NY State Senate Bill 2011-S7626

Senate Bill S7626

2011-2012 Legislative Session

Provides that an officer may be suspended without pay for only thirty days pending a trial of disciplinary charges

download bill text pdf

Archive: Last Bill Status - In Senate Committee Local Government Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 08, 2012	referred to local government

2011-S7626 (ACTIVE) - Details

See Assembly Version of this Bill:: A10598
Current Committee:: Senate Local Government
Law Section:: Westchester County
Laws Affected:: Amd §7, Chap 104 of 1936; amd §18, Chap 891 of 1972
Versions Introduced in 2013-2014 Legislative Session:: S2670

2011-S7626 (ACTIVE) - Summary

Provides that an officer may be suspended without pay for only thirty days pending a trial of disciplinary charges.

2011-S7626 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7626

TITLE OF BILL:
An act to amend chapter 104 of the laws of 1936 relating to providing
for the establishment, organization and operation of police departments
in the towns of Westchester county and chapter 891 of the laws of 1972
relating to continuing special provisions relating to police departments
of certain villages, in relation to suspension of an officer pending a
trial of disciplinary charges

TITLE OF BILL:
An act to amend chapter 104 of the laws of 1936 relating to providing
for the establishment, organization and operation of police departments
in the towns of Westchester county and chapter 891 of the laws of 1972
relating to continuing special provisions relating to police departments
of certain villages, in relation to suspension of an officer pending a
trial of disciplinary charges

PURPOSE OR GENERAL IDEA OF BILL:
Provides that an officer may only be suspended without pay for thirty
days pending a trial of disciplinary charges.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1: section 7 of chapter 104 of the laws of 1936 is amended to
read that a town board or board of police commissioners shall have the
power to suspend, without pay, pending the trial of charges, any member

of such police department for a period not exceeding thirty days.

Section 2: Subdivision 9 of section 18 of chapter 891 of the laws of
1972 is amended to read that a board of trustees or municipal board
shall have the power to suspend, without pay, pending the trial of
charges, any member of such police department for a period not exceeding
thirty days.

Section 3: Sets the enactment date.

JUSTIFICATION:
This legislation is designed to comport the Westchester police Act with
New York State Civil Service Law.

Disciplinary proceedings for police Departments established in the towns
and villages of Westchester are governed by. the Westchester police Act,
rather than the Town Law. Under this Act, the charges are heard by a
town board or local board of police commissioners. Both PERB and the
Court of Appeals have held that extant disciplinary scheme set forth in
the Westchester police Act also supplant CSL §§ 7 5 and 76, because it
predates its enactment.

The Westchester police Act (for towns - L.1936, c. 104 §4; and villages
- L.1936, c. 103, §§ 1 to 16, respectively; repealed by L.1939, c. 300,
§ 7 and replaced by L.1972, c. 891, § 2(§ 18)) sets special provisions

which govern the establishment and operation of police departments in
towns and villages in the county of Westchester.

In recent Court decisions, this eighty-five year old law has been inter-
preted by the Courts to read as though a municipality in Westchester may
indefinitely suspend, without pay, a police offender; pending a trial of
disciplinary charges, due to technical omissions in the law itself.

Section 7 of the Westchester County Police Act, entitled "Discipline and
charges," states that no member of a police department "shall be fined,
reprimanded, removed or dismissed" until the charges have been investi-
gated, and further provides that the trial of those charges "shall not
be delegated and must be heard by the town board or the full board of
police commissioners."

However, this section omits the important phrase "for a period not to
exceed thirty days" found in CSL §§75 and 76.

As a general rule procedures for disciplining public employees, includ-
ing police officers, are governed by the general laws CSL §§75 and 76.

A general law is "(a) state statute which in terms and in effect applies
alike to all counties, all counties other than those wholly included
within a city, all towns or all villages" (Municipal Home Rule Law
2(5)). A "special law," by contrast, is "(a) state statute which in
terms and in effect applies to one or more, but not all, counties, coun-
ties other than those wholly included within a city, towns or villages"
(Municipal Home Rule Law § 2(12)).

The Westchester Police Act applies to towns only within the County of
Westchester (see Westchester County Police Act § 1), and is therefore a
special law, and not a general law, as those terms are defined in the
Municipal Home Rule Law (see Matter of Park v Kapica, 25 AD3d 801, 802;
Matter of Town of Greenburgh (Police Assn. of Town of Greenburgh), 94
AD2d 771).

