[HISTORY: Adopted by the Board of Trustees of the Village of Upper
Brookville 11-20-2007 by L.L. No. 10-2007.
Amendments noted where applicable.]
This chapter is enacted to establish a procedure whereby certain appointed
public officers in the Village of Upper Brookville (Village) may be afforded
a due process hearing in the event a need arises for the appointing authority
to pursue disciplinary charges for incompetency or misconduct.
As used in this chapter, the following terms shall have the meanings
indicated:
Any person appointed to a duly created public office, including but
not limited to Village Clerk, Village Treasurer, Village Clerk/Treasurer,
Ethics Board member, Board of Appeals member, Planning Board member, Building
Inspector, Code Enforcement Officer, Street Commissioner, Architectural/Site
Plan Commissioner and any deputies for such offices.
Without adequate ability, knowledge, fitness, disposition, attitude
or skill to perform the duties relating to a particular office.
Behavior by an appointed officer, within or without the scope of
his/her official duties, including but not limited to absenteeism, conflict
of interest, unjustified conflict with other employees, failure to cooperate
in investigations, criminal activity (misdemeanor or crime), dereliction of
duty, negligence, illegal drug use, alcohol abuse, false statements, fraud,
failure to waive immunity, failure to follow rules and regulations or instructions
of a superior, sexual harassment, tardiness, threats, rudeness, mistreatment
of the public and conduct unbecoming the office.
A person holding an appointive public office in the Village may be subject
to disciplinary charges for incompetency or misconduct initiated by the officer
or body having the power of appointment in accordance with the following procedure:
A.Â
An officer who at the time of questioning appears to
be a potential subject of disciplinary action shall have a right to representation
by his/her certified or recognized employee organization under Article 14
of the Civil Service Law,[1] if he/she is a member of such organization, and shall be notified
in advance, in writing, of such right.
[1]
Editor's Note: See Civil Service Law § 200 et seq.
B.Â
If representation is requested, a reasonable period of
time shall be afforded to obtain such representation. If the officer is unable
to obtain representation within a reasonable period of time, the Village has
the right to then question the officer. A hearing officer under this section
shall have the power to find that a reasonable period of time was or was not
afforded. In the event the hearing officer finds that a reasonable period
of time was not afforded, then any and all statements obtained from said questioning,
as well as any evidence or information obtained as a result of said questioning,
shall be excluded; provided, however, that this section shall not modify or
replace any written collective agreement between the Village and the employee
organization negotiated pursuant to Article 14 of the Civil Service Law.[2]
[2]
Editor's Note: See Civil Service Law § 200 et seq.
C.Â
An officer against whom removal or other disciplinary
action is proposed shall have written notice thereof and of the reasons therefor,
shall be furnished a copy of the charges preferred against him/her and shall
be allowed at least eight days for answering the same in writing.
D.Â
The hearing upon such charges shall be held by the officer
or body having the power to remove the person against whom such charges are
preferred, or by a deputy or other person designated by such officer or body,
in writing, for that purpose. In case a deputy or other person is so designated,
he/she shall, for the purpose of such hearing, be vested with all the powers
of such officer or body and shall make a record of such hearing which shall,
with his/her recommendations, be referred to such officer or body for review
and decision. The person or persons holding such hearing shall, upon the request
of the person against whom charges are preferred, permit him/her to be represented
by counsel or by a representative of a recognized or certified employee organization
and shall allow him/her to summon witnesses on his/her behalf.
E.Â
The burden of proving incompetency or misconduct shall
be upon the person alleging the same. Compliance with technical rules of evidence
shall not be required.
Pending the hearing and determination of charges of incompetency or
misconduct, the officer against whom such charges have been preferred may
be suspended, without pay, for a period not exceeding 30 days. If such officer
is found guilty of the charges, the penalty or punishment may consist of a
reprimand, a fine not to exceed $100, to be deducted from the salary or wages
of such officer, suspension without pay for a period not exceeding two months,
demotion in grade and title or dismissal from the position; provided, however,
that the time during which an officer is suspended without pay may be considered
as part of the penalty. If such officer is acquitted, he/she shall be restored
to his/her position with full pay for the period of suspension, less the amount
of money in unemployment insurance benefits he/she may have received during
such period. If such officer is found guilty, a copy of the charges, his/her
written answer thereto, a transcript of the hearing and the determination
shall be filed in the office of the department or agency in which he/she has
served or has been employed, and a copy thereof shall be filed with the civil
service commission having jurisdiction over such position. A copy of the transcript
of the hearing shall, upon request of the officer affected, be furnished to
him/her without charge.
No proceeding pursuant to this chapter shall be commenced more than
two years after alleged incompetence or misconduct has occurred or has become
known to the appointing authority. This limitation shall not apply where the
alleged incompetency or misconduct would, if proven in a judicial proceeding,
constitute a crime.
The determination rendered by the appointing authority pursuant to this
chapter shall constitute a final determination of the Village and may be reviewed
upon a petition filed in accordance with the provisions of Article 78 of the
Civil Practice Law and Rules.[1]
[1]
Editor's Note: See CPLR § 7801 et seq.
In the event that this chapter or any provision of it shall be deemed
by a court to be in conflict with a provision of either the New York State
Constitution or with a general law, or if adherence to or enforcement of any
section of this chapter shall be restrained by a court, the remaining provisions
of this chapter shall not be affected.
