New York Public Personnel Law: Section 75 statute of limitations for initiating administrative disciplinary action does not apply when the charges would otherwise constitute a crime

September 23, 2011

Section 75 statute of limitations for initiating administrative disciplinary action does not apply when the charges would otherwise constitute a crime

Section 75 statute of limitations for initiating administrative disciplinary action does not apply when the charges would otherwise constitute a crime
El Bey v New York City Dept. of Corrections, 294 A.D.2d 164

In the El Bey case, the exception to the statute of limitations for filing disciplinary action pursuant to Section 75 of the Civil Service Law where the charge would otherwise constitute a crime was applied by the Appellate Division in sustaining disciplinary action taken against Yashua Amen Shekhem El Bey.

El Bey was served with disciplinary charges pursuant to Section 75 of the Civil Service Law alleging, among other misconduct, that he falsely claimed exemption from Federal income taxation. El Bey's defense to this particular charge: it was barred by the 18-month Statute of Limitations in Civil Service Law Section 75(4) as it was filed more than 18 months after the alleged act.

The Appellate Division rejected El Bey's claim that the charge was untimely, ruling that the alleged misconduct constituted a crime under 26 USC 7205 (fraudulent withholding exemption certificate or failure to supply information) and under New York State's Penal Law Section 175.30 (offering a false instrument for filing in the second degree). Accordingly, said the court, the filing of such a charge is expressly excluded from time limitations for filing administrative disciplinary charges set out in Section 75(4) as the allegation "described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Appellate Division then sustained El Bey's being found guilty of charges of submitting false information on a Certificate of Exemption and Withholding in Lieu of IRS Form W-4; and violating Department rules concerning excessive absences and by his (1) leaving his residence without authorization while on sick leave; (2) failing to log in and out with the Health Management Division; (3) failing to comply with an instruction to present his firearms to the Health Maintenance Division; and (4) attending an administrative hearing in another matter without authorization while on sick leave.

El Bey also challenged the penalty imposed -- termination -- as a result of his being found guilty of these charges. The court said that it found no basis to disturb the imposition of such a penalty as "[t]he penalty of dismissal does not shock our sense of fairness," citing the Pell Doctrine [Pell v Board of Education, 34 NY2d 222].

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NYPPL Blogger 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.