Thusly, the Courts. have held that Civil operative in disciplinary
proceedings the Departments in Westchester County (see Gizzo A.D.3d 162,
824 N.Y.S.2d 366).

Pointing to §76 (4) of the Civil Service Law, the Appellate Division
noted that "§§75 and 76 of the Civil Service Law shall not 'be construed
to repeal or modify any general, special or local law' that 'provide
expressly for the control of police' discipline by local officials in
certain communities.'" (see Matter of Town of Harrison Police Benevolent
Assn., Inc. v Town of Harrison Police Dept., 2010 NY Slip Op 00160,
Decided on January 5, 2010, Appellate Division, Second Department)

Here, said the court, the Westchester County Police Act, Chapter 104 of
the Laws of 1936, provides that "proceedings to discipline police offi-
cers employed by the towns in Westchester County be conducted by the
boards of police commissioners of the towns." Citing Matter of Town of

Greenburgh (Police Assn. of Town of Greenburgh), 94 AD2d at 772, the
court ruled that because the Westchester County Police Act is a special
law "disciplinary procedures are not a (proper) subject of collective
bargaining for members of town police departments in Westchester (Coun-
ty)."

Police officers in Westchester County should be treated the same as
police officers anywhere else in the State. They should be entitled to a
speedy disposition of disciplinary proceedings. Under current law, the
lengthy suspensions which Occur as a result of the Westchester Police
Act invariably lead to legal action, which is often more costly to the
municipality than if the matter had been adjudicated quickly.

This technical omissions of the Westchester Police Act were likely not
foreseen when the law was crafted in 1936, as it predated many current
Civil Service protections, and it stands in direct contravention with
current New York State Civil Service Law.

The bill as presented states that a town or village shall have the power
to suspend, without pay, pending the trial of charges, any member of
such police department for a period not exceeding thirty days, which
brings the Westchester Police Act in line with current New York State
Civil Service law.

PRIOR LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

2011-S7626 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

    S. 7626                                                 A. 10598

                      S E N A T E - A S S E M B L Y

                              June 8, 2012
                               ___________

IN  SENATE -- Introduced by Sen. BALL -- read twice and ordered printed,
  and when printed to be committed to the Committee on Local Government

IN ASSEMBLY -- Introduced by COMMITTEE ON RULES -- (at request of M.  of
  A.  Castelli)  --  read  once and referred to the Committee on Govern-
  mental Employees

AN ACT to amend chapter 104 of the laws of 1936  relating  to  providing
  for  the  establishment,  organization and operation of police depart-
  ments in the towns of Westchester county and chapter 891 of  the  laws
  of  1972  relating to continuing special provisions relating to police
  departments of certain villages, in relation to suspension of an offi-
  cer pending a trial of disciplinary charges

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  7 of chapter 104 of the laws of 1936 relating to
providing for the establishment, organization and  operation  of  police
departments  in  the  towns of Westchester county, as amended by chapter
812 of the laws of 1941, is amended to read as follows:
  S 7. Discipline and charges. Except as otherwise provided  by  law,  a
member  of  such  police  department  shall  continue  in  office unless
suspended or dismissed. The town board or board of police  commissioners
shall  have  power  and  is authorized to adopt and make rules and regu-
lations for the examination, hearing, investigation and determination of
charges, made or preferred against any member or members of such  police
department,  but no member or members of such police department shall be
fined, reprimanded, removed or dismissed  until  written  charges  shall
have  been  investigated,  examined,  heard  and determined by such town
board or board of police commissioners in such manner, procedure,  prac-
tice, examination and investigation as such board may, by such rules and
regulations  from  time to time prescribe, except that the trial of such
charges shall not be delegated and must be heard before  the  full  town
board or full board of police commissioners or a majority of the members
of either of such boards, and the affirmative vote of a majority of such
members  shall  be  necessary for a conviction on any such charges. Such

