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Monday, November 16, 2009

Termination by operation of law

Termination by operation of law
Maldarelli v Doherty, 7 A.D.3d 384

In some instances a public officer or employee otherwise entitled to a pre-termination hearing before he or she may be dismissed is automatically removed from his or her position by operation of law without being given any "notice and hearing."

For example, Section 30(1)(e) of the Public Officers Law provides that a public officer, such as a police officer, automatically vacates his or her position if he or she is convicted of a felony or a crime involving a violation of the individual's oath of office. Here, however, Justice Lippman held that the New York City Department of Sanitation [DOS] removing Louis Maldarelli from his position by "operation of law" because he had been convicted of a crime without his first being served with Section 75 disciplinary charges and without being given a pre-termination hearing was unlawful.

DOS's justification for its action: when Maldarelli entered a plea of guilty to the crime of insurance fraud in the third degree, he forfeited his position as a sanitation worker pursuant to New York City Charter Section 1116(a).

Maldarelli, on the other hand, argued that because he was a tenured employee he could not be removed from his position without first being given a hearing upon stated charges pursuant to Civil Service Law Section 75.

Maldarelli had filed a claim for "lost wages" with the American Transit Insurance Company following an accident even though he had received paid sick leave during the time he was out of work as result of his injuries and entered a plea guilty to insurance fraud.

Justice Lippman ruled that DOS could not invoke Section 1116(a) and thus deprive Maldarelli of a Section 75 hearing. Accordingly, the court held that Maldarelli's termination was improper because it violated his right to a hearing under the Civil Service Law.

The Appellate Division affirmed Justice Lippman’s ruling, holding that Maldarelli was told that his position with the Department became vacant by operation of law upon his plea of guilty to the crime of insurance fraud in the third degree because this conviction involved a violation of his oath of office pursuant to New York City Charter §1116.

However, Charter §1116 defines an oath-of-office violation as a violation of “any provision of law relating to [the employee's] office or employment,” “any fraud upon the city,” or the conversion of “any of the public property to [the employee's] own use.”

Insurance fraud in the third degree requires a “fraudulent insurance act” leading to a wrongful taking or withholding of property with a value in excess of $3,000 (Penal Law §176.20). As these elements do not, standing alone, without factual inquiry, show that petitioner perpetrated a fraud upon the City, violated any law relating to his employment or converted any public property to his own use, his termination pursuant to section 1116 was in violation of lawful procedure and was properly annulled.*

Addressing DOS's alternate grounds for declaring that Maldarelli's position became automatically vacant upon his being convicted of a felony -- Section 30(1)(e) of the Public Officers Law -- Justice Lippman, citing Tepidino v City of New York, 50 Misc2d 324, said that:

It has long been the rule that sanitation workers are not public officers but public employees.
As it has often been observed, although all public officers are public employees, not all public employees are public officers.

Where, however, the enabling statute does not itself declare the individual to be a public officer, the courts have viewed a public officer as one "whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment." Justice Lippman said that "clearly" the position of sanitation worker does not fall within that definition.

* The Appellate Division again considered this matter [see 40 A.D.3d 470] and sustained a subsequent decision dismissing Maldarelli from his position, holding “while the crime did not involve [Maldarelli’s] actual employment duties …it was sufficiently related to his employment in that he misused his job status to perpetrate this fraud, and that unethical conduct could be construed as an act of moral turpitude or, at the very least, one that would bear on his fitness to continue in that position.”



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