jamestown, N.Y. 14702-0590
Motion for Leave to File a Brief Amicus Curiae, and Brief of the New York State Conference of
Mayors and Municipal Officials as Amicus Curiae, dated February 19, 2019 and filed
by the New
York State Conference of Mayors and Municipal Officials on February.20, 2019; and upon reading
and filing the Attorney Affidavit in Response and in Opposition dated and filed
by Respondent
Kendall Club Police Benevolent Association, Inc. on February 25, 2019; and upon reading and
filing the Answer to Cross-Motion and Reply Memorandum of Law, both dated March 8, 2019
filed by Petitioner City of Jamestown on March 8, 2019, and the matter having come on to be
18th
heard before this Court on the day of March, 2019; and Bond Schoeneck & King, PLLC, Terry
M. O'Neil, Esq. of counsel, having appeared for Petitioner City of Jamestown; and Fessenden
Laumer & DeAngelo, PLLC, Charles S. DeAngelo, Esq. of counsel, having appeared for
Respondent Kendall Club Police Benevolent Association, Inc., and arguments having been had on
the Petition and Cross-Motion, and upon due deliberation and recitation of the Court's decision
from the bench (transcript attached hereto and incorporated herein);
NOW, on Cross-Motion of Charles S. DeAngelo, Esq., attorney for Respondent Kendall
Club Police Benevolent Association, Inc., and Terry M. O'Neil, Esq., attorney for the Petitioner
City of Jamestown, it is hereby
ORDERED, ADJUDGED, AND DECREED that the Petition of the City of Jamestown
seeking to Vacate the Interest Arbitration Award is hereby denied; and it is further
ORDERED, ADJUDGED, AND DECREED that the Cross-Motion to Confirm the
Arbitration Award of the Kendall Club Police Benevolent Association, Inc. is granted; and it is
further
ORDERED, ADJUDGED, AND DECREED that the Clerk of the Court shall enter
udgment accordingly.
FESSENDENLAUMER &DEANGELO, PLLC
81 Forest Avenue • P.O. Box 590 • Jamestown, N.Y. 14702-0590
Signed this
day of March, 2019 at Mayville, New York.
ENTER:
Hon. James H. Dillon,
Supreme Court Justice
FESSENDENLAUMER & DEANGELO, PLLC
81 Forest Avenue • P.O. Box 590 • Jamestown, N.Y. 14702-0590
1
1 STATE OF NEW YORK COUNTY OF CHAUTAUQUA
SUPREME COURT
2
3 CITY OF JAMESTOWN,
4 Plaintiff, Index #K1-2019-000047
-against- MOTION
5
6 KENDALL CLUB POLICE BENEVOLENT ASSOCIATION, INC.,
7 Defendant.
8
Chautauqua County Courthouse
9 Mayville, New York
March 18, 2019
10
11 B e f o r e:
12 HONORABLE JAMES H. DILLON
13
14 A p p e a r a n c e s:
15 TERRY O'NEIL, ESQ
Attorney for the Plaintiff.
16
17 CHARLES S. DEANGELO, ESQ
Attorney for the Defendant.
18
19
20
21
22
23
24 MELINDA K. JOHNSON
SENIOR COURT REPORTER
25
2
1 COURT CLERK: Number 13, City of Jamestown
2 versus Kendall club.
3 MR. DEANGELO: Your Honor, may we approach for
4 a moment?
5 THE COURT: Absolutely.
6 (Side bar discussion held)
7 THE COURT: This is the City of Jamestown
8 versus the Kendall Club Police Benevolent Association.
9 Counsel, if you would be kind enough to state your
10 appearances for the record please.
11 MR. O'NEIL: Terry O'Neil for the City of
12 Jamestown.
13 MR. DEANGELO: Charles DeAngelo on behalf of
14 the Kendall Club PBA, your Honor.
15 THE COURT: All right, the last documents I
16 have filed here with the Court were from the National
17 Conference of Mayors and from the city. That was filed I
18 think March 8th. Have you received those?
19 MR. DEANGELO: Yes, I have, your Honor.
20 THE COURT: Were there any other responding
21 papers, or do I have everything?
