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This entry was published on 2022-01-07
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SECTION 209
Resolution of disputes in the course of collective negotiations
Civil Service (CVS) CHAPTER 7, ARTICLE 14
§ 209. Resolution of disputes in the course of collective
negotiations. 1. For purposes of this section, an impasse may be deemed
to exist if the parties fail to achieve agreement at least one hundred
twenty days prior to the end of the fiscal year of the public employer.

* 2. Public employers are hereby empowered to enter into written
agreements with recognized or certified employee organizations setting
forth procedures to be invoked in the event of disputes which reach an
impasse in the course of collective negotiations. Such agreements may
include the undertaking by each party to submit unresolved issues to
impartial arbitration. In the absence or upon the failure of such
procedures, public employers and employee organizations may request the
board to render assistance as provided in this section, or the board may
render such assistance on its own motion, as provided in subdivision
three of this section, or, in regard to officers or members of any
organized fire department, or any unit of the public employer which
previously was a part of an organized fire department whose primary
mission includes the prevention and control of aircraft fires, police
force or police department of any county, city, town, village or fire or
police district, or detective-investigators, or rackets investigators
employed in the office of a district attorney of a county, or in regard
to any organized unit of troopers, commissioned or noncommissioned
officers of the division of state police, or in regard to investigators,
senior investigators and investigator specialists of the division of
state police, or in regard to members of collective negotiating units
designated as security services and security supervisors who are police
officers, who are forest ranger captains or who are employed by the
state department of corrections and community supervision and are
designated as peace officers pursuant to subdivision twenty-five of
section 2.10 of the criminal procedure law, or in regard to members of
the collective negotiating unit designated as the agency law enforcement
services unit who are police officers pursuant to subdivision
thirty-four of section 1.20 of the criminal procedure law or who are
forest rangers, or in regard to organized units of deputy sheriffs who
are engaged directly in criminal law enforcement activities that
aggregate more than fifty per centum of their service as certified by
the county sheriff and are police officers pursuant to subdivision
thirty-four of section 1.20 of the criminal procedure law as certified
by the municipal police training council or Suffolk county correction
officers or Suffolk county park police, as provided in subdivision four
of this section.

* NB Effective until July 1, 2024

* 2. Public employers are hereby empowered to enter into written
agreements with recognized or certified employee organizations setting
forth procedures to be invoked in the event of disputes which reach an
impasse in the course of collective negotiations. Such agreements may
include the undertaking by each party to submit unresolved issues to
impartial arbitration. In the absence or upon the failure of such
procedures, public employers and employee organizations may request the
board to render assistance as provided in this section, or the board may
render such assistance on its own motion, as provided in subdivision
three of this section, or, in regard to officers or members of any
organized fire department, or any unit of the public employer which
previously was a part of an organized fire department whose primary
mission includes the prevention and control of aircraft fires, police
force or police department of any county, city, except the city of New
York, town, village or fire or police district, or in regard to
organized units of deputy sheriffs who are engaged directly in criminal
law enforcement activities that aggregate more than fifty per centum of
their service as certified by the county sheriff and are police officers
pursuant to subdivision thirty-four of section 1.20 of the criminal
procedure law as certified by the municipal police training council or
Suffolk county correction officers or Suffolk county park police, as
provided in subdivision four of this section.

* NB Effective July 1, 2024

3. On request of either party or upon its own motion, as provided in
subdivision two of this section, and in the event the board determines
that an impasse exists in collective negotiations between such employee
organization and a public employer as to the conditions of employment of
public employees, the board shall render assistance as follows:

(a) to assist the parties to effect a voluntary resolution of the
dispute, the board shall appoint a mediator or mediators representative
of the public from a list of qualified persons maintained by the board;

(b) if the impasse continues, the board shall appoint a fact-finding
board of not more than three members, each representative of the public,
from a list of qualified persons maintained by the board, which
fact-finding board shall have, in addition to the powers delegated to it
by the board, the power to make public recommendations for the
resolution of the dispute;

(c) if the dispute is not resolved at least eighty days prior to the
end of the fiscal year of the public employer or by such other date
determined by the board to be appropriate, the fact-finding board,
acting by a majority of its members, (i) shall immediately transmit its
findings of fact and recommendations for resolution of the dispute to
the chief executive officer of the government involved and to the
employee organization involved, (ii) may thereafter assist the parties
to effect a voluntary resolution of the dispute, and (iii) shall within
five days of such transmission make public such findings and
recommendations;