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD16158-01-2

S. 7626                             2                           A. 10598

charges shall not be brought more than ninety days after the  time  when
the facts upon which such charges are based are known to such town board
or  board of police commissioners.  Any member of such police department
at  the  time  of  the hearing or trial of such charges before such town
board or board of police commissioners shall have the right to a  public
hearing  and  trial and to be represented by counsel at any such hearing
or trial and any person who shall have preferred  such  charges  or  any
part  of  the same shall not sit as a member of such town board or board
of police commissioners upon such hearing  or  trial  and  any  and  all
witnesses produced upon the trial shall testify under oath.
  Any  member  of  such  department found guilty upon charges after five
days' written notice and an opportunity to be heard in his  defense,  of
neglect or dereliction in the performance of official duty, or violation
of  rules  or  regulations  or  disobedience, or incompetency to perform
official duty, or an act of delinquency seriously affecting his  general
character  or  fitness for office, may be punished by such town board or
board of police commissioners before which such charges  are  tried,  by
reprimand,  forfeiture and the withholding of salary or compensation for
a specified time not exceeding twenty days, by suspension from duty  for
a specified time not exceeding twenty days and the withholding of salary
or compensation during such suspension, or by dismissal from the depart-
ment.  Such  town  board or board of police commissioners shall have the
power to suspend, without pay, pending the trial of charges, any  member
of  such  police  department FOR A PERIOD NOT EXCEEDING THIRTY DAYS.  If
any member of such police department so suspended shall not be convicted
by such board  of  the  charges  so  preferred,  or  if  on  review  his
conviction  shall  be  reversed,  then, notwithstanding such charges and
suspension, he shall be entitled to full pay from the date of suspension
to the date of reinstatement less the amount of  compensation,  if  any,
received by him from any other employment or occupation during the peri-
od  beginning  with  such  date  of  suspension to the date of his rein-
statement and he shall be entitled to [an] A COURT order [as provided in
article seventy-eight  of  the  civil  practice  act]  to  enforce  such
payment.
  S  2.   Subdivision 9 of section 18 of chapter 891 of the laws of 1972
relating to continuing special provisions relating to police departments
of certain villages is amended to read as follows:
  9. Discipline and charges. Except as  otherwise  provided  by  law,  a
member of such police force shall continue in office unless suspended or
dismissed. The board of trustees or municipal board shall have power and
is  authorized  to adopt and make rules and regulations for the examina-
tion, hearing, investigation  and  determination  of  charges,  made  or
preferred  against  any  member  or members of such police force, but no
member or members of such police  force  shall  be  fined,  reprimanded,
removed  or  dismissed  until  written  charges shall have been made and
preferred against him or them, nor until such charges have been investi-
gated, examined, heard and determined  by  such  board  of  trustees  or
municipal  board  in  such  manner, procedure, practice, examination and
investigation as such board may by such rules and regulations from  time
to  time  prescribe,  except that the trial of such charges shall not be
delegated and must be heard before the full board of  trustees  or  full
municipal  board, or a majority of the members of either of such boards,
and the affirmative vote of a majority of such members shall  be  neces-
sary  to  a  conviction  on  any such charges. Such charges shall not be
brought more than ninety days after the time when the facts  upon  which
such  charges are based are known to such board of trustees or municipal

S. 7626                             3                           A. 10598

board. Any member of such police force at the time  of  the  hearing  or
trial  of  such charges before such board of trustees or municipal board
shall have the right to a public hearing and trial and to be represented
by  counsel  at any such hearing or trial, and any person who shall have
preferred such charges or any part of the same shall not sit as a member
of such board of trustees or municipal board upon such hearing or trial.
Any and all witnesses produced upon the trial shall testify under  oath.
Any  member  of  such  force found guilty upon charges, after five days'
written notice and an opportunity to be heard in his defense, of neglect
or dereliction in the performance of  official  duty,  or  violation  of
rules and regulations, or disobedience, or incompetency to perform offi-
cial  duty,  or  an  act  of delinquency seriously affecting his general
character or fitness for office, may be punished by such board of  trus-
tees  or  municipal board before which such charges are tried, by repri-
mand, forfeiture and the withholding of salary  or  compensation  for  a
specified  time  not exceeding twenty days and the withholding of salary
or compensation during such suspension, or by dismissal from the depart-
ment. Such board of trustees or municipal board shall have the power  to
suspend  without  pay,  pending the trial of charges, any member of such
police force FOR A PERIOD NOT TO EXCEED THIRTY DAYS.  If any  member  of
such  police  force so suspended shall not be convicted by such board of
the charges so preferred, or  if  on  review  his  conviction  shall  be
reversed, then, notwithstanding such charges and suspension, he shall be
entitled  to receive full pay from the date of suspension to the date of
reimbursement less the amount of compensation, if any, received  by  him
from any other employment or occupation during the period beginning with
such date of suspension to the date of his reinstatement and he shall be
entitled  to [an] A COURT order [as provided in article seventy-eight of
the civil practice act] to enforce the payment thereof.
  S 3. This act shall take effect immediately.

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