NY State Senate Bill 2013-S2670

Senate Bill S2670

2013-2014 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
Jan 08, 2014	referred to local government
Jan 23, 2013	referred to local government

2013-S2670 (ACTIVE) - Details

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 2011-2012 Legislative Session:: S7626

2013-S2670 (ACTIVE) - Summary

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

2013-S2670 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S2670

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 §§ 75 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 offi-
cials 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 Depart-
ment)

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:  6/8/12 Referred to Local Government

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE:  This act shall take effect immediately.

2013-S2670 (ACTIVE) - Bill Text download pdf

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

                                  2670

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 23, 2013
                               ___________

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

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
charges shall not be brought more than ninety days after the  time  when

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07354-01-3

S. 2670                             2

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
board.  Any  member  of  such police force at the time of the hearing or

S. 2670                             3

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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