Provides that an officer may be suspended without pay for only thirty days 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The Westchester police Act (for towns - L.1936, c. 104 §4; and villages - L.1936, c. 103, §§ 1 to 16, respectively; repealed by L.1939, c. 300, § 7 and replaced by L.1972, c. 891, § 2(§ 18)) sets special provisions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.