Reversal of an employee’s criminal conviction may require reconsideration of a disciplinary action based on the acts or omissions

Reversal of an employee’s criminal conviction may require reconsideration of a disciplinary action based on the acts or omissions
Beard v Newburgh, 259 AD2d 613, motion for leave to appeal denied, 93 NY2d 958

Town of Newburgh police officer Joseph Beard asked a state Supreme Court judge to vacate an arbitration award upholding his dismissal from the department based on various rule violations.

Beard complained that an arbitrator gave “collateral estoppel effect” to Beard’s conviction in a criminal matter related to the same events. Even though the criminal judgment was still under appeal at the time, the arbitrator rule that Beard’s criminal conviction automatically made him guilty of various disciplinary offenses stemming from the same underlying events.

The arbitrator ruled that because Beard was found guilty in the criminal action, the doctrine of collateral estoppel required that he be found guilty in the administrative disciplinary proceeding as well.*

On appeal, Beard persuaded an Appellate Division panel to overturn the arbitrator’s ruling. The Appellate Division said the arbitrator’s determination had to be vacated because Beard’s conviction, which was the sole factual basis for the arbitration award, was reversed on appeal. Accordingly, the court directed that a new hearing of the issues be held by the arbitrator.

The Town of Newburgh also argued that Beard’s termination should stand because Section 30.1(e) of the Public Officers Law mandates removal from public office as the automatic penalty in the event a public officer is found guilty of a felony or the violation of his or her oath of office.

However, observed the Appellate Division, was not terminated pursuant to Section 30.1(e) and therefore its applicability was not an issue raised before the arbitrator. Accordingly, “the applicability of the statute is not properly before this court.”

Had Beard been removed from his public office** by operation of law pursuant to Section 30.1(e) of the Public Officers Law, the under the law Beard could have requested reinstatement following the reversal of his conviction.

Section 30.1(e) provides that a non-elected official may ask the appointing authority for reinstatement upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy resulting from the application of Section 30.1(e). The appointing authority is required to hold a hearing to determine whether reinstatement is warranted.

Further, in addition to “the final judgment of the court which reversed or vacated such conviction,” an appointing authority may consider the entire employment history of the individual.

Section 30.1(e) further provides that "Upon its consideration of such information, and any other submissions, the appointing authority may, in its discretion, reappoint the individual to his or her former office, or to a similar office if the former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof."

* In Kelly v. Levin, 440 NY2d 424 the Appellate Division ruled that acquitting an employee in an administrative disciplinary action is a reversible error if the individual has been found guilty of a criminal act involving the same allegations.

** A police officer is a public officer for the purposes of Section 30 of the Public Officers Law.
NYPPL