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June 30, 2010

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?

Is a disciplinary hearing required after a public officer has been convicted of a crime in order to dismiss the individual from his or her position?
Roberson v Ward, App. Div., First Dept., 278 A.D.2d 180; motion for leave to appeal denied, 96 N.Y.2d 717

When must a public officer,* arrested and convicted of a crime, be given a disciplinary hearing in contrast to being summarily terminated? As the Roberson decision demonstrates, it depends on the nature of the offense.

In Bratton v Foley, 92 NY2d 981, the Court of Appeals held that a police officer is removed from his or her position by operation of law if he or she is convicted of a particular crime falling in the "oath of office" or “the conviction of a felony “ category pursuant to Public Officers Law Section 30.1(e).**

In contrast, said the high court, for other convictions -- i.e., those not constituting a violation of the police officer's oath of office, or in cases where Section 30.1(e) is not cited as authority for the termination, "a public hearing is required...." If the police officer is not given such a hearing, he or she may demand one.

The lesson in the Roberson decision is that in the latter type of situation, the police officer must make a timely demand for the hearing.

In 1989 Cedric T. Roberson, was “automatically terminated” from his position as a New York City police officer upon his misdemeanor conviction of menacing in the third degree. Apparently the department relied on an administrative rule as authority for his "automatic termination" rather than Section 30.1(e) of the Public Officers Law.

Some ten years later he asked the court to annul his dismissal, claiming that he was entitled to a "hearing" before he could be terminated from his position.In response to Roberson's claim that he was entitled to a pretermination hearing as announced in Bratton, the court said that "the proceeding is barred by laches...."***

According to the ruling, "[i]t is no excuse for any subsequent delay in challenging his termination that he believed, as a result of advice from his attorney, who opined that any proceeding he might bring to challenge his termination would be futile unless his menacing conviction was overturned on appeal, which did not occur."

What is a "reasonable delay?" It appears that to be "reasonable," it must be a delay of less than two years. According to the decision, Robinson also attempted to obtain a copy of the "order of termination" pursuant to the Freedom of Information Law subsequent to his termination from the police force. However, said the court, this two-year delay "was also unreasonable."


* Although not all public employees are public officers, all public officers are public employees. A police officer is a public officer.

** However, the public officer is entitled to a so-called Bratton Hearing under certain circumstances. A Bratton Hearing flows from Public Officers Law §30.1(e), which provides that a public officer removed from office following his or her conviction of a felony, or a crime involving a violation of his or her oath of office, other than an elected officer, “may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.”

*** A party is guilty of laches if he or she unreasonably delays taking action to enforce his or her legal right[s].

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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