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May 07, 2019

Termination by operation of law


The appointing authority summarily terminated two tenured correction officers under color of  Public Officers Law §30(1)(e). Contending that they were denied the required "disciplinary notice and hearing" as a condition precedent to their dismissal, they initiated an action pursuant to CPLR Article 78 seeking a court order directing their reinstatement to their former positions. The Supreme Court denied their petitions, which ruling was unanimously affirmed by the Appellate Division.

Public Officers Law §30.1 addresses the "Creation  of vacancies" and Subdivision e, in pertinent part provides that an individual's public office shall be vacant upon the "(e)His* conviction of a felony, or a crime involving a violation of his oath of office,...."

The Appellate Division explained that both correction officers** were properly terminated from their positions pursuant to Public Officers Law §30(1)(e), as they were each was charged and convicted of official misconduct in violation of Penal Law §195.00 and a conviction of official misconduct involves misconduct in the line of duty and necessarily involves a violation of the individual's oath of office.

As both correction officers were terminated from their respective positions pursuant to Public Officers Law §30(1)(e), they were not entitled to a pre-termination hearing pursuant to Civil Service Law §75(1)(a) or a disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law].

* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”

** Law enforcement personnel including correction officers are public officers subject to the provisions of Public Officers Law §30(1)(e) [see Graham v Coughlin, 72 NY2d 1014].

The decision is posted on the Internet at:


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