One of the issues swirling around the charges preferred against Chief Sullivan is the notion that the disciplinary process is inherently unfair, in that the Town controls all elements of the process, including the sole right to choose the hearing officer, and the authority to make a determination about whether the charges are substantiated or not, and to impose a penalty, regardless of the findings and recommendations of the hearing officer.

At a recent Town Board meeting, the attorney who was recently hired as an independent contractor for among other things the handling of police disciplinary matters, made some statements regarding this area of law that need some clarification.

The attorney, Vincent Toomey, spoke with great authority and indicated state law “required” the process that is now in place, based upon the case of Orangetown v. Orangetown PBA decided by the Court of Appeals in 2006.

Two points to mention before delving into the specifics of the case. First, statements made by attorneys are opinions. Attorneys advocate for their clients, and offer advice based upon their interpretation of the law, be it statutory law or case law. Case law is what really brings out the clarity of any given statute. Judges are the ones who decide how that law applies to the facts of any given case. Unless and until a case is brought to court and decided, what the attorney thinks is just that - what that particular attorney thinks.

The other point is the Orangetown case was decided in 2006. It wasn’t until 2012 that Clarkstown changed its disciplinary rules based upon legal advice of the then Town Attorney’s office that was formulated based largely on the authority given the Town under the Orangetown case. There is actually a Clarkstown case that dates back even farther to 1989, wherein the 2nd Department of the Appellate Division, in the case of Rockland County PBA v. Town of Clarkstown held that the town police commission was under no obligation to negotiate with the police union with respect to statutorily mandated disciplinary procedures. Yet somehow despite the decisions in these cases, the Town handled disciplinary matters up until 2012 by following the process that the Town is now saying state law prohibits.

In the Orangetown matter, the Court of Appeals stated "The Legislature has provided similarly for the discipline of town and village police forces, including those in Rockland County, where Orangetown is located. Section 7 of the Rockland County Police Act (L. 1936, Ch. 526), similar in its wording to more general statutes, Town Law § 155 and Village Law § 8-804, provides in part: "The town board shall have the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department. Except as otherwise provided by law, no member or members of such police department shall be fined, reprimanded, removed or dismissed until written charges shall have been examined, heard and investigated in such manner or by such procedure, practice, examination and investigation as the board, by rules and regulations from time to time, may prescribe." Thus, the Legislature has committed police discipline in Orangetown to the "power and authority" of the Orangetown Town Board.”

Put in simple terms, the Court stated that the Rockland County Police Act essentially barred the Town of Orangetown from collectively bargaining the disciplinary process. It did not however, mandate what the process had to be. Therefore there is great latitude in crafting a fair and equitable policy. The fact that the municipality was granted unfettered discretion does not mean they need exercise it to the point that the process is inherently unfair.

Of particular interest to the issue at hand is the case that was decided concurrently with and as part of the Orangetown matter. That companion case was the PBA of the City of New York v. New York State Public Employment Relations Board (PERB). That case also had a local law (NYC Administrative Code) that provided for police discipline power to rest with the municipality. However, it wasn’t the Mayor or the City Council with the power - it was the Police Commissioner. The PC in NYC is a civilian who oversees the department, but in most instances the PC has been a person with a long law enforcement career, not a politician with little police experience. The PC also has been vetted and has top-level security clearances. The members of the Town Board have run for office, but have not undergone any real vetting or actual background checks for security clearances. Mr. Toomey in his comments actually compared the Police Commissioner of the NYPD and the Town Board sitting as the Police Commission and said they are essentially the same thing – simply civilian oversight over the police. And he said it with a straight face no less.

This is just one small rebuttal of what has been put out by the Town Board over the past few weeks.