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May 21, 2012


NYC police officer forfeited his pension benefits following his removal from his position pursuant to Public Officers Law §30.1(e)

A police officer was one of five committee members responsible for receiving applications and making recommendations to the New York City Police Department [NYCPD] Contract Administration Unit regarding contract bids submitted by entities seeking to care for retired NYPD horses.

Among the specification was one that required that the facility consist of at least 30 acres. A friend of the police officer was one of the entities that submitted a bid. However, although the bid filed by the police officer’s friend claimed that the facility had 35 acres of land, it, in fact, it had only 19 acres. The police officer recommended that his friend’s facility be awarded a contract and ultimately the Contract Administration Unit awarded a contract in the amount of about $2.5 million to the police officer’s friend.

Both the police officer and the bidder were arrested and both pled guilty to one count of Offering a False Instrument for Filing in the Second Degree, a Class A misdemeanor. (Penal Law §175.30). As a result, the police officer was terminated from his position by operation of law pursuant to Public Officers Law §30.1(e), Justice Stallman held that the police officer was (1) not entitled to a pre-termination hearing nor (2) was he was eligible to retire and collect his pension.

In the words of Justice Stallman: [The police officer’] conviction by guilty plea automatically caused his office to become vacant because his crime constituted a violation of his oath of office. [The Police Commissioner’s] recognition of {the officer’s] automatic termination was neither arbitrary nor capricious, nor in violation of law

Addressing another aspect of the police officer’s loss of his pension benefits, Justice Stallman noted that “formal departmental disciplinary charges” had been filed against the police officer and that the officer and the Department had agreed to a "Negotiated Settlement" which stated, in pertinent part:

"I understand that if this Negotiated Settlement is approved by the Police Commissioner, the penalty against me will be as follows:

I shall forfeit all time, pay, and benefits for the period while under suspension … and agrees to immediately file for SERVICE RETIREMENT. Respondent will not file for SERVICE RETIREMENT unless and until this Negotiated Settlement is approved by the Police Commissioner ….”

The Negotiated Settlement also contained the following statement: "NOTE: THIS AGREEMENT IS SUBJECT TO APPROVAL OF THE POLICE COMMISSIONER.”

Although the NYPD Department Advocate recommended approval of the negotiated plea agreement, which was endorsed by the Department’s First Deputy Commissioner, the Police Commissioner disapproved the negotiated plea.

The decision is posted on the Internet at:


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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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