22 MR. DEANGELO: We're prepared to address those
23 points in our oral argument today.
24 THE COURT: That's more than fine. You can
25 always do All the first -- Mr. I
that. right, O'Neil,
3
1 think you filed first, correct?
2 MR. O'NEIL: I did, your Honor.
3 THE COURT: So go ahead, sir.
4 MR. O'NEIL: Is it okay if I stay here for the
5 microphone?
6 THE COURT: Absolutely.
7 MR. O'NEIL: Your Honor, we're not here to
8 re-try the interest arbitration that took place. What
9 this case is about is whether or not the arbitrators
10 followed the statutory criteria that's mandated under the
11 Taylor Law, and we submit they did not, and if they did
12 not, then the award has to be vacated. I was just
13 commenting that I think this is probably one of the most
14 important cases since the 1976 amendments to the Taylor
15 Law that impose binding arbitration on the
16 municipalities. It implicates really fifty years of the
17 Taylor Law and the history of it. And compulsory
18 interest arbitration went in in 1976 for police and fire
19 only. The 2013 and the amendments we're talking about,
20 thirty-seven years with no change in the interest
21 arbitration statutes, despite a lot of clamoring for them
22 to be repealed, what they did to poor municipalities, I
23 happen to have represented these three of these, Buffalo,
24 Yonkers, Long Beach New York, all in deep fiscal stress.
25 These awards that place tremendous burdens upon them.
4
1 And yet there were no relief for all those years. Now at
2 least there's some hope for those who are in fiscal
3 distress. Under the interest arbitration, it's
4 compulsory. We didn't -- these are not two parties who
5 agreed we're going to arbitrate this dispute and be bound
6 by it. These were things that were put in front of an
7 employer by the legislature. The elected officials now
8 have lost their power to decide these important issues
9 that bear on their budgets. The. arbitrators are not
10 elected. They're not responsible to the electorate. And
11 the way they continue to work is they have to be
12 responsible --
13 THE COURT: You haven't moved against the
14 constitutionality of that statute, Mr. O'Neil, have you?
15 MR. O'NEIL: I have not.
16 THE COURT: Then this argument has nothing to
17 do with anything then. Any more than an argument that
-- officers'
18 said the same the same law stops the police
19 union from having a right to strike. Which is irrelevant
20 to this decision too.
21 MR. O'NEIL: Well, the part that's relevant
22 from our perspective is that the legislature has now
23 changed that law. They've changed it dramatically so
24 that the ability to pay has a much greater factor than it
25 ever has had before. And it's not like they've said
5
1 okay, this is going to count more against every public
2 employer in the State of New York. This only applies to
3 those who are fiscally eligible. A synonym for that for
4 me is fiscally distressed, and applies to not to so many
5 places, but certainly to Jamestown. There's no dispute
6 about that in this proceeding. The standard of review of
7 these compulsory interest arbitration awards are the one
8 under Article 78. There's no dispute to that, I think
9 the parties have stipulated to that in their papers. So
10 when you look at the initial statute, it talks about the
11 panel making a just and reasonable determination of the
12 matters in dispute, and there's a lot of shalls in the
13 introductory language. It says the penal shall specify
14 the basis for its findings, taking into consideration, in
15 addition to other factors, and then it names what I'll
16 call the original four criteria, paraphrasing them.
17 Comparability, the interest and welfare of the public,
18 and the public employer's ability to pay. It's all in
19 one -- in Item Number 2. Item Number 3 is comparison of
20 the peculiarities of the profession, which is rarely
21 addressed anywhere and not addressed in this case.
22 And -- I take that it was addressed in this case.
back,
23 And fourth, the terms of collective bargaining agreements
24 negotiated in the past. And the Courts have said and the
25 cases are cited in our papers, that if you don't follow
6
1 and apply all of these, the award should be vacated. And
2 it's been done by employers and by unions. The Buffalo
3 PBA had a case where they said the arbitrator didn't
4 apply all the criteria and the courts vacated it. And
5 employers have had them vacated as well when that
6 occurred. When you look at the award at issue here and
7 the criterion, what I'll call the first set of criterion
8 that were in effect from 1976 until 2013, was
9 comparability. Did they do that in this case?
