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September 27, 2016

Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town


Determining the appropriate procedure go be followed when filing disciplinary charges against a police officer of a town
Town of Goshen v Town of Goshen Police Benevolent Assn., 2016 NY Slip Op 06090, Appellate Division, Second Department

§155 of the Town Law provides that charges brought against members of a police department that are subject to procedures prescribed by a town board "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."

Subject to certain exceptions not here relevant, §75.4 of the Civil Service Law provides that disciplinary charges brought against an employee must be brought within 18-month of the occurrence of the alleged act or acts of incompetence or misconduct.

A Town of Goshen police officer was served with disciplinary charges pursuant to Local Law No. 1 of 2013 of the Town of Goshen. Local Law No. 1 had been enacted by the Town Board pursuant to the authority granted to it by Town Law §155.  

Significantly, the record established "that the disciplinary proceeding was untimely commenced more than 60 days after the Town Board learned the facts upon which the disciplinary charges were based."

Town of Goshen Police Benevolent Association [PBA] brought a hybrid proceeding pursuant to CPLR Article 75 seeking a court order declaring that the disciplinary charges against the police officer were time-barred as they were brought pursuant to Town Law §155 more than 60 after the alleged acts of misconduct were know to the Board.

The Town, on the other hand, contended that the disciplinary action had timely served within the  longer 18-month statute of limitations prescribed by Civil Service Law §75.4 “incorporated in the collective bargaining agreement” between the Town and the PBA.* The Town argued that the contract procedure controlled and the disciplinary charges had been timely served on the police officer as authorized by §75.4 of the Civil Service Law.

Supreme Court** agreed with the PBA that the disciplinary charges filed against the police officer were untimely as the statute of limitations set out in the Town Law rather than the Civil Service Law controlled and granted the PBA’s petition.

The Appellate Division affirmed the lower court's ruling, explaining that contrary to the Town’s claim that the statute of limitations set by §75.4 controlled, by enacting Local Law No. 1 the Town Board "affirmed that the subject of police discipline resides with it" and as a result "discipline" was a prohibited subject of collective bargaining between the Town and the PBA. In other words, the provisions dealing with disciplinary action set out in the collective bargaining agreement negotiated pursuant to the Taylor Law were a nullity.

In Town of Wallkill v CSEA, Town of Wallkill Police Department, 19 NY3d 1066, the Court of Appeals said that the 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." Accordingly, the Town of Wallkill's local law made police discipline subject to the Board's procedures and the mandates of Town Law §155 rather than the disciplinary procedures set out in a collective bargaining with respect to initiating and prosecuting a disciplinary action against a Town of Wallkill police officer.

* §76 of the Civil Service Law provides that §§75 and 76 of such law “may be supplemented,  modified or replaced by agreements negotiated between the state  and  an   employee  organization  pursuant  to  Article  14 of this chapter.”

** A summary of the Supreme Court’s decision is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/11/town-adopts-local-law-replacing.html

The Appellate Division’s decision is posted on the Internet at:

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