(d) in the event that the findings of fact and recommendations are
made public by a fact-finding board appointed by the board or
established pursuant to procedures agreed upon by the parties under
subdivision two of this section, and the impasse continues, the public
employment relations board shall have the power to take whatever steps
it deems appropriate to resolve the dispute, including (i) the making of
recommendations after giving due consideration to the findings of fact
and recommendations of such fact-finding board, but no further
fact-finding board shall be appointed and (ii) upon the request of the
parties, assistance in providing for voluntary arbitration;

(e) should either the public employer or the employee organization not
accept in whole or in part the recommendations of the fact-finding
board, (i) the chief executive officer of the government involved shall,
within ten days after receipt of the findings of fact and
recommendations of the fact-finding board, submit to the legislative
body of the government involved a copy of the findings of fact and
recommendations of the fact-finding board, together with his
recommendations for settling the dispute; (ii) the employee organization
may submit to such legislative body its recommendations for settling the
dispute; (iii) the legislative body or a duly authorized committee
thereof shall forthwith conduct a public hearing at which the parties
shall be required to explain their positions with respect to the report
of the fact-finding board; and (iv) thereafter, the legislative body
shall take such action as it deems to be in the public interest,
including the interest of the public employees involved.

(f) where the public employer is a school district, a board of
cooperative educational services, a community college, the state
university of New York, or the city university of New York, the
provisions of subparagraphs (iii) and (iv) of paragraph (e) of this
subdivision shall not apply, and (i) the board may afford the parties an
opportunity to explain their positions with respect to the report of the
fact-finding board at a meeting at which the legislative body, or a duly
authorized committee thereof, may be present; (ii) thereafter, the
legislative body may take such action as is necessary and appropriate to
reach an agreement. The board may provide such assistance as may be
appropriate.

* 4. On request of either party or upon its own motion, as provided in
subdivision two of this section, and in the event the board determines
that an impasse exists in collective negotiations between such employee
organization and a public employer as to the conditions of employment of
officers or members of any organized fire department, or any other unit
of the public employer which previously was a part of an organized fire
department whose primary mission includes the prevention and control of
aircraft fires, police force or police department of any county, city,
town, village or fire or police district, and detective-investigators,
criminal investigators or rackets investigators employed in the office
of a district attorney, or as to the conditions of employment of members
of any organized unit of troopers, commissioned or noncommissioned
officers of the division of state police or as to the conditions of
employment of members of any organized unit of investigators, senior
investigators and investigator specialists of the division of state
police, or as to the terms and conditions of employment of members of
collective negotiating units designated as security services and
security supervisors, who are police officers, who are forest ranger
captains or who are employed by the state department of corrections and
community supervision and are designated as peace officers pursuant to
subdivision twenty-five of section 2.10 of the criminal procedure law,
or in regard to members of the collective negotiating unit designated as
the agency law enforcement services unit who are police officers
pursuant to subdivision thirty-four of section 1.20 of the criminal
procedure law or who are forest rangers, or as to the conditions of
employment of any organized unit of deputy sheriffs who are engaged
directly in criminal law enforcement activities that aggregate more than
fifty per centum of their service as certified by the county sheriff and
are police officers pursuant to subdivision thirty-four of section 1.20
of the criminal procedure law as certified by the municipal police
training council or Suffolk county correction officers or Suffolk county
park police, the board shall render assistance as follows:

(a) to assist the parties to effect a voluntary resolution of the
dispute, the board shall appoint a mediator from a list of qualified
persons maintained by the board;

(b) if the mediator is unable to effect settlement of the controversy
within fifteen days after his appointment, either party may petition the
board to refer the dispute to a public arbitration panel;

(c) (i) upon petition of either party, the board shall refer the
dispute to a public arbitration panel as hereinafter provided;

(ii) the public arbitration panel shall consist of one member
appointed by the public employer, one member appointed by the employee
organization and one public member appointed jointly by the public
employer and employee organization who shall be selected within ten days
after receipt by the board of a petition for creation of the arbitration
panel. If either party fails to designate its member to the public
arbitration panel, the board shall promptly, upon receipt of a request
by either party, designate a member associated in interest with the
public employer or employee organization he is to represent. Each of the
respective parties is to bear the cost of its member appointed or
designated to the arbitration panel and each of the respective parties
is to share equally the cost of the public member. If, within seven days
after the mailing date, the parties are unable to agree upon the one
public member, the board shall submit to the parties a list of
qualified, disinterested persons for the selection of the public member.
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 public member. This process shall be completed
within five days of receipt of this list. The parties shall notify the
board of the designated public member. The public member shall be chosen
as chairman;

