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Wednesday, September 11, 2013

Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75


Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75
OATH Index No 1889/13

§75 of the Civil Service Law provides that disciplinary charges must be served on the accused individual no later than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential within the meaning of Article 14 [The Taylor Law] of the Civil Service Law, more than one year after the occurrence of the alleged incompetency or misconduct. However, such limitations do not apply where the alleged acts of incompetency or misconduct would, if proved in a court of appropriate jurisdiction, constitute a crime.*

An employee charged with a number of alleged acts or omissions claimed to constitute misconduct pursuant to Civil Service Law §75 asked Administrative Law Judge Tynia D. Richards to “dismiss these ‘5-year-old charges’ as untimely”

The appointing authority thereupon amended the charges to include an allegation of the crime of “official misconduct” and contended that the alleged underlying charges were entitled to the “crimes” exception to the limitations period. 

Penal Law §195.00 defines the crime of official misconduct as follows: A public servant is guilty of official misconduct when, with intent to obtain a benefit or to deprive another person of a benefit:

1. He or she commits an act relating to [his or her] office but constituting an unauthorized exercise of [his or her] official functions, knowing that such act is unauthorized; or

2. He or she knowingly refrains from performing a duty that is imposed upon [him or her] by law or is clearly inherent in the nature of [his or her] office.

Citing People v. Esposito, 160 A.D.2d 378, Judge Richard said that to prove official misconduct, it must be demonstrated that the public servant so charged has acted with the intent to obtain a benefit for himself or another.”

The ALJ granted the employee’s motion to dismiss the disciplinary charges in their entirety, ruling that the charges alleged were inadequate to establish all elements of the crime, in particular, the employee’s intent to gain a benefit.

* N. B. An alternative “disciplinary procedure” negotiated in accordance with §76 of the Civil Service Law may set a different statute of limitations for initiating disciplinary action against an employee.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/13_Cases/13-1889.pdf
.

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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