10 Absolutely. They do that in every case. It rarely
11 favors an employer who has brought the binding
12 arbitration. So yes, they did look at comparability.
13 The second factor, the interest and welfare of the
14 public, not mentioned anywhere in the award. Not taken
15 into account. Not addressed. Worse, the second part of
16 the second factor, which is the ability of the public
17 employer to pay, has now under the new legislation been
18 given a weight. 70 percent. And you have some rules in
19 there about what you do with the amount of money that's
20 being awarded so the tax cap is taken into consideration.
21 I'll address that in a second. Because even under the
22 first set, the third factor was comparison peculiarities
23 of the job. The fourth being the prior collective
24 bargaining agreement. And in this case the panel, the
25 majority, failed to consider the interests and welfare of
7
1 the public, violating 209.4. They don't mention it at
2 all. And do go into -- the panel goes into a
yet, they
3 large list of problems in Jamestown. There are almost
4 too many to mention, but they're laid out in the decision
5 itself. put some -- some call some
They they important,
6 not so important. But in any event, when they do that,
7 they don't address the issues in the new statute. The 70
8 the time it's mentioned is in Line 3 -- one
percent, only
9 line on Page 3, when it's saying what the criteria is of
10 the new law. Never mentioned again. And the issue is
11 how do you apply 70 percent. Not easy, but you have to
12 apply it. You have to give some meaning to that part of
13 the statute. And it's never addressed by the majority in
14 their decision. The only place you'll ever see that 70
15 percent is on Page 3 when they tell you the criteria.
16 They also failed to consider past collective bargaining
17 and I -- I was this before the
agreements, frankly doing
18 interest arbitration statute came about. And I used to
19 wonder what that meant. Frankly, I've never had a case
20 where it's been as important as it is here. And the
21 reason it's so important in this matter is because I
22 would say when you read that award, the main support for
23 the 2 percent in each of those two years is that well,
24 you've proven a lot of inability to pay, a lot of fiscal
25 problems. Quite honestly, your Honor, I didn't know
8
1 there was a city that was at their constitutional tax
2 limit before I ran into the mayor in a different place.
3 They're the only one who I think is at the constitutional
4 tax limit. So there's lots of issues involving their
5 ability to pay. And just so it's clear what that
6 standard is, it doesn't require that you spent every dime
7 you have. There are cases, there's a Prue versus the
8 City of Syracuse, where you did not have to show you've
9 exhausted all your tax base and you've given -- you've
up
10 exhausted all your reserves. It just has to show you
11 have problems with the ability to pay. And certainly
12 Jamestown falls way within that. Getting back to the
13 prior collective bargaining agreements, I would say the
14 tenure of that award is that he says well, you can't be
15 that bad, you gave raises to two of your other unions. 2
16 2 perc.ent. So -- it was true. But then
percent, true,
17 you look back in the prior awards with the PBA. They're
18 coming off of a contract that had, over four years,
19 increases of seven and a half percent. Not even
20 compound. So you add them up. One year they took a
21 freeze, three years with raises. Those other units that
22 he's talking about? Four years, one raise, .5. Not 7.5,
23 2.5. .5. One raise over four years. So the city found
24 fit to try to appropriate some money for those people who
25 had suffered, and then for him not to even look at the
9
1 prior police award, which is in evidence, all this was
2 I think is another reason -- he ignored that
briefed,
3 criteria -- another reason it would have to be vacated.
4 The background of those 2013 amendments, it's
5 mentioned in the back then there were -- back in
papers,
6 the early days when you wanted to vacate an award, you
7 had to sue the arbitrator. Arbitrators didn't like that.
