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January 24, 2011

Appointment and removal of Special Police Officers

Appointment and removal of Special Police Officers
O'Donnell v. Ferguson, App. Div., Fourth Dept., 273 AD2d 905; Motion for leave to appeal denied, 96 NY2d 701*

The O’Donnell case sets out some of the relevant law concerning the appointment and removal of special police officers by a town.

Since 1990, the Town of Evans had annually appointed John O’Donnell as a part-time police officer. When on duty for the Town, O’Donnell had the same powers and responsibilities as the full-time members of the Town’s Police Department. He also carried the same firearm, wore the same uniform as the full-time officers and was required to complete the same specialized training as the full -time officers.

Evans Chief of Police Robert R. Catalino posted a note on a bulletin board stating that effective November 17, 1998, O’Donnell would no longer work for the Town.** O’Donnell had no prior notice of this, nor was he informed of the reason why he would no longer work for the Town.

O’Donnell sued. A State Supreme Court issued an order directing the Town to reinstate O’Donnell as a part-time police officer and directed that he remain in that position unless suspended or dismissed pursuant to Section 155 of the Town Law.**** The court also ordered a hearing on damages.

The Town appealed, contending that because O’Donnell was a special police officer appointed pursuant to Section 158.1 of the Town Law, he served at the pleasure of the Town Board and therefore was not entitled to the protections of Section 155. The Appellate Division agreed and vacated the lower court’s order.

The Appellate Division said the Supreme Court erred in determining that the Town Board lacked authority to dismiss [O’Donnell] without first complying with Town Law Section 155. The court pointed out that contrary to O’Donnell’s claim that he was employed on a regular basis as a part-time police officer rather than as a special police officer, O’Donnell was not scheduled to work on a regular part-time basis but was called only from time to time to work on a temporary basis.

This decision suggests that the critical element in determining if an individual is a part-time police officer or a special police officer is whether or not the individual has a regular work schedule.

* In O'Donnell v. Ferguson, 23 A.D.3d 1005, a later decision involving the same parties but a different issue, the Appellate Division, 4th Department, commented that the “Defendants are incorrect to the extent that they contend that, as an "at-will" employee, plaintiff could be terminated for a constitutionally impermissible or statutorily proscribed purpose.”

** O’Donnell was a full-time employee of the New York State Department of Corrections and had worked a total of 27.5 days for the Town from January 1998 through October 1998.

*** Section 155 provides that a town police officer is entitled to a disciplinary hearing and if found guilty of charges of neglect or dereliction in the performance of official duty, or of violation of rules or regulations or disobedience, or of incompetency to perform official duty, or of an act of delinquency seriously affecting his general character or fitness for office, he or she may be punished by reprimand, loss of pay for up to 20 days, extra tours of duty not to exceed 20 days, suspension without pay for up to 20 days or dismissal.

**** Section 155 provides that a town board may employ temporary police officers from time to time ... and such officers shall serve at the pleasure of the Town Board. Such personnel are shall be known as `special policemen’ and shall have all the power and authority conferred upon constables by the general laws of the state....'

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