(iii) the public arbitration panel shall hold hearings on all matters
related to the dispute. The parties may be heard either in person, by
counsel, or by other representatives, as they may respectively
designate. The panel may grant more than one adjournment each for each
party; provided, however, that a second request of either party and any
subsequent adjournments may be granted on request of either party,
provided that the party which requests the adjournment shall pay the
arbitrator's fee. The parties may present, either orally or in writing,
or both, statements of fact, supporting witnesses and other evidence,
and argument of their respective positions with respect to each case.
The panel shall have authority to require the production of such
additional evidence, either oral or written as it may desire from the
parties and shall provide at the request of either party that a full and
complete record be kept of any such hearings, the cost of such record to
be shared equally by the parties;

(iv) all matters presented to the public arbitration panel for its
determination shall be decided by a majority vote of the members of the
panel. The panel, prior to a vote on any issue in dispute before it,
shall, upon the joint request of its two members representing the public
employer and the employee organization respectively, refer the issues
back to the parties for further negotiations;

(v) the public arbitration panel shall make a just and reasonable
determination of the matters in dispute. In arriving at such
determination, the panel shall specify the basis for its findings,
taking into consideration, in addition to any other relevant factors,
the following:

a. comparison of the wages, hours and conditions of employment of the
employees involved in the arbitration proceeding with the wages, hours,
and conditions of employment of other employees performing similar
services or requiring similar skills under similar working conditions
and with other employees generally in public and private employment in
comparable communities.

b. the interests and welfare of the public and the financial ability
of the public employer to pay;

c. comparison of peculiarities in regard to other trades or
professions, including specifically, (1) hazards of employment; (2)
physical qualifications; (3) educational qualifications; (4) mental
qualifications; (5) job training and skills;

d. the terms of collective agreements negotiated between the parties
in the past providing for compensation and fringe benefits, including,
but not limited to, the provisions for salary, insurance and retirement
benefits, medical and hospitalization benefits, paid time off and job
security.

(vi) the determination of the public arbitration panel shall be final
and binding upon the parties for the period prescribed by the panel, but
in no event shall such period exceed two years from the termination date
of any previous collective bargaining agreement or if there is no
previous collective bargaining agreement then for a period not to exceed
two years from the date of determination by the panel. Such
determination shall not be subject to the approval of any local
legislative body or other municipal authority. Notwithstanding the
provisions of this subparagraph to the contrary, where the parties to a
public arbitration are those anticipated by the provisions of paragraphs
(e) and (f) of this subdivision the state and such parties may agree to
confer authority to the public arbitration panel to issue a final and
binding determination for a period up to and including four years.

(vii) the determination of the public arbitration panel shall be
subject to review by a court of competent jurisdiction in the manner
prescribed by law.

(d) The provisions of this subdivision shall expire July first, two
thousand twenty-four.

(e) With regard to members of any organized unit of troopers,
investigators, senior investigators, investigator specialists and
commissioned or non-commissioned officers of the division of state
police, the provisions of this section shall not apply to issues
relating to disciplinary procedures and investigations or eligibility
and assignment to details and positions, which shall be governed by
other provisions prescribed by law.

(f) With regard to any members of collective negotiating units
designated as security services or security supervisors, who are police
officers, who are forest ranger captains or who are employed by the
state department of corrections and community supervision and are
designated as peace officers pursuant to subdivision twenty-five of
section 2.10 of the criminal procedure law, or in regard to members of
the collective negotiating unit designated as the agency law enforcement
services unit who are police officers pursuant to subdivision
thirty-four of section 1.20 of the criminal procedure law or who are
forest rangers, or in regard to detective-investigators, criminal
investigators or rackets investigators employed in the office of a
district attorney of a county contained within a city with a population
of one million or more, the provisions of this section shall only apply
to the terms of collective bargaining agreements directly relating to
compensation, including, but not limited to, salary, stipends, location
pay, insurance, medical and hospitalization benefits; and shall not
apply to non-compensatory issues including, but not limited to, job
security, disciplinary procedures and actions, deployment or scheduling,
or issues relating to eligibility for overtime compensation which shall
be governed by other provisions proscribed by law.