8 They changed that. The case is called Rinaldo. He's an
9 arbitrator quite well known in this area. He was
10 involved with the City of Buffalo. And he found in that
11 award that the city really didn't have an ability to pay,
12 which is almost a common problem in Buffalo. And yet, he
13 awarded money. And his rationale was it's not the
14 controlling factor. It's only one of the factors. So
15 then he looked at and other --
comparability usually
16 that's what they rely upon to find the money. Especially
17 in a place like Buffalo where they're not paid as much as
18 the surrounding communities. So the amendments that were
19 considered were based on clearing up what occurred in the
20 Rinaldo case. In fact, I think Mr. Mancini from the
21 Conference of Mayors, he goes into some of the
22 legislative history in the sponsoring memo, and he talks
23 about it's now to really give ability to pay a weight
24 that is emphasized. And when they say emphasized, I
25 remember when it was first passed, it was at a time when
10
1 people were calling for it to be repealed. And the
2 people who were calling for it to be repealed were people
3 like the leaders in the City of Jamestown who pretty much
4 had exhausted their constitutional tax limit, had
5 problems, and now were having contracts imposed upon
6 them. But they didn't do that. And the solution at
7 first, I sort of listened, 70 percent, what does that
8 mean. It's not clear exactly what it means. But it
9 means it's not one of four factors. In fact, that's in
10 one subsection that has the interest and welfare of the
11 public. And the ability to pay. So that half of a
12 factor has now become 70 percent. And it says right in
13 the statute everything else counts 30 percent. So when
14 you look at that part and you examine, you look at what
15 they put into evidence in this proceeding about the
16 to in it's not so much -- I'm not
ability pay Jamestown,
17 going to re-try the case, but the issue is did he apply
18 the 70 percent. Can't find it. Can't find it anywhere
19 in his award where he did it. We believe that makes it
20 subject to being vacated.
21 THE COURT: What would he have had to do to
indicate What would -- excuse because
22 that? they me,
23 it's more than one, of course.
24 MR. O'NEIL: Sure.
25 THE COURT: What would the majority have had to
11
1 do to indicate that if they are taking 70 percent into
2 effect?
3 MR. O'NEIL: he could --
Well,
4 THE COURT: Because I rule on a lot of civil
5 cases, and I very seldom use the word 51 percent.
6 MR. O'NEIL: Well, in this case he has to at
7 least make an attempt at that -- let's -- he
showing say
8 says it. He says comparability warrants a 2 percent
9 raise. And then he says and he gave 2 percent to your
10 other unions. So if those two are factors and ability to
11 pay is 70 percent, and we are in dire shape.
12 THE COURT: But if he finds the comparability.
13 is the ability to pay, he could be taking that into
14 account for a hundred percent.
15 MR. O'NEIL: Talking about the comparability
16 with other police departments or internal?
17 THE COURT: Internal.
18 MR. O'NEIL: Well, if he did that, then he
19 ignored a factor that preceded this legislation.
20 THE COURT: I'm just talking about the 70
21 percent.
22 MR. O'NEIL: I understand, but to get to that,
23 you have to ignore that four years prior to that, those
24 people got --
25 THE COURT: No, he doesn't have to give that
12
1 weight. They have the ability to accept and not accept
2 all items of evidence. All items of evidence in an
3 arbitration and trial do not stand on equal footing.
4 There's credibility and weight issues that of necessity
5 have to be decided by the finder of fact.
6 MR. O'NEIL: Here the finder of fact is
7 mandated to apply 70 percent to that.
