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September 14, 2017

Making false entries in an official record


Removal from public office by operation of law
Munroe v Ponte, 2017 NY Slip Op 02041, Appellate Division, Second Department

§30(1)(e)  of the Public Officers Law mandates the automatic removal of the incumbent from his or her public office "by operation of law" in the event he or she is found guilty of a felony or the violation of his or her oath of office. In effect, the public office is deemed vacant automatically upon the public officer's conviction of a felony or a crime involving a violation of his or her oath of office.*

The Commissioner of the New York City Department of Correction [Commissioner] summarily terminated a correction officer [Officer] pursuant to Public Officers Law §30(1)(e) following his conviction of a misdemeanor -- falsifying business records in the second degree. Officer filed an Article 78 action challenging the Commissioner's action. Supreme Court granted the Commissioner's motion to dismiss Officer's petition and Officer appealed.

Officer had been served with disciplinary charges pursuant to Civil Service Law §75 alleging various acts of misconduct included making "false entries in the . . . enhanced security post logbook." Subsequently indicted on a number of criminal charges, including falsifying business records in the second degree and attempted assault in the third degree, he was subsequently convicted of falsifying business records in the second degree in violation of Penal Law §175.05[1].

Advised that he had been terminated pursuant to Public Officers Law §30(1)(e), Officer commenced a CPLR Article 78 proceeding alleging, among other things, that the termination of his employment was arbitrary and capricious.

Pursuant to Public Officers Law § 30(1)(e), an office is deemed vacant upon an officer's "conviction of a felony, or a crime involving a violation of his [or her] oath of office."

The Appellate Division dismissed Officer's appeal, ruling that under the circumstances of this case, the Officer's petition "failed to set forth allegations sufficient to make out a claim that his termination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

Addressing a procedural matter concerning the Commissioner's contention that Officer's Article 78 petition was untimely,  the Appellate Division noted that the four-month statute of limitations did not begin to run when Officer was personally served with a copy of the letter advising him that he had been terminated from his position in accordance with the mandate of §30(1)(e) of the Public Officers Law.

Rather, said the court, as the Commissioner was on notice that Officer had retained counsel to represent him in connection with the disciplinary charges, "once counsel has appeared" the Statute of Limitations or time requirement "cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed."

*  Police officers and correction officers are "public officers” for the purposes of §30 of the Public Officers Law. Further, in Graham v Coughlin, 72 NY2d 1014, the Court of Appeals upheld the removal of a state correction officer following his conviction of a felony under federal law. The Appellate Division had ruled that Section 30.1(e) applied in cases of the officer’s conviction of a felony under any jurisdiction. Although all public officers are public employees, not all public employees are public officers.

The decision is posted on the Internet at:

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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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