Adopting disciplinary procedures applicable to a town's police officers pursuant to §155 of the Town Law

An employee organization [Union] brought a CPLR Article 78 proceeding seeking dismissal of disciplinary charges filed against a police officer [Officer] in the collective bargaining unit represented by the Union by the appointing authority [Town] pursuant to §155 of the Town Law and "the disciplinary procedures outlined in the police manual."

The Union contended that such disciplinary charges must be brought pursuant to §75 of the Civil Service Law and the collective bargaining agreement [CBA] between it and the Town. Unionalso sought a court order compelling the Town to reinstate Officer, who had been suspended without pay pending a disciplinary hearing to the payroll. Supreme Court granted the Article 78 petition and the Town  appealed.

The Appellate Division vacated that part of the Supreme Court's judgment prohibiting the Town from conducting disciplinary proceedings pursuant to Town Law §155 and that part of the court's order directing the Town "to abide by Civil Service Law §75 and the collective bargaining agreement regarding disciplinary issues, and by reinstating the amended charges against [Officer]."

The Appellate Division indicated that Town Law §155 states that "[t]he town board shall have the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges" against members of the town police department. Further, said the court, "although the police manual does not specifically reference Town Law §155, the police manual contains language that mirrors that statute.

Citing Matter of Town of Wallkill v Civil Serv. Empls. Assn., Inc. [Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836], 84 AD3d 968, affd. 19 NY3d 1066, the Appellate Division concluded that the police manual "invokes the Town Law" and, contrary to [Supreme Court's] determination, the lack of any specific reference to §155 in the police manual does not mean that the police manual was not adopted pursuant to that section of the Town Law, and does not preclude the Town from using the procedures set forth in the police manual.

The Appellate Division also held that Town Law §155 does not specify the methods to be used by a town board when adopting rules and regulations regarding police discipline, and thus the statute does not require that police disciplinary procedures be adopted by passing a local law rather than a resolution.

Accordingly, the Appellate Division held that "where, as here, a town board has adopted disciplinary rules pursuant to Town Law §155, those rules are controlling and Civil Service Law §75 and any collective bargaining agreement are inapplicable." Thus, said the court, the Town had the authority to initiate disciplinary proceedings established pursuant to Town Law §155 against the Officer.

The court, however, sustained Supreme Court's reinstating Officer's salary and benefits, noting that the police manual states that, "[p]ending the hearing and determination of charges of incompetency or misconduct, an officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty (30) days."

Click HEREto access the text of the Appellate Division's decision.

 

Free webinar on Reporting Election Workers Earnings

The Tax Exempt and Government Entities Division invites interested readers toregister to watch the free webinar on Reporting Election Workers Earnings on June 24, 2021 at 1:00 p.m. (ET).

This webinar is designed to explain which workers should be treated as election workers and when taxes should be withheld from wages. It will also cover what should be included in earnings.

Questions emailed to: TEGE.outreach@IRS.gov with the subject line “Pre-submitted questions for Election Worker webinar (June 24)” will be answered as time permits. The deadline for submitting questions is June 10, 2021. 

For more information, see Webinars for Tax Exempt & Government Entities.

Audits and reports issued during the week ending May 7, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 7, 2021.

Click on the text highlighted in colorto access the complete audit report.

Local Governments

Town of Potter – Town Clerk (Yates County) A former clerk did not deposit, report and remit all collections to the appropriate parties in a timely and accurate manner. Auditors identified a cash shortage of $23,838 during this former clerk’s tenure. The former clerk did not complete monthly bank reconciliations, issue or properly prepare duplicate receipts, or retain receipts for all collections. In addition, the town board did not annually audit the clerk’s records as required. As a result of the audit and subsequent investigation, the former clerk was arrested in November of 2020. The matter is still pending in court.

South Butler Fire District – Board Oversight of Financial Operations (Wayne County)The board did not provide adequate oversight of the district’s financial operations and did not adopt or enforce key financial policies. As a result, the treasurer lacked guidance to adequately perform financial duties and did not maintain sufficient banking or purchasing records. The treasurer also funded and disbursed money from reserves without authorization and paid unapproved claims. Officials could not demonstrate the district obtained the best available prices on purchases auditors reviewed. In addition, the board adopted inaccurate and structurally imbalanced budgets and did not properly establish, fund or use reserve funds. Fund balances and real property tax levies were higher than needed to fund operations.

South Butler Fire Department – Oversight of Financial Activities (Wayne County)Department officers and members did not provide adequate financial oversight. As a result, officers and members were not in a position to monitor and assess the department’s financial status. Existing bylaw provisions were not enforced and adequate accounting and fundraising records were not maintained. Petty cash funds were not properly overseen or accounted for, and $65,658 was disbursed without any review or approval. In addition, auditors found the president routinely signed blank checks. The treasurer’s books and records were not annually audited as required. Required state and federal filings were not completed, and annual budgets were not prepared.