8 THE COURT: And they said they did.
9 MR. O'NEIL: No, he. didn't.
10 THE COURT: They said it
Preview
At a Special Term of this Court held in and for the County of Chautauqua at Mayville, New York on the 18th day of March, 2019 PRESENT: Hon. JAMES H. DILLON Supreme Court Justice SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CHAUTAUQUA In the Matter of the Application of the CITY OF JAMESTOWN, Petitioner, ORDER AND JUDGMENT v. KENDALL CLUB POLICE BENEVOLENT ASSOCIATION, INC., Index No.: EK1-2019-000047 Respondent, For a Judgment Pursuant to Article 75 of the Civil Practice Law and Rules. Upon reading and the filing of the Notice of Petition, Petition to Vacate Interest Arbitration Award, and Memorandum of Law, all dated January 11, 2019, filed by Petitioner City of Tamestown; and upon reading and filing the Verified Answer with Affirmative Defenses and 3bjections in Point of Law to Petition to Vacate Interest Arbitration Award dated February 7, 2019; the Notice of Cross-Motion dated February 7, 2019; the Verified Cross-Motion to Confirm Arbitration Award dated February 7, 2019; the Affidavit of Jason Donato, President of the Kendall Club Police Benevolent Association, Inc. sworn to February 7, 2019; the Affidavit of Charles S. JeAngelo, Esq. sworn to February 8, 2019; and the Memorandum of Law dated February 7, 2019, ill filed by Respondent Kendall Club Police Benevolent Association, Inc.; and upon reading and iling the Notice of Motion for Leave to File a Brief Amicus Curiae, Affirmation in Support of FESSENDENLAUMER &DEANGELO, PLLC 81 Forest Avenue • P.O. Box 590 • Jamestown, N.Y. 14702-0590 Motion for Leave to File a Brief Amicus Curiae, and Brief of the New York State Conference of Mayors and Municipal Officials as Amicus Curiae, dated February 19, 2019 and filed by the New York State Conference of Mayors and Municipal Officials on February.20, 2019; and upon reading and filing the Attorney Affidavit in Response and in Opposition dated and filed by Respondent Kendall Club Police Benevolent Association, Inc. on February 25, 2019; and upon reading and filing the Answer to Cross-Motion and Reply Memorandum of Law, both dated March 8, 2019 filed by Petitioner City of Jamestown on March 8, 2019, and the matter having come on to be 18th heard before this Court on the day of March, 2019; and Bond Schoeneck & King, PLLC, Terry M. O'Neil, Esq. of counsel, having appeared for Petitioner City of Jamestown; and Fessenden Laumer & DeAngelo, PLLC, Charles S. DeAngelo, Esq. of counsel, having appeared for Respondent Kendall Club Police Benevolent Association, Inc., and arguments having been had on the Petition and Cross-Motion, and upon due deliberation and recitation of the Court's decision from the bench (transcript attached hereto and incorporated herein); NOW, on Cross-Motion of Charles S. DeAngelo, Esq., attorney for Respondent Kendall Club Police Benevolent Association, Inc., and Terry M. O'Neil, Esq., attorney for the Petitioner City of Jamestown, it is hereby ORDERED, ADJUDGED, AND DECREED that the Petition of the City of Jamestown seeking to Vacate the Interest Arbitration Award is hereby denied; and it is further ORDERED, ADJUDGED, AND DECREED that the Cross-Motion to Confirm the Arbitration Award of the Kendall Club Police Benevolent Association, Inc. is granted; and it is further ORDERED, ADJUDGED, AND DECREED that the Clerk of the Court shall enter udgment accordingly. FESSENDENLAUMER &DEANGELO, PLLC 81 Forest Avenue • P.O. Box 590 • Jamestown, N.Y. 14702-0590 Signed this day of March, 2019 at Mayville, New York. ENTER: Hon. James H. Dillon, Supreme Court Justice FESSENDENLAUMER & DEANGELO, PLLC 81 Forest Avenue • P.O. Box 590 • Jamestown, N.Y. 14702-0590 1 1 STATE OF NEW YORK COUNTY OF CHAUTAUQUA SUPREME COURT 2 3 CITY OF JAMESTOWN, 4 Plaintiff, Index #K1-2019-000047 -against- MOTION 5 6 KENDALL CLUB POLICE BENEVOLENT ASSOCIATION, INC., 7 Defendant. 8 Chautauqua County Courthouse 9 Mayville, New York March 18, 2019 10 11 B e f o r e: 12 HONORABLE JAMES H. DILLON 13 14 A p p e a r a n c e s: 15 TERRY O'NEIL, ESQ Attorney for the Plaintiff. 16 17 CHARLES S. DEANGELO, ESQ Attorney for the Defendant. 18 19 20 21 22 23 24 MELINDA K. JOHNSON SENIOR COURT REPORTER 25 2 1 COURT CLERK: Number 13, City of Jamestown 2 versus Kendall club. 3 MR. DEANGELO: Your Honor, may we approach for 4 a moment? 5 THE COURT: Absolutely. 