With judge's ruling, DEP officers may finally get cop benefits

Photo illustration. The reservoir in the background is the Pepacton in Delaware County; photo by Timothy Cox, shared in the Watershed Post's Flickr group pool.

Since 9/11, the number of Department of Environmental Protection police officers in the watershed has more than doubled to include 221 officers, as part of the agency's post-9/11 efforts to boost security around its upstate reservoirs.

Yet for eight years New York City has refused to include the agency's Environmental Protection Officers (EPOs) in the same category as the New York Police Department and other uniformed employees. That means that the officers aren’t entitled to benefits like increases to night-shift wages, allowance to buy required uniforms, and “line of duty” leave for injuries that happen on the job. And they haven’t seen a raise since 2005.

But EPOs might finally get these benefits, thanks to a state court ruling in July that looks likely to end a labor dispute that has been simmering for years.

According to Kenneth Wynder, president of the Law Enforcement Employees Benevolent Association (LEEBA) -- the union that now represents the DEP officers -- the dispute began in 2000, when the city gave the officers their current title and classified them as "miscellaneous" service instead of choosing between "uniformed" or civil, non-uniformed service. 

By state law, LEEBA argues, EPOs are defined as police officers. 

"They're police officers," said Wynder. "No matter how you want to cut it, slice it, dice it, they're cops. And you have to pay them like police officers."

Negotiations between the officers and the city broke down in 2005, after the officers joined LEEBA. The union and the city could not come to a collective bargaining agreement and entered into arbitration, with each side filing appeals to an “impasse panel” and then to the city’s Board of Collective Bargaining. The city argued that it didn’t have the funds to meet the officers’ demands, and the officers refused to back down.

One more appeal placed the dispute in the hands of State Supreme Court Judge Joan Madden, who largely upheld the conclusions reached in arbitration: that the officers should be considered uniformed, and were entitled to a number of benefits. She sent one issue regarding the length of the employment contract back to the Board of Collective Bargaining for consideration.

Stuart Lichten, a New York City labor lawyer not involved in this case, said that the judge’s decision should be considered a win for the EPOs. Often, in cases like this one, judges choose and are legally bound to uphold an arbitrator’s decision, called an award. Here, while neither party was completely satisfied with the award, the EPOs put up a fight that will go down in labor law history. The fact that they were able to get their arguments before a state court is almost unheard of, Lichten said, calling the case “the most contentious” dispute with the city in recent history.

"The decision was very down the middle," Lichten said. "The unique thing is the underlying fact that [they] actually went to arbitration and won. That’s got to make the city nuts."

Wynder said the city is used to getting what it wants in labor negotiations. "This is the first time the city has ever lost an arbitration award at impasse. They’re furious," he said.

A spokesperson for the DEP declined to comment.

According to Wynder, the DEP’s hands have been tied because the city’s Office of Labor Relations handles all city employment contracts. His attempts to contact the DEP directly have been futile.

But in practice, the DEP has acknowledged that the officers’ duties are those of police officers. In April, Commissioner Carter Strickland called the officers in a press release “the first line of defense in protecting the lands, reservoirs and infrastructure that provide drinking water to 9 million New Yorkers.

On its website, the DEP touts its 100-year old police force as protecting 19 reservoirs and seven wastewater treatment plants, and including detective, emergency service, canine and aviation units.

In her decision, Judge Madden wrote that after 9/11, officers’ duties grew to include counterterrorism, more involvement in arrests, and the use of weapons like gas masks, riot gear, and additional firearms. They can enforce state laws within the watershed, often work with local law enforcement, and are required to take drug tests and attend police academy.

Wynder said that the threat of terrorism makes EPOs especially crucial to the watershed’s safety. “Everywhere I go, I tell people the watershed is not protected. We don’t have enough men,” he said.

According to Wynder, city officials on the other side of the bargaining table have refused offers to visit the watershed and don’t know how big it is.

“They don’t know what it looks like. It’s a marvel," he said. 

For now, pending an appeal from the city, the officers will get some of the benefits they sought, including recognition as uniformed officers.

“This is over,” said Wynder. “We’ll accept the award and sign the contract. We’re not appealing it. If it goes anywhere, it will be on the city of New York.”

Wynder said he wouldn’t be surprised if the city appealed.

“When the day comes when we sign our name on the contract, that’s when I’ll know it’s over,” he said.

Below: A copy of State Supreme Court Justice Joan Madden's decision in the case, embedded via Scribd.


Supreme Court Ruling - NYC/LEEBA ruling by Watershed Post