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Monday, July 01, 2013

Removal from public office by operation of law


Removal from public office by operation of law
2013 NY Slip Op 04884, Appellate Division, First Department

A New York City police officer was summarily dismissed from his position upon his entering a plea of “guilty” of “offering a false instrument for filing.”*

The officer’s CPLR Article 78 petition challenging his termination was dismissed by Supreme Court, New York County and he appealed.

Sustaining the lower court’s ruling, the Appellate Division noted that his offering a false instrument for filing constituted a violation of the oath of office, since the offense involves willful deceit.

Accordingly, said the court, his office was vacated automatically upon conviction,** pursuant to Public Officers Law §30(1)(e). §30(1) of the Public Officers Law provides that a public office shall become vacant by operation of law under certain circumstances, including the officer’s conviction of a felony, or a crime involving a violation of his or her oath of office. A police officer is a public officer and thus subject to the provisions of §30(1)(e).

In any event, a pre-termination hearing that might be otherwise required as a condition precedent to removing a public officer having tenure in the position or prior to the expiration of his or her term of office is not required in the event his or her termination is within the ambit of §30(1).

Significantly, §30(1)(e) provides that that 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. As the police officer had entered a plea of guilty, it appears unlikely that his conviction would be “reversed” or “vacated,” thus triggering any opportunity to seek a hearing seeking reinstatement to his former position.

* See Penal Law §175.30.

** A plea of guilty is deemed a conviction.

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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