(g) With regard to members of any organized unit of deputy sheriffs
who are engaged directly in criminal law enforcement activities that
aggregate more than fifty per centum of their service as certified by
the county sheriff and are police officers pursuant to subdivision
thirty-four of section 1.20 of the criminal procedure law as certified
by the municipal police training council, the provisions of this section
shall only apply to the terms of collective bargaining agreements
directly relating to compensation, including, but not limited to,
salary, stipends, location pay, insurance, medical and hospitalization
benefits; and shall not apply to non-compensatory issues including, but
not limited to, job security, disciplinary procedures and actions,
deployment or scheduling, or issues relating to eligibility for overtime
compensation which shall be governed by other provisions proscribed by
law. Provided, further, that with regard to any organized unit of deputy
sheriffs who are engaged directly in criminal law enforcement activities
that aggregate more than fifty per centum of their service and are
police officers pursuant to subdivision thirty-four of section 1.20 of
the criminal procedure law as certified by the municipal police training
council, the provisions of this subdivision pertaining to interest
arbitration shall only apply in the event that the collective bargaining
agreement between the public employer and the public employee
organization has been expired for a period of not less than twelve
months and the parties have fully utilized all other impasse resolution
procedures available under this subdivision.

(h) With regard to Suffolk county correction officers the provisions
of this section shall not apply to issues relating to disciplinary
procedures and investigations or eligibility and assignment to details
and positions, which shall be governed by other provisions prescribed by
law.

(i) With regard to Suffolk county park police officers the provisions
of this section shall not apply to issues relating to disciplinary
procedures and investigations or eligibility and assignment to details
and positions, which shall be governed by other provisions prescribed by
law.

* NB Expires July 1, 2024

4-a. (a) Notwithstanding anything in subdivision four of this section
to the contrary, a public employer that is a fiscally eligible
municipality, as defined in section 160.05 of the local finance law, and
is otherwise subject to subdivision four of this section, upon
resolution of its governing body with the concurrence of its chief
executive officer, and a public employee organization subject to
subdivision four of this section may, jointly, stipulate and agree that
an impasse exists, at any time, with respect to collective negotiations
between the parties for a collective bargaining agreement and, in lieu
of commencing a proceeding under subdivision four of this section, may
jointly request that the financial restructuring board for local
governments, established in section 160.05 of the local finance law,
resolve such impasse. A joint request pursuant to this subdivision shall
be irrevocable.

(b) The financial restructuring board for local governments shall
render a just and reasonable determination of the matters in dispute by
an affirmative vote of a majority of the total number of its members. In
arriving at such determination, it shall specify the basis for its
findings, taking into consideration, in addition to any other relevant
factors, those factors set forth in subdivision six of this section. In
all matters regarding public disclosure of its proceedings and findings,
it shall be treated the same as the panel convened pursuant to
subdivision four of this section. It shall render a determination within
six months of being formally requested by the parties to convene.

(c) Each party before the financial restructuring board for local
governments may be heard either in person, by counsel, or by other
representatives, as they may respectively designate and may present,
either orally or in writing, or both, statements of fact, supporting
witnesses and other evidence, and argument of their respective positions
with respect to each case. The board shall have authority to require the
production of additional evidence, either oral or written, as it may
desire from the parties. All proceedings, meetings and hearings
conducted by the board shall be held in the city of Albany.

(d) The determination of the financial restructuring board for local
governments with respect to the conditions of employment presented to it
pursuant to this section shall be final and binding upon the parties for
the period prescribed by such board, but in no event shall such period
exceed four years from the termination date of any previous collective
bargaining agreement or if there is no previous collective bargaining
agreement then for a period not to exceed four years from the date of
determination by the board. Such determination shall not be subject to
the approval of any local legislative body or other municipal authority,
and shall only be subject to review by a court of competent jurisdiction
in the manner prescribed by law.

