Tuesday, November 24, 2015

If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply



If §75 charges of misconduct "would, if proved in a court of law constitute a crime,” the 18-month statute of limitations for bringing such charges does not apply
Hanlon v New York State Police, 2015 NY Slip Op 08315, Appellate Division, Fourth Department

Christian Hanlon was served with disciplinary charges pursuant to Civil Service Law §75. Found guilty following an administrative disciplinary hearing held pursuant to Civil Service Law §75, the appointing authority imposed the penalty of dismissal of Hanlon’s  employment as a State Trooper.

Hanlon then commenced a CPLR Article 78 proceeding seeking a court order annulling  the determination finding him guilty of the disciplinary charges and terminating his employment, contending that “certain charges were time-barred pursuant to Civil Service Law §75(4).”

The Appellate Division disagreed, explaining that while a §75 disciplinary action must be commenced within 18 months of the occurrence of the "alleged incompetency or misconduct complained of," if the misconduct charged "would, if proved in a court of appropriate jurisdiction, constitute a crime," the 18-month limitation does not apply.*

Here, said the court, the charges alleged conduct that would, if proved in a court of law, constitute the crime of official misconduct and thus they are not time-barred.**

The court also found that appointing authority’s determination was supported by substantial evidence and the penalty imposed by the appointing authority, dismissal, was not shocking to one's sense of fairness.

* In the case of a state employee who is designated managerial or confidential pursuant to Article 14 of Civil Service Law charges of incompetency or misconduct must be brought within one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, unless the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.

** §195.00 of the Penal Law provides that "a public servant is guilty of official misconduct when, with intent to obtain a benefit or 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 which is imposed upon him [or her] by law or is clearly inherent in the nature of [his or her] office. Official misconduct is a class A misdemeanor."

The decision is posted on the Internet at:

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
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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/

Challenging Adverse Personnel Decisions 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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