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Wednesday, November 06, 2013

Town adopts a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155


Town adopting a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155
Town of Goshen v Town of Goshen Police Benevolent Assn., 2013 NY Slip Op 23365, Supreme Court, Orange County

In Matter of Town of Wallkill v Civil Serv. Employees Assn., Inc., 19 NY3d 1066 [2012] and Matter of Patrolmen's Benevolent Assn. of City of NY, Inc. v. New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]. the Court of Appeals considered two companion appeals involving the effect of the Rockland County Police Act in one action and the New York City Charter and Administrative Code in the other case on the relevant municipality's authority over police discipline.

The Court of Appeals held that discipline of police officers "may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." The Court of Appeals applied that holding in Town of Wallkill, and upheld the Town of Wallkill's local law making police discipline the subject of local authority rather than collective bargaining.

In response to disciplinary charges filed against a police officer pursuant the Town’s Local Law No. 1 of 2013, the Police Benevolent Association [PBA] demanded that the matter be submitted to arbitration.

The Town, cited the Town of Wallkill ruling in support of its initiating disciplinary action against a town police officer pursuant to the Town’s local law, asked Supreme Court to grant its petition to stay submitting the matter to arbitration based on the Town’s representation that it had, pursuant to the authority provided under Town Law §155, supplanted ”the disciplinary procedure laid out in Article 13 of the CBA [Collective Bargaining Agreement] with the disciplinary procedure set forth in Local Law No. 1 of 2013.”*

The court agreed, holding that Article 13 of the CBA is null and void and the procedures set forth in the Town's Local Law, not those of the CBA, govern police discipline in the Town and the Town's Local Law controls with respect to the disciplinary charges brought against police officers following enactment of the Local Law, provided those charges were timely brought.

The PBA then move to have the disciplinary charges filed against the police officer dismiss, contending that they were untimely, pointing out that Town Law §155 provides that disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

The PBA contend that the Town had knowledge of the facts underlying the charges more than 60 days prior to the charges being served on the police officer.**
 
In rebuttal the Town argued that the issue of timeliness of the disciplinary charges was not properly before the court. The Town also contended that, in any event, Local Law No.1 of 2013 "did not supplant the eighteen-month limitation period in the CBA agreement; it merely altered the process of noticing and hearing discipline, i.e., substituted a hearing officer for arbitrators and provided that the Town Board make the final determination."

The court agreed with the PBA, noting the statute of limitations set out in the Town Law §155 whereby disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

Here, said the court, “having successfully eliminated the arbitration provisions from the CBA, the Town cannot extend the principles that derive from arbitration agreements to its local law and decree that the question of timeliness is to be determined by the Town Board or a hearing officer selected by the Town Board. Thus, in the absence of an arbitration agreement on the issue, the timeliness of the Town's disciplinary charges is an issue for the Court to determine.

Accordingly, Supreme Court ruled that the Town’s action in bringing disciplinary action against the police officer was untimely.

* Supreme Court noted that “The Town used the Town of Wallkill's local law as a model for [its] Local Law No. 1 of 2013 and the two [local] laws are virtually identical.”

** According to the decision, the police officer had been served with the Notice of Discipline more than 120 days after the Town Board had knowledge of the facts underlying its bringing the disciplinary action.

The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2013/2013_23365.htm
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