6 (Side bar discussion held) 7 THE COURT: This is the City of Jamestown 8 versus the Kendall Club Police Benevolent Association. 9 Counsel, if you would be kind enough to state your 10 appearances for the record please. 11 MR. O'NEIL: Terry O'Neil for the City of 12 Jamestown. 13 MR. DEANGELO: Charles DeAngelo on behalf of 14 the Kendall Club PBA, your Honor. 15 THE COURT: All right, the last documents I 16 have filed here with the Court were from the National 17 Conference of Mayors and from the city. That was filed I 18 think March 8th. Have you received those? 19 MR. DEANGELO: Yes, I have, your Honor. 20 THE COURT: Were there any other responding 21 papers, or do I have everything? 22 MR. DEANGELO: We're prepared to address those 23 points in our oral argument today. 24 THE COURT: That's more than fine. You can 25 always do All the first -- Mr. I that. right, O'Neil, 3 1 think you filed first, correct? 2 MR. O'NEIL: I did, your Honor. 3 THE COURT: So go ahead, sir. 4 MR. O'NEIL: Is it okay if I stay here for the 5 microphone? 6 THE COURT: Absolutely. 7 MR. O'NEIL: Your Honor, we're not here to 8 re-try the interest arbitration that took place. What 9 this case is about is whether or not the arbitrators 10 followed the statutory criteria that's mandated under the 11 Taylor Law, and we submit they did not, and if they did 12 not, then the award has to be vacated. I was just 13 commenting that I think this is probably one of the most 14 important cases since the 1976 amendments to the Taylor 15 Law that impose binding arbitration on the 16 municipalities. It implicates really fifty years of the 17 Taylor Law and the history of it. And compulsory 18 interest arbitration went in in 1976 for police and fire 19 only. The 2013 and the amendments we're talking about, 20 thirty-seven years with no change in the interest 21 arbitration statutes, despite a lot of clamoring for them 22 to be repealed, what they did to poor municipalities, I 23 happen to have represented these three of these, Buffalo, 24 Yonkers, Long Beach New York, all in deep fiscal stress. 25 These awards that place tremendous burdens upon them. 4 1 And yet there were no relief for all those years. Now at 2 least there's some hope for those who are in fiscal 3 distress. Under the interest arbitration, it's 4 compulsory. We didn't -- these are not two parties who 5 agreed we're going to arbitrate this dispute and be bound 6 by it. These were things that were put in front of an 7 employer by the legislature. The elected officials now 8 have lost their power to decide these important issues 9 that bear on their budgets. The. arbitrators are not 10 elected. They're not responsible to the electorate. And 11 the way they continue to work is they have to be 12 responsible -- 13 THE COURT: You haven't moved against the 14 constitutionality of that statute, Mr. O'Neil, have you? 15 MR. O'NEIL: I have not. 16 THE COURT: Then this argument has nothing to 17 do with anything then. Any more than an argument that -- officers' 18 said the same the same law stops the police 19 union from having a right to strike. Which is irrelevant 20 to this decision too. 21 MR. O'NEIL: Well, the part that's relevant 22 from our perspective is that the legislature has now 23 changed that law. They've changed it dramatically so 24 that the ability to pay has a much greater factor than it 25 ever has had before. And it's not like they've said 5 1 okay, this is going to count more against every public 2 employer in the State of New York. This only applies to 3 those who are fiscally eligible. A synonym for that for 4 me is fiscally distressed, and applies to not to so many 5 places, but certainly to Jamestown. There's no dispute 6 about that in this proceeding. The standard of review of 7 these compulsory interest arbitration awards are the one 8 under Article 78. There's no dispute to that, I think 9 the parties have stipulated to that in their papers. So 10 when you look at the initial statute, it talks about the 11 panel making a just and reasonable determination of the 12 matters in dispute, and there's a lot of shalls in the 13 introductory language. It says the penal shall specify 14 the basis for its findings, taking into consideration, in 15 addition to other factors, and then it names what I'll 16 call the original four criteria, paraphrasing them. 17 Comparability, the interest and welfare of the public, 18 and the public employer's ability to pay. It's all in 19 one -- in Item Number 2. Item Number 3 is