Town of Fishkill – Information Technology (Dutchess County) Town officials did not adequately secure and protect the town’s information technology (IT) systems against unauthorized use, access and loss. The board did not adopt adequate IT policies or a disaster recovery plan. Auditors also found officials did not adequately manage user accounts for the network or financial application. In addition, town employees did not comply with the acceptable use policy and officials did not monitor the use of IT resources. Sensitive IT control weaknesses were communicated confidentially to officials.

Town of Ithaca Justice Court – Justice Court Operations (Tompkins County)The justices collected, deposited, disbursed, recorded and reported the fines and fees auditors reviewed in an accurate and timely manner. During the audit period, the justices deposited 2,111 cash receipts totaling $306,087 and made 60 disbursements totaling $318,091. Auditors reviewed a sample of 556 cash receipts totaling $78,948 and all 60 disbursements totaling $318,091. There were no recommendations as a result of this audit.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

Commissioner of Education dismissed §310 appeal naming teachers' association president as a respondent "for lack of jurisdiction"

Plaintiff filed a §310 Education Law petition challenge certain school district hiring practices. The petition named the board of education and the president of the school district's teachers' association as respondents.

With respect to the president of the teachers' association, Dr. Betty A. Rosa, Interim Commissioner of Education, dismissed Plaintiff's §310 appeal for "lack of jurisdiction."

The Commissioner explained that to the extent that Petitioner's requests for relief targeted the actions of an individual serving in his capacity as president of the teachers' association, "[i]t is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310."

In a footnote to the decision the Commissioner further opined that many of Petitioner's claims would be subject to dismissal on other grounds, including, but not limited to, being untimely and lack of standing to submit an appeal pursuant to Education Law §310.

Click HERE to access the text of the Commissioner's decision.

Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training [Opinions of the Attorney General 2021-F-1]

The Criminal Procedure Law, granting police officer powers, includes sheriffs in its definition of “police officer,” while the Civil Service Law and General Municipal Law, establishing fitness and training requirements for police officers, exclude sheriffs from their definitions of that term.

In response to a request for a Formal Opinion of the Attorney General, Attorney General Letitia James advised Michael Flaherty, Acting Counsel, Division of Criminal Justice Services [DCJS], that Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training.

The Attorney General noted that Civil Service Law §58, in defining the term "police officer," excludes a sheriff and under-sheriff, commissioner of police, deputy or assistant commissioner of police, chief of police, deputy or assistant chief of police, or any person having an equivalent title who is appointed or employed to exercise equivalent supervisory authority.

Accordingly, the Attorney General concluded that such officers, including the sheriff, need not meet the age, height, weight, and physical fitness requirements established by DCJS’s Municipal Police Training Council."

The opinion further observes:

"Because a sheriff is deemed a “police officer” by Criminal Procedure Law §1.20(34)(b), he or she is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.* 

"In summary, while the sheriff is expressly not deemed a “police officer” who needs to satisfy the requirements, including training, of Civil Service Law §58 and General Municipal Law §209-q, he or she must be included in the police officer registry maintained by DCJS and is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.

"We recognize the anomalous result of a sheriff being a police officer under the Criminal Procedure Law, with the attendant powers, but not being required by General Municipal Law §209-q to receive training as to the exercise of those powers. Indeed, this conclusion differs from the conclusion we have reached with respect to police chiefs in prior opinions, because those police chiefs were not explicitly included in the Criminal Procedure Law’s definition of “police officer.” See Op. Att’y Gen. 2003-1 (village chief of police); Op. Att’y Gen. 85-F12 (municipal police chiefs and commissioners).

"We have been unable to identify the reason for the discrepancy between the powers of a sheriff and the lack of a requirement to obtain training relevant to the use of those powers. We note that many sheriffs will in fact have been trained in previous positions of law enforcement employment. See General Municipal Law §209-q(1)(b) (Municipal Police Training Council certificate valid during continuous service as police officer and for up to 10 years following an interruption of service under certain circumstances).

"The Legislature might wish to consider mandating training for all sheriffs, but absent such legislation, the decision to whether to get training rests with the sheriffs themselves." 

* These powers include possessing an unlicensed firearm, Penal Law §265.20(a)(1)(b); making an arrest without a warrant, Criminal Procedure Law §140.10; using physical or deadly force, if necessary, to effect an arrest or prevent an escape, Criminal Procedure Law §120.80, Penal Law §35.30; executing arrest and search warrants, Criminal Procedure Law §§120.60, 690.25; and stopping and frisking a person in a public place, Criminal Procedure Law §140.50.

Click HERE  to access the full text of the Attorney General's opinion.