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November 19, 2010
Automatic termination from public office by operation of law
Schirmer v Town of Harrison, USDC, SDNY, 1999 WL 61843
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]
Police officers are public officers and as such a subject to the provisions of Section 30.1 of the Public Officers Law. Section 30.1(d) provides that if a public officer ceases to be an inhabitant of the state, or if he or she is a local officer, of the political subdivision of which he or she is required to be a resident, his or her office “shall be vacant.”
Section 30.1(e) provides for the same result if the officer is convicted of a felony or a crime involving a violation of his or her oath of office. The Schirmer, Foley and Griffin decisions consider the impact of these provisions in cases where the individual may otherwise claim the protection of Section 75 of the Civil Service Law or a disciplinary grievance procedure set out in a collective bargaining agreement.
The Schirmer case
Peter Schirmer was a police officer with the Town of Harrison. He was injured in the line of duty and in March 1994 applied for, and was granted, disability benefits.* In December 1994, Schirmer and his family moved to Connecticut. Harrison terminated him pursuant to Section 30.1(d) on the grounds that he had moved his domicile to Connecticut and therefore was no longer eligible for employment. Schirmer sued, contending that his termination without a hearing violated the Due Process clause of the Constitution and entitled him to relief under 42 USC 1983 and 42 USC 1988.
Federal District Court Judge Allen Schwartz ruled that the provisions of Section 30.1(d) controlled and that under the circumstances Schirmer was not entitled to the Section 75 pre-termination hearing he claimed was due him. The court said “public officials such as [Schirmer] should not expect that the protections of Section 75(1) will apply to all types of dismissals, especially those based on a change in residency.” A public officer should understand that he or she “is vulnerable to summary dismissal” if it appears that he or she fails to meet the conditions of employment set out in Section 30 of the Public Officers Law.
According to the ruling, Section 30.1(d) explicitly informs public officers that their position will be automatically vacated upon an apparent change in domicile and that “post-termination relief is all that such employees may expect.”
This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
The Foley and Bratton cases
Michael Foley, a New York City police officer, was convicted of a misdemeanor and a violation following an off-duty incident. Dennis Griffin, another New York City police officer was convicted of two misdemeanors. Both were dismissed without a hearing and their appeals were denied by the Supreme Court and the Appellate Division.
Three different statutes or ordinances were cited by the Court of Appeals in its analysis of the appeals filed by Foley and Griffin from the lower court rulings.
In addition to Section 30.1(e) of the Public Officer Law, the Court referred to:
1. Section 14-115(a) of the Administrative Code of the City of New York [The commissioner shall have power ... on conviction ... by any court ... of a member of the force of any criminal offense ... to punish ... by dismissal from the force], and Section 14-115(b) which provides for a pre-termination hearing.
2. Section 891 of the Unconsolidated Laws [A policeman serving in the competitive class ... in any city ... shall not be removed ... except for incompetency or misconduct shown after a hearing upon due notice upon stated charges].
Noting that the three provisions “are locked in a statutory clash,” the Court of Appeals said that “to the extent that the automatic removal provision of Public Officers Law contrast with the pre-dismissal administrative hearing requirements of Administrative Code 14-115 and Unconsolidated Laws 841, we have little difficulty in harmonizing the provisions by concluding that the Legislature flatly determined that a felony or “oath of office” conviction is serious enough, without more, to justify automatic removal.”
However, the court disagreed with the Police Commissioner’s claim that the Administrative Code permits summary termination for any misdemeanor conviction. “It is one thing for the Legislature to decree that certain convictions carry summary removal ... but it is quite different for a court to find, or to write in, a summary dismissal power under Administrative Code provisions that do not contain it.”
The Court of Appeals has held that a misdemeanor conviction for conduct outside the line of duty qualifies as an “oath of office” crime only if the violation is apparent from the Penal Law’s definition of the crime [Duffy v Ward, 81 NY2d 127].
Commenting that the Commissioner dismissed the officers “under Administrative Law 14-115 exclusively” and did not rely on Section 30.1(e) as a basis for the termination, the court reversed the lower courts’ rulings, indicating that if the Commissioner claims that a particular crime falls under the “oath of office” category, “he may proceed under Public Officers Law Section 30.1(e) and the issue will be determined in accordance with Duffy v Ward.” For other convictions a public hearing is required.... This hearing requirement does not compel a retrial of the criminal case. “The conviction may be presented as prima facie proof ... [and] the officer would then have an opportunity to present proof in mitigation....”
* This decision suggests that Schirmer applied for and was receiving disability retirement benefits for the State Employees’ Retirement System at the time of his termination. In any event, his being terminated would result in the discontinuation of any Section 207-c benefits, including any entitlement to medical treatment and hospital care in connection with his work-related injury, [Section 207-c.5, General Municipal Law].
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