NY Civ Serv L § 209 (2021)
2021 New York Laws CVS - Civil Service Article 14 - Public Employees' Fair Employment Act 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, 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) hereof, which has made  an election  pursuant  to  paragraph  (f)  of  this  subdivision, cannot be effected, or upon the joint request of the  TA-public  employer  or  the MTA-public employer (hereinafter jointly referred to as 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)  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