May 18, 2012

Termination without notice or hearing by operation of law

Termination without notice or hearing by operation of law

Supreme Court, New York County, dismissed an Article 78 petition seeking to annul the termination of New York City Department of Corrections correction officer without notice or hearing or, in the alternative, an order compelling the Corrections Department to conduct an evidentiary hearing. The Appellate Division unanimously affirmed the lower court’s ruling.

According to the decision, the correction officer had pleaded guilty in Pennsylvania to stalking, a first degree misdemeanor under Pennsylvania law. The Department of Corrections had terminated him pursuant to Public Officers Law §30(1)(e), deeming that the correction officer had been terminated “by operation of law” by reason of his conviction of the misdemeanor in Pennsylvania.

Public Officers Law §30(1)(e) provides that a public office automatically becomes vacant upon the officeholder's conviction of a felony, or a crime involving a violation of his or her oath of office.

The Appellate Division held that the correction officer’s Pennsylvania conviction involved a violation of his oath of office and thus his office automatically became vacant by operation of law pursuant to §30(1)(e), resulting in his lawful termination from his postion without notice and hearing.

The decision is posted on the Internet at: