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February 8, 2019

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime

Statute of limitations for initiating administrative disciplinary action extended where the act or omission charged may constitute a crime
Folborg v Bratton, 227 A.D.2d 108

§75.4 of the Civil Service Law provides that disciplinary proceeding must be initiated "within 18 months of the alleged incompetency or misconduct ... provided, however, that such limitations shall not apply  where the  incompetency  or  misconduct  complained  of  and  described in the charges would,  if  proved  in  a  court  of  appropriate  jurisdiction, constitute a crime."

This exception became after a New York City police officer [Police Officer] was dismissed from his position after being found guilty of misconduct based on events that occurred more than 18 months before §75 disciplinary charges had been filed against him.

Essentially, Police Officer was alleged to have engaged in a scheme to defraud by "falsely representing that he would provide ... diamonds from Africa for manufacture and resale in this country...."

The Appellate Division said that because the allegations would, if proved in court, constitute the crime of larceny by false promise, the disciplinary actions was not time-barred under §75.4.

Making another point, the Court said that the fact that the District Attorney decided not to prosecute the police officer "was not tantamount to an assessment that [Police Officer] had not committed a crime." Accordingly, taking administrative disciplinary action against  Police Officer was not improper.

Assume an employee has been tried and acquitted of criminal charges. Courts have allowed the prosecution of administrative disciplinary action against an employee notwithstanding his or her acquittal of criminal charges involving the same acts or omissions.

Why would a court allow the disciplinary hearing to proceed in such a situation? Because the burden of proof is substantially different. An individual may be acquitted in the criminal action because his or her guilt was not proven beyond a reasonable doubt, but he or she may be found guilty under the less stringent substantial evidence standard usually applied in administrative disciplinary proceedings.

Where, however, an individual has been found guilty of criminal charges by a court, the courts have ruled that such a determination precludes a hearing body finding the individual "not guilty" in an administrative disciplinary action involving the same allegations.

In Kelly v Levin, 81 AD2d 1005, the court ruled that acquitting an employee in an administrative disciplinary action based on the same charges underlying the individual's  criminal conviction was a reversible error because the standard of proof in the criminal action was greater. The court said that an Education Law  §3020-a disciplinary hearing panel could not find an individual not guilty of a crime after he or she had been convicted of criminal charges involving the same allegations.

The Police Officer decision is posted on the Internet at:

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