Friday, March 25, 2011
Terminating of a tenured public officer without an administrative hearing
Pirozzi v Safir, App. Div., First Department, 270 AD2d 2, motion for leave to appeal denied, 95 NY2d 756
New York City police officer John Pirozzi was terminated from his position without a hearing after he was convicted of a crime he committed in the line of duty and that the appointing authority deemed constituted a violation of Pirozzi’s oath of office.
Claiming that he was entitled to administrative due process before he could be removed from his position, Pirozzi sued. The department, citing Section 30(1)(e) of the Public Officers Law, argued that Pirozzi was removed by operation of law upon his conviction and thus he was not entitled to a pre-termination hearing.*
The Appellate Division agreed and dismissed Pirozzi’s petition. The court said that Pirozzi was properly terminated from the Police Department without a hearing in light of his conviction of aggravated harassment in the second degree. The court cited Duffy v Ward, 81 NY2d 127, as authority for its ruling.
However, in the event a public officer is terminated pursuant to Section 30(1)(e) as a result of his or her conviction of a felony, or a crime involving the violation of his or her oath of office, and the conviction is later reversed or vacated, the individual may request reinstatement to his or her former position, except in cases where the former position was “an elective office.” In the event the appointing authority denies the individual’s request for reinstatement his or her former position, he or she is entitled to a hearing with respect to that decision if the initial conviction was the only basis for the termination.
* Section 30(1)(e) of the Public Officers Law applies only in cases where the individual is a public officer. A police officer is a public officer. Although every public officer is a public employee, not every public employee is a public officer.
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