comparison of 20 the peculiarities of the profession, which is rarely 21 addressed anywhere and not addressed in this case. 22 And -- I take that it was addressed in this case. back, 23 And fourth, the terms of collective bargaining agreements 24 negotiated in the past. And the Courts have said and the 25 cases are cited in our papers, that if you don't follow 6 1 and apply all of these, the award should be vacated. And 2 it's been done by employers and by unions. The Buffalo 3 PBA had a case where they said the arbitrator didn't 4 apply all the criteria and the courts vacated it. And 5 employers have had them vacated as well when that 6 occurred. When you look at the award at issue here and 7 the criterion, what I'll call the first set of criterion 8 that were in effect from 1976 until 2013, was 9 comparability. Did they do that in this case? 10 Absolutely. They do that in every case. It rarely 11 favors an employer who has brought the binding 12 arbitration. So yes, they did look at comparability. 13 The second factor, the interest and welfare of the 14 public, not mentioned anywhere in the award. Not taken 15 into account. Not addressed. Worse, the second part of 16 the second factor, which is the ability of the public 17 employer to pay, has now under the new legislation been 18 given a weight. 70 percent. And you have some rules in 19 there about what you do with the amount of money that's 20 being awarded so the tax cap is taken into consideration. 21 I'll address that in a second. Because even under the 22 first set, the third factor was comparison peculiarities 23 of the job. The fourth being the prior collective 24 bargaining agreement. And in this case the panel, the 25 majority, failed to consider the interests and welfare of 7 1 the public, violating 209.4. They don't mention it at 2 all. And do go into -- the panel goes into a yet, they 3 large list of problems in Jamestown. There are almost 4 too many to mention, but they're laid out in the decision 5 itself. put some -- some call some They they important, 6 not so important. But in any event, when they do that, 7 they don't address the issues in the new statute. The 70 8 the time it's mentioned is in Line 3 -- one percent, only 9 line on Page 3, when it's saying what the criteria is of 10 the new law. Never mentioned again. And the issue is 11 how do you apply 70 percent. Not easy, but you have to 12 apply it. You have to give some meaning to that part of 13 the statute. And it's never addressed by the majority in 14 their decision. The only place you'll ever see that 70 15 percent is on Page 3 when they tell you the criteria. 16 They also failed to consider past collective bargaining 17 and I -- I was this before the agreements, frankly doing 18 interest arbitration statute came about. And I used to 19 wonder what that meant. Frankly, I've never had a case 20 where it's been as important as it is here. And the 21 reason it's so important in this matter is because I 22 would say when you read that award, the main support for 23 the 2 percent in each of those two years is that well, 24 you've proven a lot of inability to pay, a lot of fiscal 25 problems. Quite honestly, your Honor, I didn't know 8 1 there was a city that was at their constitutional tax 2 limit before I ran into the mayor in a different place. 3 They're the only one who I think is at the constitutional 4 tax limit. So there's lots of issues involving their 5 ability to pay. And just so it's clear what that 6 standard is, it doesn't require that you spent every dime 7 you have. There are cases, there's a Prue versus the 8 City of Syracuse, where you did not have to show you've 9 exhausted all your tax base and you've given -- you've up 10 exhausted all your reserves. It just has to show you 11 have problems with the ability to pay. And certainly 12 Jamestown falls way within that. Getting back to the 13 prior collective bargaining agreements, I would say the 14 tenure of that award is that he says well, you can't be 15 that bad, you gave raises to two of your other unions. 2 16 2 perc.ent. So -- it was true. But then percent, true, 17 you look back in the prior awards with the PBA. They're 18 coming off of a contract that had, over four years, 19 increases of seven and a half percent. Not even 20 compound. So you add them up. One year they took a 21 freeze, three years with raises. Those other units that 22 he's talking about? Four years, one raise, .5. Not 7.5, 23 2.5. .5. One raise over four years. So the city found 24 fit to try to appropriate some money for those people who 25 had suffered, and then for him not to even look at the 9 1 prior police award, which is in evidence, all this was 2 I think is another reason -- he ignored that briefed, 3 criteria -- another reason it would have to be vacated. 