New York State Local Technical Assistance Program

Can a collective bargaining agreement (CBA) eliminate the power of the Highway Superintendent to hire as the Superintendent sees fit?

This is a complicated issue and there is not a simple answer, but generally the CBA may restrict some of the hiring practices of the Highway Superintendent. Each case is unique so the Superintendent needs to consult legal counsel if there are any concerns. Picture of the words Collective Bargaining

Review of the Issue

A State statute – the so-called “Taylor Law” [Civil Service Law Article 14] - requires that municipalities must bargain in good faith with employee organizations (typically unions) and enter into collective bargaining agreements (CBA). The “Taylor Law” does not require that local voters approve, in a referendum or otherwise, union contracts or local legislation that approves union contracts.

On the other hand, Municipal Home Rule Law §23(2)[f] requires a mandatory referendum if a “local law” – a special form of local legislation – “abolishes, transfers or curtails” an elected officer’s powers.

However, if the Taylor Law, or other state statutes such as general Civil Service Law provisions, generally limit an elected official’s appointment or disciplinary powers, then the Municipal Home Rule Law (MHRL) does not require a referendum because the MHRL requires a referendum prior to the enactment of certain local laws and not state statutes.

Courts have recognized that the Civil Service provisions of the State Constitution [Article IV) and the Civil Service Law generally may properly limit an elected official’s power to hire or discipline. See generally, Amico v. Erie County Legislature, 36 A.D.2d 415 (4th Dept. 1971) aff’d on opinion at App. Div., 30 N.Y.2d 729 (1972); Reese v. Lombard, 47 A.D.2d 327 (4th  Dept. 1975). 

No Court has ever invalidated a CBA on the basis that it needed to be approved in a local referendum before it could be effective against an elective official whose powers might be abolished, transferred or curtailed by a union contract.

In fact, courts have strongly suggested that referendum approval by voters is inconsistent with the civil service provisions of the State Constitution and the Civil Service Law. Amico v. Erie County Legislature, supra; Reese v. Lombard, supra.

One case held that because the “Taylor Law” authorized enactment of the local law at issue, then the mandatory referendum requirement of MHRL §23(2)[f] was not be applicable because §23[2] itself has an “exception clause” for actions taken “by or under the authority of a state statute.”  Mayor of City of New York v. Council of City of New York, 38 A.D.3d 89, 98-100 (1st Dept. 2006) aff’d on other grounds, 9 N.Y.3d 23 (2007). 

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