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June 25, 2013

Removal of a public officer from his or her position by operation of law

Removal of a public officer from his or her position by operation of law
Greene v McGuire, 683 F.2d 32

§30 of the Public Officers Law provides for the automatic removal of an individual from his or her public office under certain conditions.

A federal district court held that a police officer who was removed from his position following his being convicted of a felony in accordance with Public Officer Law §30.1(e) was entitled to an administrative hearing on the question of reinstatement following the reversal of the conviction

The 2nd Circuit Court of Appeals reversed, indicating that as the state law automatically results in dismissal upon conviction, refusal to provide an administrative hearing following the reversal of the former police officer’s conviction did not deprive the former employee of a property right or liberty interest protected by the 14th Amendment.

However, it should be noted that §30.1(e) provides in the event a public officer* is convicted of a “felony, or a crime involving a violation of his [or her] oath of office …. a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy.”

The statute further provides that “After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.

“The record of the hearing shall include the final judgment of the court which reversed or vacated such conviction and may also include the entire employment history of the applicant and any other submissions which may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction.

“Notwithstanding any law to the contrary, after review of such record, the appointing authority may, in its discretion, reappoint such non-elected official to his former office, or a similar office if his former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof;”

A similar principle** was applied in a case where although a principal was initially recommended for tenure, the new superintendent recommended his termination on the grounds that a change in leadership was required.

While there was still 120 days left to the principal’s probationary period, his contract of employment expired and he was terminated by the School Board.

It was held that the principal was not entitled to a termination hearing pursuant to §3020-a of the Education Law, nor did the earlier recommendation for tenure have any effect on the contract provision (See §1709, Education Law).

* A police officer is a public officer. Although all public officers are public employees, not all public employees are public officers.

** See Knight v. Wyandanch Union Free School District, affd. 56 NY2 628

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