4 The background of those 2013 amendments, it's 5 mentioned in the back then there were -- back in papers, 6 the early days when you wanted to vacate an award, you 7 had to sue the arbitrator. Arbitrators didn't like that. 8 They changed that. The case is called Rinaldo. He's an 9 arbitrator quite well known in this area. He was 10 involved with the City of Buffalo. And he found in that 11 award that the city really didn't have an ability to pay, 12 which is almost a common problem in Buffalo. And yet, he 13 awarded money. And his rationale was it's not the 14 controlling factor. It's only one of the factors. So 15 then he looked at and other -- comparability usually 16 that's what they rely upon to find the money. Especially 17 in a place like Buffalo where they're not paid as much as 18 the surrounding communities. So the amendments that were 19 considered were based on clearing up what occurred in the 20 Rinaldo case. In fact, I think Mr. Mancini from the 21 Conference of Mayors, he goes into some of the 22 legislative history in the sponsoring memo, and he talks 23 about it's now to really give ability to pay a weight 24 that is emphasized. And when they say emphasized, I 25 remember when it was first passed, it was at a time when 10 1 people were calling for it to be repealed. And the 2 people who were calling for it to be repealed were people 3 like the leaders in the City of Jamestown who pretty much 4 had exhausted their constitutional tax limit, had 5 problems, and now were having contracts imposed upon 6 them. But they didn't do that. And the solution at 7 first, I sort of listened, 70 percent, what does that 8 mean. It's not clear exactly what it means. But it 9 means it's not one of four factors. In fact, that's in 10 one subsection that has the interest and welfare of the 11 public. And the ability to pay. So that half of a 12 factor has now become 70 percent. And it says right in 13 the statute everything else counts 30 percent. So when 14 you look at that part and you examine, you look at what 15 they put into evidence in this proceeding about the 16 to in it's not so much -- I'm not ability pay Jamestown, 17 going to re-try the case, but the issue is did he apply 18 the 70 percent. Can't find it. Can't find it anywhere 19 in his award where he did it. We believe that makes it 20 subject to being vacated. 21 THE COURT: What would he have had to do to indicate What would -- excuse because 22 that? they me, 23 it's more than one, of course. 24 MR. O'NEIL: Sure. 25 THE COURT: What would the majority have had to 11 1 do to indicate that if they are taking 70 percent into 2 effect? 3 MR. O'NEIL: he could -- Well, 4 THE COURT: Because I rule on a lot of civil 5 cases, and I very seldom use the word 51 percent. 6 MR. O'NEIL: Well, in this case he has to at 7 least make an attempt at that -- let's -- he showing say 8 says it. He says comparability warrants a 2 percent 9 raise. And then he says and he gave 2 percent to your 10 other unions. So if those two are factors and ability to 11 pay is 70 percent, and we are in dire shape. 12 THE COURT: But if he finds the comparability. 13 is the ability to pay, he could be taking that into 14 account for a hundred percent. 15 MR. O'NEIL: Talking about the comparability 16 with other police departments or internal? 17 THE COURT: Internal. 18 MR. O'NEIL: Well, if he did that, then he 19 ignored a factor that preceded this legislation. 20 THE COURT: I'm just talking about the 70 21 percent. 22 MR. O'NEIL: I understand, but to get to that, 23 you have to ignore that four years prior to that, those 24 people got -- 25 THE COURT: No, he doesn't have to give that 12 1 weight. They have the ability to accept and not accept 2 all items of evidence. All items of evidence in an 3 arbitration and trial do not stand on equal footing. 4 There's credibility and weight issues that of necessity 5 have to be decided by the finder of fact. 6 MR. O'NEIL: Here the finder of fact is 7 mandated to apply 70 percent to that. 8 THE COURT: And they said they did. 9 MR. O'NEIL: No, he. didn't. 10 THE COURT: They said it