* 5. (a) In the event that the board certifies that a voluntary
resolution of the contract negotiations between either (i) the New York
city transit authority (hereinafter referred to as TA-public employer)
and the public employee organization certified or recognized to
represent the majority of employees of such TA-public employer, or (ii)
the metropolitan transportation authority, including its subsidiaries,
the New York city transit authority, including its subsidiary, and the
Triborough bridge and tunnel authority (all hereinafter referred to as
MTA-public employer) and a public employee organization certified or
recognized to represent employees of such MTA-public employer not
subject to the jurisdiction of the Federal Railway Labor Act and not
subject to the provisions of subparagraph (i) of this paragraph, which
has made an election pursuant to paragraph (f) of this subdivision, or
(iii) the Niagara Frontier transportation authority, the
Rochester-Genesee regional transportation authority, the capital
district transportation authority and the central New York regional
transportation authority (all hereinafter referred to as upstate
TA-public employer) and the public employee organization certified or
recognized to represent the employees of such upstate TA-public
employer, cannot be effected, or upon the joint request of the TA-public
employer, the MTA-public employer (hereinafter jointly referred to as
public employer) or the upstate TA-public employer and any such affected
employee organization, such board shall refer the dispute to a public
arbitration panel, consisting of one member appointed by the public
employer, one member appointed by the employee organization and one
public member appointed jointly by the public employer and employee
organization who shall be selected within ten days after receipt by the
board of a petition for creation of the arbitration panel. If either
party fails to designate its member to the public arbitration panel, the
board shall promptly, upon receipt of a request by either party,
designate a member associated in interest with the public employer or
employee organization he is to represent. Each of the respective parties
is to bear the cost of its member appointed or designated to the
arbitration panel and each of the respective parties is to share equally
the cost of the public member. If, within seven days after the mailing
date, the parties are unable to agree upon the one public member, the
board shall submit to the parties a list of qualified, disinterested
persons for the selection of the public member. 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 public member. This process shall be completed within five
days of receipt of this list. The parties shall notify the board of the
designated public member. The public member shall be chosen as chairman.

(b) The arbitration panel shall hold hearings on all matters within
the scope of negotiations related to the dispute for which the panel was
appointed. The parties may be heard either in person, by counsel or by
other representatives as they may respectively designate. The parties
may present, either orally or in writing or both, statement of fact,
supporting witnesses and other evidence and argument of their respective
position with respect to each case. The panel shall have authority to
require the production of such additional evidence, either oral or
written, as it may desire from the parties and shall provide at the
request of either party that a full and complete record be kept of any
such hearings, the cost of such record to be shared equally by the
parties.

(c) All matters presented to such panel for its determination shall be
decided by a majority vote of the members of the panel. The panel, prior
to a vote on any issue in dispute before it, may refer the issue back to
the parties for further negotiations.

(d) Such panel shall make a just and reasonable determination of
matters in dispute. In arriving at such determination, the panel shall
specify the basis for its findings, taking into consideration, in
addition to any other relevant factors, the following:

(i) comparison of the wages, hours, fringe benefits, conditions and
characteristics of employment of the public employees involved in the
impasse proceeding with the wages, hours, fringe benefits, conditions
and characteristics of employment of other employees performing similar
work and other employees generally in public or private employment in
New York city or comparable communities;

(ii) the overall compensation paid to the employees involved in the
impasse proceeding, including direct wage compensation, overtime and
premium pay, vacations, holidays and other excused time, insurance,
pensions, medical and hospitalization benefits, food and apparel
furnished, and all other benefits received;

(iii) the impact of the panel's award on the financial ability of the
public employer to pay, on the present fares and on the continued
provision of services to the public;

(iv) changes in the average consumer prices for goods and services,
commonly known as the cost of living;

(v) the interest and welfare of the public; and

(vi) such other factors as are normally and customarily considered in
the determination of wages, hours, fringe benefits and other working
conditions in collective negotiations or impasse panel proceedings.

(e) The panel shall have full authority to resolve the matters in
dispute before it and issue a determination which shall be final and
binding upon the parties, notwithstanding any other provision of this
article. Except for the purposes of judicial review, any provision of a
determination of the arbitration panel, the implementation of which
requires an enactment of law, shall not become binding until the
appropriate legislative body enacts such law.

(f) (i) Within sixty days of the enactment of this provision, and only
within such time period, any such public employee organization described
in subparagraph (ii) of paragraph (a) of this subdivision may elect to
be covered by the provisions of this section by filing in writing a no-
tice of participation with the chairman of the board and the chairman of
the metropolitan transportation authority.

(ii) Within sixty days of the enactment of this subparagraph and only
within such time period, any such public employee organization certified
or recognized to represent employees of an MTA-public employer
(described in subparagraph (ii) of paragraph (a) of this subdivision)
not subject to the jurisdiction of the Federal Railway Labor Act but
which was subject to such jurisdiction during the sixty-day period set
forth in subparagraph (i) of this paragraph may elect to be covered by
the provisions of this section by filing in writing a notice of
participation with the chairman of the board and the chairman of the
metropolitan transportation authority.

(iii) Within ninety days of the enactment of this subparagraph, and
only within such time period, any such public employee organization
certified or registered to represent employees classified as the
Triborough bridge and tunnel authority superior officer benevolent
association of an MTA-public employer (described in subparagraph (ii) of
paragraph (a) of this subdivision) may elect to be covered by the
provisions of this section by filing in writing a notice of
participation with the chairman of the board and the chairman of the
metropolitan transportation authority.

(iv) Once such an election is made pursuant to subparagraph (i) or
(ii) of this paragraph, any such public employee organization shall
thereafter be subject to the provisions of this section unless such
organization and the chairman of the metropolitan transportation
authority file a joint agreement in writing with the chairman of the
board that provides for a rescission of the election made pursuant to
this paragraph.

(g) This subdivision shall not apply to a certified or recognized
public employee organization which represents any public employees
described in subdivision sixteen of section twelve hundred four of the
public authorities law and nothing contained within this section shall
be construed to divest the public employment relations board or any
court of competent jurisdiction of the full power or authority to
enforce any order made by the board or such court prior to the effective
date of this subdivision.

* NB Expires July 1, 2023

* 6. (a) For disputes concerning an impasse pursuant to subdivision
four of this section that involve a county, city, town, or village
subject to section three-c of the general municipal law, a public
arbitration panel shall make a determination as to whether such county,
city, town, or village, is a public employer that is a fiscally eligible
municipality as part of its analysis of the financial ability of the
public employer to pay.

(b) In evaluating whether a public employer covered by this
subdivision is a fiscally eligible municipality, such public arbitration
panel shall consider the average full value property tax rate of such
public employer and the average fund balance percentage of such public
employer.

(i) For purposes of this subdivision, "full value property tax rate"
shall mean the amount to be raised by tax on real estate by a local
government in a given fiscal year divided by the full valuation of
taxable real estate for that same fiscal year as reported to the office
of the state comptroller.

(ii) For purposes of this subdivision, "average full value property
tax rate" shall mean the sum of the full value property tax rates for
the five most recent fiscal years divided by five.

(iii) For purposes of this subdivision, "fund balance percentage"
shall mean the total fund balance in the general fund of a local
government in a given fiscal year divided by the total expenditures from
the general fund for that same fiscal year as reported to the office of
the state comptroller.

(iv) For purposes of this subdivision, "average fund balance
percentage" shall mean the sum of the fund balance percentages for the
five most recently completed fiscal years divided by five.

(c) If the average full value property tax rate of such public
employer is greater than the average full value property tax rate of
seventy-five percent of counties, cities, towns, and villages, with
local fiscal years ending in the same calendar year as of the most
recently available information, the public arbitration panel must find
that such public employer is a fiscally eligible municipality. The
office of the state comptroller shall make publicly available the list
of counties, cities, towns, and villages that have an average full value
property tax rate that meets such criteria in each local fiscal year. If
a public employer has not reported to the office of the state
comptroller the information necessary to calculate its average full
value property tax rate, such public employer may not be deemed a
fiscally eligible municipality and the provisions of this subdivision
shall not apply.

(d) If the average fund balance percentage of such public employer is
less than five percent and the state comptroller has certified that any
additional fund balances in funds other than the general fund available
for payment of arbitration awards in each year, if added to the fund
balance of the general fund, would not cause the average fund balance
percentage of such public employer to exceed five percent, the public
arbitration panel must find that such public employer is a fiscally
eligible municipality. The office of the state comptroller shall make
publicly available the list of counties, cities, towns, and villages
that have an average fund balance percentage that is less than five
percent in each local fiscal year. If a public employer has not reported
to the office of the state comptroller the information necessary to
calculate its average fund balance percentage, such public employer may
not be deemed a fiscally eligible municipality and the provisions of
this subdivision shall not apply.

(e) When such public employer has been found to be a fiscally eligible
municipality, the public arbitration panel shall, first and foremost,
consider ability to pay by assigning a weight of seventy percent to that
portion of the criterion contained within clause b of subparagraph (v)
of paragraph (c) of subdivision four of this section that pertains only
to the public employer's ability to pay. All other criteria contained in
subparagraph (v) of paragraph (c) of subdivision four of this section,
including that portion of clause b of subparagraph (v) of paragraph (c)
of subdivision four of this section that pertains to the interest and
welfare of the public, shall constitute an aggregate weight of thirty
percent. Additionally, with respect to the total monetary value of any
determination, the panel must recognize and take into account in its
determination the constraints, obligations and requirements imposed by
the real property tax cap pursuant to section three-c of the general
municipal law upon the public employer involved in the dispute before
the panel.

(f) The provisions of this subdivision shall expire July first, two
thousand twenty-four.

* NB Expires July 1, 2024