N.Y. Civil Service Law § 209: Resolution of disputes in the course of collective negotiations

§ 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, 2029

* 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, 2029

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-nine.

(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, 2029

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, 2027

* 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-nine.

* NB Expires July 1, 2029