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Wednesday, April 10, 2013

Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime


Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime

Petitioner, an employee of the Albany County Sheriff's Office, was served with a notice of intent to discipline and a notice of charges pursuant to Civil Service Law §75. Ultimately he was found guilty of the charges and terminated from his position.

The alleged misconduct: Violation of the Sheriff's Office General Order 29-SD-93 in that Petitioner [1] used “a concealed recording device to make an audio recording of a meeting held by a former Undersheriff which other employees attended and [2] Petitioner transfer and disclosure of the recording to others.

Addressing Petitioner’s CPLR Article 78 petition seeking dismissal of the charges as untimely, Supreme Court found that Charge 2 was, indeed, untimely, having be served more than 18 months after the alleged event occurred.

The court, however, founds that Charge I alleged conduct which, if proven in a criminal proceeding, constituted a crime – Official Misconduct* – which rendered the 18-month statute of limitations set out in Civil Service Law §75(4) inapplicable.

Petitioner appealed from that part of the Supreme Court’s order that held that Charge 1 was timely. The Appellate Division agreed with Petitioner's contention that Charge 1 was barred by the statute of limitations set forth in Civil Service Law §75 (4) as the disciplinary action was initiated more than 18 months after the date on which Petitioner was alleged to have used a concealed recording device at the meeting with the Undersheriff.

The court, noting that Charge 1 alleged that Petitioner had violated Subsection KK of the Sheriff's order relating to recording devices, said that Subsection KK provides that "[n]o employee shall install or activate any microphone or any technical or mechanical device or system capable of recording or overhearing conversations or telephone messages without authorization from the Sheriff or Undersheriff."

Charge 1, in pertinent part, alleged that Petitioner  “intentionally concealed a recording device on [his] person and recorded the contents of this meeting without authorization."  The Appellate Division said that it did not find that such misconduct “would, if proved, constitute the crime of official misconduct” within the meaning of Penal Law §195.00([1), or any other crime. The court explained that in making its threshold determination concerning the timeliness of Charge 1 based on the exception for criminal misconduct set out in §75.4 of the Civil Service Law, only the allegations of misconduct "complained of and described in the charges" may be considered.

The Appellate Division observed that, as relevant here, a public servant is guilty of official misconduct when, with intent to obtain a benefit, the employee "commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions" and such act must be done "knowing that such act is unauthorized."

In this instance the misconduct "complained of and described in the charges" did not, in the court’s view, allege that Petitioner acted with the intent to gain a benefit, an essential element required for an official misconduct conviction. As the conduct described in Charge 1 would not, if proven in court, constitute a crime, the Appellate Division concluded that the 18-month statute of limitations governs and Charge 1 should have been dismissed as untimely.

* Penal Law §195.00 [1]

The decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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